FEDERAL CIRCUIT COURT OF AUSTRALIA
| LABREC & BARDOW | [2020] FCCA 1994 |
| Catchwords: FAMILY LAW – Property – where Wife asserts Husband holds a legal and beneficial interest in real property as to 50 per cent – where Husband asserts he holds 50 per cent legal interest and 16 per cent beneficial interest in real property – where Wife asserts that presumption of advancement applies and has not been rebutted – where Husband asserts he aided his parents in purchasing real property and that presumption of advancement has been rebutted by his parent’s intention – where Court finds presumption of advance has been rebutted. |
| Legislation: Annual Holidays Act 1994 (NSW), s. 3 Family Law Act 1975 (Cth), ss.75, 79, 106A, 90SF, 90SL, 90SM, 117 Federal Circuit Court Rules 2001 (Cth), r. 21.02 First Home Owner Grant Act 2000 (Cth) |
| Cases cited: Grey v Grey [1677] EngR 86 JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (Lexis Nexis Butterworths, 8th ed, 2016) |
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- AGLC
- LABREC & BARDOW [2020] FCCA 1994
- Case
- [2020] FCCA 1994
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the Husband's annual leave entitlements constituted an asset or financial resource to be included in the de facto marital asset pool, and whether the presumption of advancement applied to the B Street, Suburb C property, and if so, whether it had been rebutted. The Court was required to determine the just and equitable distribution of the parties' property interests pursuant to section 90SF of the Family Law Act 1975 (Cth).
The Court found that the Husband's annual leave entitlements did not form part of the de facto marital asset pool. Regarding the B Street, Suburb C property, the Court determined that the presumption of advancement had been rebutted, finding that the Husband's involvement in the purchase was to aid his parents, and their intention was to retain the beneficial interest. The Court concluded that it was just and equitable to make orders under section 90SM of the Act, finding the parties' contributions to be equal but making a 10 per cent adjustment in favour of the Wife based on factors under section 90SF(3). The orders provided for the transfer of the B Street, Suburb C property to the Applicant, with detailed provisions for its sale if not transferred outright, and included a significant superannuation splitting order in favour of the Applicant.
Orders
Orders of the court
1.
THAT the court make an order under Section 90SM of the Family Law Act 1975 (Cth) as follows:
(a) That within three calendar months from the date of this Order the Respondent do all such acts and things and sign all documents necessary to transfer to the Applicant the whole of his right title and interest in the property situate at B Street, Suburb C in the State of New South Wales (‘the B Street, Suburb C property’) being the whole of the land in certificate of title folio identifier ... and simultaneously with such transfer the Applicant shall be solely responsible as between the Applicant and the Respondent for all outgoings payable in relation to the B Street, Suburb C property and the Applicant shall indemnify and keep indemnified the Respondent in relation to all and any such payments, and further simultaneously with such transfer the Applicant shall do all things necessary to discharge the mortgage currently registered over the B Street, Suburb C property by Westpac Banking Corporation Limited (‘the mortgage’) so as to release the Respondent from all and any liability in relation to the mortgage.
(b) That in the event that the Applicant does comply with order 1(a) in relation to the mortgage within three months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list for sale the B Street, Suburb C property at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the B Street, Suburb C property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:
(i) In adjustment of rates on settlement;
(ii) In payment of agent’s commission (if any) on sale;
(iii) In payment of legal and all other proper costs of sale;
(iv) In payment to the Westpac Banking Corporation Limited of a sum sufficient to discharge the mortgage;
(v) In payment of the balance to the Applicant.
(c) That in the event that order 1(b) operates and the B Street, Suburb C property does not sell by private sale within six months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list the B Street, Suburb C property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the Applicant shall be solely responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale shall be applied as provided in order 1(b) hereof.
(d) That in the event that order 1(c) operates and the B Street, Suburb C property does not sell by public auction in accordance with order 1(c) hereof then the B Street, Suburb C property shall be resubmitted for sale by private treaty in accordance with the provisions of order 1(b) hereof and the B Street, Suburb C property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the B Street, Suburb C property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in order 1(b) hereof.
(e) That in the event that the parties are unable to reach agreement in relation to an auction agent, a real estate agent, a listing price, a reserve price or a sale price whether for a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of New South Wales or his nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee in making such determination.
(f) That in accordance with section 90XT(1)(a) of the Family Law Act 1975 (Cth) (‘the Act’), whenever a splittable payment becomes payable in respect of the superannuation interest of the Respondent, Mr Bardow, in Super Fund D Account number ...49 (‘the Fund’), the Applicant will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $171,846.00 and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
(g) That the Trustee of the Fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Act and Family Law (Superannuation) Regulations 2001 (Cth).
(h) That Orders 1(f) and (g) bind the Trustee of the Fund and take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee.
(i) That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the Applicant and Respondent shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising a request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth), for the rollover or transfer of the transferable benefits out of the Respondent's interest in the Super Fund D to a fund of the Applicant’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
(j) That the Respondent is the sole owner in law and in equity as between himself and the Applicant of all items of real property, personal property and financial assets currently in his power, possession or control other than as specifically dealt with elsewhere in this order, and including, but not limited to, the debt owing to the parties from Ms E in the sum of $75,000.00.
(k) That the Applicant is the sole owner in law and in equity as between herself and the Respondent of all items of real property, personal property and financial assets currently in her power, possession or control other than as specifically dealt with elsewhere in this order.
2.
That in the event that either party refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document the court appoints and authorises the Registrars of the Federal Circuit Court of Australia, Sydney Registry, to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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