Lacey and Lacey (No.3) - [2018] FCCA 1551

FEDERAL CIRCUIT COURT OF AUSTRALIA

LACEY & LACEY (No.3)

[2018] FCCA 1551

Catchwords:
FAMILY LAW – Property – 37 year marriage with five children – pool of $10m – where throughout their relationship the parties devoted their efforts to improving and conserving property owned by a company set up by the husband’s parents – where the husband was gifted 25% of the shares in the company prior to the parties marriage and ultimately received his parents’ shares by way of inheritance – where the husband proposed that his contributions by way of gift and inheritance be elevated in importance to the point where the wife would receive only 17.5% of the pool – where this is not just and equitable – where the wife sought 43% of the pool but where this involved a 3% adjustment largely for costs which is not permissible – where a 40/60 assessment of contributions is just and equitable – where there are no s.75(2) matters requiring any further adjustment.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Cases cited:

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Black & Kellner (1992) FLC 92-287
C & C [1998] FamCA143
Jones v Dunkel (1959) 101 CLR 298
Kowaliw & Kowaliw (1981) FLC 91-902
Lacey & Lacey [2016] FCCA 38
M & M [1998] FamCA 42

Norbis & Norbis (1986) FLC 91-712
Omacini & Omacini (2005) FLC 93-218
Pates & Pates [2018] FamCAFC 171
Sapir & Sapir (No. 2) (1989) FLC 92-047
Stanford & Stanford (2012) FLC 93-518
Townsend & Townsend (1995)FLC 92-569
Trevi & Trevi [2018]FamCAFC173
Turnbull & Turnbull (1990) 15 FamLR 81
Vasek & Vasek (2012)FamCAFC 206

Vass & Vass (2015) 53 FamLR 373
Weir & Weir (1993) FLC 92-338

Applicant:

MS LACEY

Respondent:

MR LACEY

File Number:

NCC 1128 of 2011

Judgment of:

Judge Terry

Hearing dates:

20, 21 and 22 March 2017

Date of Last Submission:

19 June 2017

Delivered at:

Newcastle

Delivered on:

5 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Boyd

Solicitors for the Applicant:

Bell & Johnson Solicitors

Counsel for the Respondent:

Mr Murr and Mr Heazlewood

Solicitors for the Respondent:

Palmers Solicitors

ORDERS

By no later than 4.00pm on 5 February 2019 the husband shall pay to the solicitors for the wife or alternatively do all acts and things and sign all documents to cause Company A Pty Ltd to pay to the solicitors for the wife the sum of $2,980,639.28.
Upon this order being carried into effect each party is declared the owner to the exclusion of the other of all property and superannuation in the possession of or standing in the name of the other party.

IT IS NOTED that publication of this judgment under the pseudonym Lacey & Lacey (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1128 of 2011

MS LACEY

Applicant

And

MR LACEY

Respondent

REASONS FOR JUDGMENT

Introduction

These are property settlement proceedings arising out of 37…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lacey and Lacey (No.3)

Details

AGLC: Lacey and Lacey (No.3) [2018] FCCA 1551
Case: [2018] FCCA 1551
Decision Date: 5 October 2018

CaseChat Overview and Summary

In *Lacey and Lacey (No.3)*, Judge Terry of the Federal Circuit Court of Australia considered a dispute between a husband and wife concerning the division of their property. The proceedings involved the transfer of a significant sum of money from the husband, or a company associated with him, to the wife.

The court was required to determine the appropriate orders for the division of the parties' property, specifically addressing the payment of a substantial sum by the husband to the wife and the consequent exclusive ownership of remaining assets.

Judge Terry ordered that the husband pay $2,980,639.28 to the wife's solicitors by 4.00pm on 5 February 2019, or alternatively, ensure that Company A Pty Ltd made this payment. Upon compliance with this order, each party was declared the sole owner of all property and superannuation standing in their respective names or in their possession, to the exclusion of the other.

Orders

Orders of the court

By no later than 4.00pm on 5 February 2019 the husband shall pay to the solicitors for the wife or alternatively do all acts and things and sign all documents to cause Company A Pty Ltd to pay to the solicitors for the wife the sum of $2,980,639.28.

Upon this order being carried into effect each party is declared the owner to the exclusion of the other of all property and superannuation in the possession of or standing in the name of the other party.

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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