Lad and Gittins - [2013] FamCA 877

FAMILY COURT OF AUSTRALIA

LAD & GITTINS

[2013] FamCA 877

FAMILY LAW – PROPERTY SETTLEMENT – Contributions and adjustment – short marriage – initial contributions of the wife were substantially greater – where the parties incurred losses in investment ventures and still have significant outstanding debts – where their assets now have a lower aggregate value than at the commencement of the marriage – post-separation contributions were influential because the parties’ financial circumstances remained intertwined – wife unable to prove her contributions were qualitatively greater pursuant to Kennon principles – division of the property in proportions of 16.5 per cent to the husband and 83.5 per cent to the wife

Family Law Act 1975 (Cth) ss 75, 79, 81
Family Law Rules 2004 (Cth)
Family Provision Act 1982 (NSW)

Baranski & Baranski [2012] FamCAFC 18
Bevan & Bevan [2013] FamCAFC 116
Browne v Green (1999) FLC 92-873
Calverley v Green (1984) 155 CLR 242
Docters van Leeuwen & Docters van Leeuwen (1990) FLC 92-148
Jarrott & Jarrott [2012] FamCAFC 29
Marriage of Bell & Bell (1993) FLC 92-347
Marriage of Kennon (1997) 22 Fam LR 1
Marriage of Kowaliw (1981) FLC 91-092
Marriage of Nolan & Ingram (1984) FLC 91-585
Marriage of Waters & Waters (1981) FLC 91-019
Norbis v Norbis (1986) 161 CLR 513
ON v ON [2005] FamCA 1110
Pierce v Pierce (1999) FLC 92-844
Robb v Robb (1995) FLC 92-555
S & S [2003] FamCA 905
Smith & Smith (1991) FLC 92-261
Stanford v Stanford (2012) FLC 93-518
W & W [2000] FamCA 1302

APPLICANT:

Mr Lad

RESPONDENT:

Ms Gittins

FILE NUMBER:

NCC

729

2012

DATE DELIVERED:

11 November 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

8, 9, 10, & 11 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Levick

SOLICITOR FOR THE APPLICANT:

Tonkin Drysdale Partners

COUNSEL FOR THE RESPONDENT:

Ms R Winfield

SOLICITOR FOR THE RESPONDENT:

Morris Corkill Solicitors

Orders

The husband is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as B Street, Town C, NSW (“Town C”), and the wife shall forthwith do all such things and sign all such documents as may be necessary to transfer all her right, title, and interest in the property to the husband.
The husband shall indemnify and keep indemnified the wife against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to Town C, including the National Australia Bank loan account number …361.
The wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as D Street, Town E, NSW (“Town E”), and the husband shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the…

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 Lad and Gittins

Details

AGLC: Lad and Gittins [2013] FamCA 877
Case: [2013] FamCA 877
Decision Date: 11 November 2013

CaseChat Overview and Summary

Austin J determined the property and financial dispute between the husband and wife. The proceedings concerned the division of various assets, including real estate, company shareholdings, and motor vehicles, as well as the allocation of liabilities and debts.

The court was required to determine the beneficial ownership of several properties, including those located at Town C, Town E, Suburb A, and Suburb L. Further issues included the allocation of responsibility for joint and several debts owed to National Australia Bank by the parties and associated companies, the ownership of shareholdings in F Pty Ltd and G Pty Ltd, and the disposition of a motor vehicle. The court also needed to establish the terms for the transfer of property and the indemnification of each party against specific liabilities.

The court's reasoning led to a comprehensive division of the parties' assets and liabilities. The husband was declared the sole owner of the Town C property, while the wife received the Town E and Suburb A properties. The wife was also to become the sole owner of the Suburb L property, subject to her compliance with specific payment obligations within 28 days. In default of her compliance, the husband was appointed trustee for the sale of the Suburb L property, with detailed provisions for its sale and the distribution of proceeds. The husband was also declared the sole owner of the parties' shareholdings in F Pty Ltd and G Pty Ltd, and the wife was to receive his interest in her shareholding in W Pty Ltd. The court also made orders regarding the discharge of specific bank debts and the transfer of a motor vehicle. Each party was to indemnify the other against debts relating to assets in their respective possession.

Orders

Orders of the court

The husband is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as B Street, Town C, NSW (“Town C”), and the wife shall forthwith do all such things and sign all such documents as may be necessary to transfer all her right, title, and interest in the property to the husband.

The husband shall indemnify and keep indemnified the wife against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to Town C, including the National Australia Bank loan account number …361.

The wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as D Street, Town E, NSW (“Town E”), and the husband shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife and to remove any caveat he caused to be registered on the title.

The wife shall indemnify and keep indemnified the husband against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to Town E, including the St George Bank loan account number …200.

The wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as I Street, Suburb A, NSW (“Suburb A”), and the husband shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife and to remove any caveat he caused to be registered on the title.

The wife shall indemnify and keep indemnified the husband against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to Suburb A.

The wife shall, within 28 days hereof:

(a) Pay to the National Australia Bank all monies necessary to discharge in full the following debts owed jointly or severally by the parties, F Pty Ltd, and G Pty Ltd:

(i) National Australia Bank account number …054;

(ii) National Australia Bank account number …617;

(iii) National Australia Bank account number …919;

(iv) National Australia Bank account number …432;

(v) National Australia Bank account number …741;

(vi) National Australia Bank account number …949; and

(vii) National Australia Bank account number …484.

(b) Pay to the husband the sum of $314,038.

Subject to compliance by the wife with Order 7 hereof:

(a) The wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising the property commonly known as Lots H and J, K Street, Suburb L, NSW (“Suburb L”), described in Auto Consol …, and the husband shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife and to remove any caveat he caused to be registered on the title; and

(b) The wife shall indemnify and keep indemnified the husband against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to Suburb L.

In default of compliance by the wife with Order 7 hereof, the husband is appointed as the trustee (on behalf of the parties) for the sale of Suburb L and he shall forthwith do all such acts and things and sign all such documents as may be necessary to list Suburb L for sale by public auction on the following terms.

10.

For the purposes of implementation of Order 9 hereof:

(a) The solicitors acting on the sale shall be the solicitors appointed by the husband;

(b) The auctioneer and/or agent shall be the auctioneer and/or agent appointed by the husband;

(c) The property shall be listed for auction sale within 6 weeks of the date of the wife’s default in compliance with Order 7 hereof;

(d) The reserve price shall be as agreed between the parties, and in the event of disagreement between the parties, the reserve price nominated by the auctioneer;

(e) In the event the property is not sold by auction, or private negotiation within a further 7 days, then the property shall be submitted to successive auctions within further 6 weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction;

(f) Other than for the purpose of enabling her compliance with Order 7 hereof, the wife is restrained from charging, mortgaging, or otherwise encumbering the property; and

(g) The wife shall meet all expenses incurred in respect of the property as and when those expenses fall due (including loan repayments, Council rates, water rates, and insurances), maintain the property in a reasonable state of repair, and facilitate inspection of the property by prospective purchasers.

11.

Upon completion of the sale of Suburb L pursuant to Orders 9 and 10 hereof, the husband shall instruct the solicitors acting on the sale to disburse the proceeds of sale as follows:

(a) Firstly, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property;

(b) Secondly, to discharge in full the National Australia Bank debit accounts referred to in Order 7(a) hereof;

(c) Thirdly, to pay to the husband, in satisfaction of the amount otherwise due and payable to him pursuant to Order 7(b) hereof, the amount comprising:

(i) 19.77 per cent of the net sale proceeds, calculated after payment of the expenses pursuant to Order 11(a) hereof, but before payment of the amounts pursuant to Order 11(b) hereof;

(ii) less the sum of $22,000; and

(d) Lastly, to pay to the wife the balance then remaining.

12.

The husband is declared the sole legal and beneficial owner (as between the parties) of the parties’ shareholdings in F Pty Ltd (ACN …) and the wife shall forthwith do all such things and sign all such documents as may be necessary to transfer all her right, title, and interest in that corporation to the husband.

13.

The husband is declared the sole legal and beneficial owner (as between the parties) of the parties’ shareholdings in G Pty Ltd (ACN …) and the wife shall forthwith do all such things and sign all such documents as may be necessary to transfer all her right, title, and interest in that corporation to the husband.

14.

The wife is declared the sole legal and beneficial owner (as between the parties) of her shareholding in W Pty Ltd and the husband shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in that shareholding to the wife.

15.

The parties shall forthwith do all such things and sign all such documents as may be necessary to close National Australia Bank account number …366.

16.

The parties shall forthwith do all such things and sign all such documents as may be necessary to cause F Pty Ltd to transfer all its right, title, and interest in the 2009 Toyota motor vehicle (“the Toyota”) to the husband.

17.

The husband shall meet all expenses incurred in respect of the Toyota as and when those expenses fall due (including loan repayments, registration, and insurances) until National Australia Bank account number …919 is discharged in full in accordance with Orders 7-11 hereof.

18.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder; and

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.

19.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.

20.

For the purpose of implementation of these orders, leave is granted to:

(a) The parties to provide a sealed copy of these orders to the National Australia Bank; and

(b) The husband to provide a sealed copy of these orders to the solicitors, auctioneers and agents he may appoint pursuant to Order 10 hereof.

21.

Costs are reserved for 28 days.

22.

Any and all outstanding applications are dismissed.

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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