Landers and Crease (Final Judgment and Corrigendum) - [2012] FamCA 242

FAMILY COURT OF AUSTRALIA

LANDERS & CREASE (FINAL JUDGMENT AND CORRIGENDUM) [2012] FamCA 242

FAMILY LAW - PROPERTY – Contributions – inheritances – add backs - winding up of businesses

Family Law Act 1975 (Cth)

Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Essex and Essex [2009] FamCAFC 236
Chorn and Hopkins (2004) FLC 93-204

APPLICANT: Ms Landers

RESPONDENT: Mr Crease

FILE NUMBER: LNC 179 of 2010

DATE DELIVERED: 20 April 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 8 & 9 December 2011 &
28 February, 1 March 2012
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Trezise

SOLICITOR FOR THE APPLICANT: Andrea Trezise

COUNSEL FOR THE RESPONDENT: Mr Dixon S.C.

SOLICITOR FOR THE RESPONDENT: Mrs De Giovanni of Wallace Wilkinson & Webster
Orders
1.Subject to these orders, the Husband and the Wife shall do all things and sign all necessary documents to effect the sale of the properties at … S Street, Suburb A in Tasmania and … B Street, Suburb N in Tasmania (“the sale properties”).
2.The Husband and the Wife shall do all acts to cause the sale properties to be placed on the market for sale in such manner and with such real estate agent as is agreed between them, subject to:-
a)In the event that the parties do not agree on the real estate agent to be employed for such sales, the real estate agent will be as nominated by the President of the Real Estate Institute of Tasmania, at the request of either party.
b)The sale properties are to be listed for sale at such price and upon such terms as may be agreed between the Husband and the Wife from time to time. In the event that the Husband and the Wife do not agree at any time as to the price or terms at which the sale properties should be offered for sale, then the price and terms will be as determined by a qualified valuer to be nominated for that purpose by the President of the Real Estate Institute of Tasmania, at the request of either party.
c)Wife is restrained from entering into a contract for the sale of the sale property at … B Street, Suburb N at a price less than that value agreed in writing with the Husband or as determined by the qualified valuer appointed in accordance with this order.
d)The Husband will, at his expense, do all acts and sign all documents and take all actions to cause the caveat lodged by his solicitors to be discharged and/or withdrawn prior to the completion of the sale of the sale properties.
e)Upon completion of the sale of the sale properties, the gross sale proceeds will be applied as follows:-
i)in payment of all real estate commissions and reasonable advertising costs of the sales;
ii)in payment of the legal costs of acting on the sale and the usual disbursements incurred in completing the conveyancing of the sale;

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 Landers and Crease (Final Judgment and Corrigendum)

Details

AGLC: Landers and Crease (Final Judgment and Corrigendum) [2012] FamCA 242
Case: [2012] FamCA 242
Decision Date

CaseChat Overview and Summary

This matter concerned a property dispute between Ms Landers (the Wife) and Mr Crease (the Husband) before Benjamin J of the Family Court of Australia. The core of the dispute involved the division of assets and liabilities, including the sale of jointly owned properties, the winding up of two businesses, and the distribution of superannuation entitlements. The proceedings also addressed various other assets and debts held individually by the parties.

The court was required to determine the appropriate distribution of the parties' property interests, considering their respective contributions and financial circumstances. Key issues included the valuation and sale of specific real estate, the settlement of outstanding business liabilities, the allocation of debts owed to third parties and financial institutions, and the division of superannuation funds. The court also had to address the transfer of specific assets and the finalisation of personal debts.

In reaching its decision, the court ordered the sale of two specified properties, with the proceeds to be applied towards various expenses, business liabilities, and encumbrances before distribution. The net proceeds were to be divided with 72.5% to the Wife and 27.5% to the Husband. The parties, in their capacities as directors, were directed to manage the winding up of their businesses, prioritising tax liabilities, specific debts, and accounting fees. The court also made detailed orders regarding the transfer of specific assets, including vehicles and business equipment, between the parties and the finalisation of superannuation entitlements.

The final orders stipulated that the Wife would pay the Husband a sum of $182,785 within 30 days. The parties were to relinquish claims to certain assets in favour of the other, with each party becoming solely entitled to property in their possession and solely liable for their personal debts. All outstanding applications, except for costs, were dismissed, and the matter was removed from the list of cases requiring determination. A corrigendum was subsequently issued to correct specific monetary figures and clarify certain liabilities within the judgment.

Orders