Landon & Landon

In Landon & Landon, the parties appealed against final property settlement orders made by a judge of the Federal Circuit Court of Australia. The parties had sought an alteration of their property interests pursuant to section 79 of the Family Law Act 1975 (Cth) following the cessation of their marriage. The appeal was listed for hearing, however on 12 October 2021 the Court was informed that the parties had resolved the appeal and sought that orders be made by consent allowing the appeal and substituting revised orders to be made pursuant to section 79 of the Act. The appeal was allowed and the parties' agreed orders were made.

The legal issues the Court was required to decide were whether the primary judge erred in the assessment of the parties' respective contributions resulting in a significantly greater adjustment in the respondent's favour than was appropriate, whether the primary judge erred in failing to provide adequate reasons in relation to the contribution findings, and whether the primary judge erred in the findings as to the value of the appellant's interest in certain real property.

The Court found that there were demonstrable errors of law in the approach adopted by the primary judge to the assessment of the parties' respective contributions, and that this did result in a significantly greater adjustment in the respondent's favour than there should have been. The Court also found that the primary judge's reasons, although detailed in certain respects, failed sufficiently to expose her path of reasoning and provide an explanation of her findings in relation to the parties' respective contributions. The Court was satisfied that orders substantially in these terms are appropriate.

The orders made by the Court were that the appeal is allowed, the orders made by the primary judge on 27 November 2020 are set aside, and that in lieu of the orders made by the primary judge, there be the following orders. The husband shall do all acts and things necessary to pay to the wife the sum of $210,000 within 21 days of the date of these orders. If the husband fails or is unable to comply with this order by the due date, then the husband shall take all necessary steps and execute all necessary documents to cause the Suburb F property to be sold by private treaty at the first instance at a price to be agreed on between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of New South Wales or their nominee and that the proceeds of the said sale be disbursed as follows: Payment of agent’s commission and advertising expenses and legal expenses of the sale, Payment of any money due and owing to discharge the mortgage in favour of Lender A, Payment to the wife of the principal sum or such other amount that might be outstanding pursuant to Order 8, and Payment of the balance then remaining to the husband. In the event that the property fails to be sold by private treaty within a period of four months of the date hereof, then the husband shall take all necessary steps and execute all necessary documents to cause the Suburb F property to be sold by auction at the earliest possible date at a reserve to be agreed upon between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of New South Wales or their nominee and that the proceeds of the said sale be in accordance with Order 9 above. The husband shall be restrained from doing any act or thing to further encumber the property, draw down on the mortgage or overdraft facility and/or do any other act or thing to increase the level of indebtedness secured over the Suburb F property and/or assign or transfer his interest in the property. The Court allocated a base amount of $30,000 to the wife out of the husband's interest in Super Fund EE. The wife shall retain all her right, title and interest in the Suburb C property, the Insurance Payment, all monies held in any bank account standing in her name or held for her benefit, all superannuation interests standing in her name or to her benefit, H Motorcycle, Motor Vehicle 1 and all furniture, household furnishings, or other chattels currently in her possession or control. The husband shall retain all right, title and interest in the Suburb F property, all monies held in any bank account standing in his own name or held for his benefit, all superannuation interests standing in his name or to his benefit, Motor Vehicle 2, and all furniture, household furnishings, or other chattels currently in his possession or control. The husband shall do all acts and things to discharge the Joint ANZ Facility within 28 days of these orders. Within seven days of receiving a request in writing from the husband, the wife shall do all acts and things and sign all documents and give all authorities to the ANZ as required to close the ANZ Joint Facility. Each party shall be solely liable for any personal loan, credit card liability or other debt, including any taxation liability (and the wife’s ATO Debt), which is standing in their name or to their account and shall indemnify and keep indemnified the other party for such liability. Each party shall do all acts and things and sign all documents, give all approvals and authorities as necessary to give effect to these orders. In the event that either party fails to execute any document necessary to give effect to these orders, the Registrar of the Federal Circuit and Family Court of Australia at Wollongong be appointed pursuant to section 106A of the Act to execute the document on behalf of the party who refuses or neglects to execute it and do all acts and things necessary to give force and effect to these orders AND FURTHER the party refusing or neglecting to execute the document or documents pay the costs of the other party on a solicitor-client basis in relation to obtaining the Registrar's signature.