Landy and Pace - [2018] FCCA 1681

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANDY & PACE [2018] FCCA 1681

Catchwords:
FAMILY LAW – Property dispute – long de facto relationship – towards end of relationship de facto Husband convicted of aggravated sexual assault on 15 year old girl who he coached (Hobby) – admissions by Respondent of lying to bank about his employment and his income – very unsatisfactory evidence of Respondent who is desperate to retain former residence acquired during the relationship – Respondent admitted in cross examination that the Orders he was seeking were not fair – considerations of length of the relationship and contributions as well as what is “just and equitable” in all the circumstances.

Legislation:

Family Law Act 1975, ss.90SF(3), 90SM(4)(d) – (g)

Family Law Amendment (De Facto Financial Measures and Other Measures) Act 2008 (Cth), s.86A

Cases cited:

Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387; (2013) FLC 93-545

Bonnacci & Bonnacci [2012] FamCAFC 15

Chang v Su (2002) 29 Fam LR 406

Fields & Smith (2015) FLC 93-638; (2016) 53 Fam LR 1
Fox v Percy (2003) 214 CLR 118
In the Marriage of Pierce (1999) FLC 92-844

Applicant: MS LANDY

Respondent: MR PACE

File Number: CAC 80 of 2016

Judgment of: Judge Neville

Hearing date: 22 September 2017

Date of Last Submission: 6 December 2017

Delivered at: Canberra

Delivered on: 6 July 2018
REPRESENTATION

Counsel for the Applicant: Mr S Gardiner

Solicitors for the Applicant: Campbell & Co

Counsel for the Respondent: Mr J Millar

Solicitors for the Respondent: Farrar Gesini Dunn
ORDERS
(1)Within 30 days of the date of these Orders, the Respondent is to pay the Applicant the sum of $329,400, being 54% of the agreed value of the property at Property A (also known as the Property A property) of $610,000. Failing this payment being made by the Respondent to the Applicant within the prescribed time (i.e. by close of business on 5^th August 2018) the following Orders shall apply.
(2)The parties forthwith do all things and sign all documents necessary to place the property, located at Property A in the State of New South Wales (being Lots) (“the Property A property”) on the market for sale and by way of consequential arrangement that shall be made for the purposes of effecting the sale:
(i)The Respondent shall ensure that all his belongings and other items retained by him pursuant to these Orders be removed from the property within 14 days of the date of this Order taking effect.
(ii)Thereafter the Property A property shall be listed for sale by auction.
(iii)Each party shall choose two of the following agents and the common agent chosen by both parties shall be the agent:
1.   Real Estate Agent;
2.   Real Estate Agents, Suburb A Office;
3.   Real Estate Agent, Suburb A Office.
(iv)The agent shall prepare a list of requirements to make the property ready for sale and Company shall be employed to clear the property and make the surrounding house…

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 Landy and Pace

Details

AGLC: Landy and Pace [2018] FCCA 1681
Case: [2018] FCCA 1681
Decision Date: 6 July 2018

CaseChat Overview and Summary

In the matter of Landy and Pace, Judge Neville of the Federal Circuit Court of Australia was required to make orders concerning the division of property between the parties. The dispute centred on the disposition of a property known as Property A, with the court ultimately ordering its sale and the division of the net proceeds.

The court was tasked with determining the terms of the property settlement, including the valuation and sale process for Property A, the allocation of sale costs, and the distribution of the net proceeds between the parties. Further issues included the division of other assets and liabilities, and the mechanism for enforcing the court's orders.

Judge Neville ordered that the respondent pay the applicant a sum representing 54% of the agreed value of Property A within 30 days. If this payment was not made, the property was to be placed on the market for sale by auction. The respondent was required to remove his belongings from the property within 14 days, and if he failed to do so, he would be restrained from attending the property and a trustee for sale would be appointed. The court also stipulated the process for selecting a real estate agent, the preparation of the property for sale, the division of advertising and auctioneer costs, and a reserve price for the auction. Upon sale, after costs, the net proceeds were to be divided with 54% to the applicant and 46% to the respondent. The orders also addressed the division of other property and liabilities, with each party retaining possession of their respective assets and being solely liable for associated debts. The Registrar of the Federal Circuit Court was appointed to execute documents if either party refused to do so.

Orders

Orders of the court

(1) Within 30 days of the date of these Orders, the Respondent is to pay the Applicant the sum of $329,400, being 54% of the agreed value of the property at Property A (also known as the Property A property) of $610,000. Failing this payment being made by the Respondent to the Applicant within the prescribed time (i.e. by close of business on 5th August 2018) the following Orders shall apply.

(2) The parties forthwith do all things and sign all documents necessary to place the property, located at Property A in the State of New South Wales (being Lots) (“the Property A property”) on the market for sale and by way of consequential arrangement that shall be made for the purposes of effecting the sale:

(i) The Respondent shall ensure that all his belongings and other items retained by him pursuant to these Orders be removed from the property within 14 days of the date of this Order taking effect.

(ii) Thereafter the Property A property shall be listed for sale by auction.

(iii) Each party shall choose two of the following agents and the common agent chosen by both parties shall be the agent:

1. Real Estate Agent;

2. Real Estate Agents, Suburb A Office;

3. Real Estate Agent, Suburb A Office.

(iv) The agent shall prepare a list of requirements to make the property ready for sale and Company shall be employed to clear the property and make the surrounding house and garden presentable for sale.

(v) The Respondent shall pay the cost of preparing the property for sale.

(vi) The parties shall each pay half of any advertising and auctioneer costs immediately upon an invoice issuing from the agent.

(vii) If sold by auction, the auction reserve price for the Property A property shall be $600,000.

(viii) If the Property A property is passed in at auction, it shall continue to be advertised for sale by private treaty.

(ix) The conveyancing lawyer shall be Marjason & Sons Solicitors.

(3) Upon completion the proceeds of the sale shall be applied as follows:

(i) Firstly to pay all cost, commissions and expenses of sale;

(ii) Second to divide the net proceeds as follows:

1. 54% to the Applicant; and

2. 46% to the Respondent.

(iii) Should the Respondent fail to clear the property within 21 days at the date of these Orders, he shall be restrained from attending the property and the principal of the chosen Real Estate Agency shall be appointed Trustee for Sale and prepare the property for sale.

(iv) Auctioneers shall be appointed as auctioneer to sell all chattels and items on the property.

(4) Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any other subsequent Orders:-

(i) Each party be solely entitled to the exclusion of the other to all property including choses-in-action in the possession of such party as at this date.

(ii) Monies standing to the credit of the parties in any bank account is to become the property of the party in whose name it is deposited.

(iii) Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.

(iv) All insurance policies to become the sole property of the owner named thereunder.

(v) Each party be solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

(5) If either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the Terms of these Orders, the Registrar of the Federal Circuit Court Canberra is hereby appointed to execute all deeds and documents in the name of the husband and or wife pursuant to Section 106A of the Family Law Act 1975 (as amended).

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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