FAMILY COURT OF AUSTRALIA
| LARSSEN & LARSSEN | [2009] FamCA 608 |
| FAMILY LAW – PROPERTY – Superannuation |
| Family Law Act 1975 (Cth) |
| Clives and Clives (2008) FLC 93-385 JEL and DDF (2001) FLC 93-083 Levick and Levick (2006) FLC 93-254 Phipson and Phipson [2009] FamCAFC 28 Rosati v Rosati (1998) FLC 92-804 |
| APPLICANT: | Ms Larssen |
| RESPONDENT: | Mr Larssen |
| FILE NUMBER: | PAC | 1015 | of | 2008 |
| DATE DELIVERED: | 29 June 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 21 - 22 May 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Mark Brown & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Schonell |
| SOLICITOR FOR THE RESPONDENT: | Gibsons Lawyers |
Orders
The parties are to do all things necessary to cause the completion of the sale of the property situate at and known as the rural New South Wales property. Should the sale not be completed then the parties are to forthwith upon such occurrence cause the property to be sold at an agreed price and through an agreed real estate agent.
The proceeds of sale of the rural property upon settlement are to be applied as follows:
(a)Discharge of the mortgage encumbering the property (approximately $535,000);
(b)The sum of $74,200 be set aside to meet the sale costs of the property including agents commission and legal costs of sale and any Capital Gains Tax (CGT) required to be paid by the husband. The sum remaining after meeting the sale expenses be placed into an IBD account in the names of the parties' solicitors on trust for the parties such amount to be applied in payment of any CGT payable upon sale of the rural property. In the event that after payment of the CGT there is a surplus in the said account then such surplus be divided 56% to the wife and 44% to the husband;
(c)There then be paid to the wife as an advance on her property settlement entitlement in the sum of $100,000;
(d) Any balance then be paid to the husband.
In the event of a shortfall between the amount preserved from the sale proceeds of the rural property and the amount required to be paid by the husband for CGT referrable to the sale of that property then the wife is to contribute 56% of that shortfall. Her obligation to make such payment is to be charged against the receipt of funds by her from the sale of the property situate at and known as the inner west Sydney property in the state of New South Wales being the whole of the land contained in Certificate of Title … (“the Sydney property”) when that receipt occurs.
That pending sale of the home…
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- Larssen & Larssen [2009] FamCA 608
- Case
- [2009] FamCA 608
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms for the sale of both the rural and Sydney properties, including the method of sale, reserve prices, and the process for agreeing on sale terms if the parties could not reach consensus. It also had to decide how the proceeds from each sale would be applied, including the discharge of mortgages, payment of sale costs, capital gains tax, and the distribution of any surplus or shortfall between the parties. Further issues included the allocation of responsibility for mortgage interest payments on the Sydney property pending its sale, the timing of certain payments between the parties, and the division of a superannuation fund.
The court's reasoning, as reflected in the orders, established a detailed framework for the property settlement. It mandated the sale of the rural property and specified the order of application of its proceeds, including a significant allocation to the wife as an advance on her property settlement entitlement and a division of any surplus. The court also outlined the process for the sale of the Sydney property, including provisions for auction and private treaty sales, and detailed the disbursement of its proceeds, with a substantial sum designated for the wife. The orders also addressed potential shortfalls in sale proceeds, the payment of capital gains tax, and the allocation of ongoing mortgage interest payments. Furthermore, the court made specific orders for the division of a superannuation interest pursuant to section 90MT(1)(b) of the *Family Law Act 1975*, and for the transfer of certain vehicles.
The court ordered the parties to take all necessary steps to complete the sales of both properties according to the specified terms. The proceeds were to be applied in a defined order, with specific sums and percentages allocated to each party. The court also made orders regarding the payment of interest on mortgages, the division of a superannuation fund, the transfer of vehicles, and the dismissal of outstanding applications, with leave granted for further applications relating to the implementation of the orders.
Orders
Orders of the court
1.
The parties are to do all things necessary to cause the completion of the sale of the property situate at and known as the rural New South Wales property. Should the sale not be completed then the parties are to forthwith upon such occurrence cause the property to be sold at an agreed price and through an agreed real estate agent.
2.
The proceeds of sale of the rural property upon settlement are to be applied as follows:
(a) Discharge of the mortgage encumbering the property (approximately $535,000);
(b) The sum of $74,200 be set aside to meet the sale costs of the property including agents commission and legal costs of sale and any Capital Gains Tax (CGT) required to be paid by the husband. The sum remaining after meeting the sale expenses be placed into an IBD account in the names of the parties' solicitors on trust for the parties such amount to be applied in payment of any CGT payable upon sale of the rural property. In the event that after payment of the CGT there is a surplus in the said account then such surplus be divided 56% to the wife and 44% to the husband;
(c) There then be paid to the wife as an advance on her property settlement entitlement in the sum of $100,000;
(d) Any balance then be paid to the husband.
3.
In the event of a shortfall between the amount preserved from the sale proceeds of the rural property and the amount required to be paid by the husband for CGT referrable to the sale of that property then the wife is to contribute 56% of that shortfall. Her obligation to make such payment is to be charged against the receipt of funds by her from the sale of the property situate at and known as the inner west Sydney property in the state of New South Wales being the whole of the land contained in Certificate of Title … (“the Sydney property”) when that receipt occurs.
4.
That pending sale of the home in inner west Sydney the wife shall be responsible for paying the interest payments on the mortgages identified as items 25, 26 and 27 in the Joint Draft Balance Sheet and the husband be responsible for paying the interest payments on the mortgages identified as items 28 and 29 in the Joint Draft Balance Sheet.
5.
At the time of the payment to the wife of the $100,000 from the sale of the rural property (or earlier at the option of the husband) the husband is to pay to the wife the sum of $22,796.
6.
Subject to the following orders the parties do all things and sign all documents necessary to cause the Sydney property to be sold by auction at a reserve to be agreed on between the parties and failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee.
7.
In the event that the Sydney property fails to be sold by auction, then each party take all necessary steps and execute all necessary documents within the following two (2) months to cause the property to be sold by private treaty at the earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee.
8.
The proceeds of the sale of the Sydney property be disbursed as follows:
(a) Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b) Discharge of all liability to National Australia Bank which is charged against the property and referred to in the Joint Draft Balance Sheet;
(c) Subject to any charging order made herein, payment to the wife of the sum of $736,550 if there be that amount remaining. If there is less than $736,550 then the wife is to receive that entire sum;
(d) If there are still funds remaining after the payment to the wife of $736,550 then the balance is to be divided between the parties 44% to the husband and 56% to the wife.
9.
In the event of the wife failing to achieve a payment of $736,550 from the sale proceeds of the Sydney property the husband is to pay the wife, within sixty (60) days of the completion of the sale, a figure calculated as 56% of the shortfall between the sum the wife did receive and the sum of $736,550.
10.
The sale of the Sydney property is to be postponed until O has completed his final examination in the Higher School Certificate in 2009.
11.
Until the completion of the sale of the rural property only, the orders made on 30 June 2008 requiring the husband to pay interim spouse maintenance and also to meet certain specified expenses is to continue.
12.
As from the date of receipt of the said sum of $100,000 from the sale proceeds of the rural property (or such earlier date as hereafter provided) and until the completion of the sale of the Sydney property the wife is to pay all the outgoings on the Sydney property including insurance, rates and taxes together with the parties’ commitments in relation to the following loans charged against the Sydney property:
(a) Overdraft 2631 (current balance $150,000);
(b) Mortgage 5884 (current balance $113,000);
(c) Mortgage 3342 (current balance $80,700).
13.
As from the payment to the wife of the said sum of $100,000 from the sale proceeds of the rural property and until the completion of the sale of the Sydney property the husband is to pay the parties’ commitment in relation to the mortgage 0384 (current balance $260,000).
14.
The husband, at his option, may pay the sum of $22,796 to the wife as required by Order 5 hereof at a time earlier than the date of the payment to the wife of the sum of $100,000 from the sale proceeds of the rural property. Should he elect to do so then the orders of 30 June 2008 shall cease to operate from that time and the husband will only be required to meet the payment specified in Order 13 hereof.
15.
Pursuant to s90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the husband (born … April 1959) member no. … in G Superannuation Plan, a sub-plan of the Plum Superannuation Fund, the wife (born … January 1957) shall be entitled to be paid 50% of that splittable payment and that there be a corresponding reduction to the entitlement the husband would have received in G Superannuation Plan, a sub-plan of the Plum Superannuation Fund but for this Order.
16.
Order 15 has effect from the operative time and the operative time for this Order is four (4) business days after the service of sealed orders on the Trustee, PFS Nominees Pty Ltd.
17.
Orders 15 and 16 bind the said Trustee for G Superannuation Plan, a sub-plan of the Plum Superannuation Fund.
18.
Should it be necessary the husband is to sign any documents necessary to transfer any interest he may have in the Honda CRV motor vehicle registration … and the MV Augusta motorcycle registration … to the wife.
19.
Should it be necessary the wife is to sign any documents necessary to transfer any interest she may have in the 2004 BMW motor vehicle registration … and the 2002 Aprilia motorcycle registration number … to the husband.
20.
Otherwise than provided in these orders, each of the parties is solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these orders.
21.
The time in which the wife may apply for a spouse maintenance order is extended until a period of twenty-eight (28) days following the completion of the sale of the Sydney property.
22.
The parties have leave to apply for further orders relating to the implementation of any of the orders made herein.
23.
All outstanding applications be 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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