LEANDER & SCANNELL - [2020] FCCA 2830

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEANDER & SCANNELL

[2020] FCCA 2830

Catchwords:
FAMILY LAW – Property dispute – parties in person – added to hearing days – husband did not provide full disclosure – preparation and production ‘on the run’ – business treated as a cash box – parties not always commercially astute with decisions – applicant wife made greater overall contributions and as primary carer has greater needs.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79

Cases cited:

Re F (Litigants in Person Guidelines) [2001] FamCA 348

Jewel v Jewel [2013] FCWA 81

Stanford v Stanford [2012] HCA 52

Carter & Carter (1981) FLC 91-061

Waterman & Waterman (2017) FLC 93-762

Chang & Su [2002] FamCA 156

Rolfe & Rolfe (1979) FLC 90-629

Mallet & Mallet (1984) FLC 91-507

Rainbird & Rainbird (1977) FLC 90-256

Freeman & Freeman (1979) FLC 90-697

Read & Read (1984) FLC 91-527

Gosper & Gosper (1987) FLC 91-818

Kessey & Kessey (1994) FLC 92-495

Calverly and Greene (1984) FLC 91-565

NHC & RCH (2004) FLC 93-204

Wilde & Wilde [2007] FamCA 1044

AJO & GRO [2005] FamCA 195

DJM & JLM [1998] FamCA 97

Townsend & Townsend (1995) FLC 92-569

Kowaliw & Kowaliw (1981) FLC 91-092

Applicant:

MS LEANDER

Respondent:

MR SCANNELL

File Number:

MLC 1107 of 2017

Judgment of:

Judge Curtain

Hearing dates:

25 November 2019, 12 February 2020; 10 & 13 July 2020, 13 July 2020, 10-12 and 14 August 2020, 24-25 August 2020, 7 September 2020 and 14 September 2020

Date of Last Submission:

14 September 2020

Delivered at:

Melbourne

Delivered on:

26 October 2020

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

The Applicant wife have the sole right title and interest in the real property situate at and known as B Street, Suburb C, Northern Territory (“the real property”) to the exclusion of the Respondent husband, and it is declared that the Respondent husband has no right, title or interest in the real property.
Within 120 days of the date of these Orders the Applicant wife shall do all acts and things necessary including signing all documents as may be required to discharge the mortgage in the parties’ joint names and refinance same into her sole name secured over the real property.
Within 60 days from the date of these Orders, the Respondent husband do all such acts and sign all such documents as may be necessary to transfer to the Applicant wife, at the expense of the Applicant wife, the Motor Vehicle 1 on an unencumbered basis, if it is not already in her name.
In relation to the following corporate entity and trust:
(a)D Pty Ltd;
(b)The Scannell Family Trust
(“the Corporate Entity and Trust”)
the parties shall within 60 days do all acts and sign all documents as are necessary for the Applicant wife to resign any and all offices she holds in the Corporate Entity and Trust and relinquish any and all right and title in the Corporate Entity and Trust…

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 LEANDER & SCANNELL

Details

AGLC: Leander and Scannell [2020] FCCA 2830
Case: [2020] FCCA 2830
Decision Date: 26 October 2020

CaseChat Overview and Summary

In this matter before Judge Curtain, the dispute concerned the property interests of the applicant wife and the respondent husband. The parties appeared in person, and the hearing was extended. A key issue was the husband's disclosure, which was described as being prepared and produced "on the run," and the treatment of a business as a "cash box." The court noted that the parties were not always commercially astute in their decisions.

The court was required to determine how the parties' various assets and liabilities should be divided, considering the wife's greater overall contributions and her greater needs as the primary carer. This included the division of real property, a motor vehicle, corporate entities, a trust, and business loans. The court also had to address the allocation of responsibility for various liabilities, including business loans and tax liabilities.

The court's reasoning focused on achieving a just and equitable distribution of property. It acknowledged the wife's greater contributions and needs, leading to orders that largely favoured her in relation to the primary residence and certain financial obligations. Conversely, the husband was awarded sole title to other business interests. The court also made specific provisions for the liquidation of certain entities and the rectification of tax liabilities.

The orders made by the court provided for the wife to have sole title to the real property, subject to her discharging a joint mortgage and refinancing it into her sole name. The husband was to transfer a motor vehicle to the wife. The wife was to resign from offices and relinquish interests in the "Corporate Entity and Trust," which were to be assigned to the husband, with the husband subsequently liquidating these entities. The wife was to pay a specific business loan and indemnify the husband in relation to it. In the event of default in refinancing or loan repayment, the real property was to be sold. The husband was awarded sole title to other business entities and was to indemnify the wife in relation to liabilities associated with them. Provisions were also made for the reassessment of tax liabilities and for each party to retain property and be solely liable for liabilities registered in their name.

Orders

Orders of the court

The Applicant wife have the sole right title and interest in the real property situate at and known as B Street, Suburb C, Northern Territory (“the real property”) to the exclusion of the Respondent husband, and it is declared that the Respondent husband has no right, title or interest in the real property.

Within 120 days of the date of these Orders the Applicant wife shall do all acts and things necessary including signing all documents as may be required to discharge the mortgage in the parties’ joint names and refinance same into her sole name secured over the real property.

Within 60 days from the date of these Orders, the Respondent husband do all such acts and sign all such documents as may be necessary to transfer to the Applicant wife, at the expense of the Applicant wife, the Motor Vehicle 1 on an unencumbered basis, if it is not already in her name.

In relation to the following corporate entity and trust:

(a) D Pty Ltd;

(b) The Scannell Family Trust

(“the Corporate Entity and Trust”)

the parties shall within 60 days do all acts and sign all documents as are necessary for the Applicant wife to resign any and all offices she holds in the Corporate Entity and Trust and relinquish any and all right and title in the Corporate Entity and Trust and assign to the Respondent husband, at their equal joint expense, any interest and/or entitlement she may have in the Corporate Entity and Trust inclusive of but not limited to transferring to the Respondent husband any shares in the company and all credit and debit loan accounts.

The Respondent husband within 90 days shall do all things necessary and sign all necessary documents to liquidate the company in Order (4)(a) above and wind up the trust in Order (4)(b) above at the equal joint expense of the Applicant wife and Respondent husband.

In addition to, and without limiting his obligations pursuant to Order (4) herein, the Respondent husband shall indemnify and keep indemnified the Applicant wife with respect to any liability (past, present or future) in the name of the Corporate Entity and Trust save for the Applicant wife’s personal tax liability arising from same and the business “E Company” and the $100,000 business loan with Westpac Bank referred to in Order (7) below.

The Applicant wife shall within 120 days wholly pay the monies owing including interest and charges for the $100,000 business loan with the Westpac Bank (...59) and indemnify the Respondent husband in relation to same and $3,500 to F Accounting.

In the event that either the refinance in Order (2) and/or the payment in (7) have not been wholly made within 120 days save for the $3,500 to F Accounting then the Applicant wife shall do all things necessary and sign all necessary documents for the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

(a) firstly, to pay all costs, commissions and expenses of the sale;

(b) secondly, to discharge the mortgage and any other encumbrance affecting the real property;

(d) fourthly, the balance to the Applicant wife.

Pending the payment or completion of the sale, the Applicant wife have the sole right to occupy the real property and during such right of occupation the Applicant wife pay all instalments pursuant to the mortgage and all rates and like apportionable outgoings of the real property as they fall due.

10.

The Respondent husband have the sole right title and interest in:

(a) the business known as “the G Company”;

(b) H Pty Ltd; and

to the exclusion of the Applicant wife and the Respondent husband shall indemnify and keep the Applicant Wife indemnified in respect of any liability (past, present or future) in the name of the entity, trust and business referred to in (a), (b) and (c) above.

11.

The parties shall within 30 days do all things necessary and sign all necessary documents including but not limited to correcting any business records in relation to the tax liability for the Applicant Wife for the business known as “E Company” and the Corporate Entity and Trust referred to in Order (4) to be reassessed by an accountant nominated by the Applicant Wife at her expense with the Applicant Wife being at liberty to lodge any Amended Tax Return or Returns for same.

12.

Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

(a) each party be solely entitled to the exclusion of the other to all real and personal property (including choses-in action and shares) registered in the name of or in possession of such party, or to which that party is legally or beneficially entitled, as at the date of these orders;

(b) monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;

(c) each party retain for their sole use and benefit any superannuation or employment related benefits accrued in their sole name;

(d) insurance policies remain the sole property of the owner named therein;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

(f) each party be solely responsible for any liability of whatsoever nature and kind in their respective names, including but not limited any credit card liability, and

(g) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

13.

The Respondent husband and Applicant wife, their servants and agents shall promptly do all things necessary and execute all necessary documents to ensure full compliance with these Orders.

14.

Otherwise all extant applications before the Court be and are hereby 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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