FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leeming & Estrada [2023] FedCFamC2F 729
File number(s): ACD 754 of 2019 Judgment of: JUDGE PARKER Date of judgment: 16 June 2023 Catchwords: FAMILY LAW – PROPERTY – where farming land and farming enterprise is contributed by one party – where other party makes significant contributions – where in the event of inability to refinance, farming land must be sold to achieve a just and equitable outcome – liquidation of company through which business operated – treatment of associated liabilities Legislation: Evidence Act 1995 (Cth) ss 128, 140
Family Law Act 1975 (Cth) ss 79, 75, 106A
Cases cited: af Petersens & af Petersens [1981] FamCA 50; (1981) FLC ¶91-095
Aleksovski & Aleksovski [1996] FamCA 111; (1996) FLC ¶92-705
Antmann & Antmann [1980] FamCA 64; (1980) FLC ¶90-908
Aroney & Aroney (1979)FLC ¶90-709
Bolger & Headon [2014]FamCAFC 27; (2014) FLC ¶93-575
Browne & Green [1999] FamCA 1483; (1999) FLC ¶92-873
NHC & RCH [2004] FamCA 633; (2004) FLC ¶93-204
Clauson & Clauson [1995] FamCA 10; (1995) FLC ¶92-595
Fields & Smith [2015] FamCAFC 57; (2015) FLC ¶93-638
Harris & Harris [1993] FamCA 49; (1993) FLC ¶92-378
Jabour & Jabour [2019] FamCAFC 78; (2019) FLC ¶93–898
Johnson & Johnson [1999] FamCA 369; (2000) FLC ¶93-039
Keating & Keating [2019] FamCAFC 46; (2019) FLC ¶93-894
Kowaliw & Kowaliw [1981] FamCA 70; (1981) FLC ¶91-092
Lee Steere & Lee Steere [1985] FamCA 57; (1985) FLC ¶91-626
Magas & Magas [1980] FamCA 67; (1980) FLC ¶90-885
Mallet & Mallet [1984] HCA 21; (1984) 156 CLR 605
Marker & Marker [1998] FamCA 42
AJO & GRO [2005] FamCA 195; (2005) FLC ¶93-218
Pierce & Pierce [1998] FamCA 74; (1999) FLC ¶92-844
Prince & Prince [1984] FamCA 7; (1984) FLC ¶91-501
Russell & Russell [1999] FamCA 1875; (1999) FLC ¶92-877
Trustee of the Property of Lemnos (A Bankrupt) & Lemnos & Anor [2009] FamCAFC 20; (2009) FLC ¶93-394
Watson & Ling [2013] FamCA 57; (2013) FLC ¶93-527
Williams & Williams [2007] FamCA 313
Zalewski & Zalewski [2005] FamCA 996; (2005) FLC ¶93-241Division: Division 2 Family Law Number of paragraphs: 245 Date of last submission/s: 9 June 2023 Date of hearing: 8-11 August 2022, 22-23 November 2022, 3 February 2023 and 9 June 2023 Place: Adelaide Counsel for the Applicant: Ms Smith Solicitor for the Applicant: Alan Oxenham Barrister & Solicitor Counsel for the Respondent: Ms Pangallo Solicitor for the Respondent: Bartel and Hall Lawyers & Conveyancers ORDERS
ADC 754 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LEEMING
Applicant
AND: MS ESTRADA
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS THAT:
Transfer of Property, Refinance and Payment
1.Within thirty (30) days of the date of these orders (‘the settlement date’) the Wife transfer to the Husband all of her right,…
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CaseChat Overview and Summary
Judge Parker considered the contributions of both parties to the marriage, including the wife's significant non-financial contributions to the farming enterprise and her efforts to support the family during challenging times. The court noted that if the farming land could not be refinanced, its sale was necessary to achieve a just and equitable outcome. The judge ordered the transfer of specific property to the husband, requiring him to refinance the associated loans and pay a significant sum to the wife. In the event the husband defaulted on these obligations, the court mandated the sale of the property through an auction, with detailed provisions for the process and disbursement of the proceeds.
Furthermore, the court directed the winding up of the companies involved in the farming business and the equal sharing of the resulting liabilities. It also outlined the retention of specific assets by each party and their respective liabilities. The judge emphasised the importance of achieving a fair and equitable outcome, taking into account the unique contributions and circumstances of both parties. The court's detailed orders ensured clarity and provided a structured approach to resolving the financial aspects of the dissolution.
Orders
Orders of the court
ADC 754 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR LEEMING
Applicant
AND:
MS ESTRADA
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS THAT:
Transfer of Property, Refinance and Payment
1. Within thirty (30) days of the date of these orders (‘the settlement date’) the Wife transfer to the Husband all of her right, title and interest in the real property situate at and known as B Street, Town C in the State of South Australia (‘the B Street property’), more particularly described in Certificate of Title Volume … Folio …, at the Husband's sole expense and the parties shall each do all acts and things and sign all documents necessary to give effect to the transfer contained herein.
2. Contemporaneously with the Wife’s compliance with order 1 hereof:
2.1 The Husband shall, at his sole expense:
2.1.1 Refinance into his sole name the ANZ Bank loan account numbers including but not limited to …97, …23, …57, …47 and ANZ Bank Account number …67 secured by:
2.1.1.1 The B Street property; and
2.1.1.2 The properties at D Street, Town C in the State of South Australia, more particularly described in Certificate of Title Volume … Folio …; Lot 1 E Street, Town C, in the State of South Australia, more particularly described in Certificate of Title Volume … Folio …; and Lot 2 E Street, Town C in the State of South Australia, more particularly described in Certificate of Title Volume … Folio … (collectively ‘the farming properties’).
2.1.2 Discharge and release any and all mortgages registered over the B Street property and the farming properties in favour of ANZ Bank;
2.1.3 Release and indemnify the Wife and keep her indemnified in relation to the ANZ Bank loan account numbers referred to in order 2.1.1 hereof and any other that may exist; and
2.1.4 Pay or cause to be paid to the trust account of Bartel and Hall on behalf of the Wife the sum of $608,895.84.
Default Provisions
3. In the event that the Husband fails to comply with orders 1 and 2 herein and on the condition the Wife has not defaulted in any of her obligations pursuant to these orders:
3.1 The Husband shall pay default interest to the Wife on the balance outstanding of the payment required by order 2.1.4 from the date of default to the date of payment in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
3.2 In the event that any said default has not been remedied within 60 days of the settlement date, the Wife and the Husband shall do all acts and things and sign all necessary documents required to list for sale by auction the B Street property and for that purpose the following shall apply:
3.2.1 The listing shall be with such real estate agent as is agreed between the parties and failing agreement as follows:
3.2.1.1 Within seven (7) days of one party advising the other in writing that there is no agreement the Wife provide to the Husband, via his representatives, a panel of three (3) real estate agents;
3.2.1.2 Within seven (7) days of receiving the panel referred to in the preceding order, the Husband shall select one real estate agent from the panel, and advise the Wife, via her representatives, of his selection;
3.2.1.3 In the event that the Husband fails to advise of his selection in accordance with the preceding order, the Wife is free to choose from the panel of proposed real estate agents; and
3.2.1.4 Regardless of the manner of selection, the parties shall jointly appoint the nominated real estate agent for the purposes of marketing and taking the property to auction SAVE THAT if the Husband fails or refuses to participate in the instruction process the Wife shall be at liberty to appoint the agent solely.
3.2.2 The list price of the B Street property shall be such amount as is agreed between the parties and failing agreement within fourteen (14) days of engagement of the real estate agent the list price will be as nominated by the real estate agent;
3.2.3 The parties shall each co-operate in every way with the real estate agent in relation to the marketing of the B Street property for sale including making the key readily available, allowing inspection of the B Street property at all times reasonably requested by the agent and ensuring that the B Street property is clean, neat and in good order at the time of inspection by any prospective buyer;
3.2.4 The Husband shall pay to the real estate agent any sums requested for advertising or auction expenses;
3.2.5 The reserve price of the B Street property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90 percent of the list price shall be accepted by the parties as the sale price;
3.2.6 The parties shall engage a conveyancer using the same method of selection and appointment as outlined in relation to the real estate agent at order 3.2.1 hereof;
3.2.7 The contract of sale shall provide for completion within 30 days after the date of the contract or any other time period as recommended by the real estate agent;
3.2.8 The proceeds of sale of the B Street property shall be paid in the following manner and priority:
3.2.8.1 To discharge any registered mortgage(s) against the B Street property;
3.2.8.2 To discharge any other encumbrance affecting the property including rates, taxes and other reasonable expenses;
3.2.8.3 To meet all reasonable costs of sale, including payment of the agent's commission and advertising or other expense, if any, payable on the sale;
3.2.8.4 Payment of the conveyancer's costs and outlays relating to the sale;
3.2.8.5 Payment of $608,895.84, along with interest from the date of default, with such interest to be calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, to Bartel and Hall Trust Account on behalf of the Wife; and
3.2.8.6 The balance to the Husband.
3.2.9 In the event that the B Street property is not sold at the auction pursuant to the preceding order or within fourteen (14) days after the date of the auction by further negotiation, then the Husband and the Wife shall cause a further auction of the property to be held within two (2) months after the date of the first auction and for that purpose the preceding subprovisions of this order shall apply in relation to the sale and disbursement of proceeds.
Interim Use of Property
4. Pending the transfer, or sale, of the B Street property pursuant to these orders:
4.1 The parties each be and are hereby restrained by injunction from encumbering or borrowing further against any existing encumbrance affecting the B Street property without the prior written consent of the other;
4.2 The parties each be and are hereby restrained by injunction from giving any notice or seeking or consenting to any order that affects the B Street property;
4.3 The parties each be and are hereby restrained by injunction from making any agreement affecting the B Street property;
4.4 The parties each provide to the other any notice, proceeding or other order received by them that affects or requires work on the B Street property;
4.5 The Husband maintain (at his sole cost) building insurance for the B Street property at the current value and provide to the Wife a certificate of currency evidencing same within two (2) business days of any request being made;
4.6 The Husband shall have the sole right to use and occupy the B Street property to the exclusion of the Wife;
4.7 The Husband shall be responsible for the day to day maintenance and care of the B Street property and must keep the B Street property in a reasonable state of repair;
4.8 The Husband shall be solely liable for and indemnifies the Wife against the following outgoings in relation to the B Street property:
4.8.1 Instalments and money due under any mortgage;
4.8.2 Rates and water;
4.8.3 Any land tax assessed;
4.8.4 The cost of all reasonably necessary repairs and maintenance to the structures and or buildings located on the B Street property;
4.8.5 The premiums for the continuation of current insurance policies on the house and contents located on the real property; and
4.8.6 Utility expenses including but not limited to gas, electricity and telephone usage.
F Pty Ltd and G Pty Ltd
5. Within ninety (90) days of the date of this order (or such other date as agreed in writing between the parties), the parties shall, at their joint and equal expense, do all acts and things and sign all documents necessary to wind up F Pty Ltd, including jointly instructing a suitably qualified accountant to prepare and attend to the winding up referred to herein with such appointment being made within thirty (30) days of the date of this order.
6. All outstanding liabilities owing upon the winding up of F Pty Ltd, including but not limited to any capital gains taxation, income taxation, GST and accounting fees will be met equally between the parties.
7. All outstanding liabilities owing with respect to G Pty Ltd. These liabilities will be met equally between the parties.
Retention of Assets and Liabilities
8. Save as otherwise provided for in these orders or as required the purpose of enforcing these orders, the Husband retain as his absolute property to the exclusion of the Wife, the title and possession to and of the following:
8.1 the B Street property;
8.2 the farming properties;
8.3 his stock;
8.4 his plant and equipment;
8.5 the funds held in all bank accounts in his sole name;
8.6 the furniture and household contents and tools in the possession of the Husband and at the B Street property;
8.7 his life insurance policies;
8.8 all shares and investments held in his sole name; and
8.9 all other proprietary interests of whatsoever nature currently in the Husband's possession and/or control.
9. The Husband retain sole liability for and indemnify the Wife with respect to any loan, liability, lease or credit card liability held or registered in his sole name.
10. Save as otherwise provided for in these orders or as required for the purpose of enforcing these orders, the Wife retain as her absolute property to the exclusion of the Husband, the title and possession to and of the following:
10.1 the loan owed to her by Mr H;
10.2 the funds held in all bank accounts in her sole name;
10.3 the furniture and household contents and tools in the possession of the Wife;
10.4 her superannuation entitlements; and
10.5 all other proprietary interests of whatsoever nature in the Wife's current possession and/or control.
11. The Wife retain sole liability for and indemnify the Husband with respect to any loan, liability, lease or credit card liability held or registered in her sole name.
12. Other than as is specifically provided for in these orders, the parties are 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.
13. The Husband and the Wife each be and are hereby restrained from obtaining or attempting to obtain credit by the use of any credit card held in the other's name, and shall within fourteen (14) days from the date of these orders, deliver up any secondary credit card that either may hold to the other party.
Miscellaneous
14. The parties execute all deeds or instruments and do all acts and things necessary to give validity and operation to the deed or instrument to give effect to these orders.
15. If either party refuses, fails or neglects to execute any document necessary to put these orders into effect fourteen (14) days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such document in the name of such party.
16. Save as otherwise provided herein the transferee spouse or the spouse receiving the benefit of any transaction pursuant to these orders prepare the documentation necessary to give effect to the provision of these orders at their cost and further be responsible for the payment of registration fees and any other fees in relation to the transfer of property into their name.
17. Any duty payable on any transaction arising out of these orders be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
18. The parties each have liberty to apply for consequential orders.
19. All extant application be and are hereby dismissed without prejudice to the right of each of the parties to make further application in relation to costs.
Applications as to Costs
20. Any application as to costs in relation to these proceedings (save for any costs application arising from any subsequent default) must:
20.1 Be made in proper form, by way of an Application in a Proceeding or Response to Application in a Proceeding as applicable;
20.2 Be made within 28 days of the date of these orders;
20.3 Set out with particularity the precise orders sought;
20.4 Be accompanied by an affidavit setting out:
20.4.1 The evidence relied upon in support of the application;
20.4.2 The means by which the costs sought have been calculated; and
20.4.3 Irrespective of the basis upon which the costs are sought, a calculation of the costs sought in accordance with the scale set out in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021.
21. The Applicant in relation to any application for costs shall be at liberty to file one affidavit in reply to an affidavit filed by the Respondent in accordance with the preceding order within 14 days of service of such affidavit.
22. No later than 7 days prior to the date upon which any costs application filed is listed for hearing, the parties each file and serve a Case Outline document setting out a summary of argument in relation to the issue of costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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