FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Linford & Ennis (No 2) [2024] FedCFamC2F 1510
File number(s): HBC 899 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – Property – both parties seeking orders for adjustment of financial interests – de facto husband’s phoenix operation post-separation of previously jointly operated business – disputed identification of assets and liabilities – contest about add backs for parental loans, post-separation inheritance largely dispersed, reduction of business account balance – limited positive findings about add backs – allegations of incomplete or non-disclosure by de facto husband – dispute about adjustments for future needs – adjustments made for future needs and egregious conduct including non-disclosure pursuant to section 90SF(3)(r) Legislation: Family Law Act 1975 (Cth) ss 90SF(3), 90SM(1), 90SM(4), 90SM(5) Cases cited: Alden & Alden (No 3) [2023] FedCFamC1F 791
Bennouna & Radnell [2023] FedCFamC1F 220
Bevan & Bevan (2013) FLC 93-545
Bryson & Bryson [2024] FLC 94 179
Candle & Falkner [2021] FedCFamC1A 102
Holland & Holland [2017] FamCAFC 166
Jabour & Jabour [2019] FamCAFC 78
Kouper & Kouper (No 3) [2009] FamCA 1080
Kowaliw & Kowaliw [1981] FamCA 70
Mayne & Mayne (No 2) [2012] FLC 93-510
NHC & RCH [2004] FamCA 633
Orozco & Bonilla [2023] FedCFamC1F 1018
Robb & Robb (1995) FLC 92-555
Robertson & Wells [2022] FedCFamC1F 1046
Trevi & Trevi (2018) FLC 93-858
Weir & Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 110 Date of last submission/s: 29 July 2024 Date of hearing: 24, 26 & 27 June 2024 Place: Hobart Counsel for the Applicant: Mr Matta Solicitors for the Applicant: Parke Lawyers Counsel for the Respondent: Mrs Mooney SC Solicitors for the Respondent: JC Legal Group ORDERS
HBC 899 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LINFORD
Applicant
AND: MS ENNIS
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS THAT:
1.Within sixty (60) days of the date of these Orders, Ms Ennis (“the Respondent”) will provide proof of Mr Linford’s (“the Applicant”) discharge from any liabilities associated with the mortgages to the following properties:
(a)The property situated at F Street, Suburb G in Tasmania and more particularly described in Certificate of Title Volume … Folio … ("the Suburb G property");
(b)The property situated at DD(1) Street, Town P in Tasmania and more particularly described in Certificate of Title Volume … Folio …; and
(c)The property situated at DD(2) Street, Town P in Tasmania and more particularly described in Certificate of Title Volume … Folio …
and (b) and (c) together being “the Town P properties”.
2.Contemporaneously with the discharges referred to in paragraph 1 of these Orders, the following occur:
(a)The Respondent pay the Applicant the lump sum payment of Two Hundred and Thirty Six Thousand Dollars ($236,000) ("the Payment");
(b)The Respondent do all acts and sign all necessary documentation to transfer the Motor Vehicle 5 and Motor Vehicle 2 ("the…
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- Linford & Ennis (No 2) [2024] FedCFamC2F 1510
- Case
- [2024] FedCFamC2F 1510
- Decision Date
CaseChat Overview and Summary
The court examined the evidence regarding the parties' financial contributions and the value of the assets, including the business, real estate, personal investments, and vehicles. The court noted limited evidence supporting the Respondent’s claims regarding add backs for parental loans and post-separation inheritance. The court also considered the allegations of non-disclosure by Mr Linford and found some merit in the claims of egregious conduct and future needs, adjusting the settlement accordingly. The court ordered specific transfers of property, payment of a lump sum, and various other financial adjustments between the parties. The court also provided for contingencies, including the sale of properties in case of default and the division of future recoveries from a third party.
The court’s final orders mandated that the Respondent provide proof of the discharge of certain mortgages and pay a lump sum to the Applicant, among other financial transfers. The parties were also required to relinquish claims to certain assets and liabilities. The court gave the Respondent exclusive use of certain properties pending certain conditions and outlined the process for any default sales. The court further detailed the handling of corporate interests and the division of responsibilities and liabilities associated with these entities.
These orders ensure a clear and equitable division of the parties' assets and liabilities, considering the unique circumstances of the case, including the business operations and the parties' conduct.
Orders
Orders of the court
HBC 899 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR LINFORD
Applicant
AND:
MS ENNIS
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS THAT:
1. Within sixty (60) days of the date of these Orders, Ms Ennis (“the Respondent”) will provide proof of Mr Linford’s (“the Applicant”) discharge from any liabilities associated with the mortgages to the following properties:
(a) The property situated at F Street, Suburb G in Tasmania and more particularly described in Certificate of Title Volume … Folio … ("the Suburb G property");
(b) The property situated at DD(1) Street, Town P in Tasmania and more particularly described in Certificate of Title Volume … Folio …; and
(c) The property situated at DD(2) Street, Town P in Tasmania and more particularly described in Certificate of Title Volume … Folio …
and (b) and (c) together being “the Town P properties”.
2. Contemporaneously with the discharges referred to in paragraph 1 of these Orders, the following occur:
(a) The Respondent pay the Applicant the lump sum payment of Two Hundred and Thirty Six Thousand Dollars ($236,000) ("the Payment");
(b) The Respondent do all acts and sign all necessary documentation to transfer the Motor Vehicle 5 and Motor Vehicle 2 ("the Motor Vehicles") to the Applicant; and
(c) The Applicant provide proof of the Respondent's discharge of the outstanding loans and release of the Respondent’s personal guarantees secured against the Motor Vehicles.
3. The Respondent, at her sole expense, do all acts and things to ensure Motor Vehicle 6 currently registered to J Pty Ltd be transferred into the personal sole name of the Respondent.
Respondent to retain
4. The Applicant relinquish in favour of the Respondent, and transfer to her where necessary, any claim the Applicant may otherwise have to an interest in the following:
(a) The Suburb G property;
(b) The Town P properties;
(c) Any savings, money in the bank, investments of the Respondent;
(d) Any furniture, household effects or personal items in the possession of the Respondent;
(e) The $27,000 currently held in Trust with JC Legal Group;
(f) The Respondent's interest in Motor Vehicle 7, Motor Vehicle 8 and Motor Vehicle 9 currently in the sole possession of the Respondent;
(g) Any interest of the Respondent in the business, O Business, including but not limited to all plant, equipment, stock, bank accounts, fixtures and fittings, goodwill, debtors, loan accounts and undistributed profits; and
(h) Any entitlement of the Respondent to any superannuation, whether by way of a lump sum, pension or otherwise.
Applicant to retain
5. The Respondent relinquish in favour of the Applicant, and transfer where necessary, any claim the Respondent may otherwise have to an interest in the following:
(a) Any personal savings, money in the bank, investments of the Applicant;
(b) Any furniture, household effects or personal items in the possession of the Applicant;
(c) The contents of the warehouses at L Street, Suburb M;
(d) Any motor vehicle in the possession or registered in the Applicant's sole name;
(e) Any interest of the Applicant's in the business, B Pty Ltd trading as Linford Group, including but not limited to all plant, equipment, stock, bank accounts, fixtures and fittings, goodwill, debtors, loan accounts and undistributed profits;
(f) Subject to paragraphs 2 and 9 of these Orders the Surplus Assets detailed in Clause 1.10 of Mr EE’s Single Expert Report dated 3 June 2024.
(g) Any interest of the Applicant's in the business, W Business, including but not limited to all plant, equipment, stock, bank accounts, fixtures and fittings, goodwill, debtors, loan accounts and undistributed profits; and
(h) Any entitlement of the Applicant to any superannuation, whether by way of lump sum, pension or otherwise.
Default
6. In default of whole or part of the Payment to the Applicant by the Respondent, the parties do all acts and things and sign all necessary documents to effect the sale of the Town P Properties upon such terms and conditions (including reserve price) as are agreed and in default of agreement as to any matter then on terms, conditions, price and such real estate agent as shall be nominated by the President from time to time of the Real Estate Institute of Tasmania and upon completion of the sale, the proceeds of sale be applied in the following manner and priority:
(a) Firstly, to pay all costs, commission and expenses of the sale;
(b) Secondly, to discharge the mortgage secured over Town P Properties;
(c) Thirdly, payment of the legal costs and outlays relating to the sale, including conveyancing costs;
(d) Fourthly, the balance to be applied towards the Payment together with interest at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(e) Fifthly, the balance, if any, to the Respondent.
7. From the date of these Orders, and pending the default sale:
(a) The Respondent have the sole right to use and occupy the Town P Properties to the exclusion of the Applicant;
(b) The Respondent pay, be solely liable for and indemnify the Applicant absolutely against all outgoings (including any arrears) of or with respect to the Town P Properties including, but not limited to, all mortgage instalments, municipal and water rates, maintenance, utilities and other outgoings;
(c) The parties be restrained by injunction from further encumbering the Town P Properties or allowing it to be encumbered or charged by any third party save and except to effect compliance with these orders; and
(d) The parties will continue to hold their interests in the Town P Properties upon trust for the other.
8. In the event the Respondent defaults in refinancing the Suburb G Property or Town P Properties, or any of them, pursuant to paragraph 1 herein, then the parties do all such things and sign all documents to sell the relevant property or properties which the Respondent has not refinanced on the same terms and conditions set out in paragraph 6 herein.
J Pty Ltd
9. Contemporaneously with the settlement of paragraphs 1 and 2 of these Orders, the parties do the following in relation to J Pty Ltd:
(a) The Respondent do all acts and things and sign all documents, at the Applicant's expense, as may be required to:
(i) Resign from any position the Respondent holds in J Pty Ltd;
(ii) Transfer to the Applicant any shares or beneficial interest held by the Respondent in J Pty Ltd;
(iii) Transfer all bank accounts, including providing all user names and passwords to the Applicant; and
(iv) Transfer or assign to the Applicant any loan to J Pty Ltd.
(b) The Applicant pay and indemnify the Respondent, and keep the Respondent indemnified in relation to all liabilities of whatsoever nature or kind and how so ever and when so ever arising (past, present or future) in relation to J Pty Ltd, including but not restricted to taxation liability, costs, claims and penalties; and
(c) The Applicant obtain a release or discharge for the Respondent as to any guarantee, loan or liability the Respondent may have provided in relation to J Pty Ltd, including personal guarantees over the encumbered J Pty Ltd vehicles.
10. Pending settlement pursuant to paragraphs 1, 2 and 9 of these Orders:
(a) The Applicant have exclusive use and possession of the vehicles and equipment of J Pty Ltd; and
(b) The Applicant be solely responsible for payment of all costs and expenses referrable to J Pty Ltd, including the monthly repayments to the motor vehicle loans of the company, insurance premiums, maintenance and repair costs of motor vehicles, machinery and plant & equipment and general running expenses;
FF Pty Ltd
11. In the event the Respondent, or her agent, recovers any monies from FF Pty Ltd then:
(a) The proceeds, less any reasonable legal fees incurred, be divided equally between the parties; and
(b) The Respondent provide with the Applicant with all documents in relation to the recovery against FF Pty Ltd undertaken by, or on behalf of, the Respondent within 14 days of such request.
Miscellaneous
12. Save as otherwise set out in these Orders, the parties each be responsible for and forever indemnify the other against all liabilities held in their sole name or held jointly with any third party, including but not limited to:
(a) Taxation liabilities assessed in their personal name or in the name of any entity, business or trust which is to be retained by one party pursuant to these Orders past, present or future; and
(b) Any personal guarantees given by one party in respect of the debts of the other party.
13. Unless otherwise specified in these Orders, and save for the purpose 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 property and financial resources (including choses-in-action and motor vehicles) in the name of or possession of such party as at the date of these Orders;
(b) Each party hereby foregoes any claim they may have to any superannuation and/or work-related benefits or entitlements belonging to or earned by the other;
(c) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed;
(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 and/or held in that party's sole name;
(f) Each party releases the other from any and all personal debts owing or alleged to be owed by the one to the other; and
(g) Each party pay, be solely liable for and keep the other indemnified against any and all liabilities in that party's sole name, including but not limited to any and all credit card liabilities for which that party is the primary cardholder.
14. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then a Registrar of the Federal Circuit and Family Court of Australia shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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