FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONCAR & LONCAR | [2020] FCCA 2094 |
| Catchwords: FAMILY LAW – Property – addbacks – Kennon adjustment – 75(2) adjustment – just and equitable – costs. |
| Legislation: Family Law Act 1975 (Cth), ss. 75, 79, 81, 90XE, 90XT, 117 Evidence Act 1995 (NSW), s.177 |
| Cases cited: Stanford v Stanford [2012] HCA 52 |
| Applicant: | MS LONCAR |
| Respondent: | MR LONCAR s |
| File Number: | SYC 3269 of 2016 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 9, 10, 11 & 20 March 2020 |
| Date of Last Submission: | 13 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Maclarens Lawyers |
| Counsel for the Respondent: | Mr Kondich |
| Solicitors for the Respondent: | Shephard & Shephard |
THE COURT ORDERS THAT
The wife shall within 90 days of the date of these orders:
(a)Pay to the husband the sum of $346,493.05 (“the settlement sum”);
(b)Cause the discharge of the mortgage to the C Bank registered on the title to the property at D Street, Suburb A (“the D Street, Suburb A property”); and
(c)By consent, transfer to the husband her interest in the B Timeshare, with the parties to do all things reasonably necessary including signing all documents, to implement that transfer.
Upon the wife’s compliance with order 1 above, the husband shall transfer to the wife his right title and interest in the D Street, Suburb A property.
In the event that the wife fails to comply with orders 1(a) and (b) above, then the parties forthwith do all things and sign all documents reasonably necessary to cause the D Street, Suburb…
Continue reading LONCAR & LONCAR
Sign in free to access the full text
- AGLC
- LONCAR & LONCAR [2020] FCCA 2094
- Case
- [2020] FCCA 2094
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific financial entitlements and obligations of each party to achieve a just and equitable division of their matrimonial property. This included determining the method and terms for the transfer of interests in a property located at D Street, Suburb A, the division of personal property, and the splitting of a superannuation interest. The court also considered the circumstances under which the D Street, Suburb A property might be sold and how the proceeds would be distributed.
Judge Kemp's reasoning led to a detailed set of orders aimed at finalising the property settlement. The wife was ordered to pay a settlement sum and facilitate the discharge of a mortgage on the D Street, Suburb A property, after which the husband would transfer his interest in that property to her. Provisions were made for the sale of the D Street, Suburb A property by private treaty or public auction if the wife failed to comply with these initial obligations, with specific percentages of the sale proceeds allocated to each party. The court also ordered a superannuation splitting order in favour of the wife and declared each party to be the sole owner of assets in their possession, subject to the specific orders made. A Registrar was appointed to execute documents if a party defaulted, and a mechanism for dealing with costs applications was established.
Orders
Orders of the court
1.
The wife shall within 90 days of the date of these orders:
(a) Pay to the husband the sum of $346,493.05 (“the settlement sum”);
(b) Cause the discharge of the mortgage to the C Bank registered on the title to the property at D Street, Suburb A (“the D Street, Suburb A property”); and
(c) By consent, transfer to the husband her interest in the B Timeshare, with the parties to do all things reasonably necessary including signing all documents, to implement that transfer.
2.
Upon the wife’s compliance with order 1 above, the husband shall transfer to the wife his right title and interest in the D Street, Suburb A property.
3.
In the event that the wife fails to comply with orders 1(a) and (b) above, then the parties forthwith do all things and sign all documents reasonably necessary to cause the D Street, Suburb A property to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the New South Wales Division of the Australian Property Institute (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
(a) Payment of agent's commission and advertising expenses and legal expenses of the sale;
(b) Discharge of the mortgage to C Bank;
(c) Payment of costs incurred, if any, in relation to determination of value or selling price; and
(d) The balance then remaining to be divided as to:
(i) 74.5 per centum to the wife;
(ii) 25.5 per centum to the husband;
4.
In the event the D Street, Suburb A property is not sold by private treaty within a period of 3 months of the implementation of order 3 above, then the parties forthwith do all acts and things necessary including executing all documents reasonably necessary to cause the said property to be sold by public auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement at a reserve price to be determined by the President of the New South Wales Division of the Australian Property Institute (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in accordance with order 3.
5.
Pending the wife’s compliance with order 1 (or the sale of the D Street, Suburb A property in accordance with orders 3 and 4) and until the wife ceases occupation of the D Street, Suburb A property, the wife shall pay any mortgage instalments as have presently been determined by C Bank. Upon the wife vacating the D Street, Suburb A property, each of the parties shall be jointly responsible for the payment of the said mortgage.
6.
Within 21 days of today’s date, the parties shall do all things reasonably necessary to divide equally between them the furniture in the D Street, Suburb A property by agreement and in the absence of agreement, the wife shall prepare 2 lists of items of furniture and provide them to the husband within 14 days, further and, thereafter, the husband shall select one (1) list within a further 7 days and arrange for collection of the selected items within 7 days further.
7.
There be a superannuation splitting order affecting the interest of the husband in Super Fund DDD (“the Fund”) in the following terms:
(a) That a base amount of $61,140.50 is allocated, as required by s.90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the interest held by the husband in the Fund.
(b) That whenever a splittable payment within the meaning of s.90XE of the Act becomes payable to or on behalf of the husband from his interest in the Fund, the trustee shall pay the wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and make a corresponding reduction in the entitlement the husband would have had but for these orders.
(c) That this order has effect from the operative time.
(d) That the operative time is from the fourth business day after a correctly certified copy of the orders is received in the mail.
(e) That this order binds the trustee of the Fund.
8.
Otherwise than in orders 1 to 7 above, the husband shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the wife of:
(a) Any motor vehicle (including motorbike) in his possession;
(b) All items of furniture and contents in his possession; and
(c) All savings or monies in his possession, custody or control, other than as stated above.
9.
Otherwise than in the orders 1 to 7 above, the wife shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the husband of:
(a) Any motor vehicle in her possession;
(b) All items of furniture and contents in her possession; and
(c) All savings or monies in her possession, custody or control, other than as stated above.
10.
Should either party fail to sign any document to give effect to these orders, a Registrar of the Federal Circuit Court of Australia upon proof of an affidavit of such failure, is appointed pursuant to s.106A of the Act to execute any required documents on behalf of the defaulting party to give force and effect to these orders and the costs borne as a result of such default, including the preparation of affidavit evidence and legal fees arising from such default, shall be paid by the defaulting party to the non-defaulting party within 7 days of the defaulting party receiving the request for payment from the non-defaulting party.
11.
If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to Chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
12.
The matter is, otherwise, removed from the active pending cases list.
THE COURT NOTES:
13.
The reference in the above orders to the C Bank applies mutatis mutandis to the Westpac Banking Corporation if that last mentioned banking entity has assumed the rights and obligations of the first mentioned banking entity.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.