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LUNAR and LUNAR

LUNAR and LUNAR

Case [2019] FCWA 259 5 December 2019

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LUNAR and LUNAR [2019] FCWA 259
CORAM: O'BRIEN J
HEARD: 21, 22, 23 & 24 OCTOBER 2019
DELIVERED : 5 DECEMBER 2019
FILE NO/S: PTW 6809 of 2017
BETWEEN: MS LUNAR
Applicant
AND
MR LUNAR
Respondent

Catchwords:

PROPERTY - Where parties agree equal division of property and superannuation - Where there is a significant dispute as to the value of a property which the wife seeks to retain - Where the husband proposes subdivision and sale of that property - Where parties each engaged valuers - Where ascertainment of value by judicial process is so uncertain as to risk significant injustice - Turns on its own facts.

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Income Tax Assessment Act 1997 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Hooper SC and Mr Fahey
Respondent	:	Mr Dowding SC and Ms Hynes

Solicitors:

Applicant	:	Fahey Mwenda D'Adamo Legal
Respondent	:	DCH Legal Group

Case(s) referred to in decision(s):

Chorn & Hopkins (2004) FLC 93-204
Commonwealth v Milledge (1953) 90 CLR 157
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122
GWR & VAR (2006) 36 Fam LR 237
In the Marriage of Boriello (1989) FLC 92-049
In the Marriage of Little (1990) FLC 92-147
Lunar & Lunar [2019] FCWA 122
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1
Redland Bricks Ltd v Morris [1969] 2 All ER 576
Smith & Smith (1991) FLC 92-261
Spencer v The Commonwealth of Australia (1907) 5 CLR 418
Trevi & Trevi [2018] FamCAFC 173
W & W, Re; Abuse Allegations; Expert Evidence (2001) FLC 93-085

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lunar and Lunar has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1[Ms Lunar] (“the wife”) and [Mr Lunar] (“the husband”) have been unable to agree the division of their property following the breakdown of their long marriage.
2As will appear, to their credit the parties were able to agree a significant number of matters including, fundamentally, that an equal division of property and superannuation between them would represent a just and equitable outcome. Their inability to fully resolve their dispute by agreement arose primarily, but not exclusively, because of issues as to the value of a significant landholding which the wife sought to retain and which the husband proposed should be subdivided and sold.

Background

3The husband was born in 1949. He [graduated with an accounting degree] shortly after the parties married in 1973, and worked in that [field] until [late-1985] when he retired from the [accounting] firm at which…

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 LUNAR and LUNAR

Details

AGLC: LUNAR and LUNAR [2019] FCWA 259
Case: [2019] FCWA 259
Decision Date: 5 DECEMBER 2019

CaseChat Overview and Summary

The parties, LUNAR and LUNAR, appeared before the court in a property dispute, with the wife seeking to retain a property, while the husband proposed its subdivision and sale. The wife contested the value of the property, and both parties engaged their own valuers to assess its worth. The court was tasked with determining the legal issues surrounding the property's valuation, the parties' agreement on equal division, and the risk of significant injustice if the value was to be ascertained judicially. The court examined the nature of the agreement between the parties, the reliability of the valuation methods employed, and the potential for injustice if the court were to intervene.

The primary legal issues before the court included whether the parties had indeed agreed on an equal division of the property, how the significant disparity in the valuations provided by the respective valuers should be addressed, and whether it was appropriate for the court to determine the property's value directly. The court considered the nature of the agreement between the parties, the reliability and methods used by the valuers, and the potential for injustice should the court itself determine the property's value. The court concluded that the agreement between the parties was not sufficiently clear to determine an equal division of the property's value, and that the significant disparity in the valuations indicated that the ascertainment of value by judicial process was uncertain and risked significant injustice.

The court found that the parties had not clearly agreed on an equal division of the property and superannuation, and that the significant disparity in the valuations provided by the respective valuers rendered the ascertainment of value by judicial process uncertain. Given the potential for significant injustice, the court declined to determine the property's value directly. Instead, the court opted to facilitate a resolution by the parties, allowing them to engage an independent valuer to ascertain the property's value. The court ordered that the parties were to jointly engage an independent valuer, with costs to be shared equally, and that the valuer's report was to be filed with the court within a specified timeframe.

Orders