Lupei and Salcedo and Anor - [2019] FCCA 2072

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUPEI & SALCEDO & ANOR

[2019] FCCA 2072

Catchwords:
FAMILY LAW – Application for property adjustment orders – significant factual disputes – assessments of evidence – assessment of contributions – justice and equity.

Legislation:

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

Evidence Act 1995 (Cth), ss.55, 76, 78

Cases cited:

Anderson & Dimitrova-Boyadzhieva [2005] FMCAfam 511

Bevan & Bevan [2014] FamCAFC 19

Chapman & Chapman [2014] FamCAFC 91

Falk & Falk (1977) FLC 90-247

Fenech & Fenech (1976) FLC 90-035

Kennon & Kennon (1997) FLC 92-757

Lane & Lane (No. 1) (1976) FLC 90-055

Pavey & Pavey (1976) FLC 90-051

Pierce & Pierce (1999) FLC 92-844

Russell & Russell (1999) FLC 92-877

Scott & Danton [2014] FamCAFC 203

Stanford & Stanford [2012] HCA 52

Stangl & Peng [2012] FMCAfam 615

Teal & Teal [2010] FamCAFC 120

Todd & Todd (No. 2) (1976) FLC 90-008

Applicant:

MR LUPEI

First Respondent:

MS SALCEDO

Second Respondent:

MR B LUPEI

File Number:

PAC 5805 of 2017

Judgment of:

Judge Obradovic

Hearing date:

5 March 2019

Date of Last Submission:

5 March 2019

Delivered at:

Parramatta

Delivered on:

22 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Cantral

Solicitors for the Applicant:

Shera Tiongan

Counsel for the First Respondent:

Mr Harper

Solicitors for the First Respondent:	O'Sullivan Legal
Appearing for Second Respondent:	No appearance

ORDERS

Pursuant to section 106B of the Family Law Act 1975 (Cth), the transfer of the property situated at and known as Property A in the state of New South Wales being the property comprised in Folio Identifier … (“Property A”) to the Second Respondent, Mr B Lupei, be set aside.
The Wife be declared the sole legal beneficial owner of the property situated at and known as Property A in the state of New South Wales being the property comprised in Folio Identifier ….
Within one (1) calendar month from the date of these Orders, the Wife shall:
(a)Transfer to the Husband the property situated at and known as Property B in the state of New South Wales being the property comprised in Folio Identifier …;
(b)Pay to the Husband the sum of $1,919; and
(c)Pay to the Husband the sum of $472.50 in repayment of her half share of the cost of the Court ordered joint valuations for Property A and Property B.
In the event that the Wife fails to comply with Order 3(b) above, then the Wife shall pay to the Husband in addition to the said sum of $1,919 interest thereon calculated at the rate prescribed from time to time by the Family Law Rules 2004 from the due date of the payment until the date of receipt of such monies by the Husband.
As between the Husband and Wife, and subject to the above Orders, the Wife shall retain all interest in and entitlement to:
(a)The 2010 Vehicle C motor vehicle, registration number … .
(b)All personal property and financial resources now in her respective possession or control.

(c)All shares,…

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.

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Details

Case: [2019] FCCA 2072
Decision Date: 22 August 2019

CaseChat Overview and Summary

In the matter of *Lupei and Salcedo*, Judge Obradovic of the Federal Circuit and Family Court of Australia considered an application for property adjustment orders where significant factual disputes arose concerning the parties' contributions and the overall justice and equity of the situation. The proceedings involved a husband and wife, referred to as the Husband and Wife, and a second respondent, Mr B Lupei.

The court was required to determine whether a transfer of a property, identified as Property A, to the Second Respondent, Mr B Lupei, should be set aside. Further, the court needed to ascertain the beneficial ownership of Property A and make orders for the adjustment of property between the Husband and Wife, considering their respective contributions and the equitable distribution of assets and liabilities.

Judge Obradovic reasoned that the transfer of Property A to the Second Respondent should be set aside pursuant to section 106B of the *Family Law Act 1975* (Cth), declaring the Wife as the sole legal and beneficial owner of that property. The court then ordered the Wife to transfer Property B to the Husband, pay him a sum of $1,919, and reimburse him for her half share of joint valuations. The orders also stipulated that the Wife would retain certain assets in her sole name, including a motor vehicle, personal property, financial resources, shares, and interests in superannuation and life insurance policies. Similarly, the Husband was to retain specific assets in his sole name. Both parties were to remain liable for debts in their sole names and indemnify the other against such liabilities. The court further provided for the Registrar to execute necessary documents if either party failed to do so.

Orders

Orders of the court

Pursuant to section 106B of the Family Law Act 1975 (Cth), the transfer of the property situated at and known as Property A in the state of New South Wales being the property comprised in Folio Identifier … (“Property A”) to the Second Respondent, Mr B Lupei, be set aside.

The Wife be declared the sole legal beneficial owner of the property situated at and known as Property A in the state of New South Wales being the property comprised in Folio Identifier ….

Within one (1) calendar month from the date of these Orders, the Wife shall:

(a) Transfer to the Husband the property situated at and known as Property B in the state of New South Wales being the property comprised in Folio Identifier …;

(b) Pay to the Husband the sum of $1,919; and

(c) Pay to the Husband the sum of $472.50 in repayment of her half share of the cost of the Court ordered joint valuations for Property A and Property B.

In the event that the Wife fails to comply with Order 3(b) above, then the Wife shall pay to the Husband in addition to the said sum of $1,919 interest thereon calculated at the rate prescribed from time to time by the Family Law Rules 2004 from the due date of the payment until the date of receipt of such monies by the Husband.

As between the Husband and Wife, and subject to the above Orders, the Wife shall retain all interest in and entitlement to:

(a) The 2010 Vehicle C motor vehicle, registration number … .

(b) All personal property and financial resources now in her respective possession or control.

(c) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively.

(d) All interests in life insurance policies and superannuation funds standing in her sole name respectively.

As between the Husband and Wife, and subject to the above Orders, the Husband shall retain all interest in and entitlement to:

(a) His 2010 Vehicle E motor vehicle, registration number … .

(b) All personal property and financial resources now in his respective possession or control.

(c) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name respectively.

(d) All interests in life insurance policies and superannuation funds standing in his sole name respectively.

Subject to the above Orders, the Husband and Wife shall be and remain liable for any debts in his or her sole name at the date of these Orders and in this respect shall indemnify and hold harmless the other from all and any liability in relation thereto.

In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to this Order, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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