Lynch and Kershaw and Ors - [2015] FCCA 2712

FEDERAL CIRCUIT COURT OF AUSTRALIA

LYNCH & KERSHAW & ORS

[2015] FCCA 2712

Catchwords:
FAMILY LAW – Property – where the pool cannot be determined because the husband frustrated all attempts to value his businesses – where after asserting at trial that the businesses were worth nothing the husband in his written submission asked the court to accept that they were worth $310,000.00 – where eight months after separation the husband’s new partner purchased a property using $100,000.00 allegedly belonging to her together with a loan – where the evidence establishes that the husband transferred the $100,000.00 to his new partner from the businesses in a covert fashion – where that real property has since been sold and another real property purchased in the partner’s name – where the court is satisfied that the husband covertly transferred other funds to his new partner – how to do justice and equity to the wife – whether and if so how property in the new partner’s name can be brought into account.

Legislation:

Family Law Act 1975 (Cth), ss.75, 78, 79, 90AE, 90AK, 106B

B Pty Ltd and Ors & K and Anor (2008) FLC 93-380
Chapman & Chapman [2014] FamCAFC 91

Hearn & Hearn [2015] FamCAFC 178

Robb & Robb (1995) FLC 92-555
Valceski v Valceski [2007] NSWSC 440

Weir & Weir (1992) 16 FamLR 154

Applicant:

MS LYNCH

First Respondent:

MR KERSHAW

Second Respondent:

MR B KERSHAW

Third Respondent:

MS KERSHAW

File Number:

NCC 943 of 2011

Judgment of:

Judge Terry

Hearing dates:

22, 23 & 24 April, 14 & 15 July & 4 September 2014

Date of Last Submission:

3 December 2014

Delivered at:

Newcastle

Delivered on:

13 October 2015

REPRESENTATION

Counsel for the Applicant:

Mr Boyd

Solicitors for the Applicant:

Kilpatrick Hatton

Counsel for the First & Second Respondent:

Mr Bates

Solicitors for the First & Second Respondent:

Schofield Muir Lawyers

Counsel for the Third Respondent:

Mr Levick

Solicitors for the Third Respondent:

Mullane & Lindsay

ORDERS

Pursuant to s.78 of the Family Law Act 1975 it is declared that the third respondent Ms Kershaw holds her interest in Property J2 on trust for the husband.
The money held in trust by Kilpatrick Hatton from the sale of Property B shall be the property of the wife and the husband and wife shall sign all documents and do all acts and things required to authorise Kilpatrick Hatton to pay this money to the wife.
The husband shall within 42 days of the date of these orders pay to the wife the sum of $262,173.00.
Until payment by the husband of the amount required by Order (3) together with any interest thereon (if applicable) the husband is restrained and an injunction is granted restraining him from selling, further encumbering or otherwise disposing of his interest in:
(a)Kershaw t/as (business omitted);
(b)(business omitted) (omitted);
(c)(business omitted) (omitted);
(d)(business omitted) (omitted);
(e)(business omitted) (omitted);
(f)(business omitted) (omitted).

Until payment of the amount referred to in Order (3) together with any interest…

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.

Keep reading for free

Create a free CaseChat account to read Lynch and Kershaw and Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 2712
Decision Date: 13 October 2015

CaseChat Overview and Summary

In *Lynch and Kershaw and Ors*, heard by Judge Terry, the dispute concerned the division of property between a husband and wife. The proceedings also involved a third respondent, Ms Kershaw, in relation to her interest in a property. The court was required to make declarations regarding ownership of various assets and to make orders for the payment of money and the sale of property.

The primary legal issues before the court were the characterisation of Ms Kershaw's interest in Property J2, the distribution of sale proceeds from Property B, the quantum of a payment to be made by the husband to the wife, and the appropriate security and enforcement mechanisms for that payment. The court also had to determine the ownership of a vehicle and to make general declarations concerning the remaining assets and superannuation of the parties.

The court declared that Ms Kershaw held her interest in Property J2 on trust for the husband, pursuant to section 78 of the *Family Law Act 1975*. It ordered that money held from the sale of Property B was to be paid to the wife. The husband was ordered to pay a sum of $262,173.00 to the wife within 42 days, with injunctions granted restraining the husband from dealing with his business interests and Ms Kershaw from dealing with Property J2 until this payment was made. If the husband failed to make the payment, Property J2 was to be sold, with the wife appointed trustee for sale, and the proceeds to be applied first to sale costs, then to discharge a mortgage, then to pay the wife the ordered sum plus interest, with any balance to be paid as directed by the husband or Ms Kershaw. The wife was declared the owner of a specified vehicle, and otherwise, the parties were declared owners of their respective assets and superannuation. Finally, pursuant to section 106A of the *Family Law Act*, a Registrar was appointed to execute documents on behalf of any party who failed to do so.

Orders

Orders of the court

1. Pursuant to s.78 of the Family Law Act 1975 it is declared that the third respondent Ms Kershaw holds her interest in Property J2 on trust for the husband.

2. The money held in trust by Kilpatrick Hatton from the sale of Property B shall be the property of the wife and the husband and wife shall sign all documents and do all acts and things required to authorise Kilpatrick Hatton to pay this money to the wife.

3. The husband shall within 42 days of the date of these orders pay to the wife the sum of $262,173.00.

4. Until payment by the husband of the amount required by Order (3) together with any interest thereon (if applicable) the husband is restrained and an injunction is granted restraining him from selling, further encumbering or otherwise disposing of his interest in:

(a) Kershaw t/as (business omitted);

(b) (business omitted) (omitted);

(d) (business omitted) (omitted);

(e) (business omitted) (omitted);

(f) (business omitted) (omitted).

5. Until payment of the amount referred to in Order (3) together with any interest thereon (if applicable) the third respondent is restrained and an injunction is granted restraining her from selling, further encumbering or otherwise disposing of Property J2.

6. If the husband fails to pay the amount required by Order (3) then:

(i) the property known as Property J2 shall be sold;

(ii) the wife is appointed trustee for sale of the property and shall do all acts and things required to sell the property;

(iii) the husband and the third respondent shall vacate the property no later than 56 days from the date of these orders;

(iv) until completion of the sale the husband and the third respondent shall be responsible for the repayments in respect of the loan secured on the property by mortgage in favour of the (omitted) Bank and the outgoings for the property as fall due;

(v) the third respondent shall upon being requested by the wife to do so sign all documents required to effect the sale of the property and procure the discharge of the mortgage registered over the property;

(vi) the proceeds of sale shall be utilised:

a) to pay the costs commissions and expenses of sale;

b) to pay the amount required to discharge Mortgage No. (omitted) registered over the property in favour of the (omitted) Bank;

c) to pay the wife $262,173.00 plus interest at the rate prescribed in the Family Law Rules from the expiration of the time for payment referred to in Order (3) until the date of payment;

d) to pay the balance as the husband or the third respondent may direct.

7. Any amount which remains due and owing by the husband to the wife after the completion of the sale of Property J2 shall until payment bear interest at the rate prescribed in the Family Law Rules.

8. The wife is declared the owner to the exclusion of the husband of the Holden (omitted) and the husband shall sign all documents required to transfer to the wife at the expense of the wife any interest he may have in the vehicle.

9. Subject to any other orders the husband and wife are each otherwise declared the owner of all assets and superannuation in their possession, under their control or registered in their name.

10. Pursuant to s.106A of the Family Law Act in the event that either party fails, neglects or refuses to execute any deed, instrument or document to give validity and effect to these orders a Registrar of the Federal Circuit Court at Newcastle is appointed to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

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.