Macey and Macey - [2017] FCCA 52

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACEY & MACEY

[2017] FCCA 52

Catchwords:
FAMILY LAW – Property – undefended – Husband’s failure to participate in the proceedings – Section 75(2) factors – business assets – Husband’s failure to provide full and frank disclosure – failure to comply with orders and directions of the Court.

Legislation:

Family Law Act 1975, ss.75, 75(2), 75(2)n, 79, 79(2), 79(4), Part VIIA

Federal Circuit Court Rules 2001, rr.1.03, 9.03(2), 13.03C, 16.05

Federal Court of Australia Act 1976, ss.37M, 37N

Cases cited:

Allesch v Maunz [2000] HCA 40

Irwin v Irwin [2016] FCA 1565
Stanford v Stanford [2012] HCA 52
Turner & Turner and Anor [2016] FamCAFC 121

Applicant:

MS MACEY

Respondent:

MR MACEY

File Number:

MLC 9 of 2016

Judgment of:

Judge Stewart

Hearing date:

2 December 2016

Date of Last Submission:

2 December 2016

Delivered at:

Melbourne

Delivered on:

24 January 2017

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Camerons Lawyers Pty Ltd

No appearance by the Respondent.

ORDERS

The Husband forthwith make payment to the Wife to her nominated bank account the sum of $36,240.00 pursuant to Court orders made on 1 March 2016 and $1,650.00 pursuant to Court orders made on 17 August 2016.
The Husband pay to the Wife the sum of $274,000.00 (“the payment”) within 45 days from the date hereof (“the date”).
Contemporaneously with the payment:-
(a)the Husband retain to the exclusion of the Wife, and the Wife relinquish all her right, title and interest in:-
(i)Company A;
(ii)Company B;
(iii)Company C; and
(iv)Company D;
(collectively referred to as “the business”); and
(b)the parties do all such acts and things and sign all such documents to remove the Wife from any office she may have in the business.
Pending the payment:-
(a)the Husband be and is hereby restrained by injunction from and/or causing the business from selling, encumbering, disposing or depleting the interest of the parties or either of them in the business, save and except by written consent of the parties or otherwise in the ordinary course of business; and
(b)the Husband and the Wife hold their respective interests in the business upon trust pursuant to these orders.
In the event that the payment has not been made by the date, the Husband, in his personal capacity or in his capacity as director and/or partner of the business forthwith arrange for the assets of the business to be sold out of Court (“the business sale”) on terms and conditions as agreed between the parties and failing agreement to be determined by such other agent nominated by the Wife, and upon completion of the business sale, the proceeds of the business sale be applied in the following order and priority:-
(a)firstly, to pay all costs, commissions and expenses of the business sale;
(b)secondly, to discharge any encumbrance affecting the assets to be sold;
(c)thirdly, so much of the payment outstanding owing to the Wife with interest pursuant to statute;
(d)fourthly, so much of…

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 Macey and Macey

Details

AGLC: Macey and Macey [2017] FCCA 52
Case: [2017] FCCA 52
Decision Date: 24 January 2017

CaseChat Overview and Summary

This matter concerned orders made by Judge Stewart in the Federal Circuit Court of Australia, Family Law Division, between a husband and wife. The dispute involved the division of property and the assumption of liabilities following the breakdown of the marriage. The orders detailed the financial and property adjustments to be made between the parties, including the transfer of business interests, real property, and the allocation of various debts and loans.

The court was required to determine the specific terms of the property settlement, including the quantum of payments to be made by the husband to the wife, the division of business assets and liabilities, and the allocation of individual debts and indemnities. Key issues included the husband's obligation to pay a significant sum to the wife, the transfer of ownership of four companies constituting a business, the wife's release from a substantial business guarantee, and the assumption of various personal and business debts by each party. The court also addressed the mechanism for enforcing these orders, including provisions for the sale of the business if payment was not made and the appointment of the Registrar to execute documents in case of default.

The court's reasoning, as reflected in the orders, was to achieve a final division of the parties' financial and property interests. This involved a substantial cash payment from the husband to the wife, the transfer of business assets to the husband in exchange for that payment, and the husband's assumption of all associated business liabilities, including a significant bank guarantee. The wife was to retain specific real property and was indemnified against certain personal loans, while the husband was similarly indemnified against other specified debts. The orders also established a clear process for the sale of the business and the distribution of proceeds should the husband fail to meet his payment obligations, prioritising the wife's entitlements and her release from the guarantee. Provisions were made for the severance of joint tenancies, the closure of joint bank accounts, and the individual retention of other property, with each party indemnifying the other against liabilities related to their respective retained assets.

The court made detailed orders for the immediate payment of outstanding sums, the transfer of business and property interests, the assumption of liabilities, and the indemnification of each party. It also established a framework for the sale of the business and the application of proceeds in the event of non-payment, and appointed the Registrar to execute documents on behalf of a defaulting party. Each party was to bear their own costs unless otherwise specified, and liberty was granted to apply for implementation and enforcement.

Orders

Orders of the court

The Husband forthwith make payment to the Wife to her nominated bank account the sum of $36,240.00 pursuant to Court orders made on 1 March 2016 and $1,650.00 pursuant to Court orders made on 17 August 2016.

The Husband pay to the Wife the sum of $274,000.00 (“the payment”) within 45 days from the date hereof (“the date”).

Contemporaneously with the payment:-

(a) the Husband retain to the exclusion of the Wife, and the Wife relinquish all her right, title and interest in:-

(i) Company A;

(ii) Company B;

(iii) Company C; and

(iv) Company D;

(collectively referred to as “the business”); and

(b) the parties do all such acts and things and sign all such documents to remove the Wife from any office she may have in the business.

Pending the payment:-

(a) the Husband be and is hereby restrained by injunction from and/or causing the business from selling, encumbering, disposing or depleting the interest of the parties or either of them in the business, save and except by written consent of the parties or otherwise in the ordinary course of business; and

(b) the Husband and the Wife hold their respective interests in the business upon trust pursuant to these orders.

In the event that the payment has not been made by the date, the Husband, in his personal capacity or in his capacity as director and/or partner of the business forthwith arrange for the assets of the business to be sold out of Court (“the business sale”) on terms and conditions as agreed between the parties and failing agreement to be determined by such other agent nominated by the Wife, and upon completion of the business sale, the proceeds of the business sale be applied in the following order and priority:-

(a) firstly, to pay all costs, commissions and expenses of the business sale;

(b) secondly, to discharge any encumbrance affecting the assets to be sold;

(d) fourthly, so much of the loan facilities still owing as is required to release the Wife from the guarantee to Bank A in the sum of $589,500.00 (“the guarantee”); and

(e) fifthly, the balance to the Husband.

For the better implementation of order 5 hereof, the Husband shall pay to the selling agent any sums requested for advertising or auction expenses and the Husband shall be reimbursed of such payments from the sale proceeds of the business sale before any division to the parties.

The Husband forthwith refinance any and all loan facilities and do all such acts and things and sign all such documents in order to release the Wife from the guarantee.

The Husband forthwith assume all liability for and shall pay and indemnify the Wife in respect of any and all debts and liabilities, now and in the future, of the business, including but not limited to the guarantee and any and all income and other tax liability assessed or to be assessed accruing to the business and/or individually to the parties arising out of the conduct of the business and/or the payment.

The Wife retain the real property situate at Property A in the State of Victoria, being more particularly described in Certificate of Title (omitted) (“the Property A property”) to the exclusion of the Husband and the Husband relinquish all his right, title and interest in the Property A property.

10.

The Husband indemnify the Wife and keep the Wife indemnified with respect to the following:-

(a) the loan from Bank B for the Husband’s jetski;

(b) the loan for the Husband’s 2015 (omitted) Motorcycle;

(d) the loan from Mr J and Ms M in the sum of $15,000.00.

11.

The Wife indemnify the Husband and keep the Husband indemnified with respect to the following:-

(a) the (omitted) Credit Card;

(b) the (omitted) Visa Credit Card; and

12.

Each party shall do all such acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these orders within 14 days of a written request to so do.

13.

If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so pursuant to order 16 hereof then the Registrar of the Family Court of Australia at the Melbourne Registry is hereby appointed under section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgment of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

14.

A defaulting party pursuant to order 17 hereof shall pay the other party’s costs of and incidental to such request and production of documents to the Registrar on an indemnity basis.

15.

Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any monies due under these or any subsequent orders:-

(a) each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date (the furniture, personal possessions and like chattels in the Property A property are deemed to be in the Wife’s possession and the furniture, personal possessions and like chattels in the Property B property are deemed to be in the Husband’s possession);

(b) money standing to the credit of the parties in any joint bank account is to become the property of the Wife and the parties forthwith do all such acts and things and sign all such documents necessary to close any joint bank accounts;

(c) any monies standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

(d) each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;

(e) all insurance policies are to become the sole property of the owner named thereon;

(f) 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

(g) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

16.

Liberty is granted to each of the parties to apply in relation to the implementation and enforcement of these orders.

17.

Liberty is granted to each of the parties to apply in relation to the terms of the sale and/or the business sale.

18.

Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the Court may vary or set aside a judgment or order made in the absence of a party.

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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