Madawela and Albert - [2011] FMCAfam 692

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MADAWELA & ALBERT

[2011] FMCAfam 692

FAMILY LAW – Property – contributions and disclosure.

Family Law Act 1975, ss.72, 75(2) and 79

Todd v Todd (No.2) (1976) FLC 90-008
Hickey & Hickey & Attorney for Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Townsend (1995) FLC 92-569
Wilde [2007] FamCA 1044
Weir (1993) FLC 92-338

Applicant:

MR MADAWELA

Respondent:

MS ALBERT

File Number:

ADC 3986 of 2008

Judgment of:

Cole FM

Hearing dates:

7 & 8 February and 1 & 17 March 2011

Date of Last Submission:

17 March 2011

Delivered at:

Adelaide

Delivered on:

9 September 2011

REPRESENTATION

The Applicant:

Self-represented

Counsel for the Respondent:

Ms Nelson QC

Solicitors for the Respondent:

Di Morosini & Co.

ORDERS

The wife take such steps as are required to forthwith transfer her interest in the property known as Property R to the husband forthwith;
The husband have liberty to list the property for sale, pending the transfer being effected;
Upon the transfer being effected into the husband’s name, the husband indemnify the wife in respect of all outgoings thereon thereafter;
The husband be responsible for the cost of the preparation and registration of the transfer;
The wife pay to the husband within thirty (30) days of the date of these orders the sum of $31,000.00).
That any interest the wife may have in the following vest in the husband absolutely:
(a)the proceeds of sale of the property known as Property T ($56,000) received by the husband;
(b)the husband’s interest in his mother’s estate including the land at Property K;
(c)all other assets in his possession or control not otherwise specified herein.
That any interest the husband may have in the following vest in the wife absolutely:
(a)Property S;
(b)the wife’s savings and investments, furniture and effects, superannuation entitlements; and
(c)the wife’s interest in the land at Property B.
That the parties take such steps and do such things as are reasonably required to retrieve the safety deposit box in Sri Lanka and have delivered to each party and the children, such jewellery as belongs to each of them that may be contained in the said safety deposit box.
Liberty to the parties to apply as to consequential orders.
That the proceedings be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Madawela & Albert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3986 of 2008

MR MADAWELA

Applicant

And

MS ALBERT

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the application of the husband for division of the matrimonial assets. Proceedings were commenced on 12 October 2009.
Both parties currently reside in Australia, having migrated from Sri Lanka. The husband has a Bridging A Visa which permits him to remain in Australia whilst his substantive visa application is decided. He has unlimited work rights for this period. (I will refer to this later in my reasons.)
The wife is a permanent…

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 Madawela and Albert

Details

AGLC: Madawela and Albert [2011] FMCAfam 692
Case: [2011] FMCAfam 692
Decision Date: 9 September 2011

CaseChat Overview and Summary

The matter of Madawela and Albert involved a dispute between a husband and wife regarding the valuation and ownership of various properties. The wife was the registered proprietor of a piece of land acquired in 1995, on which a house was being constructed. The husband contested the valuation of the property provided by the wife, asserting that the valuation was flawed and that the property was worth more than the amount stated. The primary legal issue was the valuation of the property in question and whether the wife's valuation was accurate and should be accepted. The husband argued that the valuer had followed the wife’s wishes, but the court found no evidence to support this claim. The husband also pointed out discrepancies in the floor area of the house as shown in his plans versus the valuer’s report, but the court noted that the property was in an abandoned state, which impacted its marketability.

The court held that the wife was the registered proprietor of the land and the house, and there was no evidence to support the husband's claims that the valuation was flawed or that the valuer had acted in accordance with the wife’s wishes. The court noted that the husband had not provided any alternative valuation or evidence to support his assertions. The court ordered that the wife transfer her interest in the property to the husband, with the husband indemnifying the wife for any outgoings after the transfer. The court also ordered that the husband be responsible for the cost of the transfer and that the wife pay the husband a specified sum within a certain timeframe. Additionally, the court ordered that various other assets and interests be transferred between the parties.

In conclusion, the court dismissed the husband’s objections to the valuation and ordered the transfer of the property and other assets as specified. The proceedings were dismissed with liberty to apply for consequential orders. The final orders included the transfer of the property, financial payments between the parties, and the division of other assets and interests.

Orders

Orders of the court

The wife take such steps as are required to forthwith transfer her interest in the property known as Property R to the husband forthwith;

The husband have liberty to list the property for sale, pending the transfer being effected;

Upon the transfer being effected into the husband’s name, the husband indemnify the wife in respect of all outgoings thereon thereafter;

The husband be responsible for the cost of the preparation and registration of the transfer;

The wife pay to the husband within thirty (30) days of the date of these orders the sum of $31,000.00).

That any interest the wife may have in the following vest in the husband absolutely:

(a) the proceeds of sale of the property known as Property T ($56,000) received by the husband;

(b) the husband’s interest in his mother’s estate including the land at Property K;

That any interest the husband may have in the following vest in the wife absolutely:

(a) Property S;

(b) the wife’s savings and investments, furniture and effects, superannuation entitlements; and

That the parties take such steps and do such things as are reasonably required to retrieve the safety deposit box in Sri Lanka and have delivered to each party and the children, such jewellery as belongs to each of them that may be contained in the said safety deposit box.

Liberty to the parties to apply as to consequential orders.

10.

That the proceedings be otherwise dismissed.

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

Assets and Liabilities at Separation (2007) Current Assets, Liabilities and Financial Resources For the purposes of the trial, the parties used an exchange rate of 100 Sri Lankan rupee to the Australian dollar. I do not propose to vary this. There is no dispute that the wife is the registered proprietor of the land which was acquired in 1995. The parties commenced building a house on the land in 1996, and the building is not finished. The husband however, does not accept the value adopted by the wife for the land being the sworn valuation of Mr G. He submits the valuation is flawed and the property is worth more. He does not provide a value or evidence to support a value for the property. Mr G valued this land and the property at Property B. The valuation was undertaken following orders being made by this Court on 23 February 2010 that, amongst other things, the parties join in seeking a valuation of each of the two properties in Sri Lanka and the Property S property. A valuation was obtained in May 2010. On the evidence before me, a copy was provided to the husband through his then solicitors. This matter did not proceed to trial until the beginning of 2011. The husband is critical of the valuations of the properties in Sri Lanka undertaken by Mr G. Regarding this property he says the valuer has chosen not to attach the house plan, plan of the property and deeds for the properties. It is not apparent that these concerns were raised with Mr G or the wife’s solicitors when the reports were first released. Nor is it apparent that the husband has made any attempt to obtain any alternative valuation or appraisal. He submits that the valuer has in effect followed the wife’s wishes. There is no evidence to support that the valuer has done anything in respect to the wife’s wishes other than supply a sworn valuation of the property as ordered by the Court following receipt of a joint letter of instructions received from the solicitors for the parties. The husband states that the valuation of Property R is flawed in that the house plan produced by him shows that the floor area for the house built on the property is 4,606 square feet. The valuer notes the floor area to be 3,540 square feet. In addition, his report states that the land contains a two-storied residential building which is in an incomplete state of construction and in an abandoned state. He goes on to note that some of the valance boards have perished and it appeared that the construction work has been stopped some three to four years ago. Finally he notes that large open spaces are within the building such as open verandahs, porch, balconies and ventilation areas, which have been excluded (my emphasis) in the computing the useful floor area. The difference highlighted by the husband in the floor area between the house plans and the report of the valuer is explained in the valuation report. In any event, the property, is in an “abandoned state”. Mr G notes in his conclusion to the valuation that:It also should be noted that the structure has been in a neglected state for a considerable period of time which causes an impact on the marketability which is somewhat restricted caused by fear in the mind of the prospective purchaser as to the cause for such hazard in the construction process and the abandonment of the project.