Mallard & Mallard

Case [2011] FamCA 876


FAMILY COURT OF AUSTRALIA

MALLARD & MALLARD [2011] FamCA 876
FAMILY LAW – PROPERTY – valuation of property – valuation of husband’s company – net tangible asset approach or maintainable earnings approach – tax liabilities of the husband and his company – alteration of property interests – equality of contributions – parties’ disparate earning capacities – 7.27 per cent adjustment in favour of the wife – spouse maintenance – leave to reopen – application to reopen refused
Family Law Act 1975 (Cth)
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Gelly and Gelly (No 1) (1992) FLC ¶92-290
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Gaspaldi and Gaspaldi [2008] Fam CAFC 134
Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240.
APPLICANT: Ms Mallard
RESPONDENT: Mr Mallard
FILE NUMBER: SYC 6101 of 2007
DATE DELIVERED: 16 November 2011
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Fowler J
HEARING DATE: 8, 9, 10, 11 and 12 August 2011 and 4 October 2011

REPRESENTATION

SENIOR COUNSEL FOR THE APPLICANT: Mr Page SC
COUNSEL FOR THE APPLICANT: Ms Saw
SOLICITOR FOR THE APPLICANT: PME DDD & Co
SENIOR COUNSEL FOR THE RESPONDENT:
Mr Richardson SC
COUNSEL FOR THE RESPONDENT: Mr Tockar
SOLICITOR FOR THE RESPONDENT: John R Quinn & Co

Orders

  1. The application of the wife for leave to reopen her case to seek orders for spousal maintenance is dismissed.

  2. It is declared that the wife, Ms Mallard, is the sole legal and beneficial owner of the property at Lot … and Lot … M Street, M Town, NSW (“M Town”).

  3. The husband is to pay the wife the sum of $150,000 with $100,000 to be paid within 21 days of these Orders, and the balance to be paid in monthly instalments of $4,000 over twelve months, save for the last instalment which will be $2,000.

  4. The wife is entitled to absolute ownership and control of:

    (a)       the household contents contained in the M Town property

    (b)       all the livestock and horse accessories at M Town

    (c)       all the farm machinery and equipment at M Town and

    (d)       her superannuation entitlements.

  5. The wife is to forthwith sign all documents and do all things necessary to transfer to the husband all of her right, title and interest in the property at


    Lot 2 Y Street, C Town NSW.

  6. The interim order for maintenance herein made shall be discharged as and from the date of compliance by the husband with so much of Order 3 as requires him to pay to the wife the sum of $100,000.  Any arrears owing under the terms of the order as at the date of the payment of the said sum are to be forthwith paid together with the said sum.

  7. The husband shall indemnify the wife and keep the wife indemnified in respect of any action, claim or demand made against her by or on behalf of


    J Pty Ltd or in relation to any…

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AGLC
Mallard & Mallard [2011] FamCA 876
Case
[2011] FamCA 876
Decision Date

CaseChat Overview and Summary

In the matter of *Mallard & Mallard*, the wife, Ms Mallard, sought leave to reopen her case to pursue spousal maintenance orders. The husband, Mr Mallard, was the respondent. The proceedings were before Fowler J.

The primary legal issues before the court were whether the wife should be granted leave to reopen her case for spousal maintenance, and the division of property between the parties.

Fowler J dismissed the wife's application for leave to reopen her case for spousal maintenance. The court declared the wife the sole legal and beneficial owner of the M Town property. The husband was ordered to pay the wife $150,000, with $100,000 payable within 21 days and the balance in monthly instalments. The wife was also awarded absolute ownership of household contents, livestock, horse accessories, farm machinery and equipment at M Town, and her superannuation entitlements. The wife was ordered to transfer her interest in the C Town property to the husband. The husband was entitled to absolute ownership of various other properties in C Town, household contents, plant, machinery, equipment, livestock, horse accessories, his superannuation, and shares in I Pty Ltd and J Pty Ltd. The husband was also ordered to indemnify the wife against any claims by J Pty Ltd or the Taxation Department concerning company loans in her name. Otherwise, each party was to retain their own property.

Orders

Orders of the court

1.

The application of the wife for leave to reopen her case to seek orders for spousal maintenance is dismissed.

2.

It is declared that the wife, Ms Mallard, is the sole legal and beneficial owner of the property at Lot … and Lot … M Street, M Town, NSW (“M Town”).

3.

The husband is to pay the wife the sum of $150,000 with $100,000 to be paid within 21 days of these Orders, and the balance to be paid in monthly instalments of $4,000 over twelve months, save for the last instalment which will be $2,000.

4.

The wife is entitled to absolute ownership and control of:

(a) the household contents contained in the M Town property

(b) all the livestock and horse accessories at M Town

(c) all the farm machinery and equipment at M Town and

(d) her superannuation entitlements.

5.

The wife is to forthwith sign all documents and do all things necessary to transfer to the husband all of her right, title and interest in the property at

Lot 2 Y Street, C Town NSW.

6.

The interim order for maintenance herein made shall be discharged as and from the date of compliance by the husband with so much of Order 3 as requires him to pay to the wife the sum of $100,000. Any arrears owing under the terms of the order as at the date of the payment of the said sum are to be forthwith paid together with the said sum.

7.

The husband shall indemnify the wife and keep the wife indemnified in respect of any action, claim or demand made against her by or on behalf of

J Pty Ltd or in relation to any claim made by the Taxation Department against the wife with respect to any loan account standing in her name in any company associated or formerly associated with the husband.

8.

The husband is entitled to absolute ownership and control of:

(a) Lots 1 and 2 Y Street, C Town

(b) JJ Street, C Town

(c) Lots 1 and 2, E Street, C Town

(d) F Street, C Town

(e) G Street, C Town

(f) H Street, C Town

(g) the household contents at Lots 1 and 2 Y Street, C Town

(h) plant, machinery and equipment at Lots 1 and 2 Y Street, C Town

(i) livestock and horses accessories at Lots 1 and 2 Y Street, C Town

(j) his superannuation entitlements and

(k) shares in I Pty Ltd and J Pty Ltd.

9.

Except as otherwise specified in these Orders, each party is otherwise entitled to retain absolutely to the exclusion of the other all property of whatsoever nature or kind owned by that party and held in the name or possession of that party as at the date of these Orders.

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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