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Markham and Markham and Ors

Markham and Markham and Ors

Case [2010] FamCA 460 9 June 2010

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FAMILY COURT OF AUSTRALIA

MARKHAM & MARKHAM AND ORS

[2010] FamCA 460

FAMILY LAW - PROPERTY - Property proceedings between husband and wife - Transactions to defeat claims - Gifts - Addbacks - Wife made various dispositions of money to her three children from a previous marriage who are also parties to these proceedings - Whether these payments should be added back to the property pool, whether they are gifts and whether some of those can be set aside pursuant to s 106B of the Family Law Act - Four step process - Contributions - Wife’s contributions are superior to the husband’s

Family Law Act 1975 (Cth)

Atco Controls Pty Ltd (in liq) v Newtronics Pty Ltd (recs and mgrs appt) [2009] VSCA 238
Balfour v Balfour [1919] 2 KB 571
Biltoft v Biltoft (1995) 19 Fam LR 82
Calverley v Green (1984) 155 CLR 242
Cohen v Cohen (1929) 42 CLR 91
Cumpton v Cumpton (2007) 38 Fam LR 377
Halabi v Artillaga (1994) FLC 92-470
Henderson v Miles [2005] NSWSC 710
Jones v Dunkel (1959) 101 CLR 298
Magill v Magill (2006) 231 ALR 277
Marriage of Coghlan (2005) 33 Fam LR 414
Marriage of Hickey (2003) 30 Fam LR 355
Milankov & Milankov (2002) FLC 93-095
Omacini v Omacini (2005) 33 Fam LR 134
Pflugradt & Pflugradt (1981) FLC 91-052
VC & GC & Ors [2010] FamCAFC 62

APPLICANT:

Mr Markham

1st RESPONDENT:

Ms Markham

2nd RESPONDENT:

Mr Wight

3rd RESPONDENT:

Ms Jones

4th RESPONDENT:

Ms Elder

FILE NUMBER:

NCC

2156

2007

DATE DELIVERED:

9 June 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

18, 19 and 20 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Ms Monnox, Kim Monnox & Associates

COUNSEL FOR THE 1ST RESPONDENT:

Mr Bates

SOLICITOR FOR THE 1ST RESPONDENT:

Mr McDonald, Gianacas Argiris McDonald

COUNSEL FOR THE 2ND RESPONDENT:

Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Not Applicable

COUNSEL FOR THE 3RD RESPONDENT:

Mr Maiden SC

SOLICITOR FOR THE 3RD RESPONDENT:

Mr Hill, Hills Solicitors

COUNSEL FOR THE 4TH RESPONDENT:

Mr Maiden SC

SOLICITOR FOR THE 4TH RESPONDENT:

Mr Hill, Hills Solicitors

Orders

The wife shall pay to the husband the sum of $39,001 within 28 days.
Subject to compliance with Order 1 hereof, and in consideration of that payment, the wife, second respondent, third respondent, and fourth respondent are each declared the legal and beneficial owners (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as B property, NSW (“the property”), and the husband shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife, second respondent, third respondent, and fourth respondent contemporaneously with his receipt of payment pursuant to Order 1 hereof.
Subject to compliance with Order 2 hereof, and in consideration of that transfer, the wife, second respondent, third respondent,…

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 Markham and Markham and Ors

Details

AGLC: Markham and Markham and Ors [2010] FamCA 460
Case: [2010] FamCA 460
Decision Date: 9 June 2010

CaseChat Overview and Summary

The case of Markham and Markham and Ors involved a dispute between the wife and the husband, with other respondents also named. The core of the disagreement concerned the ownership and disposition of a property located at B property, NSW. The matter was heard by Justice Austin.

The court was required to determine the legal and beneficial ownership of the property, the terms of its transfer, and the financial obligations of the parties in relation to it. Specifically, the court needed to establish the conditions under which the wife, second respondent, third respondent, and fourth respondent would become the legal and beneficial owners of the property, and the husband's role in facilitating this transfer. Furthermore, the court had to address the potential sale of the property in the event of non-compliance with the payment orders, including the process for auction, reserve price, and distribution of proceeds.

Justice Austin ordered that the wife pay the husband $39,001 within 28 days. Upon this payment, the wife, second respondent, third respondent, and fourth respondent were to be declared the legal and beneficial owners of the property, with the husband to transfer his interest accordingly. They were also to indemnify the husband against all outgoings and liabilities related to the property. In default of the payment, the property was to be listed for sale by public auction, with detailed provisions for the auction process, including the role of solicitors, auctioneer selection, reserve price, and subsequent sales if the initial auction failed. The wife was permitted to occupy the property pending sale, provided she met all associated expenses and maintained the property. Proceeds from a sale were to be applied first to sale costs and outstanding rates, then to discharge any mortgage, followed by payment of $39,001 plus interest to the husband, with the balance to be divided equally among the wife, second respondent, third respondent, and fourth respondent. The orders also clarified the ownership of other assets and liabilities between the parties, and empowered the Registrar to execute documents if a party failed to do so.

Orders

Orders of the court

The wife shall pay to the husband the sum of $39,001 within 28 days.

Subject to compliance with Order 1 hereof, and in consideration of that payment, the wife, second respondent, third respondent, and fourth respondent are each declared the legal and beneficial owners (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as B property, NSW (“the property”), and the husband shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife, second respondent, third respondent, and fourth respondent contemporaneously with his receipt of payment pursuant to Order 1 hereof.

Subject to compliance with Order 2 hereof, and in consideration of that transfer, the wife, second respondent, third respondent, and fourth respondent shall each jointly and severally indemnify and keep indemnified the husband against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the property.

Pending payment to the husband pursuant to Orders 1 or 7(c) hereof, the parties are restrained from selling or transferring their respective interests in the property, and from mortgaging or otherwise encumbering their interests in the property in a manner that would encumber the property with more than $50,000 in combined debt.

In default of compliance with Order 1 hereof, the parties shall do all such acts and things and sign all such documents as may be necessary to list the property for sale by public auction.

For the purposes of implementation of Order 5 hereof:

a) The solicitors acting for the wife shall be the solicitors acting on the sale of the realty for the parties.

b) The property shall be listed by the parties for auction sale within 4 weeks of the due date for compliance with Order 1.

c) The auctioneer, in the event of disagreement between the parties, shall be the auctioneer chosen by ballot from the respective choices of the parties.

d) The reserve price shall be as agreed between the parties, and in the event of disagreement between the parties, the reserve price nominated by the auctioneer.

e) In the event that the property is not sold by auction, or private negotiation within a further 7 days, then the property shall be submitted to successive auctions within further 6 weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction.

f) The wife may occupy the property pending its sale pursuant to these orders, provided that she meets all expenses incurred in respect of the property as and when those expenses fall due (including loan repayments, Council rates, water rates, and insurances), maintains the property in a reasonable state of repair, and facilitates inspection of the property by prospective purchasers.

Upon completion of the sale of the realty pursuant to Orders 5 and 6 hereof the solicitors acting for the parties on the sale shall disburse the proceeds of sale as follows:

a) Firstly, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property.

b) Secondly, to discharge any mortgage or other encumbrance over the property.

c) Thirdly, to pay to the solicitors acting for the husband, the sum of $39,001, together with interest calculated at the rate prescribed by Rule 17.03 of the Family Law Rules upon that sum for the period between the due date for compliance with Order 1 hereof and the date of payment to the husband under this Order.

d) Fourthly, to pay the balance then remaining in equal shares to the wife, second respondent, third respondent, and fourth respondent.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder, investment accounts are deemed in the possession of the named investor, and superannuation entitlements are deemed in the possession of the worker.

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for capital gains tax arising out of the sale by the parties of real property pursuant to these orders.

Any and all outstanding applications are dismissed.

10.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s106A of the Family Law Act.

11.

Costs of the parties are reserved for 28 days.

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.

Citations

AGLC Citation

Markham and Markham and Ors [2010] FamCA 460

Most Recent Citation

James and Mara [2014] FCCA 490

Cases citing this decision · 1 of 1 shown

JAMES & MARA
[2014] FCCA 490 Para 1

…pool of assets and resources.[41] [41] AJO v GRO (2005) 33 FamLR 134 at 146 per Holden, Warnick and Le Poer Trench at 146; Markham & Markham & Ors [2010] FamCA 460 at para.57 per Austin J.…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

Atco Controls Pty Ltd (in liq) v Newtronics Pty Ltd
[2009] VSCA 238 Para 5

…Miles [2005] NSWSC 710 at [24]; Magill v Magill (2006) 231 ALR 277 at 326; Atco Controls Pty Ltd (in liq.) v Newtronics Pty Ltd (recs and mgrs appt) [2009] VSCA 238 at [60]), I am not satisfied on the available evidence that repayment of either amount is ever likely to be called upon by the husband’s mother, or h…
Cumpton v Cumpton
[2007] FamCA 1007 Para 25

…as there discussing the operation of s 85, the preceding legislative formulation of s 106B, the process remains the same under s 106B of the Act (see Cumpton v Cumpton (2007) 38 Fam LR 377 at 398). The principles established in Halabi v Artillaga have the endorsement of the Full Court (see VC & GC at [153-154]).…
Magill v Magill
[2006] HCA 51 Para 5

…elationship (see Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91 at 96; Henderson v Miles [2005] NSWSC 710 at [24]; Magill v Magill (2006) 231 ALR 277 at 326; Atco Controls Pty Ltd (in liq.) v Newtronics Pty Ltd (recs and mgrs appt) [2009] VSCA 238 at [60]), I am not satisfied on the available evide…
Henderson v Miles
[2005] NSWSC 710 Para 5

…sactions, notwithstanding their familial relationship (see Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91 at 96; Henderson v Miles [2005] NSWSC 710 at [24]; Magill v Magill (2006) 231 ALR 277 at 326; Atco Controls Pty Ltd (in liq.) v Newtronics Pty Ltd (recs and mgrs appt) [2009] VSCA 238 at [60]…
Calverley v Green
[1984] HCA 81 Para 8

…s a joint debtor under the loan secured by mortgage to fund the purchase. That ought be recognised as a contribution in itself (see Calverley v Green (1984) 155 CLR 242 at 267-268).…
Jones v Dunkel
[1959] HCA 9 Para 4

…nclusion that the evidence which could have been given by the husband’s mother would not have been of any assistance to the husband’s case (see Jones v Dunkel (1959) 101 CLR 298). The husband said in evidence that he dealt with his brother in respect of the second loan advance. The brother holds a power of attorney for…
Jones v Dunkel
[1959] HCA 8 Para 4

…he evidence which could have been given by the husband’s mother would not have been of any assistance to the husband’s case (see Jones v Dunkel (1959) 101 CLR 298). The husband said in evidence that he dealt with his brother in respect of the second loan advance. The brother holds a power of attorney for the husband’…
Cohen v Cohen
[1929] HCA 15 Para 5

…and creditor in respect of those two transactions, notwithstanding their familial relationship (see Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91 at 96; Henderson v Miles [2005] NSWSC 710 at [24]; Magill v Magill (2006) 231 ALR 277 at 326; Atco Controls Pty Ltd (in liq.) v Newtronics Pty Ltd (r…
[2010] FAMCAFC 62
[2010] FAMCAFC 62 Para 4

…pool to satisfy the proportional share of the party making the claim under s 106B. As has recently been observed by the Full Court (see VC & GC & Ors [2010] FamCAFC 62 at [154-159]): 154. …Once it was established that the likely effect of the instruments was to defeat the orders sought by the wife we consider her Ho…
[1919] 2 KB 571
[1919] 2 KB 571 Para 5

…ct between themselves as debtor and creditor in respect of those two transactions, notwithstanding their familial relationship (see Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91 at 96; Henderson v Miles [2005] NSWSC 710 at [24]; Magill v Magill (2006) 231 ALR 277 at 326; Atco Controls Pty Ltd (…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention