Marks and Xander - [2016] FCCA 282

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARKS & XANDER

[2016] FCCA 282

Catchwords:
FAMILY LAW – Property – significant initial contribution.

Legislation:

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

Stanford & Stanford [2012] HCA 52
Kearney & Kearney [2012] FMCAfam 187
Brandow & Brandow [2010] FMCAfam 1026
Condie & Quirke [2012] FamCA 567
Aleksovski v Aleksovski [1996] FLC 92-705
R v Phan [2015] HCA 39

Applicant:

MS MARKS

Respondent:

MR XANDER

File Number:

MLC 8149 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

26 October 2015

Date of Last Submission:

26 October 2015

Delivered at:

Melbourne

Delivered on:

15 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr Barbayannis

Solicitors for the Applicant:

Galbally & O’Bryan

Counsel for the Respondent:

Mr Indovino

Solicitors for the Respondent:

Jafer Lawyers

ORDERS

Within 60 days of the date of these Orders ("the date") the Respondent pay to the Applicant the sum of $176,463.00 ("the sum").
Contemporaneously with the payment of the sum the Applicant cause to be removed the caveat lodged on her behalf over the property at Property C ("the Property C property").
In the event of default of payment of the sum by the date interest shall accrue on so much of the sum as remains outstanding at the rate prescribed by the Family Law Rules 2004 adjusted monthly from the date.
In the event that the Respondent fails to pay the sum to the Applicant by the date the Respondent shall do all necessary acts and things to cause the Property C property to be placed on the market for sale ("the sale") on terms and conditions to be agreed by the parties within 14 days of the date of these Orders and failing agreement as determined by the President of the Real Estate Institute of Victoria.
The agent and the conveyancer in respect of the sale to be as agreed between the parties and failing agreement as determined by the President of the Real Estate Institute of Victoria.
Upon completion of the sale, the Respondent do all necessary acts and things to cause the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of the sale;
(b)secondly to pay so much of the sum as remain together with interest to the Applicant;
(c)thirdly the balance to the Respondent.
Pending the payment or completion of the sale:
(a)the Respondent have the sole right to occupy the Property C property and the Respondent pay all rates and taxes and like apportionable outgoings of that property as they fall due;
(b)the parties hold their respective interests in the Property C property upon trust pursuant to these Orders; and
(c)neither party encumber the Property C property without the consent in writing of the other party.
The Applicant be solely entitled to her interest in the property in (country omitted).
Subject to compliance with Order 1 and Order 3, if applicable, the Respondent be solely entitled to his interest in the Property C property.
Orders 11 to 13 of these Orders…

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 Marks and Xander

Details

AGLC: Marks and Xander [2016] FCCA 282
Case: [2016] FCCA 282
Decision Date: 15 February 2016

CaseChat Overview and Summary

In the matter of *Marks and Xander*, heard by Judge Riethmuller, the court made orders concerning the division of property and superannuation interests between the parties. The dispute involved the payment of a sum of money by the respondent to the applicant, the removal of a caveat lodged by the applicant over a property, and the potential sale of that property. Additionally, the orders addressed the splitting of the respondent's superannuation interest in a specific fund.

The court was required to determine the terms of the property settlement, including the amount to be paid, the conditions for its payment, and the consequences of default. This included specifying the process for the sale of the Property C property, should the respondent fail to make the ordered payment. Furthermore, the court had to address the division of the respondent's superannuation interest pursuant to section 90MT(1) of the *Family Law Act 1975*, including the operative time for the split and the protection of the applicant's entitlement pending its finalisation.

The court ordered the respondent to pay the applicant a sum of $176,463.00 within 60 days, contingent upon the applicant removing a caveat from the Property C property. In the event of default, interest would accrue, and the respondent would be obligated to place the Property C property on the market for sale, with terms to be agreed or determined by the President of the Real Estate Institute of Victoria. Upon sale, proceeds were to be applied first to sale costs, then to the outstanding sum owed to the applicant, with any balance to the respondent. The respondent was granted sole occupation of the property pending payment or sale, with responsibility for outgoings. The court also ordered a splittable payment from the respondent's superannuation interest in the specified fund to the applicant, calculated with a base amount of $10,505.00, and imposed restrictions on the respondent regarding his superannuation to protect this entitlement. Each party was otherwise entitled to their other property and responsible for their own liabilities.

Orders

Orders of the court

Within 60 days of the date of these Orders ("the date") the Respondent pay to the Applicant the sum of $176,463.00 ("the sum").

Contemporaneously with the payment of the sum the Applicant cause to be removed the caveat lodged on her behalf over the property at Property C ("the Property C property").

In the event of default of payment of the sum by the date interest shall accrue on so much of the sum as remains outstanding at the rate prescribed by the Family Law Rules 2004 adjusted monthly from the date.

In the event that the Respondent fails to pay the sum to the Applicant by the date the Respondent shall do all necessary acts and things to cause the Property C property to be placed on the market for sale ("the sale") on terms and conditions to be agreed by the parties within 14 days of the date of these Orders and failing agreement as determined by the President of the Real Estate Institute of Victoria.

The agent and the conveyancer in respect of the sale to be as agreed between the parties and failing agreement as determined by the President of the Real Estate Institute of Victoria.

Upon completion of the sale, the Respondent do all necessary acts and things to cause the proceeds of the sale be applied:

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

(b) secondly to pay so much of the sum as remain together with interest to the Applicant;

Pending the payment or completion of the sale:

(a) the Respondent have the sole right to occupy the Property C property and the Respondent pay all rates and taxes and like apportionable outgoings of that property as they fall due;

(b) the parties hold their respective interests in the Property C property upon trust pursuant to these Orders; and

The Applicant be solely entitled to her interest in the property in (country omitted).

Subject to compliance with Order 1 and Order 3, if applicable, the Respondent be solely entitled to his interest in the Property C property.

10.

Orders 11 to 13 of these Orders are binding on the trustees of the (omitted Super Fund) ("the Fund").

11.

Pursuant to section 90MT(1) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Respondent (member number (omitted)) in the Fund, the Applicant shall be entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $10,505.00, and there be a corresponding reduction in the entitlement the Respondent would have had in the Fund but for this Order.

12.

For the purposes of Order 11 these Orders have operative time.

13.

The operative time is the fourth business day after which a sealed copy of these Orders is served on the trustee by the applicant together with a notice under regulation 72 of the Family Law (Superannuation Regulations 2001.

14.

Pending the completion of the superannuation split in the favour of the Applicant the Respondent be and is hereby restrained by himself, his servants or agents from executing, and/or giving to the Trustee a binding death benefit nomination in favour of any person, or doing any other act or thing, which would render any part of, or payment from, his superannuation interest in the Fund a "not splittable payment within the meaning of regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001".

15.

The parties have liberty to apply with respect to the implementation of the superannuation splitting orders.

16.

Unless otherwise specified in the Orders and save for the purposes of enforcing any monies due under the Orders:

(a) each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;

(b) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

(d) 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 the Orders;

(e) each party be solely responsible for any credit card incurred in their name;

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

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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