Martell & Martell (No 2)
[2023] FedCFamC1A 150
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Martell & Martell (No 2) [2023] FedCFamC1A 150
Appeal from: Martell & Martell [2022] FedCFamC2F 1575 Appeal number(s): NAA 280 of 2022 File number(s): BRC 9054 of 2019 Judgment of: ALDRIDGE J Date of judgment: 7 September 2023 Catchwords: FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where this Court found error in the primary judge’s reasons – Where the parties agreed that this Court should re-exercise the discretion – Where orders were made for further written submissions to be filed as to matters that have occurred since the trial relevant to the property proceedings – On the re-exercise of discretion, the wife is to receive 57.5 per cent of the property available for division and the husband is to receive 42.5 per cent. Cases cited: Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Martell & Martell [2023] FedCFamC1A 71
Number of paragraphs: 72 Date of last submissions: 19 June 2023 Date of hearing: Determined on the papers Place: In Chambers Solicitor for the Appellant: Cooper Family Law The Respondent: Self-represented litigant ORDERS
NAA 280 of 2022
BRC 9054 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MARTELL
Appellant
AND: MS MARTELL
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
7 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The net combined property pool of $2,144,899 shall be distributed between the parties as to 57.5 per cent to the wife ($1,233,317) and 42.5 per cent to the husband ($911,582).
2.To give effect to Order 1, the husband shall transfer to the wife within 30 days to an account nominated by the wife in cleared funds the sum of $751,207.
3.Contemporaneously with the transfer of funds of $751,207 to the wife, she shall do all things and sign all documents necessary to transfer to the husband the whole of her right, title and interest in the property situated at C Street, Suburb B in the State of Queensland more particularly described as Lot … on Registered Plan … Local Government … title reference … (“the Suburb B property”) at the husband’s expense.
4.Contemporaneously with Orders 2 and 3, the husband shall do all things and sign all documents necessary to discharge the registered mortgage number … to D Bank secured over the Suburb B property.
5.Pending Orders 2, 3 and 4, the husband shall have sole occupation of the Suburb B property and be solely responsible for the payment of the mortgage (if any), council rates, insurance, utilities and maintenance costs for the property including costs relating to the interior, exterior and garden areas of the property and he shall maintain the property in good order.
6.Pending Orders 2, 3, 4 and 5, neither party shall encumber, further encumber or charge the Suburb B property without the written consent of the other party or court order.
7.In default of payment to the wife of $751,207 (or part thereof) and/or transfer of the Suburb B property in accordance with Orders 1 to 6 inclusive, the parties shall do all things and sign all documents necessary and pay any money necessary to list the Suburb B property for sale upon the following terms and conditions:
(a)The listing price for the sale of the Suburb B property shall be agreed between the parties in writing and failing agreement shall be listed at a price nominated by the Chief Executive Officer of the Real Estate Institute of Queensland and/or nominee;
(b)The Suburb B property will initially be listed for sale by private treaty for a period of two (2) months commencing on the date of the husband’s default or such further time as may be agreed between the parties in writing;
(c)The Suburb B property shall be listed for sale with an exclusive agent as agreed between the parties in writing and failing agreement such agent as nominated by the Chief Executive Officer of the Real Estate Institute of Queensland and/or nominee;
(d)The parties shall co-operate in every way with the agent that has carriage of the sale including but not limited to:
(i)making a key available to the agent;
(ii)allowing inspection of the Suburb B property at all reasonable times as requested by the agent;
(iii)not engaging in conduct that hinders or prevents the sale the Suburb B property;
(iv)ensuring the Suburb B property is maintained in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
(v)signing all relevant documents requested by the agent in relation to the listing of the property.
8.In the event that the Suburb B property is not sold by private treaty at the expiration of two months from the date of being listed, unless otherwise agreed between the parties in writing, the property shall be listed for auction on the following terms and conditions:
(a)The auctioneer shall be agreed between the parties in writing and failing the auctioneer shall be nominated by the Chief Executive Officer of the Real Estate Institute of Queensland and/or nominee;
(b)The reserve price for the auction shall be such price as is agreed in writing by the parties and failing agreement as nominated by the Chief Executive Officer of the Real Estate Institute of Queensland and/or nominee.
9.With respect to Orders 7 and 8, the proceeds of sale of the Suburb B property shall be distributed as follows:
(a)to pay all reasonable costs of sale including agent’s commission, legal fees, auctioneer’s fees and rate adjustments;
(b)to discharge any mortgage secured over the Suburb B property;
(c)to pay any amount outstanding to the wife with respect to her entitlement to receive $751,207 in accordance with Order 2 of these orders that the husband has failed to pay including any interest on any outstanding amount as calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(d)to pay the amount of $9,203.31 to the wife, being the costs of the husband’s unsuccessful stay application and
(e)to pay the balance to the husband.
10.The husband is forthwith to take all necessary steps to secure the re-registration of E Pty Ltd.
11.Forthwith upon the re-registration of E Pty Ltd, the parties are to take all necessary steps for the sale of the property situated at F Street, Suburb G in New Zealand (“the Suburb G property”) by public auction on the following terms:
(a)The reserve price for the sale of the Suburb G property shall be agreed between the parties in writing and failing agreement shall be listed at a price nominated by the Real Estate Institute of New Zealand and/or nominee;
(b)The Suburb G property shall be listed for sale with an exclusive agent as agreed between the parties in writing and failing agreement such agent as nominated by the Real Estate Institute of New Zealand and/or nominee;
(c)The parties shall co-operate in every way with the agent that has carriage of the sale including but not limited to:
(i)making a key available to the agent;
(ii)allowing inspection of the Suburb G property at all reasonable times as requested by the agent;
(iii)not engaging in conduct that hinders or prevents the sale the Suburb G property;
(iv)ensuring the Suburb G property is maintained in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
(v)signing all relevant documents requested by the agent in relation to the listing of the property.
12.In the event that the Suburb G property is not sold at the above auction, it shall be re-auctioned six weeks later without a reserve price being set.
13.With respect to Orders 11 and 12, the proceeds of sale of the Suburb G property shall be distributed as follows:
(a)To pay all reasonable costs of sale including agent’s commission, legal fees, auctioneer’s fees and rate adjustments;
(b)To discharge any mortgage secured over the Suburb G property;
(c)To the payment of any capital gains tax payable on the sale;
(d)With the balance to be distributed equally between the parties.
14.Within 30 days of the date of these orders, the parties shall do all things and sign all documents necessary to close the parties two joint bank accounts with H Bank ending in #76 and #87 with the balance of any remaining funds be paid to the wife.
15.The wife is declared the sole beneficial owner to the exclusion of the husband of the following property:
(a)The whole of her interest of property situated at J Street, Suburb K in the State of Queensland;
(b)Motor Vehicle 1 in the wife’s possession;
(c)Furniture, chattels, personal belongings in her possession;
(d)Funds in bank accounts in the wife’s sole name;
(e)Jewellery in the wife’s possession.
16.The wife shall retain to the exclusion of the husband her following interests, benefits, pension and entitlements:
(a)Her superannuation interest in her sole name with Super Fund 1;
(b)Her superannuation interest in her sole name with Super Fund 2;
(c)Her superannuation interest in her sole name with Super Fund 3;
(d)Her pension entitlement with Super Fund 1;
(e)Her pension entitlement with the Department of Veterans’ Affairs.
17.The husband is declared the sole beneficial owner to the exclusion of the wife of the following property:
(a)Motor Vehicle 2 in the husband’s possession;
(b)Motor Vehicle 3;
(c)Furniture, chattels, personal belongings in his possession;
(d)Funds in bank accounts in his sole name;
(e)The boat in his possession;
(f)The caravan in his possession.
18.The husband shall retain to the exclusion of the wife the following interests, benefits and entitlements:
(a)His superannuation interest in his sole name with Super Fund 1;
(b)His superannuation interest with Super Fund 3.
19.Contemporaneously with Order 20, the husband shall retain any interest in the following entitles:
(a)L Pty Ltd;
(b)E Pty Ltd (after the sale of the Suburb G property and distribution of proceeds);
(c)Martell Asset Holding Trust;
(d)Martell Family Investment Trust; and
(e)M Trust.
20.From the date of these orders, the husband shall do all things and sign all documents necessary to remove the wife in her personal capacity and/or as director or in any other capacity from the entities specified in Order 19 hereof and he shall release the wife or cause her to be released from any liability incurred in any of the entities specified in Order 19 above and indemnify the wife and keep her indemnified.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Martell & Martell (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
On 15 May 2023, I set aside the property settlement orders that had been made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 November 2022. It was agreed by the parties that I should re-exercise the discretion and to that end the following order was made:
(3) In respect of the re-exercise of discretion:
(a)Within 14 days, the husband is to file written submissions and any supporting evidence as to the matters that have occurred since the trial and current circumstances relevant to the property proceedings;
(b)Within a further 14 days, the wife is to file written submissions and any supporting evidence as to the matters that have occurred since the trial and current circumstances relevant to the property proceedings;
(c)Within a further 7 days, the husband is to file any further written submissions in reply.
Those orders conformed with the agreement of the parties that, in re-exercising the discretion I would rely on the primary findings of fact made by the primary judge with the parties to give evidence to bring those matters up to date.
In the end, the new evidence, unlike the accompanying submissions, was quite narrow in scope and uncontroversial. I shall refer to it shortly. The upshot, however, is that the values of the property are now well out of date and no helpful submissions were received about the nature, form and content of Super Fund 1. As was the case before the primary judge, the parties were content to use the values put forward on their balance sheets. Fortunately, the amounts involved are not of the greatest significance.
The decision will have to be made, as best as can be done, from the findings of the primary judge and the new evidence. Despite the invitation of the parties in their submissions, I will not reconsider her Honour’s primary facts. It would be impossible without rehearing the whole matter, entirely defeating the purpose of a re-exercise by an appellate court.
THE PROPERTY
The primary judge identified the property, superannuation and entitlements to be divided as follows (as drawn from [115], [117] and [134]):
ASSETS No. Ownership Description Value 1 Joint Property at Suburb B $800,000 2 Wife Property at Suburb K $130,000 3 E Pty Ltd Property at Suburb G $170,000 4 Husband N Bank Term Deposit $176,842 5 Husband O Bank $183,155 6 Husband O Bank $38,921 Total $1,498,918 ADD BACKS No. Ownership Description Value 7 Husband Commsec proceeds $49,255.84 8 Husband Car and boat $44,000 Total $93,255.84 SUPERANNUATION No. Member Name of fund Value 9 Wife Super Fund 1 $37,474 10 Wife Super Fund 3 $10,309 11 Wife Super Fund 2 $16,662 12 Husband Super Fund 1 $168,439 13 Husband Super Fund 3 $150,512 Total $383,396
Neither of the parties sought to update the values of any of these items.
Some brief commentary on them is desirable.
The Suburb B property was purchased in 2015 for $777,500. It was extensively renovated by the parties. The husband has remained living in the property since separation in September 2018.
The Suburb K property was purchased by the parties in 2009 for $180,000. It was registered in the wife’s name.
The land at Suburb G was acquired in 2012 for $60,000. The registered owner is E Pty Ltd, which has since been deregistered. The parties were its directors and shareholders. It was the trustee of the Martell Family Investment Trust.
The position of the parties is that neither wants the Suburb G property. The primary judge made orders requiring the husband to take the necessary steps for the re-registering of E Pty Ltd, the sale of the property, the payment of expenses (which is likely to include capital gains tax) and the equal division of the proceeds of sale. It was not suggested that I should take a different course.
The accounts in the O Bank are the proceeds of the sale of the block of land the parties purchased in New Zealand in 2010. It was sold in 2014. At the hearing the husband asserted that there was an outstanding debt for capital gains tax that arose upon the sale of the property. The primary judge recorded that when pressed in cross-examination, the husband confirmed that no tax liability had been assessed (at [101]).
The husband relied upon a letter from a firm of advisors in Australia which calculated the likely tax at being $44,894.82 based on an income of at least $180,000. This document was before the primary judge.
The calculation of a tax, presumably payable in New Zealand and calculated in Australian dollars, using an assumed salary (of whom is unknown) is confusing and unconvincing. I have no evidence as to the expertise of the author of the letter. I give it no weight. Similarly, no weight can be given to the husband’s submissions as to the accruing of such a debt.
The figures as to superannuation interests were agreed before the primary judge. There were no findings as to the nature and characteristics of the funds, particularly Super Fund 1. The best that can be done, therefore, is to proceed on the basis of the above figures.
The primary judge, effectively by consent, made a superannuation splitting order which transferred a base amount of $100,000 from the husband’s Super Fund 3 superannuation fund to the wife’s Super Fund 3 superannuation fund. This order has been complied with.
Thus, using the above figures, the present position is that of the total superannuation interests of $383,396, the wife holds $164,445 or 42.9 per cent.
Neither party proposed a further splitting order. This revised position, will of course have to be taken into account.
The primary judge referred to a class action, in which the husband was a participant, which had been taken in respect of funds advanced to P Fund. At the hearing, the outcome was unknown. Her Honour ordered that any net proceeds be divided equally between the parties.
The husband received $33,330.13 from the solicitors conducting the action and subsequently paid $16,665.06 to the wife.
On 16 February 2023, the husband was ordered to pay the wife $9,203.31 after an unsuccessful stay application. It was not set aside by the orders on appeal and stands.
The appropriate way to deal with it is to require payment from the share of property that the husband receives so as to avoid it being part of the division exercise which would see the wife share some part of that liability.
In the reasons of 15 May 2023, I considered that the primary judge erred by failing to add back legal fees in accordance with Chorn and Hopkins (2004) FLC 93-204.
As explained in those reasons (at [60]–[67]), the wife received a partial property settlement of $162,000 of which $86,000 was spent on legal fees. At the hearing, the wife conceded that this sum should be added back.
In those reasons, with the assistance of senior counsel for the husband, I identified that the husband’s evidence showed that he had spent $50,000 on legal fees in circumstances where it should also be added back.
The husband submitted that the appropriate sum to be added back should be $162,000 being the total amount of the partial property settlement. That overlooks the finding of the primary judge as to what was spent on lawyers, with the balance used for reasonable living expenses.
No submissions were directed to the husband’s legal fees.
Therefore, as best can be done, the present position is as follows:
ASSETS No. Ownership Description Value 1 Joint Property at Suburb B $800,000 2 Wife Property at Suburb K $130,000 3 E Pty Ltd Property at Suburb G $170,000 4 Husband N Bank Term Deposit $176,842 5 Husband O Bank $183,155 6 Husband O Bank $38,921 7 Husband P Fund damages $16,665 8 Wife P Fund damages $16,665 Total $1,532,248 ADD BACKS No. Ownership Description Value 9 Husband Commsec proceeds $49,255.84 10 Husband Car and boat $44,000 11 Wife Legal fees $86,000 12 Husband Legal fees $50,000 Total $229,255 SUPERANNUATION No. Member Name of fund Value 13 Wife Super Fund 1 $37,474 14 Wife Super Fund 3 $110,309 15 Wife Super Fund 2 $16,662 16 Husband Super Fund 1 $168,439 17 Husband Super Fund 3 $50,512 Total $383,396
The question is how then to divide that property.
CONTRIBUTIONS
The parties started living together in 2001 or 2002 and married in 2003. They separated on 14 September 2018. There are three children born in 2005, 2006 and 2008.
A property at Suburb Q was acquired by the husband in 2001 for $142,000. It was sold in 2007 for $335,000.
The purchase of the property was significantly funded by payments the husband had received from the Department of Veterans’ Affairs and damages for injuries suffered in an accident.
This property was used as security for later loans and the proceeds of its sale was used to acquire other properties.
At the time, the wife owned a car valued at $17,000.
The husband therefore made a significantly greater financial contribution than the wife which assisted in the acquisition of further property, although this contribution is tempered somewhat by the length of the marriage.
By and large, each party worked during the relationship and contributed their income.
The wife received payments from the Department of Veterans’ Affairs in 2002 ($24,777.53 and $7,385.66), 2005 ($23,452.94) and 2017 ($8,824.56, $33,672.70 and $34,833.83) – a total of $132,947.22. This is significant contribution but one which does not directly appear on the balance sheet.
The wife had been medically discharged from the Australian Defence Force in 2003. It is difficult to see how these compensation payments can be seen as anything other than contributions by her.
The financial contributions throughout the relationship favour the wife.
The husband received a payment for personal injury compensation in December 2018, in at least the sum of $176,842. He did not bank the cheques until June 2021. The primary judge found that the husband attempted to conceal these payments from the wife.
The N Bank term deposit is this sum and must be regarded as a contribution by the husband.
There is no reason to find anything other than that the parties’ non-financial contributions up to separation were equal.
From shortly after separation to September 2020, the parties shared the care of the children. From that time one child has not spent any time with the father, with another child following that course in February 2021. The third child only spends two nights a week with the father.
The wife has received minimal financial support from the husband for the children. She has supported them financially since separation and has had the primary care of them from late 2020 to early 2021.
The husband has resided in the Suburb B property since separation without the need to pay rent although, presumably, he has paid the outgoings.
The wife has been required to rent premises for her and the children.
The wife contends that her submissions were made more onerous by the violence she suffered at the hands of the husband. I set out her evidence detailed in the earlier reasons (Martell & Martell [2023] FedCFamC1A 71) as follows:
14. The following was found to have occurred:
•In November 2002, the husband hit the wife over the head with a pillow several times and poured a bottle of soft drink over her;
•In December 2002, the husband pushed the wife hard and her head hit the window of the car. The husband shouted at the wife angrily about her parents;
•In 2009, the husband punched the wife in the face, striking her upper lip and nose which started bleeding;
•The August or September 2017, in the course of an argument, the husband pushed the wife on the shoulder with his hands and
•On 19 October 2018, in the course of an argument, the husband grabbed the wife’s face with both hands. The wife started to cry and he let go.
15.In addition, the primary judge accepted the wife’s evidence that during the relationship the husband was aggressive and controlling. Unfortunately, that was the extent of the evidence on that aspect of the matter and it is therefore difficult to understand the weight that could be attributed to such baldly stated evidence.
There is no evidence from the wife as to how these events affected her contributions. I would not infer from their nature (towards the lower end of the scale), regrettable and unfortunate as they were, and their relative infrequency, that the wife’s contributions were made more difficult to a degree that requires recognition.
Taking all these matters into account, the parties’ contributions up until the preparation of these reasons should be seen as equal.
The major debate about s 75(2) considerations was the husband’s post-separation capacity for work.
In 2020, the husband secured a consulting engagement with a firm, R Pty Ltd. Agreements with that company were entered into by the husband in March 2020, one in his personal capacity and one as trustee for the M Trust. The fee was $238,881.
The primary judge found that the husband had sought to conceal this arrangement from the wife.
The husband resigned his employment in May 2021, six weeks after the wife served a subpoena. Her Honour found he did so because his wife found out that he was earning an income.
None of that income was directed to the children.
The husband has now lodged tax returns which indicate that the taxable income from the engagement was $130,000. Items claimed for depreciation included a boat ($25,000), expenses included mooring fees ($8,320) and boat fuel ($2,600). Given that the husband is a professional such deductions would appear to be somewhat difficult to justify as legitimately incurred in relation to earning that income. A car was also claimed even though the husband worked from home, although it might be more justifiable.
This suggests that the husband has a considerable capacity to earn an income.
On the other hand, he relies on medical evidence that he cannot and will not work.
Dr T is a general practitioner and opined on 29 August 2022 that since separation the husband suffered from “severe depression, anxiety, suicidal ideation” and “has not been able to work and is unable to return to work” (Husband’s affidavit filed on 29 May 2023, Annexure “MM 2”).
Dr T was cross-examined at the hearing where the husband’s employment seems to have come to something as a surprise to the doctor. The primary judge recorded:
58.[Dr T] agreed that the husband told him he was working in a temporary position and told him he could not hold down a permanent job. He agreed his certificate relied on the patient’s report and he did not carry out any medical tests to assess the husband’s capacity to work. Regarding the certificate issued on 22 April 2020 [Dr T] was asked whether he would be surprised that the husband earned $238,000 between March 2020 and March 2021. He said “I wasn’t aware that he had earned that much of money and he was working at that time.” He agreed on what he was told that he considered the husband could work only part time but not full time. [Dr T] wrote in his letter dated April 2020 “He is working in a temporary job, however he cannot hold a permanent job.” He was asked about a certificate dated 8 August 2022 which stated “the duration of the medical certification is 8 August 2022 until 31 December 2022.” He agreed he indicated that the husband could work as an administration officer and/or manager.
59.I am satisfied that the husband deliberately failed to disclose his employment to the wife. He was paying minimal (if any) child support at the time where the wife had full time care of the children. On 25 March 2020 the wife requested the husband disclose his employment. On 2 April 2020 [the husband’s solicitors] responded that “our client informs us that his contract is for a period of 3 months. It is unclear whether he will be able to see out the contract due to health issues.” That statement was untrue. On 26 March 2020 the husband entered into 2 contracts with [R Pty Ltd] one in his personal capacity ([Mr Martell]) and the other dated the same day between [R Pty Ltd] and the [M Trust]. He worked for [R Pty Ltd] for a period of 12 months.
For those reasons I am not inclined to give Dr T’s rather cursory opinion weight. It does not deal with the present position.
The husband therefore has the capacity to generate income to at least $130,000 and, most likely, given the nature of his tax returns, more. The primary judge also found that he had the capacity to earn $500 per month as a musician and was receiving $160 per month in parking at the Suburb B property.
According to her Honour, the husband has repartnered with a person who earns $3,365 per week.
The wife earns $69,940 per annum as an executive assistant and receiving pensions of $312.31 gross per week and $424 net per week.
She has the support of the children (although one is now 18 years of age) and will do so for at least three more years. She will receive no financial assistance for that from the husband.
CONCLUSION
These matters combine to persuade me that the appropriate outcome is that the wife receive 57.5 per cent of the property available for division, with 7.5 per cent of the total property, including the notional add backs and superannuation, being $160,867 leading to a differential of $321,735.
From the total pool of $2,144,899, 57.5 per cent is $1,233,317.
The wife currently has, had or will have:
ASSETS No. Ownership Description Value 1 Wife Property at Suburb K $130,000 2 Wife 50% of the property at Suburb G $85,000 3 Wife P Fund damages $16,665 Total $231,665 ADD BACKS No. Ownership Description Value 4 Wife Legal fees $86,000 Total $86,000 SUPERANNUATION No. Member Name of fund Value 5 Wife Super Fund 1 $37,474 6 Wife Super Fund 3 $110,309 7 Wife Super Fund 2 $16,662 Total $164,445 TOTAL $482,110
Therefore, the wife requires a further $751,207.
The husband currently has, had or will have:
ASSETS No. Ownership Description Value 1 Husband Property at Suburb B $800,000 2 E Pty Ltd 50% of the property at Suburb G $85,000 3 Husband N Bank Term Deposit $176,842 4 Husband O Bank $183,155 5 Husband O Bank $38,921 6 Husband P Fund damages $16,665 Total $1,300,583 ADD BACKS No. Ownership Description Value 7 Husband Commsec proceeds $49,255 8 Husband Car and boat $44,000 9 Husband Legal fees $50,000 Total $143,255 SUPERANNUATION No. Member Name of fund Value 10 Husband Super Fund 1 $168,439 11 Husband Super Fund 3 $50,512 Total $218,951 TOTAL $1,662,789 Less payment to the wife $751,207 Amount the husband is to retain $911,582
Therefore, the amount the husband is to retain is $911,582, which is 42.5 per cent of the total property.
I consider that such a division of property is just and equitable.
The orders will follow the format of the primary judge’s orders which provide for the sale of the Suburb B property if the husband does not make ordered payment. The orders in relation to E Pty Ltd and the sale of Suburb G property are in accord with the parties’ agreement. They will share equally in the net proceeds of the property whether they exceed or fall short of the value recorded in these reasons. Such an outcome will be borne by the parties with there being no further adjustment after sale so as to effect an overall 57.5 per cent / 42.5 per cent division. To do so would just give rise to another round of dispute. The loss or gain will lie where it falls.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 7 September 2023
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