Massalski & Riley

Case [2019] FamCA 1013


FAMILY COURT OF AUSTRALIA

MASSALSKI & RILEY [2019] FamCA 1013
FAMILY LAW – PROPERTY – DE FACTO RELATIONSHIP – Where parties agree there was a de facto relationship for the purpose of Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) – Where proceedings brought in the Supreme Court of Victoria in relation to the parties property interests has been cross vested to the Family Court of Australia – Where the de facto wife contends she has an equitable interest in the property of the de facto husband – Where claims the de facto wife’s equitable interest in the de facto husband’s property are dismissed in full – Where the de facto wife seeks an adjustment in favour to her as a result of contended contributions made – Where Orders for a slight adjustment to the de facto wife are made in respect to one property.
Family Law Act 1975 (Cth) ss. 75, 79, 106A, 90SF, 90SM
Evidence Act 1995 (Cth) s. 50
Family Court Rules 2004 r. 13.04, pt. 15, cl 6 pt 1 sch 1
Strata Schemes Management Act 2015 (NSW)
Allen v Snyder [1977] 2 NSWLR 685
Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Antmann and Antmann (1980) FLC 90-908
Baumgartner v Baumgartner (1987) 11 Fam LR 915
Biltoft and Biltoft (1995) FLC 92-614
Bircher & Bircher and Anor (2016) FLC 93-721
Bonnici & Bonnici (1992) FLC 92-272
Briese & Briese (1986) FLC 91-713
Calverley v Green (1984) 155 CLR 242
Calvin v McTier (2017) 57 Fam LR 1
Chang v Su (2002) FLC 93-117
Commonwealth v Verwayen (1987) 164 CLR 137
D & D [2003] FamCA 473
Dickons & Dickons (2012) Fam LR 244
Donis v Donis (2007) 19 VR 577
Efthidmiadis & Efthidmiadis (1993) FLC 92-361
Evans and Braddock [2015] NSWSC 249
Giumelli v Giumelli (1999) 196 CLR 101
Grefeld & Grefeld (2012) FLC 93-508
Hearne & Hearne [2015] FamCAFC 178
Kowaliw and Kowaliw [1981] FLC 91-092
Lenehan & Lenehan (1987) FLC 91-814
Livesey (formerly Jenkins) and Jenkins [1985] 1 All ER 106
Lovine & Connor [2012] FamCAFC 168
Mallet v Mallet (1984) 156 CLR 605
Massalski & Riley [2018] FamCA 678.
Miklic & Miklic and Anor [2010] FamCA 741
Muschinski v Dodds (1985) 160 CLR 583
Norbis v Norbis (1986) FLC 91-712
Norman & Norman [2010] FamCAFC 66
Ogilvie v Ryan [1976] 2 NSWLR 504
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep. 403
Paragon Finance PLC v DB Thakerar & Co [1999] 1 All ER 400
Petruski & Balewa (2013) 49 Fam LR 116
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Riley & Massalski [2016] FamCA 1169
Rodgers & Rodgers (No. 2) (2016) 55 Fam LR 167
Stanford v Stanford (2012) 247 CLR 108
Stoddard & Glover [2016] FamCA 674
Vedejs v Public Trustee [1985] VR 569
Wainohu v New South Wales (2011) 243 CLR 181
Weir & Weir (1993) FLC 92-338
APPLICANT: Ms Massalski
RESPONDENT: Mr Riley
FILE NUMBER: SYC 496 of 2015

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Details
AGLC
Massalski & Riley [2019] FamCA 1013
Case
[2019] FamCA 1013
Decision Date

CaseChat Overview and Summary

The proceedings involved an applicant and a respondent before McClelland DCJ in the Supreme Court of Victoria. The dispute concerned the division of property and the completion of associated dealings, including the registration of a strata plan for a property located at F Street, Suburb G, and the withdrawal of caveats lodged by the applicant over properties at B Street and C Street, Suburb A, and the F Street property.

The court was required to determine the terms of orders to give effect to a settlement between the parties. This involved specifying the steps each party must take to facilitate the registration of a strata plan, the discharge and re-mortgaging of a property, the transfer of interests in subdivided lots, and the payment of a sum of money. The court also needed to address the allocation of costs associated with the preparation and registration of the strata plan and associated documents.

The court's reasoning is reflected in the detailed orders made, which aim to ensure the efficient and complete resolution of the property division. The orders mandate specific actions, timelines, and responsibilities for both the applicant and the respondent. These include the applicant's obligation to withdraw caveats and execute documents for the strata plan registration, and the respondent's obligation to pay a specified sum to the applicant. The court also established mechanisms for default, empowering a Registrar to execute documents on behalf of a defaulting party, and provided for liberty to apply in relation to the implementation of the orders and costs.

The court ordered the dismissal of the proceedings in the Supreme Court of Victoria, with costs reserved. It further made detailed orders regarding the withdrawal of caveats, the registration of a strata plan for the F Street property, the discharge and re-mortgaging of the property, the transfer of interests in the subdivided lots, and the payment of a sum of $18,263.50 by the respondent to the applicant. The orders also stipulated the division of personalty and chattels, mutual indemnities for liabilities in each party's sole name, and provided for the Registrar of the Family Court of Australia to execute documents in case of default. Liberty to apply was granted to both parties concerning the implementation of the orders and costs.

Orders

Orders of the court

1.

The proceedings in the Supreme Court of Victoria, case number …, are dismissed with the question of costs reserved.

2.

That within 14 days, the Applicant forthwith sign all documents and do all things necessary to cause all caveats she has lodged over property known as and situated at B Street and C Street, Suburb A in the State of Victoria (“the Suburb A property”) and property known as and situated at F Street, Suburb G, being the land in folio identifier … ("the F Street property") to be withdrawn.

3.

The parties are to expeditiously do all acts and things and sign all documents required to complete the registration of the proposed strata plan and associated dealings of the F Street property.

4.

For the purposes of Order (3), the Applicant is to execute the following documents and return those documents properly executed and witnessed as is required by each document, to the solicitor for the Respondent, within 14 days of the date of delivery of those documents to the Applicant's solicitor.

(a) Any application form(s) and any other forms or documents required by the H Council to complete the approval of the proposed strata plan of the F Street property;

(b) The Strata Plan Administration Sheet and Strata Plan;

(c) Any authority required by the Commonwealth Bank of Australia to produce the Folio Identifier at the LPI NSW; and

(d) Such other document or documents as may be provided by the Respondent to the Applicant which is, or are, reasonably required to enable the registration of the strata plan.

5.

Within 28 days of registration of the strata plan for the F Street property, the parties are to do all acts and things and sign all documents required to effect the following:

(a) Authorise the Commonwealth Bank of Australia to discharge the mortgage, registration number …65, secured over Lot 1 as shown on the Strata Plan, being the Lot at the front of the property ("Lot 1"), and to secure the debt then owing to the Commonwealth Bank of Australia by a mortgage secured over Lot 2 as shown on the Strata Plan, being the lot at the rear of the property ("Lot 2"); and

(b) To hold a meeting of the Strata Committee of the Strata Plan (by proxy if preferred) to pass the necessary resolutions as required by the Strata Schemes Management Act 2015 (NSW).

6.

The parties are to each pay one half of the costs and fees payable in respect to the preparation of the registration of the Strata Plan and associated documents, except for, any fees payable to the Commonwealth Bank of Australia which shall be the sole responsibility of the Respondent.

7.

That within 14 days of the registration of the strata plan, the Applicant prepare a transfer in registrable form by which the Respondent transfers all of his right, title and interest in Lot 1 in the proposed strata plan to the Applicant and deliver such document to the solicitor for the Respondent.

8.

That within 7 days of receipt of such transfer, the Respondent sign such document and exchange it for the transfer to be signed by the Applicant.

9.

That within 14 days of the registration of the strata plan, the Respondent prepare a transfer in registrable form by which the Applicant transfers all of her right, title and interest in Lot 2 in the proposed strata plan to the Respondent and deliver such document to the solicitor for the Applicant.

10.

That within seven (7) days of receipt of such transfer, the Applicant sign such document and exchange it for the transfer signed by the Respondent.

11.

Within 14 days of the Applicant complying with her obligations pursuant to these Orders, the Respondent is to pay to the Applicant the sum of $18,263.50.

12.

That other than as provided in these Orders, each party against the other party shall be entitled to:

(a) Any items of personalty, chattels, goods, furnishings, bank accounts, motor vehicles and/or other property, at the date of these Orders, in each party’s’ name, possession and control, respectively;

(b) Any moneys, shares, debentures, superannuation and/or employment entitlements which stand in each party's sole name, possession and control, respectively.

13.

That each party keep the other indemnified in relation to any liability in their sole name.

14.

That each party forthwith do all acts and things and sign all documents, deeds or instruments necessary to give effect to these Orders.

15.

That if either party refuses or neglects to sign or execute any document, instrument or writing after seven (7) days of being required to do so, each party consents to any application filed by the other party seeking Orders, pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”), that a Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to these orders.

16.

That in the default of any party doing any act or things and executing such document necessary to give effect to these Orders, the Registrar of the Family Court of Australia at Sydney be appointed pursuant to s 106A of the Act to execute all such documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to such documents and the defaulting party shall pay the costs of the non-defaulting party in relation thereto.

17.

That each party have liberty to apply in relation to the implementation of these Orders on giving the other party and the Court not less than seven (7) days' notice in writing.

18.

The parties have liberty to apply in respect to the question of costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

In Briese & Briese (1986) FLC 91-713 at [75,181], Smithers J applied the House of Lords decision in Livesey (formerly Jenkins) and Jenkins [1985] 1 All ER 106 in determining that:… in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion. [Emphasis added]. His Honour further stated at [75,181]:In my view it is fundamental to the whole operation of the Family Law Act 1975 (Cth) in financial cases that there is an obligation of the nature to which I have referred. Livesey (formerly Jenkins) v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties. [Emphasis added]. In that regard, r 13.01(1) of the Rules relevantly provides that:… each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner. Further, r 13.04(1)(a) of the Rules provides that:A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:(a) the party's earnings, including income that is paid or assigned to another party, person or legal entity;…(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:(i) in the 12 months immediately before the separation of the parties; or(ii) since the final separation of the parties; and … Clause 6 of pt 1 sch 1 of the Rules relevantly provides:(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to: …(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute. Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part). [Emphasis added].

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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