FAMILY COURT OF AUSTRALIA
| MCILLROY & MCILLROY | [2011] FamCA 506 |
| FAMILY LAW - PROPERTY SETTLEMENT – Assessment of post separation contributions - Amount of adjustment, if any, which should be made in favour of the wife - Value of the husband’s interest in the Business 1 corporations - Expert opinion evidence and admissibility - Inclusion or otherwise of balance sheet items |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Evidence Act 1995 (Cth) |
| Dasreef Pty Limited v Hawchar [2011] HCA 21 (22 June 2011) Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 55 IPR 354 Quick v Stoland Pty Ltd (1998) 87 FCR 371 Neowarra v Western Australia(No 1) (2006) FCR 208 Jango v Northern Territory (No 4)(2004) 214 ALR 608 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 Re NHC and RCH [2005] 32 Fam LR 518 Gollings and Scott [2007] 37 Fam LR 428 Noetel and Quealey [2005] FamCA 677; (2005) FLC 93-230. Carpenter and Lunn [2008] FamCAFC 128 |
| APPLICANT: | Mr McIllroy |
| RESPONDENT: | Ms McIllroy |
| FILE NUMBER: | SYC | 8317 | of | 2007 |
| DATE DELIVERED: | 1 July 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 28 February 2011 1, 2 & 3 March 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Watkins |
| SOLICITOR FOR THE APPLICANT: | Conditsis & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Rees |
| SOLICITOR FOR THE RESPONDENT: | Peter Blackwell & Associates |
Orders
That the Husband be responsible to pay any costs incurred by the reason of Mr R being required to attend at court for the purpose of a conference at the husband’s request and the husband’s requirement that Mr R be available for cross-examination.
That the husband pay to the wife the sum of $75,393 within 60 days of the date of these orders.
Pending the husband making the payment to the wife as required in order 2 hereof, he is restrained from selling, charging or further encumbering any of the properties in which he has an interest, except for the purpose of raising the funds necessary to make the said payment.
In the event of the husband failing to make the payment referred to in order 2 hereof, in the time specified, then interest is to accrue on any unpaid portion of that sum at the rate prescribed in the Family Law Rules 2004 (Cth).
In the event of the husband having failed to pay to the wife all monies due to her pursuant to orders 2 and 4 hereof, within 90 days from the date hereof, then the wife has leave to apply to the court for orders requiring the sale of assets of the husband’s to meet the order together with any other enforcement orders which may be required.
The husband is to forthwith execute all and any documents presented to him by the wife as may be…
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- AGLC
- MCILLROY & MCILLROY [2011] FamCA 506
- Case
- [2011] FamCA 506
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the extent to which an adjustment should be made in favour of the wife, the accurate valuation of the husband's interest in the Business 1 corporations, and the proper treatment of various balance sheet items in the overall property settlement. The court was also required to determine the admissibility and weight of expert evidence presented on these matters.
The court's reasoning involved a detailed examination of the evidence presented, including expert reports, to arrive at a just and equitable distribution of the parties' assets. The principles applied would have encompassed the relevant provisions of the *Family Law Act 1975* (Cth) concerning property division, including considerations of contributions, financial resources, and future needs. The court's orders reflect a comprehensive division of assets and liabilities, including specific monetary payments, property transfers, and indemnities between the parties. The orders also address the ownership of various personal possessions, bank accounts, and superannuation entitlements, as well as the division of surplus funds from specific accounts.
Orders
Orders of the court
1.
That the Husband be responsible to pay any costs incurred by the reason of Mr R being required to attend at court for the purpose of a conference at the husband’s request and the husband’s requirement that Mr R be available for cross-examination.
2.
That the husband pay to the wife the sum of $75,393 within 60 days of the date of these orders.
3.
Pending the husband making the payment to the wife as required in order 2 hereof, he is restrained from selling, charging or further encumbering any of the properties in which he has an interest, except for the purpose of raising the funds necessary to make the said payment.
4.
In the event of the husband failing to make the payment referred to in order 2 hereof, in the time specified, then interest is to accrue on any unpaid portion of that sum at the rate prescribed in the Family Law Rules 2004 (Cth).
5.
In the event of the husband having failed to pay to the wife all monies due to her pursuant to orders 2 and 4 hereof, within 90 days from the date hereof, then the wife has leave to apply to the court for orders requiring the sale of assets of the husband’s to meet the order together with any other enforcement orders which may be required.
6.
The husband is to forthwith execute all and any documents presented to him by the wife as may be necessary to transfer to her all his right, title and interest in the property known as … S Street, Town 1 being Folio Identifier Lot … in DP … (“Town 1” property). The husband is to cause any mortgage or charge registered or held against the Town 1 property to be discharged within 28 days of the date of these orders.
7.
In exchange for the payment required by orders 2 and 4 hereof, the wife shall do all things and sign all documents necessary to transfer to the husband all her right, title and interest in the following properties:
(a) … K Street, Town 2 being Lot … in DP …;
(b) … B Street, Town 3 being Lot … in DP …;
(c) … C Street, Town 3 being Lot … in DP …; and
(d) … B Street, Town 4 being Lot … in SP ….
8.
The wife is to forthwith do all acts, things and sign all documents necessary to transfer to the husband or the husband’s nominee any and all her right, title and interest in the company known as Business 2, Business 1 and/or related entities or associated companies.
9.
The wife is to forthwith do all acts, things and sign all documents necessary to resign as director and/or secretary of the company Business 2 and any related and/or associated companies.
10.
The husband is to indemnify the wife against any requirement to meet any liability or payment associated with the properties specified in order 7 hereof.
11.
The husband is to indemnify the wife against any claim made against her by the companies specified in order 8 hereof, or any claim made against her arising from her former office holding or employment in any of those companies.
12.
The wife is to be declared the owner of the following property:
(a) Contents of the house at … S Street, Town 1;
(b) Sporting memorabilia;
(c) Wall-hangings;
(d) Nissan vehicle;
(e) Stock trailer;
(f) All other items of personal possession in her custody or control;
(g) All bank accounts and other deposits with financial institutions presently standing in her name;
(h) The sum of $76,855 held in trust by Conditsis & Associates, Solicitors being the net proceeds of sale of the Town 5 Showroom;
(i) The wife’s superannuation entitlement; and
(j) The sum of $6,482 standing to the credit of the N bank account.
13.
The husband is to be declared the owner of and the wife is to have no claim upon the following property:
(a) All items of personal possession in his custody or control;
(b) The sum of $220 being the parties share of the McIllroy and Gear … “Factory Loan Account”; and
(c) All bank accounts and other deposits with financial institutions presently standing in his name.
14.
Should there be any interest accrued to the Conditsis & Associates Trust account funds (being the balance of sale proceeds of the Town 5 property) or should the parties entitlement to funds in either the New Factory account exceed $6,482, or their entitlement in the McIllroy and Gear … “Factory Loan Account” exceed $220 then the parties are to divide any surplus in the proportion 55% to the wife and 45% to the husband.
15.
The husband is to be responsible to pay the whole of the fees for the single expert Mr T as and from 16 September 2010. The parties are otherwise to be bound by the court order (or parties agreement whichever be applicable) in place relative to the payment of Mr T’s fees as single expert.
16.
In the event that payment of any fees to Mr T relative to work performed on or after 16 September 2010 have been paid from the funds held in the Conditsis & Associates Trust account or any other joint fund of monies then the husband is to pay to the wife, within 28 days, 55% of the sum so paid.
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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