Metcalfe and Garvey - [2016] FCCA 1733

FEDERAL CIRCUIT COURT OF AUSTRALIA

METCALFE & GARVEY

[2016] FCCA 1733

Catchwords:
FAMILY LAW – Property – Application for property settlement – contributions of the parties – parties’ assets – post-separation inheritance – where applicant inherited a house from the estate of her mother eight years after the parties physically separated – whether house is an asset or a financial resource – financial resource – respondent’s debt for legal expenses – where respondent claims that applicant should reimburse him for legal fees paid for criminal proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79, 106A

Cases cited:

Bishop & Bishop (2013) FLC 553; [2013] FamCAFC 138

Hickey & Hickey (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395

Jarrott & Jarrott (No.2) [2012] FamCAFC 72

GS & TS (2005) 32 Fam LR 575; FLC 93-213; [2005] FamCA 40
Stanford v Stanford (2012) 47 Fam LR 481; FLC 93-518; [2012] HCA 52

Applicant:

MS METCALFE

Respondent:

MR GARVEY

File Number:

SYC 6993 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

3-4 June 2015

Date of Last Submission:

4 June 2015

Delivered at:

Sydney

Delivered on:

12 July 2016

REPRESENTATION

Counsel for the Applicant:

Ms Beck

Solicitors for the Applicant:

James & Associates

Counsel for the Respondent:

Ms McMahon

Solicitors for the Respondent:

Jack Rigg Solicitors

ORDERS

Within two (2) months of the date of these Orders the Applicant and the Respondent are to do all acts and things and execute all documents required to list the property at Property B in the State of New South Wales being the whole of the land in Folio Identifier (omitted) for sale by public auction within six (6) weeks from the date of listing.
The said property is to be listed for sale with a real estate agent as agreed between the Applicant and the Respondent and failing agreement within seven (7) days, the agent is to be an agent as is appointed by a nominee of the President of the Real Estate Institute of New South Wales.
The parties must appoint a solicitor to act on the sale as agreed between them and failing agreement within seven (7) days of the listing the solicitor is to be appointed by a nominee of the President of the Law Society of New South Wales.
The Respondent must keep the property in good repair and presentation for the purpose of presentation for sale.
The parties are to nominate the reserve price fourteen (14) days prior to the auction being a reserve price as agreed between them and failing agreement within twelve (12) days of the auction date the reserve price is to be the market value as nominated by a representative of the President of the Real Estate Institute of New South Wales.
In the event that the property fails to sell at auction the parties must negotiate with the highest bidder and accept any offer which is no more than 10% lower than the reserve price.
In the event that the property has not…

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 Metcalfe and Garvey

Details

AGLC: Metcalfe and Garvey [2016] FCCA 1733
Case: [2016] FCCA 1733
Decision Date: 12 July 2016

CaseChat Overview and Summary

In *Metcalfe and Garvey*, heard before Judge Scarlett, the applicant and respondent sought orders for the sale of a jointly owned property and the division of proceeds, as well as the division of personal property and the indemnification of liabilities. The dispute concerned the practical arrangements for the sale of the property and the equitable distribution of various assets and debts between the parties.

The court was required to determine the specific terms and conditions under which the jointly owned property would be listed for sale, including the timeframe for listing, the appointment of a real estate agent and solicitor, the setting of a reserve price, and the procedure for dealing with offers at or below the reserve price. Furthermore, the court needed to determine the division of personal property, including specific items of furniture and personal effects, as well as other personalty held in each party's sole name. Finally, the court was tasked with allocating responsibility for certain liabilities through indemnification orders.

The court made detailed orders to facilitate the sale of the property, mandating its listing for public auction within a specified period, with provisions for the appointment of an agent and solicitor by a nominee of the relevant professional bodies if the parties could not agree. The court also stipulated how the reserve price would be determined and how offers below the reserve price would be handled, including a subsequent private treaty sale if the auction was unsuccessful. The proceeds of sale were to be applied first to sale expenses, then to a specific bank debt, with the remainder divided 70% to the applicant and 30% to the respondent. The court also allocated specific items of personal property to each party and ordered the indemnification of each party for liabilities held in the other's name. In the event of non-compliance, the Registrar or Deputy Registrar was appointed to execute necessary documents.

Orders

Orders of the court

Within two (2) months of the date of these Orders the Applicant and the Respondent are to do all acts and things and execute all documents required to list the property at Property B in the State of New South Wales being the whole of the land in Folio Identifier (omitted) for sale by public auction within six (6) weeks from the date of listing.

The said property is to be listed for sale with a real estate agent as agreed between the Applicant and the Respondent and failing agreement within seven (7) days, the agent is to be an agent as is appointed by a nominee of the President of the Real Estate Institute of New South Wales.

The parties must appoint a solicitor to act on the sale as agreed between them and failing agreement within seven (7) days of the listing the solicitor is to be appointed by a nominee of the President of the Law Society of New South Wales.

The Respondent must keep the property in good repair and presentation for the purpose of presentation for sale.

The parties are to nominate the reserve price fourteen (14) days prior to the auction being a reserve price as agreed between them and failing agreement within twelve (12) days of the auction date the reserve price is to be the market value as nominated by a representative of the President of the Real Estate Institute of New South Wales.

In the event that the property fails to sell at auction the parties must negotiate with the highest bidder and accept any offer which is no more than 10% lower than the reserve price.

In the event that the property has not sold at or shortly after the auction then the parties must list the property for sale by private treaty at a list price 10% lower than the reserve price at the auction.

On completion of the sale of the said property the Applicant and the Respondent must do all acts and execute all documents necessary to cause the proceeds of sale to be paid in the following order and priority:

(a) in payment of all agent’s commission, auctioneer’s expenses, advertising expenses and legal costs referable to the sale;

(b) to the (omitted) Bank the full balance due that day in respect of the Credit Card numbered (omitted);

(i) an amount equivalent of 70% to the Applicant; and

(ii) the remainder to the Respondent.

Subject to these Orders, the Applicant is to be solely entitled to the exclusion of the Respondent to the following items in the possession of the Respondent:

(a) an antique sideboard;

(b) a writing desk;

(d) the buffet in the kitchen;

(e) the china cabinet made by the Applicant’s father;

(f) the Applicant’s pottery items and any other of the Applicant’s personal items left in the property at Property B.

10.

The Respondent is to be solely entitled to the following items in the possession of the Applicant:

(a) Wedding ring;

(b) Family ring;

(d) The Respondent’s record collection.

11.

The Applicant and the Respondent must do all acts and things necessary to deliver to the other party the items referred to in Orders (9) and (10) above within one (1) month of the date of these Orders.

12.

The Applicant is to retain and be solely entitled to the exclusion of the Respondent all other items of personalty in her sole name or possession including bank accounts, insurance policies, superannuation interests and motor vehicles.

13.

The Respondent is to retain and be solely entitled to the exclusion of the Applicant all other items of personalty in her sole name or possession including bank accounts, insurance policies, superannuation interests and motor vehicles.

14.

The Respondent is to indemnify the Applicant and keep her indemnified in respect of the following liabilities in his name:

(a) Any amount owing to the (omitted) Bank; and

(b) All amounts owing to Jack Rigg Solicitors for outstanding legal costs.

15.

The Applicant is to indemnify the Respondent and keep him indemnified in respect of any liabilities in her name.

16.

In the event that either party refuses, fails or neglects to execute any deed or instrument required by these Orders the Registrar or a Deputy Registrar of the Sydney Registry of the Court is appointed under the provisions of section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the party who so refuses, fails or neglects and to do all acts and things necessary to give validity and operation to the deed or instrument.

17.

In the event that either party seeks an Order that the other party should pay their costs of these proceedings then that party or parties must file and serve an Application in a Case and an affidavit setting out the amount of costs sought and the basis upon which those costs are claimed within seven (7) days of the date of these Orders.

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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