Midden and Galloway

Case [2013] FCCA 1711


FEDERAL CIRCUIT COURT OF AUSTRALIA

MIDDEN & GALLOWAY [2013] FCCA 1711
Catchwords:
FAMILY LAW – Property – de facto relationship – trusts – uncertainty with respect to the trust – non-disclosure.

Legislation: 
Family Law Act 1975 (Cth), Pt VIII, ss.31, 33, 75, 79, 90SM, 90SF, 106A, 106B

Federal Circuit Court Act 1999, ss.14, 18

Warby & Warby (2002) FLC 93-091
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Stanford v Stanford [2012] HCA 52
Bevan & Bevan [2013] FamCAFC 116
Kennon v Spry (2008) 238 CLR 366
W & W [2000] FamCA 1302
Weir & Weir (1993)16 Fam LR 154
Black & Kellner (1992) FLC 92-287
Williams & Williams [2007] FamCA 313

Norbis & Norbis (1986) 161 CLR 513

Applicant: MR MIDDEN
Respondent: MS GALLOWAY
File Number: DNC 199 of 2012
Judgment of: Judge Harland
Hearing dates: 26, 27 and 28 June 2013, 4 and 31 July 2013
Date of Last Submission: 31 July 2013
Delivered at: Alice Springs
Delivered on: 25 October 2013

REPRESENTATION

Counsel for the Applicant: Ms Truman
Solicitors for the Applicant: DS Family Law
The Respondent: In Person

ORDERS

  1. That within 60 days of the date of these orders the Applicant pay to the Respondent the sum of $340,000 *$239,817 less the following amounts:

    (a)$4,000 for bond money and rent paid in accordance with order 5(a) and (b) of the orders dated 27 June 2012;

    (b)$644 for removal costs paid in accordance with order 5(c) of the orders dated 27 June 2012;

    (c)One half of the following amounts paid in accordance with order 6 of the orders dated 28 August 2012:

    (i)$660 for the Property M property valuation;

    (ii)$825 for the Property D property valuation;

    (iii)$825 for the Property I property valuation;

    (iv)$3,660 for the (business omitted) valuation; and

    (v)$992 for the (overseas property omitted) valuations.

    (d)One half of the Property A valuation;

    (e)30% of the tax the applicant will have to pay for the 2011 and 2012 *2007 and 2008 financial years as a consequence of the (omitted) Trust being invalid.

  2. That within 42 days of the date of these orders each party shall do all such things and execute all documents necessary to transfer the property situated at and known as Property M, in the Northern Territory of Australia, more particularly described in the certificate of title as volume (omitted) folio (omitted), Lot (omitted), Town of Darwin (“the Property M”) to the sole name of the applicant Mr Midden at the cost of the applicant; and

  3. Simultaneously with the transfer pursuant to order 2 above the applicant shall pay all monies necessary to discharge and remove all mortgages, charges, encumbrances and all other liabilities, whether in law or equity for which the respondent bears any actual or contingent liability at the date of these orders.

  4. That within 30 days of the date of these orders the parties shall do all things necessary to cause:

    (a)VW motor vehicle registration…

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Details
AGLC
Midden and Galloway [2013] FCCA 1711
Case
[2013] FCCA 1711
Decision Date

CaseChat Overview and Summary

This matter concerned the division of property and the resolution of financial disputes between Mr Midden (the Applicant) and Ms Galloway (the Respondent), heard in the Federal Circuit Court of Australia. The proceedings involved complex asset distribution, including real estate, vehicles, a business, and trust assets, as well as the determination of the validity of a trust.

The court was required to determine the validity of the (omitted) Trust and, consequently, how the assets held within or related to that trust, along with other jointly and severally held assets, should be divided between the parties. The court also needed to address the financial liabilities and tax implications arising from the trust's invalidity and to make orders regarding the transfer of various assets and the discharge of encumbrances. Furthermore, the court considered the need for injunctive relief to prevent further litigation and to regulate the parties' future conduct towards each other.

In its reasoning, the court declared the (omitted) Trust to be invalid. Based on this declaration and the evidence presented, the court made detailed orders for the division of property. These orders included the transfer of specific properties, vehicles, and a business to Mr Midden, with corresponding financial adjustments and indemnities. The court also declared Mr Midden to be the sole owner of certain assets and Ms Galloway to be the sole owner of others, including overseas property and personal effects. Injunctive orders were issued to restrain Ms Galloway from approaching or contacting Mr Midden, his family, or specific individuals, and from continuing or instituting proceedings in certain courts.

The court ordered Mr Midden to pay a net sum to Ms Galloway, after accounting for various deductions related to bond money, rent, removal costs, property valuations, and a proportion of tax liabilities arising from the trust's invalidity. The parties were directed to execute all necessary documents to give effect to the property transfers and the discharge of liabilities, with a provision for a Registrar to sign on behalf of a defaulting party under section 106A of the *Family Law Act 1975*. Ms Galloway was ordered to withdraw any caveats lodged against properties in which Mr Midden had an interest. The court also reserved costs, with directions for written submissions from both parties.

Orders

Orders of the court

1.

That within 60 days of the date of these orders the Applicant pay to the Respondent the sum of $340,000 *$239,817 less the following amounts:

(a) $4,000 for bond money and rent paid in accordance with order 5(a) and (b) of the orders dated 27 June 2012;

(b) $644 for removal costs paid in accordance with order 5(c) of the orders dated 27 June 2012;

(c) One half of the following amounts paid in accordance with order 6 of the orders dated 28 August 2012:

(i) $660 for the Property M property valuation;

(ii) $825 for the Property D property valuation;

(iii) $825 for the Property I property valuation;

(iv) $3,660 for the (business omitted) valuation; and

(v) $992 for the (overseas property omitted) valuations.

(d) One half of the Property A valuation;

(e) 30% of the tax the applicant will have to pay for the 2011 and 2012 *2007 and 2008 financial years as a consequence of the (omitted) Trust being invalid.

2.

That within 42 days of the date of these orders each party shall do all such things and execute all documents necessary to transfer the property situated at and known as Property M, in the Northern Territory of Australia, more particularly described in the certificate of title as volume (omitted) folio (omitted), Lot (omitted), Town of Darwin (“the Property M”) to the sole name of the applicant Mr Midden at the cost of the applicant; and

3.

Simultaneously with the transfer pursuant to order 2 above the applicant shall pay all monies necessary to discharge and remove all mortgages, charges, encumbrances and all other liabilities, whether in law or equity for which the respondent bears any actual or contingent liability at the date of these orders.

4.

That within 30 days of the date of these orders the parties shall do all things necessary to cause:

(a) VW motor vehicle registration number (omitted); and

(b) Isuzu Ute registration number (omitted).

to be transferred to the sole name of the applicant Mr Midden and the applicant does indemnify and shall keep indemnified the respondent in relation to all liabilities in respect of the motor vehicle whenever and however arising.

5.

That within 30 days of the date of these orders the parties shall do all things necessary to cause the ABN for the (omitted) Trust into the name of the applicant Mr Midden.

6.

That within 30 days of the date of these orders the parties shall do all things necessary to cause the transfer of (business omitted) business name into the name of Mr Midden.

7.

That within 30 days of the date of these orders the parties do all necessary things and sign all necessary documents to deregister (omitted) Pty Ltd.

8.

That within 42 days the parties do all necessary things and sign all necessary documents to discharge the (omitted) Line of Credit, at the Applicant’s expense and that the Applicant shall indemnify the Respondent from any and all liabilities in relation to the said liability.

9.

That within 7 days of the date of these orders, the Respondent shall, at her expense, cause all caveats that she lodged against any properties in which the applicant has an interest in, to be withdrawn.

THE COURT DECLARES

10.

That the (omitted) Trust is invalid.

11.

That the Applicant is hereby declared to be the sole and absolute owner at law and in equity of:

(a) Property A;

(b) All items of furniture, furnishings, personalty, chattels and jewellery;

(c) All monies (whether held in cash or in deposit with any financial institution);

(d) All contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;

in the possession, custody or control or each or in which the Applicant has an interest which are not otherwise dealt with in these orders.

12.

That the Respondent is hereby declared to be the sole and absolute owner at law and in equity of:

(a) The units in (overseas property omitted) being (omitted), (omitted), (country omitted);

(b) All items of furniture, furnishings, personalty, chattels and jewellery;

(c) All monies (whether held in cash or in deposit with any financial institution);

(d) All contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant.

in the possession, custody or control or each or in which the Respondent has an interest which are not otherwise dealt with in these orders.

Injunctions

13.

That the Respondent is restrained and an injunction issue restraining the Respondent from engaging in the following behaviour:

(a) Save for the purpose of complying with any orders outlined above, approaching the Applicant at any place where the Applicant is living, staying or working;

(b) Save for the purposes of complying with any orders outlined above, contacting the Applicant directly or indirectly;

(c) Contacting any members of the Applicant’s family directly or indirectly; and

(d) Contacting Ms S or Mr R directly or indirectly.

(e) *That the respondent be restrained from continuing proceedings No. (omitted) in the Supreme Court of the Northern Territory.

(f) *That the respondent be restrained from instituting further proceedings against the applicant in respect of the property of the parties, trusts of the parties or either of them in any Court, apart from the family Court of Australia or the Federal Circuit Court of Australia.

14.

That within 14 days of the date of these orders, the Respondent shall return to the Applicant, the following items:

(a) Entirety of the file removed from Property A containing, amongst other things, building permits, applications, construction inspection certificates and payment receipts, relating to the extensions and construction at Property M;

(b) The Applicant’s LP vinyl collection;

(c) The Applicant’s personal photographs and diaries of his overseas voyage;

(d) The Applicant’s personal diaries;

(e) The Applicant’s winter clothing; and

(f) The Applicant’s dress trousers.

Section 106A

15.

That each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Federal Circuit Court pursuant to section 106A Family Law Act 1975 is authorised to sign any such document on behalf of the defaulting party.

Costs

16.

That the Applicant file and serve written submissions with respect to any reserved costs and costs of the hearing generally by 8 November 2013.

17.

That the Respondent file and serve written submissions with respect to costs by 22 November 2013.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to reflect:

(i) the deletion of the sum “$340,000” and the insertion of the sum $239,817” in Order 1.

(ii) the deletion of the year 2011 and 2012 and the insertion of the years 2007 and 2008 in Order 1 (e).

(iii) the inclusion of sub order (e) and (f) in Order 13 with the sub orders:

(e) That the respondent be restrained from continuing proceedings No. (omitted) in the Supreme Court of the Northern Territory.

(f) That the respondent be restrained from instituting further proceedings against the applicant in respect of the property of the parties, trusts of the parties or either of them in any Court, apart from the family Court of Australia or the Federal Circuit Court of Australia.

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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