Milstead and Richards and Anor

Case [2014] FCCA 13


FEDERAL CIRCUIT COURT OF AUSTRALIA

MILSTEAD & RICHARDS & ANOR [2014] FCCA 13
Catchwords:
FAMILY LAW – Property – de facto relationship of 11 years – discretionary trust – farming properties and enterprises – evidentiary difficulties – contributions – Section 90 SF(3) factors.

Legislation:

Family Law Act 1975

Federal Circuit Court Act 1999

Federal Circuit Court Rules 2001

Alcaine & Alcaine & Abrahams (unreported 20 March 1997, SY9878/94)
Ashton & Ashton (1986) FLC 91-779
Ashton (1986) FLC 91-777

Bevan & Bevan [2013] FamCAFC 116

BP & KS (2003) FLC 93-157
Clauson & Clauson (1995) FLC 92-595
Davidson & Davidson (1991) FLC 92-197

Garrett & Garrett (1984) FLC 91-539

JEL v DDF (2001) FLC 93-075
Jones v Dunkel (1959) 101 CLR 298
Karger v Paul [1984] VR 161
Kowaliw & Kowaliw (1981) FLC 91-092
Lovine & Connor & Anor (2012) FLC 93-515
Mallet v Mallet (1984 FLC 91-507
Milankov & Milankov (2002) FLC 93-095

Norbis v Norbis (1986) 161CLR 513

OSF & OJK (2004) FLC 93-318
Pierce & Pierce (1999) FLC 92-844
Re Skeats’ Settlement (1889) 42 Ch D 522

Russell & Russell (1999) FLC 92-877

Stanford & Stanford [2012] HCA 52
Stein & Stein (1986) FLC 91-779

Applicant: MR MILSTEAD
First Respondent: MS RICHARDS
Second Respondent: X PTY LTD
File Number: LNC 481 of 2010
Judgment of: Judge McGuire
Hearing dates:

13 & 14 December 2012

4 March 2013
7 & 8 March 2013

11 & 12 June 2013

16 August 2013
17 January 2014

Date of Last Submission: 17 January 2014
Delivered at: Melbourne
Delivered on: 21 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Boland
Solicitors for the Applicant: Chris Boland Solicitors
Counsel for the First Respondent: Mr Somerville and Mr Fitzgerald
Solicitors for the First Respondent: Fitzgerald and Browne
Counsel for the Second Respondent: Mr Somerville and Mr Fitzgerald
Solicitors for the Second Respondent: Fitzgerald and Browne

ORDERS

  1. That X Pty Ltd be joined as a party to these proceedings.

  2. That within sixty (60) days of the date of these orders the respondents, jointly or severally, make a lump sum cash payment to the applicant of $259, 808 and for these purposes the trustee and/or administrator of X  Pty Ltd be and is hereby directed to authorise such payment.

  3. That should the respondents fail to make the cash payment referred to in paragraph 2 hereof, then the real property known as “Property M” situated at Property M in Tasmania being the property of the Mr B Trust discretionary trust with X Pty Ltd (now in voluntary administration) as trustee be sold on terms as agreed between the applicant and the administrator of X Pty Ltd with the proceeds of sale being distributed as follows:

    (i)To the reasonable costs and disbursements of the sale;

    (ii)The reasonable professional costs of the administrator in effecting the sale;

    (iii)The discharge of the registered first mortgage held by (omitted) Bank and the registered second mortgage held by Mr R;

    (iv)As to a sum of $259, 808 to the Applicant; and

    (v)As to…

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AGLC
Milstead and Richards and Anor [2014] FCCA 13
Case
[2014] FCCA 13
Decision Date

CaseChat Overview and Summary

This matter came before Judge McGuire concerning a dispute between the applicant and the respondents, Milstead and Richards. The proceedings involved the division of assets and liabilities, including a lump sum payment, the sale of real property, and the transfer of various personal and business assets.

The court was required to determine the appropriate orders for the distribution of assets and the allocation of liabilities between the parties. Key issues included the joinder of X Pty Ltd as a party, the quantum and method of payment of a lump sum to the applicant, the circumstances under which a specific property ("Property M") should be sold, and the distribution of sale proceeds. The court also had to address the transfer of numerous other assets, including company shares, vehicles, personal chattels, and financial instruments, as well as the allocation of specific liabilities and indemnities between the parties. Furthermore, the court needed to declare the ownership of taxation credits related to farming partnerships.

The court ordered that X Pty Ltd be joined as a party to the proceedings. It directed the respondents to make a lump sum cash payment of $259,808 to the applicant within sixty days, with the trustee or administrator of X Pty Ltd authorised to make this payment. If the cash payment was not made, "Property M," held by the Mr B Trust with X Pty Ltd as trustee, was to be sold. The proceeds of this sale were to be applied first to sale costs and the administrator's professional costs, then to discharge existing mortgages, followed by the payment of $259,808 to the applicant, with any balance going to the administrator of X Pty Ltd. The respondents were also ordered to transfer specific assets, including company assets, shareholdings, a vehicle, personalty, a bond, and superannuation benefits, to the applicant.

Further orders stipulated that the first respondent would be solely responsible for and indemnify the applicant against certain liabilities incurred since separation and specific credit card and asset-related liabilities. Similarly, the second respondent was to be solely responsible for and indemnify the applicant against specific finance liabilities, mortgages on "Property M," personal loan liabilities, and other asset and post-separation liabilities. The applicant was ordered to be solely responsible for and indemnify the respondents against liabilities attaching to assets retained by the applicant, liabilities incurred since separation, and a specific credit card liability. The court also declared that taxation credits of $603,656 from Milstead/X Pty Ltd farming partnerships were to be shared equally between the applicant and X Pty Ltd, each receiving $301,828. Finally, parties were granted liberty to apply regarding the sale of "Property M."

Orders

Orders of the court

1.

That X Pty Ltd be joined as a party to these proceedings.

2.

That within sixty (60) days of the date of these orders the respondents, jointly or severally, make a lump sum cash payment to the applicant of $259, 808 and for these purposes the trustee and/or administrator of X Pty Ltd be and is hereby directed to authorise such payment.

3.

That should the respondents fail to make the cash payment referred to in paragraph 2 hereof, then the real property known as “Property M” situated at Property M in Tasmania being the property of the Mr B Trust discretionary trust with X Pty Ltd (now in voluntary administration) as trustee be sold on terms as agreed between the applicant and the administrator of X Pty Ltd with the proceeds of sale being distributed as follows:

(i) To the reasonable costs and disbursements of the sale;

(ii) The reasonable professional costs of the administrator in effecting the sale;

(iii) The discharge of the registered first mortgage held by (omitted) Bank and the registered second mortgage held by Mr R;

(iv) As to a sum of $259, 808 to the Applicant; and

(v) As to the balance to the administrator of X Pty Ltd.

4.

That within sixty (60) days of the date of these orders the respondents transfer all their right, title and interest in the following to the applicant absolutely:

(i) The assets of (omitted) Pty Ltd;

(ii) Any shareholdings in the name of the applicant at the date of these orders;

(iii) Ford Courier motor vehicle;

(iv) All personalty and chattels in the possession of or under the control of the applicant as at the date of these orders including work tools, and artworks;

(v) (omitted) Bank Bond; and

(vi) Any superannuation policy or benefit of the applicant as at the date of these orders.

5.

That the first named respondent be solely responsible for and indemnify the applicant in respect of the following:

(i) Any and all liabilities incurred by the first respondent since separation in either her name alone or in joint names;

(ii) Any credit card liabilities in the name of the first respondent; and

(iii) Any and all liabilities attaching to any assets retained by the first respondent pursuant to these orders.

6.

That the second named respondent be solely responsible for and indemnify the applicant in respect of the following:

(i) (omitted) finance Range Rover;

(ii) (omitted) Bank mortgage secured by the property “Property M’;

(iii) The second mortgage held by Mr R and secured by “Property M”;

(iv) Any personal loan liabilities to Mr R;

(v) Any and all liabilities attaching to any of the assets retained by the second respondent pursuant to these orders; and

(vi) Any and all liabilities incurred by the second respondent since the separation of the applicant and the first respondent.

7.

That contemporaneously with the transfer orders in order 4 hereof the applicant transfer all his right, title and interest in the following to the first respondent absolutely:

(i) Subaru motor vehicle;

(ii) All personalty and chattels in the possession of the first respondent as at the date of these orders including jewellery and artworks;

(iii) The balances of any bank accounts or like investments in the name of or to the benefit of the first respondent as at the date of these orders; and

(iv) Any superannuation policy or benefit of the first respondent as at the date of these orders.

8.

That contemporaneously with the transfer and vesting order in order 4 hereof, the applicant transfer all his right, title or interest in the following to the second respondent:

(i) All the assets of the Mr B Trust including but not limited to the property known as “Property M” and all farm, plant, equipment and stock; and

(ii) The balance of any bank accounts or like investments in the name of or to the benefit of the second named respondent.

9.

That the applicant be solely responsible for and indemnify the first and second named respondents in respect of the following:

(i) Any and all liabilities attaching to any of the assets retained by the applicant pursuant to these orders;

(ii) Any and all liabilities incurred by the applicant since separation from the first name respondent in either his name alone or in joint names; and

(iii) The applicant’s (omitted) Bank credit card liability.

10.

That the Court declares taxation credits of the Milstead/X Pty Ltd farming partnerships in a total of $603, 656 are resources of each of the applicant and X Pty Ltd in quantum of $301, 828 and to the exclusion of each other or any other.

11.

That the parties, any of them, or the administrator of X Pty Ltd have liberty to apply in respect of the sale of the property at Property M, Property M in Tasmania.

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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