Nadar and Nadar - [2018] FCCA 1505

FEDERAL CIRCUIT COURT OF AUSTRALIA

NADAR & NADAR

[2018] FCCA 1505

Catchwords:
FAMILY LAW – Property – adjustment of property interests.

Legislation:

Family Law Act 1975, ss.75, 79

Cases cited:

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91

Kinda Kapers Charlestown Pty Ltd v Newcastle Neptunes Underwater Club Inc and Ors [2007] NSWSC 329

Russell & Russell (1999) FLC 92-877
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Applicant:

MR NADAR

Respondent:

MS NADAR

File Number:

PAC 5561 of 2016

Judgment of:

Judge Obradovic

Hearing date:

14 May 2018

Date of Last Submission:

14 May 2018

Delivered at:

Parramatta

Delivered on:

8 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Othen

Solicitors for the Applicant:

Slater and Gordon Lawyers

Counsel for the Respondent:

Mr Givney

Solicitors for the Respondent:

Mills Oakley Lawyers

ORDERS

The husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the property situated at and known as Property A being the whole of the land contained in folio identifier (“the Property A property”):
(a)The listing price for the Property A property shall be as agreed between the parties within 14 days and if there is no agreement then the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales;
(b)The Property A property shall be listed for sale by private treaty with estate agents as agreed upon between the parties within 14 days of the date of these Orders and if there is no agreement then the estate agent shall be nominated by the President of the Real Estate Institute of New South Wales.
(c)In the event that the Property A property has not been sold by or before a date two months from the date of these Orders and unless otherwise agreed between the parties, then the husband and wife shall make all such arrangements and do all such acts and things and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the Property A property upon the following terms:
(i)The auctioneer shall be as agreed upon between the parties and if there is no immediate agreement then the auctioneer shall be as nominated by the President of the Real Estate Institute of New South Wales;
(ii)The auction shall take place within one month after the deadline date for sale by private treaty;
(iii)The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer; and
(iv)The parties shall each pay and be responsible for payment of one half of the auction expenses payable before the real property’s auction.
(d)In the event that the Property A property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and wife shall do…

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 Nadar and Nadar

Details

AGLC: Nadar and Nadar [2018] FCCA 1505
Case: [2018] FCCA 1505
Decision Date: 8 June 2018

CaseChat Overview and Summary

This case concerns the division of property and superannuation interests between a husband and wife, as determined by Judge Obradovic. The primary dispute revolved around the sale and distribution of proceeds from two properties, Property A and Property B, as well as the division of superannuation funds and a pension scheme.

The court was required to determine the terms and conditions for the sale of Property A and Property B, including the listing price, the appointment of real estate agents and auctioneers, and the process for sale by private treaty or public auction. Furthermore, the court needed to decide how the proceeds from these sales would be applied, including the payment of sale costs, outstanding rates, encumbrances, capital gains tax, and the reimbursement of the husband's father for maintenance on Property B. The court also had to address the division of the husband's interests in Super Fund A and Super Fund B, and his pension scheme, pursuant to specific provisions of the *Family Law Act 1975*.

The court's reasoning and legal principles are reflected in the detailed orders made. For Property A, the court mandated a process for agreeing on a listing price and agent within 14 days, failing which a nominee of the President of the Real Estate Institute of New South Wales would be appointed. If the property remained unsold after two months, it was to be sold by public auction, with similar provisions for agent and auctioneer appointment and reserve price. The proceeds were to be applied first to sale costs, rates, and encumbrances, then to capital gains tax, with the balance divided 59% to the wife and 41% to the husband. Similar, though distinct, provisions were made for Property B, including a six-month period for private treaty sale before a potential auction, with proceeds applied to sale costs, rates, encumbrances, reimbursement to the husband's father, and the balance divided 59% to the wife and 41% to the husband. The court also made specific orders for the division of superannuation interests under section 90MT(1)(a) of the *Family Law Act 1975*, specifying base amounts for the wife's entitlement from Super Fund A and Super Fund B, and ordered a pension sharing order for the husband's pension scheme, with costs to be shared equally.

The court ordered the husband and wife to take all necessary steps to effect the sale of Property A and Property B according to the specified terms. Upon completion of the sales, the proceeds were to be applied as detailed in the orders. The court also made orders regarding the division of superannuation interests and a pension scheme, binding the respective trustees. Further orders directed the transfer of a motor vehicle to the wife and the equal distribution of funds from specified joint bank accounts. The court also clarified that unless otherwise specified, each party was solely entitled to other property in their possession, with specific deeming provisions for bank accounts, insurance policies, and superannuation entitlements. Finally, the court appointed a Registrar or other officer to execute documents on behalf of a party who refused or neglected to do so, and ordered that all outstanding issues be removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the property situated at and known as Property A being the whole of the land contained in folio identifier (“the Property A property”):

(a) The listing price for the Property A property shall be as agreed between the parties within 14 days and if there is no agreement then the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales;

(b) The Property A property shall be listed for sale by private treaty with estate agents as agreed upon between the parties within 14 days of the date of these Orders and if there is no agreement then the estate agent shall be nominated by the President of the Real Estate Institute of New South Wales.

(c) In the event that the Property A property has not been sold by or before a date two months from the date of these Orders and unless otherwise agreed between the parties, then the husband and wife shall make all such arrangements and do all such acts and things and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the Property A property upon the following terms:

(i) The auctioneer shall be as agreed upon between the parties and if there is no immediate agreement then the auctioneer shall be as nominated by the President of the Real Estate Institute of New South Wales;

(ii) The auction shall take place within one month after the deadline date for sale by private treaty;

(iii) The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer; and

(iv) The parties shall each pay and be responsible for payment of one half of the auction expenses payable before the real property’s auction.

(d) In the event that the Property A property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and wife shall do all such acts and sign all necessary documents and shall pay all monies equally necessary to produce a second auction within a further five weeks of that date otherwise upon the same terms and conditions as applied to the first auction.

Upon completion of the sale pursuant to Order 1 above, the husband and wife shall forthwith do all acts and things and sign all necessary documents for the sale proceeds of the Property A property to be applied as follows:

(a) To pay all costs, commissions and expenses of the sale and to pay any Council and Water rates and maintenance levies outstanding in respect of the Property A property;

(b) To discharge the mortgage and any other encumbrances affecting the Property A property;

(c) To pay the Capital Gains Tax incurred by either party from the sale of the Property C property and any other current tax liability of the parties; and

(d) The balance remaining to be divided as to 59% to the wife and 41% to the husband.

The husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the property situated at and known as Property B (country omitted), (“the Property B property”):

(a) The listing price for the Property B property shall be as agreed between the parties and if there is no agreement a valuer must be appointed to undertake a valuation of the Property B property to be paid equally by the parties with the listing price to be as recommended by the valuer;

(b) The Property B property shall be listed for sale with Real Estate Agents, by private treaty unless otherwise agreed between the parties.

(c) In the event that the Property B property has not been sold by or before a date six months from the date of these Orders and unless otherwise agreed between the parties, then the husband and wife shall make all such arrangements and do all such acts and things and sign all documents and pay all monies equally, necessary to procure a sale by public auction of the Property B property upon the following terms:

(i) The auctioneer shall be as agreed upon between the parties;

(ii) The auction shall take place within three months after the deadline date for sale by private treaty;

(iii) The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer; and

(iv) The parties shall each pay and be responsible for payment of one half of the auction expenses payable before the real property’s auction.

(d) In the event that the Property B property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and wife shall do all such acts and sign all necessary documents and shall pay all monies equally necessary to procure a second auction within a further five weeks of that date otherwise upon the same terms and conditions as apply to the first auction.

Upon completion of the sale pursuant to Order 3 above, the husband and wife shall forthwith do all acts and things and sign all necessary documents for the proceeds of the sale of the Property B property to be applied as follows:

(a) To pay all costs, commissions and expenses of the sale and to pay any Council and Water rates and maintenance levies outstanding in respect of the Property B property;

(b) In payment to the husband’s father, namely, Mr Nadar all monies necessary to reimburse him the cost of any maintenance or repair work expended by him on the Property B property;

Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the Super Fund A Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, as at the date of these Orders, in the sum of $113,562 and that there be a corresponding reduction to the entitlement the husband would have had in the Super Fund A Superannuation Fund but for this Order.

Order 5 above have effect from the operative time and the operative time for this order is four business days after the service of this Order on the Trustee of the Super Fund A Superannuation Fund.

Orders 5 and 6 binds the Trustee of the Super Fund A Superannuation Fund.

Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the Super Fund B and Benefits Scheme Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, as at the date of these Orders, in the sum of $68,966, and that there be a corresponding reduction to the entitlement the husband would have had in the Super Fund B and Benefits Scheme Superannuation Fund but for this Order.

Order 8 above have effect from the operative time and the operative time for this Order is four business days after the service of this Order on the Trustee of the Super Fund B and Benefits Scheme Superannuation Fund.

10.

Order 8 and 9 binds the Trustee of the Super Fund B and Benefits Scheme Superannuation Fund.

11.

The husband and wife shall forthwith do all acts and things and sign all documents necessary to apply for a Pension Sharing Order under the (country omitted) Marriage Act to the effect:

(a) That the wife shall receive 50% of the husband’s rights under his 1975 (employer) Pension Scheme in the (country omitted);

(b) That the costs of the application and of the implementation of the Pension Sharing Order are shared equally between the parties; and

12.

The parties shall forthwith jointly instruct at joint expense Ms C of Family Law, (country omitted) to prepare all documents required for the parties to comply with order 11, and in the event she declines these instructions then such other lawyer as Ms C nominates.

13.

The parties shall forthwith obtain from the (country omitted) an updated C.E.V of the husband’s rights in the said Pension Scheme, at joint expense.

14.

The husband shall do all acts and execute all documents to transfer to the wife the registration and all the party’s right, title and interest in the Vehicle 1 motor vehicle with registration number.

15.

The husband and wife shall forthwith do all acts and things and sign all necessary documents to close and to distribute any monies left remaining equally in the following bank accounts:

(a) Bank D in the joint names of the parties having account number ending in;

(b) Bank F Account in the joint names of the parties having account number ending in;

(c) (overseas) Bank Account in the (country omitted) in the joint names of the parties having account number ending in; and

(d) (overseas) Bank Account in the (country omitted) in the joint names of the parties having account number ending in.

16.

Unless otherwise specified in these Orders each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such parties at the date of the making of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, insurance policies are deemed to be in the possession of the party named as the life insured, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides conditions for payment out of such entitlement.

17.

Both parties shall do all acts and things and sign all documents necessary to give effect to these Orders.

18.

If either party refuses or neglects to sign, within 14 days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

19.

Remove all outstanding issues from the list of cases awaiting finalisation.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There are not many facts in dispute between the parties.[1] Indeed, what is in dispute is peripheral to the issues the Court needs to determine. [1] A note on the evidence The parties commenced living together in 1988 when they were both about 21 years old. At the time, neither party had any significant assets in their name. They were married on 1993. There are three children of the relationship. All three are now adults, with the youngest child having turned 19 shortly before the final hearing. There is a dispute between the parties as to where their middle child is living, namely, whether he is currently living primarily with the wife or whether he lives between the two homes. This is one of the peripheral issues which is in dispute. The parties’ youngest child started her university studies this year. The parties have chosen to support her through those studies by providing a roof over her head and generally supporting her lifestyle. She is living with the wife. In 1988, the parties jointly purchased their first property located at Property B (country omitted), in the (country omitted). They paid a deposit of (omitted) and borrowed the remainder of the purchase price. At the time both of the parties were working on a full-time basis, the husband as an “(occupation omitted)” in the (employer omitted) and the wife as a (occupation omitted) for (employer omitted). Both parties were diligent and hardworking during their relationship, with the husband focusing on his career for the good of the family and the wife focusing on the family to the detriment of any career she might have been able to otherwise pursue. While at the beginning of the parties’ relationship they lived in the Property B property, in around 1993 they moved to (country omitted). The ability to secure housing in this area resulted in a better quality of residence for the parties. Whilst serving with the (employer omitted), in 1995 the husband completed a (qualifications omitted). Between 2002 and 2004 the husband had an exchange posting with the (employer omitted), enabling the parties and their children to experience living in Australia before the husband was transferred into the (employer omitted). The family lived in Western Australia. In 2004 the parties purchased a property at Property C, in Western Australia on the expectation that the husband upon transfer into the (employer omitted) would be posted in Western Australia. Instead, the husband was posted to Sydney and the family started living in Suburb Y. In 2008, the family moved to Suburb W where they lived until the husband left the (employment omitted) in early 2010. Between 2005 and 2008 the husband was the (occupation omitted) for the (employer omitted). During his career he conducted a broad range of live (employment omitted). Upon leaving the (employment omitted) the husband commenced employment with the (employer omitted) and the family moved to rental accommodation in Suburb X, then Suburb W and then Property A. The family lived in this rental accommodation until they purchased the former matrimonial home at Property A.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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