Napier and Scully - [2016] FCCA 1919

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAPIER & SCULLY

[2016] FCCA 1919

Catchwords:
FAMILY LAW – Property – Application for property settlement – assets and liabilities – contributions of the parties – short marriage credibility of witnesses – unreliability of evidence of parties – whether any adjustment should be made in respect of factors under Family Law Act 1975 (Cth) s.75(2) – where there is one child aged 4 years – 10% adjustment in favour of Wife.

Legislation:

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

Cases cited:

Anastasio & Anastasio (1981) 7 Fam LN Note 8; FLC 91-093

Black & Kellner (1992) 15 Fam LR 343; FLC 92-287

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

Kardos v Sarbutt [2006] NSWCA 11

Norbis v Norbis (1986) 161 CLR 513; 10 Fam LR 819; FLC 91-712

Sharpless v McKibbin [2007] NSWSC 1498

Stanford v Stanford (2012) 247 CLR 108; 47 Fam LR 481; FLC 93-518

Weir & Weir (1992) 16 Fam LR 154; (1993) FLC 92-338

Applicant:

MR NAPIER

Respondent:

MS SCULLY

File Number:

SYC 992 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

4-6 March, 13-14 October, 11 December 2015

Date of Last Submission:

5 February 2016

Delivered at:

Sydney

Delivered on:

26 July 2016

REPRESENTATION

Solicitor for the Applicant:

Mr Papanicolau

Solicitors for the Applicant:

KP Lawyers

Counsel for the Respondent:

Mr Johnson

Solicitors for the Respondent:

Lawside Lawyers

ORDERS

Within forty-two (42) days of the date of these Orders the Respondent Wife is to pay to the Applicant Husband the sum of $678,993.00.
Simultaneously with the payment of the said sum of $678,993.00:
(a)The Husband is to sign all documents and execute all deeds and instruments and do all acts and things necessary to transfer to the Wife all of his right, title and interest in the property situate at and known as Property E in the State of New South Wales being the whole of the land in Folio Identifier (omitted); and
(b)The Wife is to refinance the mortgage over the said property at Property E with (omitted) Bank into her sole name.
The Wife is declared the sole beneficial owner at law and in equity of the home unit situate and known as Property M in the State of New South Wales being the whole of the land in Folio Identifier (omitted).
Other than as provided in these Orders the Husband is declared the sole legal and beneficial owner to the exclusion of the Wife of:
(a)all items of personalty, chattels, goods, furniture, furnishings, bank accounts and motor vehicles in his name or possession; and
(b)any monies, superannuation entitlements and benefits, shares, debentures, employment entitlements and businesses in his name or possession or control.
Other than as provided in these Orders the Wife is declared the sole legal and beneficial owner to the exclusion of the Husband of:
(a)all items of personalty, chattels, goods, furniture, furnishings, bank accounts and motor vehicles in her name or possession; and
(b)any monies,…

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 Napier and Scully

Details

AGLC: Napier and Scully [2016] FCCA 1919
Case: [2016] FCCA 1919
Decision Date: 26 July 2016

CaseChat Overview and Summary

This matter concerned the division of property between an applicant husband and a respondent wife. The court was required to make orders regarding the transfer of property, the payment of a sum of money, and the division of proceeds from the sale of a property.

The primary legal issues before the court were how to equitably divide the parties' assets, specifically concerning the matrimonial home (Property E) and another property (Property M), and to determine the financial obligations of each party in relation to these assets and other personalty. The court also needed to establish a mechanism for the sale of Property E should the wife fail to meet her payment obligations.

The court ordered the wife to pay the husband $678,993.00 within 42 days, at which point the husband was to transfer his interest in Property E to the wife, who was to refinance the mortgage on that property into her sole name. The wife was declared the sole beneficial owner of Property M. Other assets and liabilities were to be retained by each party respectively, with the husband indemnifying the wife for certain loans. In the event the wife failed to make the payment, Property E was to be listed for sale by public auction with a reserve price of $1,150,000.00, with specific provisions for negotiation and re-listing if the reserve was not met. The proceeds of the sale were to be applied first to sale costs, then legal costs, discharge of the mortgage, repayment of the sum to the husband, and any net balance to the wife. The Registrar was appointed to execute documents if a party defaulted.

Orders

Orders of the court

Within forty-two (42) days of the date of these Orders the Respondent Wife is to pay to the Applicant Husband the sum of $678,993.00.

Simultaneously with the payment of the said sum of $678,993.00:

(a) The Husband is to sign all documents and execute all deeds and instruments and do all acts and things necessary to transfer to the Wife all of his right, title and interest in the property situate at and known as Property E in the State of New South Wales being the whole of the land in Folio Identifier (omitted); and

(b) The Wife is to refinance the mortgage over the said property at Property E with (omitted) Bank into her sole name.

The Wife is declared the sole beneficial owner at law and in equity of the home unit situate and known as Property M in the State of New South Wales being the whole of the land in Folio Identifier (omitted).

Other than as provided in these Orders the Husband is declared the sole legal and beneficial owner to the exclusion of the Wife of:

(a) all items of personalty, chattels, goods, furniture, furnishings, bank accounts and motor vehicles in his name or possession; and

(b) any monies, superannuation entitlements and benefits, shares, debentures, employment entitlements and businesses in his name or possession or control.

Other than as provided in these Orders the Wife is declared the sole legal and beneficial owner to the exclusion of the Husband of:

(a) all items of personalty, chattels, goods, furniture, furnishings, bank accounts and motor vehicles in her name or possession; and

(b) any monies, superannuation entitlements and benefits, shares, debentures, employment entitlements and businesses in her name or possession or control.

The Husband is to indemnify the Wife and keep her indemnified in respect of all loans made to the parties by Mr D.

In the event that the wife fails to pay the said sum of $678,993.00 within forty-two (42) days of the date of these Orders the parties must forthwith and within fourteen (14) days sign all documents and execute all deeds and instruments and do all acts and things necessary to list the said property at Property E in the State of New South Wales for sale by public auction with a Real Estate Agent to be agreed upon by the parties.

If the parties fail to agree upon the appointment of a Real Estate Agent within the time specified by Order (7) above then the President of the Real Estate Institute of New South Wales shall nominate a Real Estate Agent and the costs of and incidental to this nomination are to be borne equally by the parties as and when they fall due.

The parties are to instruct such Solicitor or Conveyancer as they shall agree upon to have the conduct of the sale of the said property on behalf of the parties or in the absence of agreement being reached within the time specified by Order (7) above then the President of the Law Society of New South Wales is appointed to nominate a Solicitor to undertake the conveyancing of the said property at Property E and the costs of and incidental to this nomination are to be borne equally by the parties as and when they fall due.

10.

The parties are to make the keys to the said property at Property E available to the Real Estate Agent for the purpose of allowing inspection of the said property at all reasonable times as requested by the Real Estate Agent.

11.

The parties must ensure that the said property at Property E including the grounds is in a neat and clean condition at the time of any inspection by the Real Estate Agent and any prospective purchaser.

12.

The parties must sign all documents as requested by the Real Estate Agent in relation to the listing for sale of the said property at Property E except a Contract or Agreement for Sale which has not been authorised by the parties’ Solicitor.

13.

The reserve price for the purpose of the auction is to be $1,150,000.00.

14.

In the event that bidding at the auction does not reach the reserve price then the parties may negotiate with the highest bidder and any other interested person and effect the sale of the said property at a price which is not more than 5 per centum below the reserve price.

15.

If the said property at Property E remains unsold the parties must forthwith do all acts and things and sign all documents necessary to re-list the property for sale by auction again on a date nominated by the Real Estate Agent.

16.

The Husband must execute the Contract for Sale in the form prepared by the Solicitor at a price agreed between the parties or at a price obtained at auction.

17.

The Husband and Wife must jointly instruct the Solicitor and such instructions are to be in writing only and any conversations between a party and the Solicitor or the Real Estate Agent must be immediately advised to the other party and the Solicitor and the Real Estate Agent are not to accept verbal instructions from the parties or their respective solicitors.

18.

Upon completion of the sale of the said property at Property E the parties must divide the proceeds of the sale in the following manner and priority:

(a) payment of all Real Estate Agent’s commission and advertising costs and expenses;

(b) payment of all legal costs of the conveyancing;

(d) in payment to the Husband of the sum of $678,993.00 referred to in Order (1) above together with interest as provided by the Federal Circuit Court Rules 2001 from the due date for payment until paid; and

(e) as to the net balance to the Wife.

19.

In the event that either party refuses or neglects to execute any deed or instrument within seven (7) days of that deed or instrument being forwarded to him or her or his or her solicitor then 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 has refused or neglected to do so and to do all acts and things necessary to give validity to the operation of the deed or instrument and the party in default must pay all reasonable costs incurred by the party not in default for the purpose of enforcing this Order.

20.

If either party seeks an order for costs of these proceedings that party must file and serve an Application in a Case and an affidavit in support setting out the amount of costs sought and the basis upon which those costs are calculated within one (1) month 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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