NENDICK & NENDICK - [2019] FamCA 865

FAMILY COURT OF AUSTRALIA

NENDICK & NENDICK

[2019] FamCA 865

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Future needs – Contributions – Section 75(2) factors

FAMILY LAW – PROPERTY SETTLEMENT – Where the parties self-managed superannuation fund is likely not compliant due to mismanagement – Where the husband has used funds from the self-managed superannuation fund for personal purposes – Orders

Bevan & Bevan [2013] FamCAFC 116
Bonnici & Bonnici (1992) FLC 92-272
Carter & Carter (1981) FLC 91-061
Dickons & Dickons [2012] 50 Fam LR 244
Hurst & Hurst [2018] FamCAFC 146
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Nendick

RESPONDENT:

Mr Nendick

FILE NUMBER:

ADC

4731

2017

DATE DELIVERED:

22 November 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

30 September 2019 to 3 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:

Furler & Co

COUNSEL FOR THE RESPONDENT:

Ms Horvat

SOLICITOR FOR THE RESPONDENT:

Port Adelaide Lawyers

UPON NOTING that the wife is to receive a settlement sum of FIVE HUNDRED AND FIFTY EIGHT THOUSAND NINE HUNDRED AND EIGHTY EIGHT DOLLARS ($558,988) and will retain property to the value of FORTY FOUR THOUSAND SIX HUNDRED AND NINE DOLLARS ($44,609).

Orders

That in full and final settlement of any claim that either party may have against the other or at any time in the future for settlement of property or alteration of interests in property:-
(a)That on or before thirty (30) days from the date of this order the parties do all things necessary and sign such documents as may be required to give forthwith effect to the transfer to the trust account of Furler and Co for and on behalf of the wife the following:-
(i)From the Mellor Olsson Trust Account being the net proceeds of the sale of the Suburb E property the sum of ONE HUNDRED AND TWENTY FIVE THOUSAND SEVEN HUNDRED AND SEVENTY THREE DOLLARS ($125,773);
(ii)From the W Bank Maxi Saver Account no. …40 in the name of the husband the sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000); and
(iii)The further sum of TWO HUNDRED AND SIXTY EIGHT THOUSAND SIX HUNDRED AND SIX DOLLARS ($268,606).
(b)That the order of injunction made 3 October 2019 is varied to allow for the transfer of the sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000) from the husband’s W Bank Maxi Saver Account to be paid in accordance with order 1(a)(ii) and upon the transfer of funds as ordered herein the order of injunction is discharged;
(c)That the parties do all things necessary in their capacity as trustees of F Pty Ltd Self- Managed Superannuation Fund (“the Super Fund”) to appoint an accountant to wind up the Super Fund subject to the following:-
(i)That upon the appointment of an accountant the parties instruct Mellor Olsson solicitors to transfer the remaining sum of FIFTY THOUSAND DOLLARS ($50,000) from their trust account to the trust account of the accountant…

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.

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Details

AGLC: NENDICK & NENDICK [2019] FamCA 865
Case: [2019] FamCA 865
Decision Date: 22 November 2019

CaseChat Overview and Summary

In this matter before Berman J, the parties, Mr and Mrs Nendick, sought to resolve their property settlement. The dispute involved the division of assets, including funds held in a self-managed superannuation fund which was alleged to be non-compliant due to mismanagement and the husband's personal use of its funds.

The court was required to determine how the parties' property interests should be settled in a just and equitable manner, considering their respective contributions and future needs. A key issue was the appropriate treatment of the non-compliant self-managed superannuation fund and the husband's conduct in relation to it, as well as the distribution of other significant financial assets.

Berman J applied the principles of property settlement under the *Family Law Act 1975* (Cth), considering the relevant section 75(2) factors. The court's reasoning led to orders for the transfer of specific sums of money from various accounts to the wife, the appointment of an accountant to wind up the self-managed superannuation fund with provisions for costs and potential shortfalls, and the husband's indemnification for any tax liabilities arising from the fund's non-compliance. The orders also detailed the division of other personal property and provided a mechanism for the sale of a property if settlement payments were not made, with the wife having an equitable interest in that property until full settlement.

Orders

Orders of the court

That in full and final settlement of any claim that either party may have against the other or at any time in the future for settlement of property or alteration of interests in property:-

(a) That on or before thirty (30) days from the date of this order the parties do all things necessary and sign such documents as may be required to give forthwith effect to the transfer to the trust account of Furler and Co for and on behalf of the wife the following:-

(i) From the Mellor Olsson Trust Account being the net proceeds of the sale of the Suburb E property the sum of ONE HUNDRED AND TWENTY FIVE THOUSAND SEVEN HUNDRED AND SEVENTY THREE DOLLARS ($125,773);

(ii) From the W Bank Maxi Saver Account no. …40 in the name of the husband the sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000); and

(iii) The further sum of TWO HUNDRED AND SIXTY EIGHT THOUSAND SIX HUNDRED AND SIX DOLLARS ($268,606).

(b) That the order of injunction made 3 October 2019 is varied to allow for the transfer of the sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000) from the husband’s W Bank Maxi Saver Account to be paid in accordance with order 1(a)(ii) and upon the transfer of funds as ordered herein the order of injunction is discharged;

(c) That the parties do all things necessary in their capacity as trustees of F Pty Ltd Self- Managed Superannuation Fund (“the Super Fund”) to appoint an accountant to wind up the Super Fund subject to the following:-

(i) That upon the appointment of an accountant the parties instruct Mellor Olsson solicitors to transfer the remaining sum of FIFTY THOUSAND DOLLARS ($50,000) from their trust account to the trust account of the accountant or such other agreed or nominated account for and on behalf of the parties;

(ii) That the fees, costs and charges associated with the winding up of the Super Fund be paid from the money transferred into the said account PROVIDED that if the funds so transferred are insufficient to effect the winding up THEN the parties will be responsible for the shortfall in equal parts, however if there shall be surplus funds remaining after the winding up THEN they are to be distributed to the parties as to 52.5 per cent to the husband and 47.5 per cent to the wife.

(d) That the husband shall indemnify the wife and be responsible for the payment of any default taxation or penalties, fines or levies that are levied or assessed in respect of the Super Fund being non-compliant, the withdrawal of money from the Super Fund by the husband or the non-filing of taxation returns and financial statements.

(e) That unless otherwise specified herein the wife shall have as her sole property and free from any claim, right or entitlement of the husband the following:-

(i) Furniture and effects currently in her possession;

(ii) Clothing and personal effects in her possession;

(iii) All amounts standing to her credit in any bank, building society or credit union account currently in her name;

(iv) All motor vehicles registered to her, subject to any liability attached to same;

(v) All other property in her possession and control whether registered in her name or not and if not as otherwise specified herein.

(f) That unless otherwise specified herein the husband shall have as his sole property and free from any claim, right or entitlement of the wife the following:-

(i) Furniture and effects currently in his possession;

(ii) Clothing and personal effects in his possession;

(iii) All amounts standing to his credit in any bank, building society or credit union account currently in his name;

(iv) All motor vehicles registered to him, subject to any liability attached to same;

(v) All other property in his possession and control whether registered in his name or not and if not as otherwise specified herein.

(g) That each party shall:-

(i) Release the other party from any liability from any claim that either one may have against the other in respect of any property and/or financial resources present or future whether at law or in equity vested or contingent either now or hereafter owned by either of them; and

(ii) Discharge without calling upon the other to contribute thereto their several debts contracted for or by them.

(h) That henceforth each party is restrained and an injunction is hereby granted restraining them and each of them from pledging the credit of the other.

(i) That if either party shall refuse or neglect to execute any document necessary to give effect to the terms hereof within seven (7) days after the same shall have been tendered to him or her for that purpose THEN and in such case a Registrar of this Honourable Court upon proof by affidavit of such refusal or neglect is hereby appointed and any such document on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and execute all such other documents to give full force and effect hereto and shall execute and do the same accordingly and the party in default shall pay the other parties’ costs as agreed or taxed;

(j) That upon the payment of the settlement sum in paragraph 1(a) hereof the wife will transfer to the husband her interest in the property at Street H, Suburb J in the State of South Australia described in Certificate of Title Volume (“the Street H, Suburb J property”);

(k) That in default of the payment to the wife of the settlement sum as described in paragraph 1(a) hereof and should default remain outstanding for a period greater than seven (7) days THEN and in such case the Street H, Suburb J property shall be forthwith listed for sale by private treaty upon such terms and conditions as the parties may agree but failing agreement upon the following conditions:-

(i) A real estate agent to be nominated by the Chief Executive Officer/Secretary of the Real Estate Institute of South Australia at the request of the parties or either of them;

(ii) That the property shall be sold at such sum as may be agreed between the parties but failing agreement within fourteen (14) days of the date of these orders, the list price will be as nominated by the real estate agent;

(iii) The sale price of the property shall be such amount as agreed between the parties and failing agreement any offer to buy the property that is at least 80 per cent of the list price shall be accepted by the parties as the sale price;

(iv) The parties are to cooperate in every way with the real estate agent in relation to the marketing of the property for sale including making the keys readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.

(l) That from the net proceeds of the sale of the Street H, Suburb J property the wife shall receive so much of the settlement sum as shall be outstanding together with default interest calculated pursuant to the Family Law Rules 2004 (Cth).

(m) That until the wife has received the totality of the settlement sums as set out in paragraph 1(a) hereof, the wife shall be deemed to have an equitable interest in the Street H, Suburb J property and the husband be restrained from selling, transferring or further encumbering the said property other than as may be necessary to give effect to the order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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