FAMILY COURT OF AUSTRALIA
| NETTLER & NETTLER | [2007] FamCA 1374 |
| FAMILY LAW – PROPERTY SETTLEMENT – FAMILY COMPANY – VALUE – EXPERT EVIDENCE – Value of family company found to be the higher of asserted valuations by two experts, consistent with “highest and best use” principle – B & B [2006] FamCA 896 and Spencer v Commonwealth (1907) 5 CLR 418 discussed. Significance of existence of “market” in which the company’s “loan book” could be sold considered. FAMILY LAW – PROPERTY SETTLEMENT – UNIT TRUST – VALUE – EXPERT EVIDENCE – Valuation of parties’ interests through loan accounts in unit trust provided by expert witness accepted – Not established that the trust constituted a financial resource for wife by virtue of restraints of trust deed and fiduciary obligations imposed on family company as corporate trustee and wife as director of such company. FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – PRE-SEPARATION – Asset by asset approach utilised in assessing contributions of the parties – Norbis v Norbis (1986) 161 CLR 513 followed – Found that wife made greater contribution to assets not related to family company by virtue of greater initial capital contribution, partly offset by husband’s contributions relating to two children of wife of previous relationship – Held that parties contributed equally to family company in pre-separation period. FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – POST-SEPARATION – No alteration to contributions made by virtue of circumstances in post-separation period. FAMILY LAW – PROPERTY SETTLEMENT – SECTION 75(2) FACTORS – Adjustment of 1 per cent in favour of wife made by virtue of her greater obligation to care for child of marriage. FAMILY LAW – PROPERTY SETTLEMENT – JUST AND EQUITABLE – Pursuant to s 79(2) Family Law Act 1975 (Cth) the Court made specific orders to overcome unfairness were the wife to receive assets entirely tied up in family company and the husband to receive tangible, risk-free assets – Elsey v Elsey (1997) FLC 92-727 cited – Wife ordered to discharge husband’s obligations by instalment payments with interests to accrue on deferred payments. |
| Family Law Act 1975 (Cth) ss 75(2), 79(2) Jones v Dunkel (1959) 101 CLR 298 |
| APPLICANT: | Mr Nettler |
| RESPONDENT: | Ms Nettler |
| FILE NUMBER: | PAF | 1206 | of | 2005 |
| DATE DELIVERED: | 23 November 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 6, 7 & 8 November 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Judge |
| SOLICITOR FOR THE APPLICANT: | Goldrick Farrell Mullan… |
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- AGLC
- Nettler & Nettler [2007] FamCA 1374
- Case
- [2007] FamCA 1374
- Decision Date
CaseChat Overview and Summary
The court was tasked with valuing the family company, YG Pty Limited, and the parties' interests in a unit trust. It also needed to assess the pre-separation and post-separation contributions of each party to the marriage and its assets. Finally, the court had to consider whether any adjustments were necessary under section 75(2) of the *Family Law Act 1975* (Cth) and how to achieve a just and equitable distribution of property, particularly given the nature of the assets.
Coleman J accepted the expert valuations for the family company, applying the "highest and best use" principle and considering the existence of a market for the company's loan book. The court also accepted the expert valuation of the parties' interests in the unit trust, finding that it did not constitute a financial resource for the wife. In assessing contributions, an asset-by-asset approach was used, with the court finding equal contributions to the family company and a greater contribution by the wife to other assets, partly offset by the husband's contributions relating to the wife's children from a previous relationship. No alteration to contributions was made for the post-separation period. A 1% adjustment was made in favour of the wife due to her greater obligation to care for a child of the marriage. To ensure a just and equitable outcome, the court ordered that the wife discharge the husband's obligations through instalment payments with interest, to overcome the unfairness of her receiving assets tied up in the family company while the husband received tangible, risk-free assets.
Orders
Orders of the court
1.
That the parties do all acts and things and execute all documents necessary to cause to be transferred to the husband:
(a) The sum of $33 018 representing the proceeds of sale of the property known as and situate at M (“the [M] property”);
(b) The sum of $3062 in the joint St George bank account;
(c) The parties’ “horse gear” (worth $1000); and
(d) The parties’ interest in property known as and situate at R (“the [R] property”);
2.
That the husband retain as his property absolutely and beneficially:
(a) His Commonwealth Bank account with a balance of $200; and
(b) His AMP shares worth $7713.83.
3.
That the husband indemnify the wife and forever keep her indemnified with respect to all outgoings, including capital gains taxation, with respect to the interest of the parties in the R property to which the husband shall be entitled pursuant to these Orders.
4.
That each party pay 50 per cent of any capital gains taxation with respect to the sale of the M property as and when notice of assessment of such liability is issued by the Australian Taxation Office.
5.
That the husband transfer to the wife his shareholding in YG Pty Limited together with all other interests, if any, which the husband has in YG Pty Ltd whether arising from the husband’s shareholding in YG Pty Ltd, his former employment by YG Pty Ltd, or otherwise.
6.
That the wife indemnify the husband and forever keep him indemnified with respect to his loan account to YG Pty Ltd, the current balance of which is approximately $60 096.
7.
That the husband assign to the wife absolutely and beneficially his interest in the debt owed to the parties by the Nettler Unit Trust in the sum of $23 664.56.
8.
That within 90 days of this date the wife pay to the husband the sum of $100 000 whereupon the husband shall do all acts and things and execute all deeds, documents, instruments and writings necessary to cause to be transferred to the wife the whole of his right, title and interest in the property known as and situate at G Street, P, and the wife shall thereafter indemnify the husband and forever keep him indemnified with respect to all liabilities and outgoings with respect to the said property.
9.
That on or before 1 February 2009, the wife pay to the husband the sum of $66 000 together with interest accrued thereon from 1 February 2008 at a rate calculated as one per cent in excess of the rate determined from time to time by the Reserve Bank of Australia as the prime interest rate.
10.
That, in the event of the wife failing to make payment of $100 000 in accordance with the terms of these Orders, the whole of the sum of $166 000 payable to the husband by the wife pursuant to these Orders shall become due and payable and the husband shall be at liberty to apply for orders to enforce payment to him of such monies.
11.
That, other than to the extent provided by these Orders, each party retain as his or her property absolutely and beneficially all monies owed to each of the parties.
12.
That costs be reserved.
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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