Norgrove and McClintock - [2020] FCCA 1120

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORGROVE & MCCLINTOCK

[2020] FCCA 1120

Catchwords:
FAMILY LAW – De facto relationship lasting four years and nine months – parties living under the one roof for four months – where one party loses capacity – property pool – contributions – future needs – justice and equity – guardianship – trustees – proceedings in the Supreme Court of Queensland stayed pending finalisation of these proceedings in the Federal Circuit Court of Australia.

Legislation:

Family Law Act 1975, ss.90RD, 90SF, 90SM

Succession Act 1981 (Qld), s.15B

Trusts Act 1973 (Qld), ss.80, 90

Evidence Act 1995 (Cth), s.140

Cases cited:

KCR [2017] QCAT; KCR [2018] QCAT 185

Briginshaw v Briginshaw (1938) 60 CLR 336
Qantas Airways Ltd v Gama (2008) 167 FCR 537
In the Marriage of Quinn (1979) FLC 90 677
McKenzie & McKenzie [1970] 3 All ER 1034
Cook v Stehbens (1998) 148 FLR 52
In the Marriage of Watson (2001) 166 FLR 229
Stanford v Stanford (2012) 247 CLR 108
Wirth v Wirth (1956) 98 CLR 228
R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Applicant:

MS NORGROVE

Respondent:

MR MCCLINTOCK

File Number:

BRC 5457 of 2018

Judgment of:

Judge Howard

Hearing dates:

9 & 10 December 2019 and 12 March 2020

Date of Last Submission:

12 March 2020

Delivered at:

Brisbane

Delivered on:

11 May 2020

REPRESENTATION

The Applicant attended as a self-represented litigant on 12 March 2020

Counsel for the Applicant:

Mr Hanlon appeared on 9 December 2019

Solicitors for the Applicant:

Cecil Black Mediation & Family Law on 9 & 10 December 2019

Counsel for the Respondent:

Dr Sayers

Solicitors for the Respondent:

Peter J Sheehy Solicitor

ORDERS

On 10 December 2019 the Court made the following declaration:-

THE COURT DECLARES:

That pursuant to s.90RD of the Family Law Act 1975, a de facto relationship existed between the Applicant and Respondent in this matter from period of 2013 until 22 March 2018.

On 12 March 2020, the Court made the following Orders:-

That the real property situated at A Street, Suburb B in the State of Queensland more particularly described as Lot … on Registered Plan …, Title Reference … (“the A Street, Suburb B property”) shall be sold. The parties shall attempt to sell the A Street, Suburb B Property by private treaty in the first instance and for that purpose:-
(a)The property shall be listed for sale with a real estate agent to be agreed by the parties and failing agreement, by a real estate agent to be appointed by the President of the Real Estate Institute of Queensland; and
(b)The property shall be sold at a price to be agreed between the parties and failing agreement, the parties shall request the President of the Real Estate Institute of Queensland to nominate a Registered Valuer. Once the valuation is provided by the Registered Valuer the parties shall agree the sale price and in the absence of an agreement as to the price – the parties…

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 Norgrove and McClintock

Details

AGLC: Norgrove and McClintock [2020] FCCA 1120
Case: [2020] FCCA 1120
Decision Date: 11 May 2020

CaseChat Overview and Summary

In this matter before Judge Howard, the applicant and respondent were in dispute regarding property settlement following the termination of their de facto relationship. The court was required to determine the existence and duration of the de facto relationship and to make orders for the division of property.

The primary legal issues before the court were whether a de facto relationship existed between the parties and, if so, for what period. The court also had to consider the division of the net sale proceeds from a specific real property, including the allocation of funds to various parties and debts, and to determine the applicant's entitlement from the net property pool.

The court declared that a de facto relationship existed between the applicant and respondent from 2013 until 22 March 2018, pursuant to s.90RD of the *Family Law Act 1975*. In relation to property division, the court ordered that the real property at A Street, Suburb B, Queensland, be sold. The sale was to be conducted by private treaty in the first instance, with provisions for agreement on agents and sale price, or failing agreement, appointment of professionals by the Real Estate Institute of Queensland. If private treaty failed, the property was to be sold by public auction with a reserve price to be set by the President of the Real Estate Institute of Queensland. The net sale proceeds were to be disbursed in a specific order: payment to the Public Trustee of Queensland, payment of the respondent's credit card debt, a minimum sum or percentage of the net pool to the applicant, and the balance to the Public Trustee for the respondent's estate. The court also ordered that if the net property pool did not allow for the full $700,000 to be paid to the applicant, she would receive the nearest available amount. The court gave parties liberty to apply regarding the operation of the orders. The court also considered allegations of dishonesty against the applicant wife, finding that the evidence of Mr S, who observed the respondent husband to be alert and in charge of himself, was to be given more weight than QCAT findings regarding the husband's financial capacity, and that the assertion of dishonesty was not proven to the civil standard.

Orders

Orders of the court

On 10 December 2019 the Court made the following declaration:-

THE COURT DECLARES:

That pursuant to s.90RD of the Family Law Act 1975, a de facto relationship existed between the Applicant and Respondent in this matter from period of 2013 until 22 March 2018.

On 12 March 2020, the Court made the following Orders:-

That the real property situated at A Street, Suburb B in the State of Queensland more particularly described as Lot … on Registered Plan …, Title Reference … (“the A Street, Suburb B property”) shall be sold. The parties shall attempt to sell the A Street, Suburb B Property by private treaty in the first instance and for that purpose:-

(a) The property shall be listed for sale with a real estate agent to be agreed by the parties and failing agreement, by a real estate agent to be appointed by the President of the Real Estate Institute of Queensland; and

(b) The property shall be sold at a price to be agreed between the parties and failing agreement, the parties shall request the President of the Real Estate Institute of Queensland to nominate a Registered Valuer. Once the valuation is provided by the Registered Valuer the parties shall agree the sale price and in the absence of an agreement as to the price – the parties shall request that the President of the Real Estate Institute of Queensland nominate a selling price taking into account the valuation prepared by the Registered Valuer.

That should the parties fail to sell the property by private treaty pursuant to the preceding Order, the A Street, Suburb B property shall be sold at a public auction and for the that purpose:-

(a) The property shall be sold by a real estate agent to be agreed by the parties and failing agreement, by the real estate agent to be appointed pursuant to paragraph 1 of this Order; and

(b) The property shall be sold at a reserve price to be agreed between the parties and failing agreement, the President of the Real Estate Institute of Queensland shall set the reserve price upon consideration of the valuation provided by the Registered Valuer pursuant to paragraph 1 of this Order.

That upon the sale of the A Street, Suburb B property, the “net sale proceeds” shall be disbursed as follows:-

(a) The Public Trustee of Queensland shall be paid $284,003;

(b) The Respondent’s credit card debt shall be paid in the sum of $33,617;

(c) The Applicant shall be paid from the remainder of the pool (referred to as “the net pool”) the sum of $700,000 or 60% of the net pool, whichever is the higher;

(d) The balance of the pool then outstanding should be paid to the Public Trustee of Queensland as Trustee for the estate of the Respondent.

The net sale proceeds is the sale price of the A Street, Suburb B property after the deduction of commission, conveyancing fees, outstanding rates and any other unforeseen fees associated with the sale of the A Street, Suburb B property.

That in the event the “net property pool” does not realise an amount which allows for the payment of $700,000 to the Applicant pursuant to paragraph 3 c) of these Orders, the Applicant shall receive the nearest amount to $700,000 that can be made available to her from “the net property pool.”

That the parties have liberty to apply in relation to the wording of the Orders and in relation to the machinery relating to the operation of the Orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

But as Branson J goes on to note from paragraph 128 in the Qantas Airways Ltd v Gama (supra) decision – section 140(2) of the Evidence Act “…was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.” The observations made by Branson J in QantasAirways Ltd v Gama (supra) were supported by French and Jacobson JJ in that same decision. The provision of vendor finance and the question of where the repayments which were received from the purchaser were directed following the sale by the parties of the K Street, Suburb L property; along with the purchase of the A Street, Suburb B property (in July 2015, solely in the name of the applicant wife); and the nature of the applicant wife’s spending habits (between 31 October 2014 and October 2015) must be looked at in the light of the evidence of Mr S. His observations of Mr McClintock in June 2015 are particularly relevant to a consideration by this Court of the reasonableness or otherwise of the wife’s conduct in relation to the issues (amongst others) referred to in the submissions made on behalf of the respondent husband. As noted previously in these Reasons the Judgment, Mr S did not hesitate in concluding that in all the times that he had “met and socialised with Mr McClintock” he found him to be “alert and in charge of himself”. As I say, the evening of Wednesday, 17 June 2015 is particularly noted by Mr S. That date falls fair and square in the middle of those periods of time where it is suggested on behalf of the Trustee that the wife’s conduct was inappropriate and, to be frank, the allegation is that she acted dishonestly. Given the assessment by Mr S, it is reasonable for this Court to conclude that the applicant wife’s assertion that she acted on the basis that she had the agreement of Mr McClintock (to so act) – is a reasonable suggestion. At the very least, the evidence of Mr S suggests to this Court that the assertion of dishonesty is not proved to the appropriate civil standard – having regard to the gravity of the matters alleged. The fact that QCAT came to a conclusion (based on medical evidence) that, in relation to financial matters, the respondent husband did not have capacity after mid-2014 is not conclusive in relation to this Court’s consideration of the allegation of dishonesty. Neither the applicant wife, nor Mr S are medical doctors. The respondent husband appeared alert and content to both of those individuals. Despite this Court taking judicial notice (earlier in these Reasons for Judgment) of the finding made by the QCAT Member – it is the evidence of Mr S which should be given more weight by this Court in relation to the issue of dishonesty by the applicant wife. The applicant wife is 73 years old and in reasonably good health. Her father is still alive. She will need somewhere appropriate to live, and, it seems to me, an additional cash sum to assist her.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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