NORTH & NORTH - [2015] FCCA 416

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORTH & NORTH

[2015] FCCA 416

Catchwords:
FAMILY LAW – Whether husband has retained and not disclosed matrimonial property – whether undisclosed matrimonial property retained by husband should be included as an asset.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79

Mezzacappa v Mezzacappa [1987] FamCA20, FLC 9-853
Weir & Weir [1993] FLC 92-338
Chang & Su [2002] FamCA 156

Applicant:

MS NORTH

Respondent:

MR NORTH

File Number:

DGC 2547 of 2013

Judgment of:

Judge Phipps

Hearing date:

11 June 2014

Date of Last Submission:

11 June 2014

Delivered at:

Dandenong

Delivered on:

27 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr Stanley

Solicitors for the Applicant:

Chris Woods & Associates

Counsel for the Respondent:

Mr Hone

Solicitors for the Respondent:

Ian G Hone

ORDERS

The husband pay the wife the sum of $122,000 (the payment) on or before 28 April, 2015 (the date).
That upon the husband making the payment the husband is declared to have the sole right and title and interest in the property situate at and known as Property V (the property).
That in the event that the whole of the payment has not been made by the date then the husband do all things necessary to sell the property. Upon the completion of the sale, the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge the mortgage and any other encumbrances affecting the real property;
(c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 8.5% per annum adjusted monthly from the date to the wife;
(d)fourthly the balance to the husband.
That pending completion of the sale the husband has the sole right to possession and occupancy of the property.
That in the event that the net proceeds of the sale is insufficient to make the whole of the payment plus any interest then owing to the wife the husband remains liable to pay the amount of the payment then outstanding plus interest at 8.5% per annum to the wife
That the husband retain his Nissan utility, Ford motor vehicle, Nissan Navara and Toyota Hilux motor vehicles.
That the wife retain her Ford motor vehicle.
That that the husband retain sole ownership of the business (omitted) (the business).
That the husband remain responsible for and indemnify the wife against:
(a)any tax liability of the business;
(b)his own tax liability.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses in action) owned by or in the possession of such party as at the date of these orders.

IT IS NOTED that publication of this judgment under the pseudonym North & North is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

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: NORTH & NORTH [2015] FCCA 416
Case: [2015] FCCA 416
Decision Date: 27 February 2015

CaseChat Overview and Summary

This matter concerned an application by the husband and wife for final property orders in the Federal Circuit Court of Australia, presided over by Judge Phipps. The dispute revolved around the division of assets and liabilities between the parties.

The court was required to determine the appropriate distribution of the parties' property, including a specific property, various motor vehicles, a business, and superannuation interests. The court also needed to address the allocation of tax liabilities and the terms under which the husband could retain a particular property.

The court ordered that the husband pay the wife $122,000 by 28 April 2015, upon which he would receive sole title to a property. If the full payment was not made by that date, the property was to be sold, with proceeds applied first to sale costs, then to discharge any mortgage and encumbrances, followed by the outstanding payment plus interest at 8.5% per annum to the wife, and any balance to the husband. The husband was granted sole possession of the property pending sale, and remained liable for any shortfall in sale proceeds plus interest. The husband was to retain several vehicles and sole ownership of a business, while remaining responsible for and indemnifying the wife against any tax liabilities of the business and his own tax liability. Each party was to retain their superannuation and other property not otherwise specified, excluding each other from any claims in relation to these assets.

Orders

Orders of the court

The husband pay the wife the sum of $122,000 (the payment) on or before 28 April, 2015 (the date).

That upon the husband making the payment the husband is declared to have the sole right and title and interest in the property situate at and known as Property V (the property).

That in the event that the whole of the payment has not been made by the date then the husband do all things necessary to sell the property. Upon the completion of the sale, the proceeds of the sale be applied:

(a) first to pay all costs, commissions and expenses of the sale;

(b) secondly to discharge the mortgage and any other encumbrances affecting the real property;

(c) thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 8.5% per annum adjusted monthly from the date to the wife;

(d) fourthly the balance to the husband.

That pending completion of the sale the husband has the sole right to possession and occupancy of the property.

That in the event that the net proceeds of the sale is insufficient to make the whole of the payment plus any interest then owing to the wife the husband remains liable to pay the amount of the payment then outstanding plus interest at 8.5% per annum to the wife

That the husband retain his Nissan utility, Ford motor vehicle, Nissan Navara and Toyota Hilux motor vehicles.

That the wife retain her Ford motor vehicle.

That that the husband retain sole ownership of the business (omitted) (the business).

That the husband remain responsible for and indemnify the wife against:

(a) any tax liability of the business;

(b) his own tax liability.

10.

That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses in action) owned by or in the possession of such party as at 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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