Nybury & Nybury

[2008] FamCA 42

FAMILY COURT OF AUSTRALIA

NYBURY & NYBURY [2008] FamCA 42

FAMILY LAW – PROPERTY SETTLEMENT – Complex and bitter property dispute between parties with multiple time consuming issues – Discussion on advantages of resolution – Application settled overall.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Mr Nybury

RESPONDENT: Mrs Nybury

FILE NUMBER: MLF 3564 of 2005

DATE DELIVERED: 30 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 29 & 30 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A Combes

SOLICITOR FOR THE APPLICANT: Maeve O'Brien & Associates

COUNSEL FOR THE RESPONDENT: Mr Robinson

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. That the Husband and Wife do all such things and sign all such documents as may be necessary to cause the substitution of the Husband and Wife, (or, in the event the Wife indicates in writing her election to do so, such election to be exercised within 6 months of the date of these Orders, the Wife alone) to be substituted for ASIC and/or E Pty . Ltd. as trustee(s) of the Nybury Property Trust, the costs of such substitution outstanding at this date and any other subsequent costs to be borne as follows; the Husband to pay the first three thousand dollars ($3,000.00) and the Wife to pay the balance.

2. That in the event the Husband and Wife are both substituted or the Wife alone is substituted as trustee(s) pursuant to Order 1 herein, the Husband do all such things and sign all such documents as may be necessary to transfer all interest of the Nybury Property Trust in the real property situate at and known as  … P to the Wife and thereafter do all things and sign all documents necessary to resign as appointor and trustee of the said trust, and to otherwise facilitate the transfer of control of the said trust to the Wife.

3. That on or before 28th February 2008:

   (a)      The Husband shall pay to the Wife the sum of $10,000.00;

   (b)The Husband shall discharge the mortgage to the National Australia Bank encumbering the P property ("the mortgage");

   (c)The Husband and Wife sign all documents and do all things necessary to discharge the mortgage and procure the release of the other from any guarantees given in relation to the mortgage;

   (d)The Husband shall do all things and sign all documents to procure the release of the Wife from any guarantees or indemnities given in relation to the company D Pty. Ltd.;

   (e)Pending the discharge of mortgage referred to paragraph 3(b) and (c) herein, both parties are restrained from further encumbering the P property.

4. That the Husband otherwise retain, to the exclusion of the Wife, all of his right, title and interest in the company D Pty. Ltd.

5. That the Husband shall pay and indemnify the Wife against any and all liabilities for monies ordered or otherwise payable by the Wife to or on behalf of E Pty. Ltd. including any monies refunded or payable in relation to alleged fraudulent cheques.

6. That there be liberty to apply by way of interim application reserved to the parties in relation to any stamp duty or taxation liabilities arising out of the substitution and transfer in Orders 1 and 2 herein, any anticipated liabilities of E Pty. Ltd. and/or the Nyburry Property Trust and/or any amended Notices of Assessment for any period from 1985 to 2003 including in relation to E Pty. Ltd.

7. That save as provided in these Orders, and otherwise for the purposes of enforcing these Orders, each party retain, to the exclusion of the other:

   (a)All property (including choses-in-action) in their possession, power or control as at the date of these Orders, (the contents of the P property being deemed to be in the possession of the Wife except for paintings by the Husband's father, which can be collected by prior arrangement);

   (b)All superannuation interests held on their behalf or in their name;

   (c)All monies standing to their credit in any bank, building society, credit union or other financial institution (any money held in joint accounts being deemed to be in the possession of the Wife);

   (d)Responsibility for all liabilities, loans or other encumbrances affecting title, or attaching or relating to any item of property to which that party is entitled pursuant to these Orders (save the National Australia Bank mortgage provided in Order 3(b) herein and any stamp duty or tax liability as reserved in Order 6 herein), and shall indemnify the other party in respect of the same; and

   (e)      Any insurance policy of which they are the owners.

8. That the Wife forthwith remove any Caveat she has placed in relation to the property at K.

9. That there be a departure from all child support assessments for the period from 29th January 2008 until the completion of the child L’s secondary education such that the Husband's child support income amount is $92,219.00.  Such arrears, if any, as of 29th January 2008 be discharged.

10. That all extant applications be otherwise dismissed and the proceedings removed from the active pending cases list.

AND THE COURT NOTES:

A.It is the expectation of the parties that no stamp duty or taxation liabilities will arise as a result of the operation of Orders 1 and 2 herein.  In the event that there is such a liability, liability to apply is reserved in Order 6 herein.

B.Neither of the parties know of any liabilities attaching to E Pty. Ltd. and/or the Nybury Property Trust.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Nybury & Nybury

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3564 of 2005

Mr Nybury

Applicant

And

Mrs Nybury

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases.  It is a property case. 

2. The husband was born in July 1956 and the wife was born in December 1952.  They commenced cohabitation in December 1984 and married in July 1985.  Following unhappy differences between them, the parties separated in October 2000.  There followed an attempt at reconciliation, as I understand it, late in 2001 that spanned a period of several weeks.  In any event, it was not successful and the parties subsequently divorced, with the decree nisi becoming absolute on 25 February 2006.

3. The property dispute between the parties has been a troubled one with personal interplay of considerable tension, each party holding a genuine belief as to their respective legal rights.  In the result, after a long and laboured journey down the litigation avenue, they came before the court as a special fixture listed late last year for hearing before me commencing 29 January 2008.

4. Mr Combes appears for the husband and Mr Robinson for the wife.  At the commencement of the proceedings yesterday, and having read all relevant documents over the long weekend, I took the opportunity to discuss various of the issues with both counsel and to also address the parties on the value of private resolution, rather than having a court-imposed order forced upon them in a schoolmasterly way.

5. I suspected that such was the high level of dispute between the parties that it had reached a point where they could discuss the issues in a dignified way, or simply succumb to bitter litigation that could span some two weeks of court time with personal expenditure amounting to several tens of thousands of dollars in legal expenses, bearing in mind, of course, that each of them had spent substantial moneys in arriving at the court doorstep.  I hasten to say, this is not a criticism of the profession, for it is the facts of the case bred from the instructions of the parties and their respective genuinely held beliefs that propels litigation in court.

6. The parties took the opportunity to discuss the issues which were indeed complex.  They included, in addition to subsidiary issues concerning the value of the former matrimonial home which was eventually agreed at some $421,000, significant problems involving the valuation of a business trading as D Pty Ltd of which the husband was the sole director and shareholder.  A valuation was prepared by Mr J as a single expert.  It was clear from my reading of his Report, that each of the parties had available to them reasonably fertile ground for challenge arising from several aspects of what Mr J had to say.

7. However, I do wish to make this clear.  Prior to the commencement of the proceedings on 29 January 2008, I had only read the first report.  There was a subsequent report ordered by Bennett J, late in 2007.  I had then, in the interim, an opportunity to read the second report, which I found to be most impressive as it defined the “range” of valuations predicated upon alternative scenarios which set out in clear form the rationale for his opinion, enumerating the various risk factors taken into account in arriving at the price earnings multiple and capitalisation rate of the small business.  Furthermore, he reported on additional matters which were both neutral and fair, offering a basis to all parties, had it gone to the litigation phase, additional matters for consideration, given that my task was to value the business.  I need say no more than that the report of Mr J was an impressive one.

8. There were other issues between the parties.  For example, the husband sought a detailed list of “add-backs”, totalling in excess of $200,000.  For her part, the wife claimed that the husband had shifted substantial income from his trading company to an entity controlled by his de facto companion and further, that he advanced some $95,000 to her several years ago.

9. Each of those matters alone opened up fertile ground to cause the proceedings to be protracted for several days had not the parties, through their respective professional representative, grasped the nettle with the alacrity they did. There was a further issue of a Child Support Departure Application, and that too, was a complex one. Whilst there was an agreed adjustment between the parties, there were other aspects relating to that issue that would have found their way as relevant to contribution pursuant to s 79(4) of the Family Law Act 1975 (as amended).

10. There are obligations on judges of the court to be satisfied that orders are just and equitable, notwithstanding they are made by consent.  I am aware of the pragmatism that is adopted by parties through their professional representatives where there is a will to settle complex matters such as this.  It is a practical and` sensible exercise and, in my view, represents an approach of dignity and determination to finalise once and for all the financial dilemma that the parties suffered and which accelerated them to court.  I congratulate both the husband and the wife, on showing, demonstrably so, the necessary respect, generosity and goodwill, that is a substantial launching pad into the future, bearing in mind that they have three children born of their union.

11. I mark the Minute of Consent Orders Exhibit “A”.  I make orders in terms of Exhibit “A”, to be engrossed by applicant.  There is one final matter I should add, and that is this.  Section 81 of the Act provides that the parties should, insofar as it is practicable to do so, sever the financial relationship between them.  This is what the parties have done, and they have achieved a situation where they are now to go their separate ways.  Their financial connection is now no longer extant.  They are each independent and free to live their own lives.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  5 February 2008