FAMILY COURT OF AUSTRALIA
OKTEM & OKTEM [2017] FamCA 337
FAMILY LAW – PROPERTY – Inability to value particular property – Significance of property as source of income – Unvalued property and s 79 factors – Notional add-backs Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) s 75(2), 79(4)(e), 79ABlatch v Archer (1774) 98 ER 969
Dickons & Dickons [2012] FamCAFC 154
Jones v Dunkel (1959) 101 CLR 298 Grier and Malphas [2016] FamCAFC 84
Ho v Powell (2001) 51 NSWLR 572
Kowaliw and Kowaliw (1981) FLC 91-092
Kuhl v Zurich Financial Services (2010) 243 CLR 361
Masoud & Masoud (2016) FLC 93-689Mallett v Mallett (1984) 156 CLR 605
Vass and Vass [2015] FamCAFC 51
APPLICANT: Ms Oktem
RESPONDENT: Mr Oktem
FILE NUMBER: PAC 2867 of 2013
DATE DELIVERED: 23 May 2017
PLACE DELIVERED: Canberra
PLACE HEARD: Parramatta
JUDGMENT OF: Gill J
HEARING DATE: 12-14 October 2016 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Schroder
SOLICITOR FOR THE APPLICANT: Marando Solicitors
COUNSEL FOR THE RESPONDENT: Ms Friedlander
SOLICITOR FOR THE RESPONDENT: Atila Lawyers Orders
(1)Within a period of 60 days of the making of these orders, on the wife paying to the husband the sum of $101,884 the husband will contemporaneously transfer his right and title in the property located at B Street, Suburb C in New South Wales.
(2)In the event that the wife fails to make such payment, or gives notice within the 60 day period that she will not make such payment, then within a period of 28 days from the expiration of the 60 day period, or from the giving of notice by the wife, whichever is earlier, the wife shall, on payment by the husband of the sum of $894,116 to the wife, contemporaneously transfer to the husband all her right, title and interest in the property at B Street, Suburb C in New South Wales.
(3)In the event that neither party makes the payment identified in the above orders, or alternately notifies the other party that they will not take steps to buy out the B Street property, then the parties shall arrange for the sale of the property in the following manner:
(a)The parties shall do all such acts and things and sign all such documents as may be necessary to forthwith list the real property known as B Street, Suburb C in New South Wales (“the property”), for sale by private treaty.
(b) For the purposes of implementing Order (a) above:
i)The listing agent shall be as agreed between the parties, and in default of agreement, with the agent chosen by ballot from the respective choices of the parties.
ii)The listing price for the property shall be as agreed between the parties, and in default of agreement, the price nominated by the listing agent.
(c)In the event of the property not being sold within 3 months from the date of its listing for sale then it shall be put to sale by public auction on the following…
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CaseChat Overview and Summary
The primary legal issues before the court were how to achieve a just and equitable division of the parties' assets, particularly the B Street property. This involved determining the mechanism for one party to buy out the other's interest in the property, or, failing agreement, establishing a clear process for the sale of the property and the distribution of the proceeds. The court also needed to address the beneficial ownership of other assets and liabilities held by each party.
Gill J's reasoning led to a tiered approach for the division of the B Street property. Initially, the wife was given a period of 60 days to pay the husband a specified sum to acquire his interest. If she failed to do so, the husband then had a period to buy out the wife's interest. In the event that neither party exercised these buy-out options, the court ordered the property to be listed for sale by private treaty, with specific provisions for agreement on the agent and listing price, or default mechanisms if agreement could not be reached. If the property remained unsold after three months, it was to be sold by public auction, again with provisions for agreement or default regarding the auctioneer and reserve price. Further provisions were made for successive auctions if the property was not sold. The proceeds of any sale were to be applied first to sale costs and rates, then to discharge encumbrances, and finally distributed between the parties according to a formula that allocated specific percentages of the net proceeds and adjusted for certain amounts. The court also made orders regarding the beneficial ownership of other property and liabilities, with each party indemnifying the other against liabilities related to property they retained.
Orders
Orders of the court
(1) Within a period of 60 days of the making of these orders, on the wife paying to the husband the sum of $101,884 the husband will contemporaneously transfer his right and title in the property located at B Street, Suburb C in New South Wales.
(2) In the event that the wife fails to make such payment, or gives notice within the 60 day period that she will not make such payment, then within a period of 28 days from the expiration of the 60 day period, or from the giving of notice by the wife, whichever is earlier, the wife shall, on payment by the husband of the sum of $894,116 to the wife, contemporaneously transfer to the husband all her right, title and interest in the property at B Street, Suburb C in New South Wales.
(3) In the event that neither party makes the payment identified in the above orders, or alternately notifies the other party that they will not take steps to buy out the B Street property, then the parties shall arrange for the sale of the property in the following manner:
(a) The parties shall do all such acts and things and sign all such documents as may be necessary to forthwith list the real property known as B Street, Suburb C in New South Wales (“the property”), for sale by private treaty.
(b) For the purposes of implementing Order (a) above:
i) The listing agent shall be as agreed between the parties, and in default of agreement, with the agent chosen by ballot from the respective choices of the parties.
ii) The listing price for the property shall be as agreed between the parties, and in default of agreement, the price nominated by the listing agent.
(c) In the event of the property not being sold within 3 months from the date of its listing for sale then it shall be put to sale by public auction on the following terms:
i) The auctioneer shall be as agreed between the parties, and in default of agreement, the auctioneer chosen by ballot from the respective choices of the parties.
ii) The auction shall take place within 6 weeks of the deadline date for sale by private treaty.
iii) The reserve price shall be as agreed between the parties, and in default of agreement, the reserve price nominated by the auctioneer.
(4) In the event that the property is not sold by auction, or private negotiation within a further 7 days, then it shall be submitted to successive auctions within further 6 weeks periods until sold, otherwise upon the same terms and conditions as applied to the first auction.
(5) Upon completion of the sale of the property pursuant to Orders 1 and 2 hereof, the proceeds of sale shall be applied as follows:
(a) Firstly, to pay all costs, commissions, and expenses of the sale, and to pay any Council and water rates and maintenance levies outstanding in respect of the property.
(b) Secondly, to discharge any encumbrance registered over or affecting the property.
(c) Thirdly, to pay to the Wife’s solicitors on behalf of the Wife the amount calculated in accordance with Order 6 below.
(d) Fourthly, to pay to the Husband’s solicitors on behalf of the Husband the amount calculated in accordance with order 6 below.
(6) W = 0.575(P + $108,397 + $639,104) - $108,397
H = 0.425(P+ $108,397 + $639,104) - $639,104
Where W = the payment due to the wife from the net proceeds of sale
Where H = the payment due to the husband from the net proceeds of sale
Where P = the net proceeds of sale for B Street after deduction of all costs, commissions, expenses of the sale, Council and water rates and maintenance levies outstanding in respect of the property and after discharge of any encumbrance registered over or affecting the property.
Note that P + $108,397 + $639,104 equates to the total pool except for the ODT.
(7) Save as otherwise provided for in these orders each party is otherwise entitled to and otherwise declared to have the beneficial ownership of the property in that party’s possession, to property held in that party’s name and to the content of all bank accounts held in that party’s name to the exclusion of the other party.
(8) That each party is solely liable for and indemnifies the other party against any liability encumbering any item of property to which that party is entitled pursuant to these orders
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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