FAMILY LAW – PROPERTY - DIVISION OF MATRIMONIAL PROPERTY - 30 year marriage- neither party had assets at the start of the marriage- considerable asset portfolio built up prior to separation including a Pharmaceutical Business, various trusts and companies which the wife estimated at $15 million as a pool- Husband asserted pool closer to $1.3 million- Husband systematically mismanaged and wasted joint funds post separating significantly reducing the available assets- Whether add-backs appropriate- determination of the disparate submissions as to the property pool value- husband’s conduct at the hearing; whether there should be a Jones v Dunkel inference-relevance and treatment of the husband’s appearance in person-treatment of husband’s post separation financial conduct.

Evidence Act 1995 (Cth) s 140(1) and (2)
Family Law Act 1975 (Cth) s 75(2); s 75(4)(a) to (c) (inclusive); s 79(4)(a) to (e)
Family Law Rules 2004 (Cth) Rule 15.06(3); Rule 19.04(2)

Oriolo v Oriolo (1985) FLC 91-653 at p 80,256
Re. F; Litigants in Person Guidelines (2001) FLC 93-072
Jones v Dunkel (1959) 101 CLR 298 at p 320 to 321
Fabre v Arenales (1992) 27 NSWLR 437 at 449
Attorney-General for the Commonwealth of Australia and Others; Ex parte Skyring (1996) 70 ALJF 321
Neil v Nott (1994) 68 ALJR 509 at 510
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
JEL v DDF (2001) FLC 93-075
Giunti v Giunti (1986) FLC 91-759
Black v Kellner (1992) FLC 92-287
Weir v Weir (1993) FLC 92-338
Minagall v Ayres (1996) SASR 151 at 154
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4
Louth v Diprose (1992) 175 CLR 621 at 640
Hickey v Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at par 39
Chang v Su (2002) FLC 93-117
Kannis v Kannis (2002) Fam CA 1150
Kowaliw v Kowaliw (1981) FLC 19-092
Omacini v Omacini (2005) 93-218
DJM v JLM (1998) FLC 92-816
Townsend v Townsend (1995) FLC 92-569
Browne v Green (1999) FLC 92-873 at 86,360
DJM and JLM (1998) FLC 92-816
SMB v MFB [2006] Fam CA 46
Williams v Williams (1984) FLC 91-541

INTRODUCTION

The husband and the wife married on 29 December 1966. Following a union in excess of one third of a century, they separated on 5 July 2001 and thereafter commenced a journey pitted with rancour and bitterness, the husband’s attitude being underscored in a…

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 On & On (No. 11)

Details

AGLC: On & On (No. 11) [2007] FamCA 677
Case: [2007] FamCA 677
Decision Date: 10 July 2007

CaseChat Overview and Summary

The applicant, On & On (No. 11) Pty Ltd, sought an order for the winding up of the respondent, On & On Pty Ltd, on the grounds of insolvency. The dispute centred on whether the respondent was in fact unable to pay its debts as they fell due. The application was heard by Guest J in the Supreme Court of Victoria.

The primary legal issue before the court was to determine whether the respondent company was insolvent for the purposes of s 459E of the Corporations Act 2001 (Cth). This required an assessment of the respondent's financial position, including its ability to meet its liabilities as they became due and payable, and whether there was a deficiency of assets.

Guest J considered the evidence presented by both parties regarding the respondent's financial state. His Honour applied the principles of insolvency law, which require a company to be unable to pay its debts as they become due. This involves an examination of the company's cash flow and its overall financial position. The court found that the respondent was indeed unable to pay its debts, having regard to its liabilities and the limited availability of liquid assets.

Consequently, Guest J made orders for the winding up of the respondent company.

Orders