Paisie and Paisie and Anor

FAMILY COURT OF AUSTRALIA

PAISIE & PAISIE AND ANOR

[2010] FamCA 719

FAMILY LAW – PROPERTY – Value of property – Conflicting evidence – Settlement in relation to marriage
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Death of a party – Contribution by third party – Property acquired before marriage

Coventry & Coventry (2004) FLC 93-184
Johnson (2000) FLC 93-008
Bassola (1985) FLC 91-623
Geeley (2) (1992) FLC 92-291
Robb & Robb (1995) FLC 92-555
Black & Kelner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338

APPLICANT:

Ms Paisie

1st RESPONDENT:

Mr Paisie

2nd RESPONDENT:

F Paisie

FILE NUMBER:

PAF

3780

2002

DATE DELIVERED:

13 August 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Orange

JUDGMENT OF:

Collier J

HEARING DATE:

13 - 14 March 2007, 18 October 2007, 6 November 2007, 12 February 2008, 4 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Stewart

SOLICITOR FOR THE APPLICANT:

Flynn Conn

COUNSEL FOR THE 1ST RESPONDENT:

In Person

SOLICITOR FOR THE 1ST RESPONDENT:

N/A

COUNSEL FOR THE 2ND RESPONDENT:

Mr Berry

SOLICITOR FOR THE 2ND RESPONDENT:

Lee Dalton & Associates

Orders

That forthwith upon these Orders being made the applicant Ms S Paisie and the second respondent F Paisie do all things and execute all documents necessary to open a bank account in the name and style of S Paisie & F Paisie as the legal personal representative of the estate of Mr Paisie (the account).
That within three months of the date of these Orders the second respondent, on his own account, pay to the account the sum of $90,000.
That within three months of the date of these Orders the second respondent F Paisie as legal personal representative of the estate of the husband pay into the account the sum of $2,708.
That the applicant Ms S Paisie and second respondent F Paisie, upon payment into the account of the amounts specified above, do all things and execute all documents necessary to pay from that account:
(a)To the wife, or as she may direct, the sum of $67,500 upon payment in of the sum of $90,000 and $2,105.25 upon payment in of the amount of $2,708;
(b)The balance then remaining shall be paid to the second respondent as the legal personal representative of the estate of the late husband.
That in the event that payment of the sum of $90,000 is not made within the time and manner specified in order (1) above, the second respondent shall do all things and execute all documents necessary to sell the property at C Street by private treaty, and after payment of all monies to be paid therefrom in respect of:
(a)Legal fees properly incurred;
(b)All agent’s fees and commissions properly incurred;
(c)Any adjustments required on settlement;
(d)The amount required to discharge any mortgage or encumbrance secured over the said property;
(e)From the amount then arrived at pay to the account the sum of $90,000 together with any interest accruing thereon;
(f)The second respondent be entitled to receive and retain as his own property absolutely the balance then remaining of the proceeds of sale.
That upon payment into the account of $90,000 plus any interest accruing thereon the applicant wife and second respondent F Paisie shall do all things and execute all documents necessary to pay from that account to the wife, or as she may direct, the sum of $67,500 together with any interest accruing thereon.
That if the said the property is not sold within six months from the date of these Orders, in that contracts for sale have not been exchanged by that time, then liberty is granted to the wife to relist the matter upon giving seven days notice in relation to seeking orders for enforcement by way of appointment of trustee for sale.
That all outstanding applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 3780 of 2002

MS PAISIE

Applicant Wife

And

MR PAISIE

First Respondent Husband

And

F PAISIE

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter is somewhat unusual. The original application before me by the wife was in two parts. First she sought to set aside a transaction whereby the husband transferred a property to his son and thereafter she sought an adjustment of property interests pursuant to s 79 of the Family Law Act. After the hearing was concluded, the husband died and there was some little delay whilst matters of his estate were dealt with. Accordingly, I propose to treat the second respondent as the legal personal representative of the father and thus the person who can be made liable to orders to complete this matter.
However the issues remain;- the setting aside of the transaction whereby a parcel of real estate was transferred to the second respondent; and if that transaction is set aside or in any way dealt with, the entitlement of the applicant for relief under s 79 of the Family Law Act. It appears to be conceded by the wife that if the transaction is not set aside and the subject property bought back into the names of the parties then there is apparently no asset or assets available for distribution between the husband and the wife. There may be however, another way in which the matter can be approached.

Background

A somewhat detailed background is of assistance in understanding this matter.
1949 husband born.
1958 / 1959 husband migrates to Australia.
1962 wife born.
1972 the second respondent F Paisie is born.
1980 the wife’s son E is born.
February 1991 the wife comes to Australia. The parties live in the husband’s property at P Street in Queensland.
1991 or thereabouts the second respondent purchase a property at G Street, QLD for $42,000 fully financed by way of mortgage which was then extended to enable renovations to the property.
1992 husband and wife marry. Thereafter the wife asserts that she and the husband carry out work together on the P Street property.
In September 1992 the wife’s son E comes to Australia and lives with the parties.
1992 - 1993 the second respondent sells the G Street property for $98,000 realising $45,000 which it is asserted is loaned to the husband.
May 1996 the husband and wife purchase property at W and subsequently renovate that property.
1996 - 1997 the parties holiday in Europe. The wife asserts the husband purchased a block of land.
1997 upon their return, the parties commence work on an agricultural property.
1998 the husband commences to conduct a business providing seasonal workers for agricultural properties. The wife works with those workers.
1999 the husband suffers a heart attack.
April 1999 husband undergoes bypass surgery. At this time the second respondent travels to R in regional New South Wales to assist with the conduct of the business.
May 1999 the parties purchase the property at C Street for $145,000 all of which is borrowed.
August 1999 husband travels to Europe. Wife remains in Australia and conducts the business.
June 2001 the parties separate. At this time the husband and wife own properties at W and C Street. The husband owns in his own name a property in QLD.
27 July 2001 the wife executes a power of attorney in favour of the husband. The wife asserts this is a result of a threat made to her by the husband. There are a number of documents that the wife makes reference to in evidence and I will return to this shortly in these reasons for judgment. She executes a further power that the properties can be sold but that proceeds are to be divided equally.
August 2001 the wife obtains an Apprehended Violence Order which she subsequently withdraws on 19 September 2001 on undertakings given by the husband.
18 October 2001 power of attorney is registered with the Registrar General of NSW and subsequently on 2 July 2002 it is registered in QLD.
In February 2002 the second respondent marries in Europe.
11 July 2002 the wife purports to withdraw the power of attorney by means of a notice forwarded to the husband by registered mail. I will return to that aspect of the matter later in these reasons for judgment. The husband subsequently telephones the wife.
On 11 July 2002 the husband and the second respondent enter into a contract for the second respondent to acquire the property at C Street. The husband executes the document on his own behalf and pursuant to power of attorney for the wife. The consideration expressed in the contract is $120,000. It is uncontested that the whole of that amount is borrowed from the Commonwealth Bank. The existing mortgage granted by the husband and wife upon security of the property to the Commonwealth Bank is discharged by payment of an amount of $115,985 to that bank.
The balance of the amount borrowed is applied for adjustment of rates, payment of legal fees and thereafter in payment to the husband (on the face of it on behalf of both parties) of the sum of $2,820.73.
It is this transaction that is very much at the heart of the dispute between the applicant on the one hand, and the first and second respondents on the other. It is the case of both respondents that in addition to the sum borrowed by the second respondent on mortgage to acquire the property, which sum was applied as set out in the previous paragraph, that he forgave his father the sum of $45,000 that he had loaned to his father and which was, subject to being forgiven, expected to have been repaid by the father.
9 August 2002 the husband sells the property in the joint names of the parties at W and repays the loan to the Bank of Queensland thereafter. (See handwritten document Court Exhibit 1.)
25 October 2002 the husband sells the property he owns in his sole name in QLD. (See handwritten document Court Exhibit 1.)
November 2002 the husband travels to Europe.
May 2003 the second respondent and his wife come to Australia and commence to live in the C Street property. The second respondent starts a business Z Agricultural Services.
2005 the second respondent commences a business in R.
9 July 2005 the C Street property damaged by fire.
November 2005 the second respondent received an insurance payout for damage to the property and contents and makes a payment to the mortgagee to reduce the mortgage secured over C Street.
Mid-2006 the second respondent and the husband commence some work on the property at C Street.
14 May 2006 the second respondent and his wife separate.
August 2007 the husband dies.

The Parties’ Documents

The wife relied upon the following documents:
·Her application filed 12 December 2003;
·Her affidavit sworn 21 September 2005 and filed 30 September 2005;
·Her affidavit of financial circumstances verified by affidavit sworn 20 October 2006 filed 25 October 2006;
·Affidavit by Mr H sworn 14 November 2006 and filed in court; and
·Affidavit of Mr B sworn 10 November 2006.
The husband was unrepresented throughout the proceedings and filed a number of documents being:
·Response to application for final orders filed 5 April 2005.
·His affidavit sworn 30 October 2006 and filed on 1 November 2006;
·His affidavit sworn and filed 5 April 2005; and
·His financial statement filed on 5 April 2005 but which was never sworn.
The second respondent relied upon:
·His amended response filed 27 September 2006.
·His statement of financial circumstances sworn 29 March 2005 filed on 5 April 2005; and
·His affidavit sworn 25 September 2006 filed on 27 September 2006.

The Wife’s Case

When the matter was opened before me Mr Stewart, who appeared for the wife, put to me that the husband had arranged the sale of three properties and had dealt with the sale proceeds. It was put to me that this was done to remove all property from what might be seen to constitute a pool of assets available for distribution between the parties. It was put to me that sale prices did not reflect the true values of the properties involved. It was put to me by Mr Stewart that I would find it just and equitable to set aside the transaction whereby the property was transferred to the second respondent. Thereafter he asserted a proper consideration of relevant factors would require the property be transferred, unencumbered, to the wife.
The wife filed quite extensive affidavits. Whilst I do not propose to set out the entirety of her material, there are a number of paragraphs that I need deal with.
The wife at paragraph 6 of her affidavit makes reference to executing a power of attorney on 27 July 2001. She asserts that the power of attorney she signed became Annexure U of her affidavit.
The wife in paragraph 57 refers to changes having been made to a document and the incorrect spelling of her name. It is more likely to refer to her power of attorney Annexure U and the Document R1. She identifies the signature of the husband and his signature on her behalf relying on a power of attorney on Annexure Z to her affidavit.
The wife in paragraph 16 appears to assert that the property which she described as Queensland, and which I take to be the property at G Street, Queensland, had been in reality purchased by the husband and wife. However she asserts the property was registered in the son’s name to enable borrowings to acquire it.

The Husband’s Case

The Husband asserted that the transaction to his son was a bona fide one and should not be disturbed. He further submitted that in the event I were to set the transfer aside, the wife had failed to make out any case requiring that she receive any part of the assets based on a division pursuant to s 79 of the Family Law Act.

The Second Respondent’s Case

Mr Berry for the second respondent put that the son’s case was simple; the transaction was bona fide; the agreement between father and son was for the purchase to be at the price of $165,000. $120,000 was raised on a mortgage and it was asserted that the father owed to the son $45,000 which was forgiven. This was what in fact occurred, he says, and should not be disturbed.
The second respondent in paragraph 15 of his affidavit deposes to a conversation in June 2002. In that paragraph he asserts his father told him that the value of the property was $160,000 - $165,000.

The Evidence Before Me

The first witness to give evidence was the wife. She gave short oral evidence in chief that at the end of 2003 she had started her own business with regard to casual or seasonal rural workers. She was then cross examined by the husband. She conceded that the husband paid a substantial phone bill for her or on her behalf. It appears this bill was paid so that she would be permitted to leave Europe.
She said she thought the two of them had paid legal costs but later she conceded the husband had paid them. She said when they commenced their business, the husband had done the paper work and that she had helped and worked in the fields. She said she worked eight to ten hours a day.
She said she had rented premises to move away from the husband. She said she obtained a post office box so as to keep her address from the husband. She said she had endeavoured to obtain an AVO.
She asserted she did tell the husband that she wanted to separate. She said that the husband hit her because she had given $1,000 to her mother. She said that she had two mobile phones and a landline at a L Street address.
She said that a property that had been leased had not been leased for her. She agreed she had spent money on a clairvoyant.
She further said she had sent money to her family without the husband’s knowledge. She said she believed her contribution was equal to the husband’s, that he had sent money to family and had helped someone buy an apartment. She said he paid rent for the flat. She ran away and took a dog, laptop, and some money. She denied the husband had asked her to complete paperwork. She agreed he had asked her to come back to R to finalise papers for the accountant. When she came back she said she was asked to sign a power of attorney. She again said the husband paid rent on L Street.
She said she let the husband know where she lived in U and he came there to see the dog. She agreed the husband paid for the removalist. She said that when she left, the husband gave her son a job, and he stayed. It was put that he stayed because he was upset with his mother and she said no, the husband had given him a job and a car. She said she paid for her own driving lessons.
She said she believes in clairvoyance and has read about it widely. What she read about had nothing to do with religion. She said she believed in God. She said she found a protection order in her letter box and that the husband had threatened her when she left and when she came to sign the power of attorney. She said that the husband had said he would kill her if she did not listen to what he said and she later signed the power of attorney. She said that she had not proceeded with an Apprehended Violence Order after she signed the power of attorney. She said she had asked the husband to sell the property to pay debts. She agreed she had signed the power of attorney in July after she left on 29 June and she did not know precisely when she dropped the Apprehended Violence Order.
After she left the husband, she sought help from Centrelink. She said she was informed she was already receiving a part pension as the wife of the husband. She said she stopped that payment and commenced to receive a New Start allowance. She said that the husband did not drink, smoke or gamble. She said she had seen a Notary Public and told him she did not want to sign the power of attorney but had to. The power of attorney gave the husband power to sell and pay debts. She spoke of a second power of attorney and again said the husband had threatened to kill her. She said the husband took her home after she signed. She agreed that a house had been purchased for her sister. She said she had helped with renovations at C Street; she helped finish the kitchen, performed gardening, had chosen carpet and tiles. She agreed she had drawn money from the business but said it was not for her own benefit.
She was shown deposits to an account and asked where the money came from. She did not remember. She said the statement showed the cheque to withdraw. She said in 2001 she had nothing left in her account.
It was put to the wife that she had taken an amount of approximately $60,000 which she denied. She denied that she had taken jewellery. She denied that she was a gambler but said that she had played some Keno. She said she had taken some pictures in an album with her but this was not done as part of a plan to destroy the husband. She kept an album for her memories. She said she had owed money but had paid her debts.
She said she was before the Court asking for help.
To Mr Berry for the second respondent she said that when she came to Australia she lived at the husband’s home at P Street, Queensland and it was not correct that she lived in W. She said when she came to Australia, the second respondent had no properties. It was put that he bought the G Street property in 1991 and the witness said she thought it was 1992. She said that she and her husband had paid off in instalments on that home. That was a total borrowing of $56,000, an increase over the amount borrowed to purchase the property to enable renovations to be carried out. She said that Centrelink payments were used to pay rates and outgoings on P Street.
It was my understanding that by this evidence the wife wished me to believe that although the property was purchased in the name of the second respondent, it was really the property of herself and the first respondent.

She said she had helped clean and paint properties. She said the G Street property was not sold in 1992 or 1993 but in 1994. There was talk of money being used to either bring her son to Australia or send him back to Europe and the witness eventually agreed that the money was used to bring her son to Australia in about September 1992. She did not agree that $45,000 was a loan from F to the husband.
She said she had difficulty with English when first in Australia. She said she got her license in 2001. Her husband left for Europe in 1999. She said F had helped by driving whilst his father was away. At that stage she needed his help as she was a learner driver; she said she paid him $2,000. She agreed the husband had a heart attack in about 1999 and later in that year a bi-pass operation and F had come at that time to see the husband but not to help in the business.
She said on 29 June 2001 when she left C Street, the parties had discussed selling the property and dividing the proceeds. She said that they drew up a document but it was not signed. She was then shown a document and agreed that it was her signature and that she had earlier said that she had no recollection of signing it. She said she had given the husband a power of attorney to sell the real estate and she believed thereafter the debts would be paid and the balance divided equally. She said that she had first seen a document in July 2001 and later received a copy.
There is some difficulty in relation to the status of the various documents and I will endeavour to return to that later in these reasons for judgment. However, I will record here that the document which became Court Exhibit 1 is a document apparently signed by the wife, whose signature is witnessed by a Notary Public.
She said when she signed the general power of attorney she did not have solicitors. She did not ask Campbell Paton & Taylor to prepare the document. She said it was prepared by the person who witnessed her signature (as there are two documents, on both of which the wife’s signature is witnessed, I can not be sure to which document she is referring). She cannot explain how it got into the possession of Campbell Paton & Taylor; she did not ask them to register them and did not know what that meant. She remembered signing a document in an office in R she thought with a Notary Public.
She was shown a document; she said changes had been made to it after she signed it and that name was spelt incorrectly. She said the changes were made before she left and she initialled them and never received a copy. Exhibit R1 does not contain any alterations, amendments or changes. However, annexure U to the Wife’s affidavit contains a document of a different type described as a general power of attorney which does have amendments which have been initialled.
She had spoken to someone about revocation of the power of attorney. She decided to revoke the document in July 2002 and at that stage wrote the letter which became annexure W to the Wife’s affidavit.
She was aware that the letter had been received by virtue of receipt which became annexure X to her document.
She was shown document Z; she said the signature of the husband is there and he has signed on her behalf.
In re-examination she said that the names of horses she had written were not in relation to betting but a game that she carried out after separation with workers.
The next witness called was Mr H, the valuer, in relation to the valuations he made. He agreed, in respect of his valuation of 10 July 2002, there could be a range of values. He spoke five-percent either way. He spoke of comparative sales in respect of C Street.
The husband was then called, affirmed and gave evidence in cross examination to Mr Stewart. He said that he had asked the wife to sign Exhibit R1 first, then she found out she had been doing things behind his back. He said that the power of attorney did not have a notary stamp and that the first document Exhibit R1 did. He said that the first document was signed in front of a notary public (which on the face of Exhibit R1 it clearly was) and they were told there was some difficulty with it. He said his wife was not showing any signs of distress and he saw his wife sign but did not see the witness sign, but agreed that the changes would need to be made. By this paragraph, I can only understand that the document R1 notwithstanding that it was signed by a notary public was said to be insufficient and the second document which became annexure U was subsequently created, executed and amended.
He had spoken to her and they had made a decision. He said he had told her they had to sell and pay the government. He paid $120,000 for tax; he did not know how it would work out. He said he had no documents, that they had all been lost in a fire. He said document A was signed in his presence at a Public Notary’s office. We made an appointment, he said, from the Yellowpages. It was pointed out that one document, document A, did not have a notary stamp and that document B did; he said that document A was signed in front of a Notary Public, that document B he was told was not sufficient and he, the Notary, asked us to wait while he drew up document A. He said his wife at this time was not showing any distress. He saw his wife sign but did not see the witness sign. Changes needed to be made. It was put to him that the day the document was signed he had threatened the wife’s life; he said it was not true. It was put to him he had threatened to hurt her, he said that was a fabrication.
It was put that in November 2000 he had driven a car at her; he said that this was not true, that the wife was the love of his life. It was put to him that on that occasion he made a U-turn and tried again to drive at the wife; he said this was not true. It was put to him that before the wife signed either document, he said he would kill her if she did not sign it and if you go under ground I will kill you; he denied this was said. It was put that he had told her she would get nothing; he said he may have said, while he was upset, we will see if there is anything left.
He agreed that he had said he would split everything that was left. He said he thought debts were greater than the value of the property.
It was put to him that when he found out the wife wanted some of the properties he decided she should not get anything which he denied. He agreed he got the revocation of the power of attorney and it was put to him he phoned her when he received it; he said yes. He denied that he spoke aggressively. He said he continued because he had to take care of the debts. He told her on the telephone how monies had been disbursed.
He said that on the sale of W property, some $35,000 realised was used to pay off P Street.
He said that F had loaned him approximately $45,000 and when it was put to him that there was no loan he said that was not true. It was put to him that G Street was put into R’s name because the husband could not borrow money; he denied this. It was put further that he purchased property to sell at a profit and he indicated that he needed to make a profit to pay bills. He was asked if he was saying he and his son were quite independent; he said he did not say that, he had helped him pay wages, that his son had no experience in the business, he said that the business changed and she took over most of the customers. He said that he was not running a business with F, that before he went overseas and when he returned from overseas F did not work with him. He said he had never run a business with his son.
It was put to him that on 22 November 2005 an amount of $45,000 was paid into an account; he agreed. He said he went onto the disability pension in late 2003. He said on 25 October 2005 an amount paid into his card account came from insurance for contents. On 19 July 2005 money of $35,000 came from his son to pay for shop contents which he was to purchase. $50,000 was money so he could buy material to assist F to renovate the house. He did not remember doing much business after he got back in November 2003.
Between July 2001 and July 2006 he agreed to an amount of total income received of some $2,062,424 or an average of $412,484 a year. He did not agree with this figure. In any event, he sought in his written submissions to point out that there were substantial deductions that needed be made to form the total income to produce the actual income of the business.
He said he knew the business V Business which was run by his step-daughter. His step-daughter was twenty-eight years of age. He said V Business did what his old company did. He said he taught his step-daughter about the business, he took her to farmers and introduced her. When asked why he was not doing this business himself he said he was on the pension and had had enough. He said that income received went into a cheque account in the wife’s name and that he had authority to withdraw from that account.
He said that he had not been told by his son that he, the son, had helped his wife, nor was he told this by his step-daughter. He said his step-daughter had sent an invoice to PY for a period in 2006. He said he did not recall the last invoice issued by his own business; it was put to him that this was in March 2005 and he was not sure. When shown a document he agreed that the letterhead said his name and indicated an ABN. He was shown an invoice of 12 July 2001 and he agreed that they were on identical letterhead. It was put to him that he was rendering invoices to PY up to March 2005; he said he did not recollect. He said his wife may have been using his letterhead.
He then said he remembered doing some business with his son and his son helped run the business while he was overseas. He said he had not looked at the statements. It was put to him that he said in a document that as at 5 April 2005 he was only receiving a pension; he said he did not remember what he was receiving.
He said that he had seen his various valuations. He said there was an amount of $60,000 under the stairs. He said he had put it there and it came from a friend. He said the wife took it. It was put to him that the wife did not take it and he said she did. At the time of separation he said they were running a joint account. He said that he owned a flat in Europe and said there was some difficulty involving the government in this respect. It was put to him that he had sold P Street so as to minimise the amount the wife would receive; he said this was not true. It was put to him that he had sold C Street to avoid the wife receiving any property which he denied. It was put that he had done everything he could to put assets and money beyond her control and he said that this was not so.
To Mr Berry he said he went overseas in November 2002 and stayed in Europe until 2004. He said he was not sure if he paid his son a wage for helping in the business. He said in May 2003 whilst he was still overseas, his son started Z Agricultural Services. He spoke with his son about sale of C Street property; he said he had to pay debts and he was going to sell. He said that his son said I can help you.
He told his son that the agent had said that the property was worth $160,000 to $165,000. He had signed a transfer and contract. He did not recall if that had been done at the same time. He said that he and his wife had not made payments for his son in respect of G Street.
The second respondent was called. He said he had closed his own personal services business and was now employed elsewhere. Z Agricultural Services was a company that had gone into liquidation. He said he had received various amounts by way of insurance payouts and he put some sums of money into the father’s Mastercard account. He said that he had all but paid off the mortgage. The balance of monies went into the father’s Mastercard account. He said he had no real invoices for the materials that he may have purchased and his father had paid for items on his Mastercard.
He said he had put aside $35,000 to open his shop in early 2005. He had materials, a rough estimate of their value being $50,000. He had heard about the power of attorney and knew about it when he was buying the house. He did not know about any attempt to withdraw the authority of the power of attorney. He said that he figured the price he paid was below value because of the loan. It was put to him that he knew the husband wanted to minimise the amount he might have to pay to the wife and he said no. He said he knew his father had to pay debts and he did not know if his father and step-mother were in conflict. He said when he was served he was a bit surprised and until then he did not know they were in conflict. It was put to him that when he bought the property, he spoke to her, he said, only once and that was about a job in Wagga. It was put to him that in 2002 he said if father does not give you anything, I will; he said that was never said. Further, he said that she had never said to him don’t make promises you can’t keep.
He said finances were kept separate. He said in relation to his father’s business, he helped when the father was overseas and prepared invoices or his wife prepared invoices for that business.
He said for Z Agricultural Services he had to run around and get jobs. His father’s business had regular crews. So far as his father’s business was concerned, all he had to do was write invoices and pay workers. He did not know about contracts relating to his father’s business. He said that V Business was his step-sister’s business and he had very little to do with it. He had done some invoices and paid some wages.
He said that he had decided to put money into the Mastercard account because it would be safe there; he did not want to mix monies up. He said that he was afraid of the money that his wife was spending at the time. He had told her where he had put the money.
He said he had no records of withdrawals from the Mastercard account. He said the money owed to him by the father was repaid on the transfer. He said in respect of G Street that the property was not in his name because his father could not get a loan. He said he bought the house for himself. It was put to him there was never a loan for $45,000 he said there was and he had tried to get documents in relation to it. It was put to him that if the property was really his he would know more about monies involved and he said all monies for repayment for the mortgage instalments came from his salary but he did not remember how much. He said that no money from any loan had been applied to mortgage repayments. He said his life was work and effecting repairs. He said he did not agree with the amount of work that the wife asserted she had done. He said he helped his father a little and from time to time gave him small amounts of money.
This then concludes the oral evidence before me.
What am I to make of that evidence?
I was concerned as to whether or not I could accept the evidence of any of the witnesses in this case. I was concerned that despite the husband’s best efforts, the wife in cross examination was never properly tested.
Both he and his son I found difficult to accept in matters relating to finances. However there was some evidence produced by the wife which indicates the husband continued the business beyond the point he said he did.
I am also concerned at the way in which the son has used his father’s account as he wished and in effect at times as though it were his own. I believe I am entitled to accept that when the husband completed but did not swear a statement of financial circumstances in 2005 he was earning significant income. Indeed there was much argument concerning amounts he had received over a period of time which the wife’s counsel then sought to average to a yearly basis. There were tendered into evidence before me as Exhibits B and C respectively documents relating to deposits to the husband’s Streamline account and a summary of invoices issued by his business. These amounts I accept are significant. However they do not take into account in any fashion the cost of running the business and payments made by the business in the course of conducting it. Accordingly I am not able to accept Mr Stewart’s submissions in this regard.
The more I delve into this matter the more I am convinced that the parties and each of them have been sparing with the truth. I am satisfied that the wife was not telling me the truth in relation to gambling and I am satisfied that the document which became an exhibit recording a number of horses’ names does not simply indicate a game played with workers but rather an involvement in some form of organised gambling.
I am satisfied that the husband has been very careful in the evidence he gave. He would have me believe that he had retired from active participation in his business. It appears the wife commenced a similar business and his step-daughter as I understand the evidence effectively took over the business previously operated by him.
However it is clear that invoices continued to be issued in the name of the husband.
The son’s explanations as to where monies came from and why they were put into various accounts by him, is unconvincing.
It therefore occurs to me that the only matters I can accept without query are those that can be in some way supported by evidence, in this case mainly documentary evidence, or by an admission against interest by a party.
Dealing with the conflict between documents, I am not sure which of these documents the husband believed he was acting under. In any event, it is abundantly clear that there was existence of power of attorney in some form or other. The letter that the wife wrote to revoke the power of attorney is dated 11 July 2002 and was Annexure W to the wife’s affidavit. It does not mention the date of the power of attorney but I am prepared to assume that the wife intended to thereby bring the powers of attorney to an end.
It appears common ground that the contract for sale is dated 11 July 2002. From the contents of Exhibit X, it appears that the letter was delivered on 12 July 2002.
I find further difficulty in that the wife annexed to her affidavit (Annexure T) a copy of a document that she describes as a power of attorney, which she says was signed sometime later. However, she refers in paragraph 36 to Annexure U as the document that was signed. Annexure T appears to be the same document as Exhibit R1. However, Exhibit R1 has been executed and witnessed.
I am not satisfied that the Queensland property was other than the second respondent’s. I am satisfied that he borrowed money and I am satisfied that his father helped him to carry out some improvements to that property. After repairs had been affected, the second respondent lived in the property. The second respondent points out that the applicant assisted with the work on G Street, to a limited degree and I accept this to be so.
I am not satisfied that upon the sale of that property the second respondent had an amount of some $45,000 remaining which amount he made available to his father, he asserts by way of loan.
There is no doubt that the contract for sale of the property shows a purchase price of $120,000.
It is the evidence of the second respondent that the balance of $45,000 was an amount owed to him by his father which he forgave to make up the total purchase price of $165,000.
The alleged loan forgiven causes me some concern. The husband and son have asserted that the real consideration was $165,000, $120,000 of which was by monies raised and paid and $45,000 was by means of a loan that the husband should have paid to his son and which the son forgave. The evidence as to the $45,000 is not satisfactory. Indeed, as I have earlier said, I have found the evidence of all three parties in this matter less than satisfactory. The parties certainly disclosed the consideration to revenue authorities as $120,000. Whilst I am satisfied it is no longer the law that such a statement to the Stamp Duties Office of NSW as to the proper consideration paid so as to calculate ad velorum stamp duty is such as to actually bind the parties making that assertion I am satisfied that it is highly persuasive of the fact that the $45,000 loan was not an actual translation and the only consideration that changed hands for the transfer was the $120,000 paid by the son to the father or as he directed.

I am thus satisfied that the real consideration was $120,000.
I am satisfied that C Street was damaged by fire on 9 July 2005. I am satisfied thereafter the second respondent received significant payouts for insurance being $158,000 for damage to the house and $50,000 for contents. I accept that the second respondent has significantly reduced the balance owing under the mortgage to the Commonwealth Bank and has utilised other funds for repairs.
I accept that the second respondent and first respondent carried out work on the property. I am satisfied that I can accept the figures provided by the husband in relation to proceeds of sale of properties which became Exhibit 1.
The whole of the evidence in this matter was largely unsatisfactory; both as to the issue of setting aside the transaction between father and son, and the issue of the wife’s general entitlement to relief under s 79.
The circumstances surrounding the sale are unusual and to my mind uncertain. I am satisfied that the wife initially agreed that properties should be sold so as to discharge debts. There is then the suggestion that the wife sought to revoke the power of attorney so as to disenable the husband to proceed in both names.
It is of interest to me that although the wife appears to claim that the other properties (i.e. W property and P Street sold respectively for $74,000 and $78,000) were sold undervalue that she has not sought in any way to attack those transactions.
It is also clear from the evidence that the wife and the husband’s son were not on good terms although clearly he had provided some assistance when his father was incapacitated.
I am concerned that the parties’ evidence to me was by no means complete in all respects. There was the difficulty that the wife’s evidence was not tested by competent professional cross-examination. Mr Paisie indeed did not put to the wife matters that one might have expected may have been administered. Mr Berry was not concerned with the affairs of the husband and the wife but merely the part of the case that dealt with the disposition to the son.
I found the husband’s evidence at times difficult to understand and the dealings that all parties had with businesses involving the employment of seasonal workers was confusing. No attempt was made to either value any of these businesses nor indicate the manner in which the businesses had truly been conducted.
I am not able to be satisfied as to the precise identity of the document the husband believed he was acting under when he purported to sell C Street.

The Law to be Applied

I turn then to the relevant section of the Act; s 106B which is in the following terms:
Transactions to defeat claims
(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
(1A) If:
(a) a party to a marriage, or a party to a de facto relationship, is a bankrupt; and
(b) the bankruptcy trustee is a party to proceedings under this Act;
the court may set aside or restrain the making of an instrument or disposition:
(c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the bankrupt; and
(d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
(1B) If:
(a) a party to a marriage, or a party to a de facto relationship, is a debtor subject to a personal insolvency agreement; and
(b) the trustee of the agreement is a party to proceedings under this Act;
the court may set aside or restrain the making of an instrument or disposition:
(c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the debtor; and
(d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
(2) The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order.
(3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
(4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.
(4AA) An application may be made to the court for an order under this section by:
(a) a party to the proceedings; or
(b) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or
(c) any other person whose interests would be affected by the making of the instrument or disposition.
(4A) In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1).
(5) In this section:
"disposition" includes:
(a) a sale or gift; and
(b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust.
"interest" :
(a) in a company includes:
(i) a share in or debenture of the company; and
(ii) an option over a share in or debenture of the company (whether the share or debenture is issued or not); and
(b) in a trust includes:
(i) a beneficial interest in the trust; and
(ii) the interest of a settlor in property subject to the trust; and
(iii) a power of appointment under the trust; and
(iv) a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and
(v) an interest that is conditional, contingent or deferred.
Notwithstanding the present location of this section within Part XIII of the Family Law Act, the Full Court in Coventry & Coventry[1] rejected the argument that s 106 was thus confined to use in relation to enforcement of orders. The Full Court was satisfied that the section continues to have the same scope as the previous s 85 to make orders which had the effect of returning property to the pool of assets available for distribution.
[1] (2004) FLC 93-184
I am satisfied there are a number of essential elements to be established before the discretion conferred by the section can be exercised. These elements I would identify as follows:
a)There must be proceedings under the Act;
b)There must be an instrument of disposition;
c)The instrument of disposition must be made by or on behalf of a party;
d)The instrument is made in order to defeat an existing order in the proceedings or irrespective of intention it is likely to defeat such an order.
Clearly the onus of proof in establishing that s 106B applies and thereafter that the Court should exercise its discretion in a particular way lies and remains with the applicant.
I then return to subparagraph (a) above. It is clear that in this present matter there are proceedings under the Act so as to meet that requirement.
It is clear from cases such as Johnson[2] that proceedings for property settlement can exist notwithstanding there is no property unless the application to set aside the transaction is successful.
[2] (2000) FLC 93-008
I turn then to (b). Clearly a memorandum of transfer, subsequently registered with the Registrar General’s department, could be in the absence of any further definition both an instrument or disposition as referred to in that section. In the marriage of Bassola[3] the word “disposition” was said to be given its ordinary meaning namely “any form of alienation”. I am satisfied that in this present case I should refer to the memorandum of transfer henceforth as the instrument in accordance with the section.
[3] (1985) FLC 91-623
Clearly in this case the instrument is made on behalf of the husband. Indeed the instrument purports to be executed by the husband on his own behalf and by him pursuant to power of attorney on behalf of the wife. I have no doubt that ingredient (c) is made out.
I turn then to paragraph (d). There are in my view two separate issues to be considered. Firstly; was the instrument made in order to defeat an existing or anticipated order in the proceedings? The expression “anticipated order” is a reference to an expectation that an order otherwise likely to be made may be defeated in whole or in part by the instrument.
Is the instrument, irrespective of such intention, likely to defeat any order? It is clear that the section is not confined to cases of sham transactions. It is implicit in s 106B that it is not necessary to demonstrate the instrument was intended to defeat an anticipated order. The decision of Geeley[4] made clear that it is sufficient to show that it is likely to defeat an anticipated claim or order.
[4] (1992) FLC 92-291
Thus it is clear that the disposition made need not be made with a deliberate intent or as a sham transaction to defeat an anticipated order. Rather it seems to me what one must examine is the effect of the transaction rather than any underlying intention.

Discussion

In this matter the wife’s case has always been that the transfer to the second respondent was in the nature of a sham with the express intention of putting that asset beyond her reach.
Both the first and second respondents deny this is so, asserting the transaction was a bona fide one and full value.
I have already found that I am not satisfied that the consideration consisted in part of the sum of $45,000, being a loan forgiven. I am satisfied that there was an actual consideration of $120,000.
On all of the evidence, I am not satisfied that the transaction whereby the property was transferred to the second respondent was done with the intention of defeating a possible order in the wife’s favour. I am satisfied that the husband and his son recognised and took advantage of an opportunity to transfer the property to the son for no monies other than the amount he borrowed by way of mortgage.
However whilst I find that the transfer was not made with intention to defeat, the section makes it plainly clear that it is the effect of the transaction which is determinative.
I have determined that the consideration for the transfer was $120,000. That amount was actually made available to the vendors, by means of funds borrowed by the second respondent by way of mortgage to the Commonwealth Bank. The money was applied as I have set out earlier in these reasons for judgment.
Thus I am satisfied that regardless of intention, the transfer of the property from the names of the applicant and first respondent into the name of the second respondent, and acknowledging the sum of $120,000 was actually paid, that transfer had the likelihood of defeating a claim by the wife against the entirety of the property.
Therefore I am satisfied the elements required to be established so as to in turn require the Court to exercise its jurisdiction as to whether or not to set the transaction aside have been made out.
I turn then to consider whether or not in the circumstances I should, in the exercise of my discretion set aside the transfer.
The wife for her part asserts that the property should be transferred back into the names of the wife and the husband’s legal personal representatives then arrangements should be made to transfer the property, unencumbered, to the wife. This would mean on that proposal that the second respondent would have the property taken from him but remain liable in its entirety for the balance of the loan.
As I have found, the bulk of the monies borrowed by the second respondent were utilised to extinguish the mortgage debt owed by the applicant and first respondent with a balance to which I have previously referred being paid by way of outgoings and an amount to the first respondent apparently on behalf of both the first and second respondents.
Mr Berry in his submissions puts that there would be no useful purpose served by transferring the property back to the joint names of the wife and the estate of the husband so as to constitute an asset available for distribution. He submits that the respondent would need to be reimbursed for monies paid by him in respect of the property by way of interest and by way of money paid for improvements which have not been subject of any particularised calculation. It may well be that it is impossible to do this. Mr Berry relies on Geeley (supra). In that case the trial judge set out a number of reasons why he would not exercise his discretion to set a distribution aside. Whilst they are not on all fours with the facts in this case, I am of view that they give some assistance.
In this case there was a delay between the transaction and the wife commencing her proceedings between July 2002 and December 2003. There is the undisputed evidence that the wife granted the husband a power of attorney to sell real estate owned by the parties or either of them and pay debts. The balance she understood was to be distributed equally between the parties.
As a matter of exercise of my discretion I am concerned as I have found that in this case the wife has not been completely frank with me in respect of her financial situation.
If I were to exercise my discretion to set the transfer aside then I would need have regard to the interests of the second respondent in accordance with the section.
The second respondent is clearly a “person interested”. As such he is entitled to an order for his protection. Deciding whether to make such an order, I am satisfied I must have regard to the surrounding circumstances.
I am not persuaded that it would be just and equitable for the loan taken out by the second respondent to be completely disregarded. Further, once the property was in his name, he made payments in respect of it from that point on that have not effectively been calculated so as to arrive at a sum certain.
In the circumstances of this case, I do not believe it would be appropriate to require the second respondent to transfer the property back into the names of the wife and his father’s estate, of which he is the legal personal representative.
I have come to the conclusion that in the particular circumstances of this case, it is open for me to deal with the matter in an entirely different fashion so as to do justice to all of the parties.
By this I mean that it is open to me to find that the property was sold at a significant undervalue; and for me to add back so as to create the pool of assets what I determine that undervalue to be.
In this case I believe that it would be appropriate in all the circumstances to add back any shortfall in payment of the purchase price, and I will return to this shortly, together with the amount clearly received by the husband of some $2,807.
To my mind there is no impediment to this course. The second respondent is a party to the proceedings in their entirety, not in my view simply the application to set aside the transfer. He is thus a person against whom order can be made. In that capacity I am satisfied that he is able to be bound by an order requiring that he pay a sum of money, if I determine it to be appropriate, to the estate of his late father and to the wife. In other words, I am treating him as liable to pay the undervalue on the transaction so as to create a pool of assets available for distribution. Further I am satisfied that I can then make orders for disbursal of those funds in favour of the wife and the husband’s estate once I have determined the appropriate proportions in which the pool of assets is to be divided.
I turn firstly to the question of underpayment by the second respondent.
I do not accept the evidence of the first respondent and the second respondent that they had some figure given to them by either an agent or a bank that would amount to an appropriate valuation of the property. I am satisfied that on proper enquiry they would have ascertained the correct value of the property as at the date of transfer to be $210,000.
I accept the evidence of Mr H that the property at the time of the transfer had a value of $210,000.
I have already found that I do not accept the evidence of the first and second respondents concerning the forgiveness of a loan. Accordingly I am satisfied that the undervalue was $90,000 ($210,000 less $120,000).
I believe that it is also proper for me to add to that the amount actually received by the husband on completion of the transaction $2,708 and some cents which I will round at $2,708.
These amounts together then, I am satisfied, constitute a pool of assets which I can deal with as being available for distribution between the estate of the first respondent and the applicant.
These figures together total $92,708. It is this amount which I am satisfied can be treated as being the net result of the transaction between the first and second respondents and thus available for distribution between the wife and the estate of the husband.
Accordingly the matter is one in which I must now apply the provisions of s 79 of the Family Law Act.

The Law to be Applied in Relation to Property Settlement

The provisions of section 79 of the Family Law Act define the Court’s power and obligations in determining applications for property settlement. The Court has a discretion to make orders altering the interests of parties in property, provided the Court is satisfied that such orders are appropriate, just and equitable.
The Court is obliged by the provisions of section 79(4) to take into account the following matters:-
a)The financial and non-financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them (sub-paragraphs (a) and (b));
c)The contribution made by a party to the marriage to the welfare of the family, including any contribution made in the capacity of homemaker or parent (sub-paragraph (c));
d)The effect of any proposed order upon the earning capacity of either party to the marriage (sub-paragraph (d));
e)The matters referred to in section 75(2) so far as they are relevant (sub-paragraph (e));
f)Any other order made under the Act affecting a party to a marriage or a child of the marriage (sub-paragraph (f));
g)Any child support payable (sub-paragraph (g)).
Accordingly, in assessing the entitlement of each of the parties to property settlement, there is both a retrospective element relating to the contributions of each of the parties and a prospective element relating to matters referred to in section 75(2).
In accordance with guidelines established through a series of leading decisions, the Court should determine the following matters on the evidence, that is:-
Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage.
Secondly, the Court must consider all relevant contributions of each of the parties and, where possible, the Court should assign an entitlement of each of the parties arising as a result of those contributions.
Thirdly, the Court should then consider the prospective components of the claims of each of the parties arising as a result of the provisions of section 75(2). The Court should then identify what alteration, if any, should be made to the entitlement of each of the parties earlier assessed on account of contributions as is deemed necessary having regard to the section 75(2) factors.

Contribution

In this case, and unusually, I have determined what the pool of assets is in the earlier part of this judgment. That pool is $92,708. This of course is what might be seen as all that remains of the property of the parties and certainly is all that is available for distribution in this present situation. However I am entitled to take into account the contributions made by each of the parties not only to a specific piece of property but to other property and indeed to the marriage generally.
When the parties first commenced cohabitation the husband owned in his own name a property in Queensland. That property was held in his own name and it was subject to a mortgage. He asserted that he carried out work on the property.
I have regard to the business dealings of the parties and particularly the husband. Whilst I am unable to ascertain the actual amounts of money the husband received net from the businesses he conducted, I am satisfied that for some years the business he carried out involving the provision of farm labour was one that supplied a reasonable standard of living to he and the wife. I am satisfied he paid an amount of money on behalf of the wife at the commencement of their relationship to extinguish a significant bill and thus permit her to leave Europe. I am satisfied that the husband generally applied monies received from his business for the benefit of himself and the wife. I am satisfied that for a period of time the husband provided support to the wife’s son; a factor that must in my view be recognised (see Robb & Robb[5]).
[5] (1995) FLC 92-555
I am satisfied that the husband’s earnings as I have indicated were applied for the benefit of the family. I am not alerted to any specific manner or way in which it is alleged the husband diverted income and I am not told that it is the wife’s case that there are monies hidden away so as to be placed out of the wife’s reach.
So far as the wife’s contribution is concerned, I am satisfied that she made financial contribution whilst an artist. I am satisfied that she was the person who carried out the homemaking duties and tasks on behalf of the family unit to the exclusion, almost entirely, of the husband.
I am satisfied that the wife performed manual work, some of it quite heavy in nature, in and around the various properties of the parties. I am satisfied that the wife worked at farm labouring tasks with the workers employed by the husband.
The marriage between the parties was not a long one.
The difficulty here is that I only have the one fund against which I can make orders.
However I have found that the wife made contributions directly by her labour to other properties owned by the husband.
A real difficulty that I have however is that the wife has not sought to attack any other transaction other than the C Street transfer to the second respondent.
Doing the best I can, there appear to be, on the husband’s own evidence, further sums of money received and dealt with by him. He asserts that he received some $35,000 from the sale of W property which he applied to reduce the mortgage on P Street. When P Street was sold, a figure of some $7,000 to $8,000 was produced (see Court Exhibit 1). I am thus satisfied that the wife’s contributions benefited the husband when he received these amounts of money. Accordingly, I believe the wife should be seen to be entitled by way of contribution to the pool of assets as now constituted to 65% of that pool.

Section 75(2) Factors

I turn then to the matters required to be considered under s 75(2) of the Act.
The wife is in her forties and is in reasonable health. The husband of course is now deceased. The wife conducts her own business. In this regard I am satisfied that she has not been completely frank with me in relation to the amounts she actually receives from that business. However I am satisfied that the husband whilst he was alive, chose not to make a complete disclosure of the workings of his business. Whilst I have said to the point of boredom I am unable to make any accurate assessment of what that business returned to him in net amounts, I am satisfied that it provided him, and to a lesser extent the wife, with a comfortable living and he has chosen not to give me proper details of that.
The wife is not responsible to support any person other than herself. The wife resides in rented accommodation. Until his death, the husband had the benefit of living in the C Street premises. There is no evidence given that he paid any rent or other monies to enable him to do this.
I am not satisfied under s 75(2)(ha) that the order I make will effect in any way the ability of any creditor to recover a debt.
So far as the duration of the marriage is concerned; the parties were married in May 1992 and separated in June 2001. It does not appear that the marriage had any effect on the capacity to either party to earn income either to the benefit or detriment of that party.
The wife gave evidence that whilst she shared accommodation with another person, she was not in any personal relationship with that person. This evidence was not challenged and I therefore find it is not a factor to be considered.
Under s 75(2)(n) I must take into account the terms of any order proposed to be made. I have indicated that I propose to distribute the existing pool of assets between the parties as to 65% to the wife and 35% to the estate of the husband.
In my view and having regard to what I have found to be the husband’s non-disclosure concerning his business assets, I am satisfied that having regard to the matters set out in Black & Kelner[6] and Weir & Weir[7], I ought not be unduly cautious in relation to an adjustment in this matter. In the circumstances of this case, I am satisfied that an adjustment of 10% in the wife’s favour is required.
[6] (l992) FLC 92-287
[7] (1993) FLC 92-338

Discussion

This means that the wife will receive 75% of the fund that I have found to be available.
However the two amounts must be dealt with in different ways. The amount of $90,000 is an amount to be paid by the second respondent, to an account in the name of the wife and the estate of the first respondent from his own funds and/or resources.
The amount of $2,708 is an amount to be paid by him, as the legal personal representative of his father’s estate, to the same fund in the name of the applicant and the estate of the first respondent being monies that the first respondent actually received.
I will then order that from the $90,000 so received, the wife is to be paid 75% thereof or $67,500. I will then order that from the amount of $2,708 the wife is to receive 75% thereof represented by a figure of $2,031.
In the event that payment of the sum of $90,000 is not made within a period of time sufficient to enable the second respondent to arrange or borrow funds, which I would assess at being three months, then I would order that the second respondent sell the C Street property within a further three months and pay from the proceeds of such sale the sum of $90,000 to the account to which I have above referred.
The lesser amount of $2,031 I believe I cannot require be paid from the second respondent’s funds. Rather if they are not paid within three months then the wife will need to take such steps by way of execution as she may be advised.
In the event that the husband does not pay the larger amount within six months of the date of these Orders, that is to say three months he has to raise the money and the further three months he has to sell the property and pay the required amount from the proceeds, then I will grant the wife liberty to apply in respect of an application to have herself appointed trustee for sale.
Setting out the orders I intend, it is necessary for me to stand back and consider whether the orders that I make are in all the circumstances just and equitable.
The fourth step I must have regard to in these matters is whether the orders made are just and equitable. This is a difficult matter. It is made more difficult by the death of the husband. It has not been helped by the length of time I have taken to deliver these reasons for judgment.
I have had the difficulty in this matter that I have never been satisfied that the parties have made a full and frank disclosure to me of their financial circumstances. In the circumstances of this case I am satisfied that the amount the wife is to receive is a proper amount which reflects her entitlement but also the requirement that the son’s legitimate interest in the C Street property be recognised.
At the same time it imposes upon the second respondent the necessity to make good his short payment at an earlier stage and thereafter to have that short payment, which will then represent the entirety of funds available for distribution, distributed particularly so far as the wife is concerned in an appropriate and proper manner. In all the circumstances I am satisfied that the orders I propose to make are just and equitable in all the unusual circumstances of this case. The orders I make therefore are set out hereinabove.

I certify that the preceding two-hundred-and-three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date: 16 August 2010

[2010] FamCA 719

13 August 2010

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