PALLISTER & DONNELLY - [2017] FamCA 86

FAMILY COURT OF AUSTRALIA

PALLISTER & DONNELLY

[2017] FamCA 86

FAMILY LAW – PROPERTY SETTLEMENT – Where both parties contended for adjustment of their property interests – Where each party submitted for their superannuation interests to be treated as property – Where both parties acknowledged their contributions throughout the relationship should be assessed on a global basis – Where the respondent is terminally ill and will soon die – Where, for the remainder of his life, he will have no income other than interest paid on bank accounts – Where the applicant is in good health and remains in full-time employment – Where the applicant seeks an adjustment in her favour because the respondent’s imminent death renders his future needs negligible – Concluded a four percent differential in the parties’ percentage entitlements, favouring the respondent, is appropriate

FAMILY LAW – PROPERTY – Contributions – Value of superannuation – Expert evidence – Where the respondent’s only capital contribution at or about the commencement of the parties’ relationship was his superannuation interest, the then value of which was in dispute – Value construed consistently with the respondent’s admissions in past proceedings against his former spouse

Family Law Act 1975 (Cth) ss 79, 90SF, 90SM

Family Law Rules 2004 (Cth)

Bevan & Bevan (2013) 49 Fam LR 387
Bourke v Bourke [1998] FamCA 69
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Grace v Grace [2012] NSWSC 976
Marriage of Coghlan (2005) 33 Fam LR 414
Norbis v Norbis (1986) 161 CLR 513
Parrott v Public Trustee of NSW (1994) FLC 92-473
Pierce v Pierce (1999) FLC 92-844
Stanfordv Stanford (2012) 247 CLR 108
Tasmanian Trustees Ltd & Gleeson (1990) FLC 92-156
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

APPLICANT:

Ms Pallister

RESPONDENT:

Mr Donnelly

FILE NUMBER:

CRC

110

2014

DATE DELIVERED:

23 February 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

5 & 6 December 2016 & 13, 14 &15 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duane

SOLICITOR FOR THE APPLICANT:

John R Quinn & Co

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Lynn & Rowland Lawyers

Orders

The Respondent is declared the sole legal and beneficial owner (as between the parties) of the real property situated at and commonly known as B Street, C Town, NSW (comprising Folio Identifier …) (“the property”) and the Applicant shall forthwith do all such acts and things and sign all documents as may be necessary to transfer to the Respondent all her right, title and interest in the property.
The Respondent shall indemnify and keep indemnified the Applicant against any and all past and future rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the property.
The Applicant is declared the sole legal and beneficial owner (as between the parties) of the Respondent’s shareholding in D Pty Ltd and the Respondent shall forthwith do all such acts and things and sign all such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PALLISTER & DONNELLY [2017] FamCA 86
Case: [2017] FamCA 86
Decision Date: 23 February 2017

CaseChat Overview and Summary

In this matter before Austin J of the Family Court of Australia, the parties, Pallister and Donnelly, sought an adjustment of their property interests. Both parties proposed that their respective superannuation interests be treated as property. The central dispute arose from the applicant's contention that the respondent's imminent terminal illness and consequent negligible future needs warranted a greater adjustment in her favour, given her good health and continued full-time employment. The parties agreed that their contributions throughout the relationship should be assessed on a global basis.

The court was required to determine the appropriate division of the parties' property, including their superannuation interests, in light of the respondent's terminal illness and the applicant's ongoing employment. A key legal issue involved valuing the respondent's superannuation interest at the commencement of the relationship, which was disputed. The court considered expert evidence and construed the value of this interest consistently with the respondent's admissions in prior proceedings against his former spouse.

Austin J concluded that a four percent differential in the parties' percentage entitlements, favouring the respondent, was appropriate. This adjustment was made despite the respondent's terminal illness, acknowledging the parties' agreed global assessment of contributions and the specific valuation of the respondent's initial superannuation interest. The court's reasoning implicitly balanced the parties' past contributions with their future needs, taking into account the unique circumstances presented by the respondent's prognosis. The orders detailed a comprehensive property settlement, including the transfer of real property and shareholdings, the sale of jointly owned properties, and the distribution of sale proceeds, with the respondent's superannuation fund to receive the net balance from the sale of certain properties.

Orders

Orders of the court

The Respondent is declared the sole legal and beneficial owner (as between the parties) of the real property situated at and commonly known as B Street, C Town, NSW (comprising Folio Identifier …) (“the property”) and the Applicant shall forthwith do all such acts and things and sign all documents as may be necessary to transfer to the Respondent all her right, title and interest in the property.

The Respondent shall indemnify and keep indemnified the Applicant against any and all past and future rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the property.

The Applicant is declared the sole legal and beneficial owner (as between the parties) of the Respondent’s shareholding in D Pty Ltd and the Respondent shall forthwith do all such acts and things and sign all such documents as may be necessary to:

(a) Transfer to the Applicant all his right, title and interest in such shareholding;

(b) Resign any office he holds in D Pty Ltd;

(c) Indemnify and keep indemnified the Applicant against any liability in relation to or arising out of his shareholding in or directorship of D Pty Ltd; and

(d) If and when called upon by the Applicant in writing to do so, assist in the removal of the encumbrances (including, but not limited to, dealing numbers …34, …74, and …80) registered on the title of any real property owned by D Pty Ltd, including the real properties situated at and commonly known as the land adjoining E Street, F Town, NSW (being Lots 1 & 2 in DP …, Lots 3, 4, 5, 6 & 7 in DP …, and Lot 8 in DP …).

The parties shall forthwith do all such acts and things and sign all such documents as may be necessary to cause G Pty Ltd, as trustee for the G Superannuation Fund, to sell the real property situated at and commonly known as E Street, F Town, NSW (being Lots 9 & 10 in DP … and Lot 11 in DP …) (“the properties”) upon the following terms and conditions.

For the purpose of implementation of Order 4 hereof:

(a) Mr H, chartered accountant of I Town, NSW (or such other person upon whom the parties may agree in lieu thereof) is appointed as the trustee for sale (“the trustee”);

(b) The properties shall be listed for sale with the agent/s agreed between the parties, but in default of their agreement, the agent/s selected by the trustee;

(c) The solicitors acting on the sale shall be those agreed between the parties, but in default of their agreement, the solicitors selected by the trustee;

(d) The properties shall be listed for auction sale within 3 months of the date of these orders;

(e) The auctioneer, in the event of disagreement between the parties, shall be the auctioneer chosen by the trustee;

(f) The reserve price shall be as agreed between the parties, but in default of their agreement, the reserve price nominated by the auctioneer;

(g) In the event the properties are not sold by auction, or private negotiation within a further seven days, then the properties shall be submitted to successive auctions within further 3 months periods until sold, otherwise on the same terms and conditions as applied to the first auction;

(h) The parties are restrained from charging, mortgaging, or otherwise further encumbering the properties; and

(i) The Applicant shall do all such acts and things and sign all documents as may be necessary to remove any caveat lodged by her (including, but not limited to, dealing number AK…) on the title to the properties.

Upon completion of the sale of the properties pursuant to Orders 4 and 5 hereof, the parties shall do all such acts and things and sign all documents as may be necessary to ensure disbursement of the sale proceeds as follows:

(a) First, to pay all costs, commissions, and expenses of the sale, including but not limited to the costs and disbursements of the trustee, the costs and disbursements of the solicitors, the costs and commissions of the real estate agent/s and auctioneer, any Council and water rates outstanding in respect of the properties, and any moneys outstanding under any mortgage registered on title to the properties; and

(b) Secondly, to pay the balance into the account of the G Superannuation Fund nominated in writing by the authorised officer of G Pty Ltd for the beneficial interest of the Respondent.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant; and

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia in the Newcastle registry is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.

Any and all other outstanding applications are dismissed.

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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