Parsin & Parsin - [2007] FamCA 1458

FAMILY COURT OF AUSTRALIA

PARSIN & PARSIN

[2007] FamCA 1458

FAMILY LAW – PROPERTY SETTLEMENT – Contribution – Section 75(2) – Just and Equitable

Family Law Act 1975 (Cth)

Marriage of Hickey (2003) 30 Fam LR 355 at 370;
In the Marriage of Omacini (2005) 33 Fam LR 134;
In the Marriage of Rosati (1998) 23 Fam LR 288 at para 6.36; (1998) FLC 92-804;
Mallett v Mallett (1984) 9 Fam LR 449;
In the Marriage of Ferraro (1992) 16 Fam LR 1;
In the Marriage of Shewring (1987) l2 Fam LR 139;
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712;
In the Marriage of Zyk (1995) 19 Fam LR 797;
Whiteley and Whiteley (1992) FLC 92–304;
In the Marriage of Stay (1997) 21 Fam LR 626;
In the Marriage of Gould [1995] 20 Fam LR 1

APPLICANT:

Ms Parsin

RESPONDENT:

Mr Parsin

FILE NUMBER:

SYF

3495

2006

DATE DELIVERED:

November 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE:

8 & 9 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr D. Grieve QC with Mr G. O’Gorman
SOLICITOR FOR THE APPLICANT:	Owen Hodge Lawyers
COUNSEL FOR THE RESPONDENT:	Mr R. Lethbridge SC
SOLICITOR FOR THE RESPONDENT:	Coddington Lamont

Orders

That, forthwith upon completion of the pending sale of the property (presently held jointly by the parties) known as … E being the whole of the land comprised in certificate of title folio identifier …/SP… (the “[E] property”), the husband assume and retain responsibility for the pending shortfall (approximately $536,000 – including interest to completion date) concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) of the parties pursuant to registered mortgage …8 to the National Australia Bank secured over the E property (the “[E property] mortgage”).
That, forthwith upon completion of the pending sale of the property (presently held jointly by the parties) known as …, N being the whole of the land comprised in certificate of title folio identifier …/… (the “[N] property”), the husband assume and retain responsibility for the pending shortfall (approximately $28,000 – including interest to completion date) concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) of the parties pursuant to registered mortgage numbered …2 to National Australia Bank (the “[N property] mortgage”).
That, forthwith, the husband assume and retain responsibility concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) under the loan (presently a joint liability of the parties) procured for the purposes of assisting the child of the marriage, Mr B Parsin, represented by National Australia Bank loan account …1 (to approximately $134,000).
That, within sixty days of the making of this order, the husband do all things necessary to prepare and to make available to the wife’s solicitors a transfer to the wife in registrable form of the whole of the husband's right, title and interest in…

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 Parsin & Parsin

Details

AGLC: Parsin & Parsin [2007] FamCA 1458
Case: [2007] FamCA 1458
Decision Date: 1 November 2007

CaseChat Overview and Summary

This matter came before Judicial Registrar Loughnan concerning the division of property between the parties, Mr. and Mrs. Parsin. The dispute involved numerous properties, including the E property, N property, T property, K property, and several investment properties, as well as vehicles, company shareholdings, and various financial accounts and liabilities. The orders sought to resolve the financial relationship between the parties and distribute assets and liabilities.

The court was required to determine how the parties' various assets and liabilities, including mortgages, loans, company interests, and vehicles, should be divided and allocated between them. This involved establishing responsibility for outstanding debts, the transfer of property interests, and the discharge or refinancing of secured loans. The court also needed to address the sale of certain properties if specific conditions were not met and to ensure the effective implementation of its orders.

Judicial Registrar Loughnan made detailed orders to achieve a final division of the parties' financial affairs. The husband was ordered to assume responsibility for shortfalls on the E and N properties' mortgages and a loan for their child, Mr. B Parsin. The husband was also to transfer his interest in the T property to the wife, who would then indemnify him for associated liabilities and procure the discharge of the T property mortgage. Conversely, the wife was to transfer her interest in the K property to the husband, who would then pay her a sum of money and be responsible for the K property mortgage. In the event of non-compliance with these property transfers, provisions were made for the properties to be sold by public auction, with specific priorities for the distribution of sale proceeds. Furthermore, the parties were ordered to sell several investment properties by private treaty, with provisions for auction if sales were not completed within a specified timeframe. The wife was to resign from directorships and transfer her shareholdings in Parsin Group and P International to the husband, who would indemnify her for all liabilities related to these companies. The parties were also to transfer ownership of their respective vehicles, with indemnities for associated costs. Provisions were also made for the exchange of personal photographs and the removal of the wife's name from various bank accounts. The wife's interest in the Parsin Superannuation Fund was to be rolled over to a fund nominated by her. The orders stipulated that, except as otherwise provided, each party would retain property in their possession and be solely responsible for liabilities in their name. The Registrar was appointed to execute documents if a party failed to do so. The operation of these orders was stayed until a specified date.

Orders

Orders of the court

That, forthwith upon completion of the pending sale of the property (presently held jointly by the parties) known as … E being the whole of the land comprised in certificate of title folio identifier …/SP… (the “[E] property”), the husband assume and retain responsibility for the pending shortfall (approximately $536,000 – including interest to completion date) concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) of the parties pursuant to registered mortgage …8 to the National Australia Bank secured over the E property (the “[E property] mortgage”).

That, forthwith upon completion of the pending sale of the property (presently held jointly by the parties) known as …, N being the whole of the land comprised in certificate of title folio identifier …/… (the “[N] property”), the husband assume and retain responsibility for the pending shortfall (approximately $28,000 – including interest to completion date) concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) of the parties pursuant to registered mortgage numbered …2 to National Australia Bank (the “[N property] mortgage”).

That, forthwith, the husband assume and retain responsibility concerning obligations (not including obligations under any ‘all monies’ clauses or under any related or other loans) under the loan (presently a joint liability of the parties) procured for the purposes of assisting the child of the marriage, Mr B Parsin, represented by National Australia Bank loan account …1 (to approximately $134,000).

That, within sixty days of the making of this order, the husband do all things necessary to prepare and to make available to the wife’s solicitors a transfer to the wife in registrable form of the whole of the husband's right, title and interest in the property known as …, T being the whole of the land comprised in certificate of title folio identifier …/… (the “[T] property”).

That, upon and from transfer of the husband's interest in the T property pursuant to this order, the wife indemnify and keep indemnified the husband in respect of all liabilities and payments due and incurred in relation to all municipal and water rates, maintenance and insurance costs and any other expenditure associated with ownership of the T property, including all payments due under the T mortgage and payments due under any other relevant encumbrance secured over the T property.

That, upon transfer of the husband’s interest in the T property pursuant to this order, the wife, forthwith, do all acts and things necessary to procure discharge of registered mortgage …48 to National Australia Bank (the “[T property] mortgage”) and to refinance as necessary in her own name and without recourse to the husband’s name.

That, should the wife not comply with order 6 within the period specified or such further period upon which the parties may agree, despite relevant compliance (or readiness to comply) on the part of the husband, the parties shall forthwith do all things to procure that the T property be sold by public auction at the earliest practicable date and, in particular, shall:

(a) place the property with the office of L J Hooker situated closest to the T property (or such other auctioneers as may be agreed between the husband and the wife) (hereinafter called “the auctioneers”) for auction at the earliest practicable date;

(b) execute all documents requested by the auctioneers for the sale of the property;

(c) request the auctioneers to recommend a reserve price to be placed on the property for the purpose of the auction sale and to accept such recommended reserve price;

(d) pay to the auctioneers any sums requested for advertising expenses in relation to the auction;

(e) attend at the auction sale or sales and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;

(f) execute contracts for sale;

(g) cooperate in every way with the auctioneers in relation to the auction of the T property; and

(h) execute all other documents necessary to complete the auction sale.

That, if the above paragraph becomes operative, the parties do all things necessary to procure that, upon completion of the auction sale of the T property, the proceeds of sale shall be paid in the following manner and priority:

(a) in payment of the amount required to discharge the T property mortgage and any other relevant encumbrance secured over the T property;

(b) in payment of agent's commission and auction expenses (if any) due upon the sale;

(d) in payment of the balance to the wife.

That, within sixty days of the making of this order, the wife do all things necessary to transfer to the husband the whole of the wife’s right, title and interest in the property known as …, K being the whole of the land comprised in certificate of title folio identifier …/SP… (the “[K] property”).

10.

That forthwith upon the transfer of the K property the husband pay to the wife $162,715.45.

11.

That, upon and from transfer of the wife’s interest in that property the husband indemnify the wife and keep her indemnified in respect of all liabilities and payments due and incurred in relation to all municipal and water rates, maintenance and insurance costs and any other expenditure associated with ownership of the property including all payments due under registered mortgage …9 to National Australia Bank (“the [K property] mortgage”).

12.

That, upon transfer of the wife’s interest in the K property pursuant to this order, the husband, forthwith, do all acts and things necessary to procure discharge of the said mortgage and to refinance borrowings as necessary in his own name and without recourse to the wife’s name.

13.

That, should the husband not comply with both order 10 and order 12 within the period specified or such further period upon which the parties may agree, despite relevant compliance (or readiness to comply) on the part of the wife, the parties shall forthwith do all things to procure that the K property be sold by public auction at the earliest practicable date and, in particular, shall:

(i) List the property for sale by auction an auctioneer agreed between the Husband and the Wife and failing such agreement within 14 days of the default, with an auctioneer nominated by the President of the Real Estate Institute of Western Australia for auction at the earliest practicable date;

(j) execute all documents requested by the auctioneers for the sale of the property;

(k) request the auctioneers to recommend a reserve price to be placed on the property for the purpose of the auction sale and to accept such recommended reserve price;

(l) pay to the auctioneers any sums requested for advertising expenses in relation to the auction;

(m) attend at the auction sale or sales and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;

(n) execute contracts for sale;

(o) cooperate in every way with the auctioneers in relation to the auction of the K property; and

(p) execute all other documents necessary to complete the auction sale.

14.

That, if the above paragraph becomes operative, the parties do all things necessary to procure that, upon completion of the auction sale of the K property, the proceeds of sale shall be paid in the following manner and priority:

(a) in payment of the amount required to discharge the K property mortgage and any other relevant encumbrance secured over the K property;

(b) in payment of agent's commission and auction expenses (if any) due upon the sale;

(d) In payment of any Capital Gains Tax obligation arising from the sale;

(e) in payment to the wife of $162,715.45; and

(f) In payment of the balance, if any, to the husband.

15.

That, within sixty days of the making of this order, or within such further time as the parties may agree the Husband and the Wife do all such acts and things and sign all such documents as may be required to sell the following properties for sale by private treaty:

(1) …, I (1), being the whole of the land more particularly described in Certificate of Title …/SP… ("[I (1)] Property");

(2) …, I (2), being the whole of the land more particularly described in Certificate of Title …/SP… ("[I (2)] Property");

(3) …, I (3), being the whole of the land more particularly described in Certificate of Title folio identifier …/… ("[I (3)] Property");

(4) …, I (4), being the whole of the land more particularly described in Certificate of Title folio identifier …/… ("[I (4)] Property");

(5) …, I (5), being the whole of the land more particularly described in Certificate of Title …/… ("[I (5)] Property");

(6) …, I (6), being the whole of the land more particularly described in Certificate of Title …/… ("[I (6)] Property").

(hereinafter referred to as the "Investment Properties")

16.

The listing prices for the Investment Properties shall be as agreed between the parties and if there is no agreement within 14 days in respect of the listing price of any of the Investment Properties the listing price for the subject property shall be as advised by a valuer nominated by the parties, or failing agreement as to a valuer within 7 days, by a valuer nominated by the President of the Real Estate Institute of Western Australia or his/her equivalent in respect of the I (1) Property and I (2) Property and by the President of the Real Estate Institute of Queensland, or his/her equivalent, in respect of the remaining Investment Properties, with the Husband to pay the costs of any such valuations and the Wife's share of half of these costs to be paid to the Husband from the proceeds of sale of each of the Investment Properties and the following further action shall be taken by each of the parties to effect these sales:

16.1 Each of the Investment properties shall be listed for sale by private treaty with real estate agents as agreed by the Husband and the Wife and failing such agreement within 14 days of the date of these orders, by real estate agents nominated by the President of the Real Estate Institute of Western Australia, or his/her equivalent, in respect of the I (1) Property and I (2) Property and by the President of the Real Estate Institute of Queensland, or his/her equivalent, in respect of the remaining Investment Properties;

16.2 In the event that any of the Investment Properties have not been sold by or before a date three (3) months from the date of these orders, then the Husband and the Wife shall do all acts and things and sign all such documents necessary to procure a sale by public auction of the each of the Investment Properties with such auctions to be upon the following terms:

(a) The parties are to retain the services of an auctioneer to auction each of the Investment Properties by public auction at the earliest possible date but not later than six (6) weeks from the expiration of three (3) months from the date of these orders;

(b) The reserve price shall be as agreed upon by the parties, or failing agreement after 14 days, in accordance with order 16 above;

(c) The parties shall execute all documents requested by the real estate agents and/or auctioneers for the sale of the said properties;

(d) The Husband shall pay to the auctioneers and/or real estate agents any sums requested for the advertising expenses or any other expenses in relation to the said auctions, the Wife to refund to the Husband such costs upon sale;

(e) The parties shall co-operate in every way with the real estate agents and/or auctioneers in relation to the auctions of the said Investment Properties including but not limited to providing all keys necessary to obtain entry to the said properties;

(f) The parties shall attend each of the auctions and negotiate with the highest bidders in the event of the reserve price not being reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;

(g) The parties shall execute any contracts of sale;

(h) The parties shall execute all other documents necessary to complete the sales;

(i) In the event that any of the Investment Properties is not sold by auction or by private negotiation within fourteen (14) days after the said auction then the Husband and the Wife shall do all acts and things and sign all necessary documents and the Husband shall pay all moneys necessary to procure a second auction within a further five (5) weeks of the date of the first auction, at a reserve price ten percent (10%) less than the reserve price of the first auction, otherwise the auction shall be upon the same terms and conditions as applied to the first auction.

16.3 Upon completion of each sale of each of the Investment Properties in accordance with paragraphs 2.1 and 2.2, the proceeds of the sale be applied as follows:

(a) firstly, to discharge the following mortgage(s)

i. …57 to National Australia Bank (the “[I (1) property] mortgage”);

ii. …58 to National Australia Bank (the “[I (2) property] mortgage”);

iii. …96 to National Australia Bank (the “[I (3) property] mortgage”);

iv. …98 to National Australia Bank (the “[I (4) property] mortgage”);

v. …52 to National Australia Bank (the “[I (5) property] mortgage”); and

vi. …50 to National Australia Bank (the “[I (6) property] mortgage”); and

vii. any other encumbrances affecting the E Investment Property or the N Investment Property;

(b) secondly, to pay all costs, commissions and expenses of the sale including the repayment of costs of any valuations and auction expenses advanced by either party and to pay any council and water rates and maintenance levies outstanding in respect of each of Investment Properties;

i) Costs of sale of the E Investment Property, if any;

ii) Costs of sale of the N Investment Property, if any;

(d) fourthly, in the payment of any unpaid capital gains tax liability of the parties associated with the sales of the investment properties listed in order 16 above or with the sales of the E or N investment properties;

(e) fifthly, in repayment to the husband of any moneys paid or owed by him in meeting the obligations imposed on him pursuant to orders 1 and 2 above;

(f) Sixthly, in payment of the balance to the wife.

17.

That, forthwith, the wife do all things necessary to resign as director and/or office-holder of Parsin Group Pty Limited (ACN …) (“[Parsin] Group”) and/or of P International Pty Limited (ACN …) (“[P International]”) and transfer the whole of her shareholding in Parsin Group and P International to the husband or to his nominee or nominees.

18.

That, within fourteen days of the making of this order, the wife provide to the husband, via his solicitor, originals or copies of all financial statements, records or documents relating to Parsin Group and P International that are presently in the possession of the wife.

19.

That, forthwith, the husband indemnify and keep indemnified the wife in respect of all liability arising in connection with Parsin Group and/or P International which the wife may have whether now or in the future and whether alone, jointly or severally with the husband and/or with any other person and/or company including, without limiting the forgoing:

(a) liability to Parsin Group or to P International under any loan account;

(b) liability to any creditor pursuant to any guarantee or indemnity;

(d) any taxation or taxation-related liability, fine, interest or penalty.

20.

That, forthwith, the husband do all things necessary to transfer to the wife any interest he may have in the Honda vehicle registered … (the “Honda”).

21.

That, upon and from transfer of the husband’s interest in the Honda, the wife indemnify and keep indemnified the husband in respect of all registration, maintenance and insurance costs and any other costs associated with ownership of the Honda including all payments and charges due under any relevant encumbrance.

22.

That, forthwith, the wife do all things necessary to transfer to the husband any interest she may have in the Mazda vehicle registered … (the “Mazda”).

23.

That, upon and from transfer of the wife’s interest in the Mazda, the husband indemnify and keep indemnified the wife in respect of all registration, maintenance and insurance costs and any other costs associated with ownership of the Mazda including all payments and charges due under any relevant encumbrance.

24.

That, as soon as is practicable, both parties do all things necessary to provide to the other party or to the other party’s nominee all available photographs, negatives, home movie films or videos relating to the period since 1982 and to equally and promptly meet the cost of copying those items or such of those items as are selected by the other party.

25.

That, forthwith, both parties do all things necessary to remove obligations and signing and other rights and responsibilities of the wife from the following accounts:

viii. National Australia Bank account …45;

ix. National Australia Bank account …03;

x. National Australia Bank account …35;

xi. National Australia Bank account …24;

xii. National Australia Bank account …32;

xiii. National Australia Bank account …13;

xiv. National Australia Bank account …94;

xv. National Australia Bank account …99;

xvi. National Australia Bank account …14; and

xvii. National Australia Bank account …10.

26.

That within thirty days of the date of these orders or such further time as the parties agree the husband and wife do all things and sign all documents necessary to cause Parsin Group Pty. Limited as the trustee of the Parsin Superannuation Fund to roll-over the wife’s interest in that fund to a fund nominated by her.

27.

That, except as otherwise provided herein, each party respectively be and remain entitled to the exclusion of the other to all property (including respective superannuation entitlements, respective bank deposits, respective listed and unlisted shareholdings, the husband’s leave entitlements and the husband’s whole of life insurance policy) now in that party’s possession, control or name.

28.

That, except as otherwise provided herein, each party be and remain solely responsible in relation to any and all liabilities (including respective loans from friends and family and respective credit card liabilities) presently in the name of each of them respectively.

29.

That the parties do all things and execute all documents and instruments necessary to give effect to this order.

30.

That, if any party refuses or neglects to sign (within fourteen days of a written request to so do) any documents necessary to give effect to the terms of this order, the Registrar of the Sydney Registry of the Family Court of Australia be hereby appointed pursuant to the provisions of section 106A of the Family Law Act to execute such documents on behalf of any or either party as are necessary to give effect to this order.

31.

The operation of these orders is stayed until 4.00 pm on 20 December 2007 and leave is granted to both parties to re-list these proceedings by arrangement with each other and the Associate to Judicial Registrar Loughnan in relation to the form or implementation of these orders or in relation to costs.

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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