PELTON & BANBURY - [2019] FamCA 757

FAMILY COURT OF AUSTRALIA

PELTON & BANBURY

[2019] FamCA 757

FAMILY LAW – PROPERTY – INTERIM PROPERTY – SALE OF ASSETS – terms of sale – where the wife seeks realisation of certain assets of the relationship – where the husband seeks to keep such assets at a reduced price as part of his final property entitlements – orders to list the assets for sale at full price pending final determination of the proceedings.

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION TO REOPEN – where husband seeks leave to reopen submissions already put before the court and subject of determination – application dismissed.

Family Law Act 1975 (Cth)

Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300
Gaspaldi & Gaspaldi [2008] FamCAFC 134
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Summitt & Summit and Ors (Re-opening) [2009] FamCA 365

APPLICANT:

Ms Pelton

RESPONDENT:

Mr Banbury

FILE NUMBER:

MLC

10051

2018

DATE DELIVERED:

18 October 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

7 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC

SOLICITOR FOR THE APPLICANT:

Hargreaves Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Mort of counsel

SOLICITOR FOR THE RESPONDENT:

Farrell Family Lawyers

Orders

Sale of Motor Vehicles, Boat & Jet Ski

That the parties do all such acts and things and sign all such documents as are required to appoint B Business or such other automotive sales group as recommended by B Business, or as otherwise agreed between the parties in writing, to market the Motor Vehicle 2 for sale on the following basis:
(a)The listing price shall be $190,000 unless otherwise agreed in writing;
(b)By 4.00 pm on 1 November 2019 the husband shall deliver the Motor Vehicle 2 in good working order and neat and clean condition to B Business or such other automotive sales group appointed to market the Motor Vehicle 2;
(c)The Husband shall co-operate with the selling agent in relation to the marketing of the Motor Vehicle 2 including but not limited to making the keys, manuals and service books available;
(d)The Husband and Wife shall each be at liberty to contact the selling agent;
(e)Upon the settlement of the sale, the proceeds be applied:
(i) Firstly, to pay the costs, commissions and expenses of the sale;
(ii) Secondly, to pay down the Commonwealth Bank account #…08.
That the parties do all such acts and things and sign all such documents as are required to cause the Motor Vehicle 1, the Boat and the Jetski to be marketed for sale on the following basis:

(a)The parties shall do all such acts and things and sign all such documents as are required to cause B Business or such other automotive sales group as recommended by B Business or otherwise agreed between the parties in writing to list and market them for sale;
(b)The listing prices shall be:
(i) $56,000 for the Motor Vehicle 1 unless otherwise agreed 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 PELTON & BANBURY

Details

AGLC: PELTON & BANBURY [2019] FamCA 757
Case: [2019] FamCA 757
Decision Date: 18 October 2019

CaseChat Overview and Summary

In the matter of *Pelton & Banbury*, heard before Macmillan J, the wife sought the realisation of certain relationship assets, specifically a motor vehicle, a boat, and a jet ski. The husband, however, wished to retain these assets as part of his final property entitlements, albeit at a reduced price. The core of the dispute therefore concerned the immediate disposition of these valuable assets pending the final determination of the property settlement proceedings.

The court was required to determine whether to order the sale of the specified assets at their full market value, as sought by the wife, or to allow the husband to retain them at a reduced valuation as part of his final property division. Additionally, the court considered an application by the husband to reopen submissions that had already been put before it and were subject to determination.

Macmillan J ordered that the motor vehicle, boat, and jet ski be listed for sale at specified prices, with the husband required to deliver them in good working order and clean condition to a nominated sales group by a set date. The proceeds of sale were to be applied first to sale costs and commissions, and then to reduce specific bank debts or be held in a joint account pending further order. The question of the husband's entitlement to retain these assets as part of his property settlement was reserved for trial. The husband's application to reopen submissions was dismissed.

Orders

Orders of the court

Sale of Motor Vehicles, Boat & Jet Ski

That the parties do all such acts and things and sign all such documents as are required to appoint B Business or such other automotive sales group as recommended by B Business, or as otherwise agreed between the parties in writing, to market the Motor Vehicle 2 for sale on the following basis:

(a) The listing price shall be $190,000 unless otherwise agreed in writing;

(b) By 4.00 pm on 1 November 2019 the husband shall deliver the Motor Vehicle 2 in good working order and neat and clean condition to B Business or such other automotive sales group appointed to market the Motor Vehicle 2;

(c) The Husband shall co-operate with the selling agent in relation to the marketing of the Motor Vehicle 2 including but not limited to making the keys, manuals and service books available;

(d) The Husband and Wife shall each be at liberty to contact the selling agent;

(e) Upon the settlement of the sale, the proceeds be applied:

(i) Firstly, to pay the costs, commissions and expenses of the sale;

(ii) Secondly, to pay down the Commonwealth Bank account #…08.

That the parties do all such acts and things and sign all such documents as are required to cause the Motor Vehicle 1, the Boat and the Jetski to be marketed for sale on the following basis:

(a) The parties shall do all such acts and things and sign all such documents as are required to cause B Business or such other automotive sales group as recommended by B Business or otherwise agreed between the parties in writing to list and market them for sale;

(b) The listing prices shall be:

(i) $56,000 for the Motor Vehicle 1 unless otherwise agreed in writing;

(ii) $85,000 for the Boat unless otherwise agreed in writing; and

(iii) $15,500 for the Jetski unless otherwise agreed in writing.

(c) By 4.00 pm on 1 November 2019 the husband shall deliver the Motor Vehicle 1, Boat and Jetski in good working order and neat and clean condition to B Business or such other sales group appointed to market the Motor Vehicle 1, the Boat and the Jetski;

(d) The Husband shall co-operate with the selling agent in relation to the marketing of the Motor Vehicle 1, the Boat and the Jetski including but not limited to making the keys and any manuals and service books available;

(e) The Husband and Wife shall be at liberty to contact the selling agent in relation to the sales;

(f) Upon the settlement of the sale of the Motor Vehicle 1, the proceeds be applied:

(i) Firstly, to pay the costs, commissions and expenses of the sale; and

(ii) Secondly, to pay down the loan in favour of the Commonwealth Bank account #…07.

(g) Upon the settlement of the sale of the Boat and the Jetski, the proceeds be applied:

(i) Firstly, to pay the costs, commissions and expenses of the sale; and

(ii) Secondly, the balance then remaining be paid into an interest bearing account in the joint names of the parties held by Morgan Legal until further order.

That the question of whether the Husband be entitled to retain the Motor Vehicle 2, the Motor Vehicle 1, the Boat and/or the Jetski as part of his entitlement to property settlement be otherwise reserved for determination at Trial.

All extant interim applications be otherwise dismissed and removed from the list of cases awaiting hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.