Perrin and Perrin (No.2) - [2018] FCCA 633

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRIN & PERRIN (No.2)

[2018] FCCA 633

Catchwords:
FAMILY LAW – Property orders.

Legislation:

Family Law Act 1975 (Cth)

Applicant:

MS PERRIN

Respondent:

MR PERRIN

File Number:

NCC 556 of 2015

Judgment of:

Judge Myers

Hearing date:

15 February 2018

Date of Last Submission:

15 February 2018

Delivered at:

Parramatta

Delivered on:

15 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Solicitors for the Applicant:

Mr Mitchell

Counsel for the Respondent:

Mr Weightman

Solicitors for the Respondent:

Mr Collett

ORDERS

The Court makes the following orders:

Within 28 days of the date of these orders, the husband shall do all such acts and things to pay the following;
(a)The joint (omitted) Bank credit card in the amount of $10,306.00.
(b)The joint loan with the (omitted) Bank (loan (omitted)) in the amount of $4,956.00.
(c)The wife’s (omitted) Bank overdraft in the amount of $3,228.00.
Simultaneous with the performance of orders 1.a. and 1.b. the parties shall do all such acts and things required to close the joint (omitted) credit card account and the joint loan with the (omitted) Bank (loan (omitted)).
Within 42 days of the date of these orders, the wife shall discharge the loans with the (omitted) Bank ((omitted)), (omitted) and (omitted) (“the Property A mortgages”) which are secured on Property A (“the Property A property”).
The husband shall sign all such documents required to facilitate the wife complying with order 3.
Simultaneously with the performance of order 3, the husband shall do all such acts and things that may be required to transfer to the wife all his right, title and interest in the Property A property.
Should the wife fail to comply with order 3;
(a)The Property A property shall be listed for sale by private treaty with such real estate agent as agreed between the parties and failing agreement within 14 days from the date of the wife’s failure to comply with order 3, the real estate agent will be as nominated by the Proper Officer of the Real Estate Institute or his nominee at the request of the parties or either of them;
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement, the list price will be as nominated by the real estate agent;
(c)The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and failing agreement, then the parties will instruct (omitted) to prepare contracts;
(d)The sale price of the property shall be such amount as is agreed between the parties and failing agreement, any offer to buy the property that is at least 95% of the list price shall be accepted by the parties as the sale price;
(e)The parties are to co-operate in every reasonable way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by…

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 Perrin and Perrin (No.2)

Details

AGLC: Perrin and Perrin (No.2) [2018] FCCA 633
Case: [2018] FCCA 633
Decision Date: 15 February 2018

CaseChat Overview and Summary

This case concerned orders made by Judge Myers in relation to property adjustment between a husband and wife. The dispute involved the division of various financial assets and liabilities, including bank credit cards, loans, a property, and superannuation entitlements. The court was required to determine how these assets and liabilities should be distributed between the parties and to make consequential orders to give effect to such a division.

The court's reasoning focused on the practical implementation of the property settlement. It detailed specific actions to be taken by each party within defined timeframes, such as the payment of joint debts and the discharge of mortgages. The orders also addressed the transfer of property interests and established a detailed mechanism for the sale of a property if one party failed to comply with their obligations, including provisions for private treaty sale, auction, and the distribution of sale proceeds. Furthermore, the court made specific orders concerning the division of superannuation entitlements, referencing relevant sections of the *Family Law Act 1975* and the *Family Law (Superannuation) Regulations 2001*, and binding the superannuation trustee.

The final orders stipulated that each party would retain property and liabilities in their possession to the exclusion of the other, except as otherwise provided. The court also granted the Registrar the power to execute documents on behalf of a party who failed to comply with the orders, pursuant to section 106A of the *Family Law Act 1975*. All outstanding applications for property adjustment and spousal maintenance were dismissed, and certain previous orders were discharged. Crucially, the operation of the final property orders was stayed pending the determination of the wife's appeal.

Orders

Orders of the court

The Court makes the following orders:

Within 28 days of the date of these orders, the husband shall do all such acts and things to pay the following;

(a) The joint (omitted) Bank credit card in the amount of $10,306.00.

(b) The joint loan with the (omitted) Bank (loan (omitted)) in the amount of $4,956.00.

Simultaneous with the performance of orders 1.a. and 1.b. the parties shall do all such acts and things required to close the joint (omitted) credit card account and the joint loan with the (omitted) Bank (loan (omitted)).

Within 42 days of the date of these orders, the wife shall discharge the loans with the (omitted) Bank ((omitted)), (omitted) and (omitted) (“the Property A mortgages”) which are secured on Property A (“the Property A property”).

The husband shall sign all such documents required to facilitate the wife complying with order 3.

Simultaneously with the performance of order 3, the husband shall do all such acts and things that may be required to transfer to the wife all his right, title and interest in the Property A property.

Should the wife fail to comply with order 3;

(a) The Property A property shall be listed for sale by private treaty with such real estate agent as agreed between the parties and failing agreement within 14 days from the date of the wife’s failure to comply with order 3, the real estate agent will be as nominated by the Proper Officer of the Real Estate Institute or his nominee at the request of the parties or either of them;

(b) The list price of the property shall be such amount as is agreed between the parties and failing agreement, the list price will be as nominated by the real estate agent;

(c) The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and failing agreement, then the parties will instruct (omitted) to prepare contracts;

(d) The sale price of the property shall be such amount as is agreed between the parties and failing agreement, any offer to buy the property that is at least 95% of the list price shall be accepted by the parties as the sale price;

(e) The parties are to co-operate in every reasonable way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;

(f) That upon agreement being reached for sale of the property, the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;

(g) In the event the Property A property is not sold by private treaty pursuant to this order on or before 3 months from the date the Property A property is listed on the market, then the husband and wife shall do all acts and sign all documents as are necessary to sell the Property A property by auction and the following shall apply;

(i) The Property A property shall be listed with the agent appointed under Order 1.1 (hereinafter called "the Auctioneer");

(ii) The parties shall execute all documents requested by the auctioneer for sale of the property by auction;

(iii) The reserve price of the Property A property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;

(iv) The wife shall pay to the auctioneer any sums requested for advertising or auction expenses and if the wife fails to pay such expenses, the husband shall pay such expenses;

(v) The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer and failing agreement, then the parties will instruct (omitted) to prepare contracts;

(vi) The parties shall co-operate in every way with the auctioneer in relation to the sale by auction, including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;

(vii) That the parties shall attend at the auction and negotiate with the highest bidder in good faith in the event of the reserve price not being reached;

(viii) The sale price of the Property A property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached, the sale price of the property shall be such amount as is agreed between the parties or failing agreement, any offer received after the auction to buy the property at a price that is at least 95% of the reserve price shall be accepted by the parties;

(ix) In the event that the Property A property is not sold at the auction pursuant to this order or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within 3 months, and in the event of no sale each subsequent 3 months until sale after the date of the first auction with the reserve price reduced by 5% at each subsequent auction.

(h) The proceeds of sale of the Property A property shall be paid in the following manner and priority;

(i) Payment of the agent's commission, auctioneer’s fees and advertising or other expenses, if any, payable on the sale;

(ii) Payment to the (omitted) Bank to discharge the Property A mortgages;

(iii) Payment to the husband of any expenses paid by him in accordance with order 5.g.iv;

(iv) Payment of the balance to the wife;

Pending the re-finance of the Property A property or the sale of Property A property, the wife shall indemnify the husband for any amount the mortgage exceeds $289,430.00.

That a base amount of $246,554.00 is allocated, as required by s.90MT(4) of the Family Law Act 1975, to Ms Perrin out of Mr Perrin’s interest in the (omitted) Superannuation Scheme.

That in accordance with section 90MT(1)(a) of the Family Law Act 1975;

(a) Ms Perrin is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b) Mr Perrin’s entitlement to payments out of their interest in the (omitted) Superannuation Scheme and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.

10.

That Trustee of the (omitted) Superannuation Scheme (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for Ms Perrin by clause 1 of this order; and

(b) Pay the entitlement whenever the Trustee makes a splittable payment out of Mr Perrin’s interest in the (omitted) Superannuation Scheme.

11.

That these orders have effect from the operative time and the operative time for this order is four business days after service of the order on the Trustee.

12.

That these orders bind the Trustee of the (omitted) Superannuation Scheme.

13.

Except as otherwise provided by these orders, each party shall retain all such property, liabilities and superannuation in their possession and control to the exclusion of the other party.

14.

In the event either party fails to sign any necessary documents or instruments or to do any acts required or contemplated by these orders to be done, with such failure continuing for 14 days, then the Registrar of the court shall pursuant to section 106A of the Family Law Act 1975, have the power to execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these orders.

15.

Any and all outstanding applications for property-adjustment and/or spousal maintenance are dismissed.

16.

Order 2 of the previous Orders made 14 August 2017 are discharged.

17.

The Court stays the operation of the final property Orders made 15 February 2018 pending determination of the appeal of the Applicant wife.

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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