Pethridge and Pethridge - [2008] FamCA 775

FAMILY COURT OF AUSTRALIA

PETHRIDGE & PETHRIDGE

[2008] FamCA 775

FAMILY LAW - PROPERTY SETTLEMENT – Pool of assets – assets acquired after separation – Contributions – equal to separation, impact of contributions after separation in long marriage – Adjustment for other matters – very large imbalance in earning capacities, husband re-partnered – Just and equitable

Family Law Act 1975 (Cth) ss 75 and 79

In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Gaunt & Scanlan (2007) FLC 93-319; (2007) 37 Fam LR 428
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) 12 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
Clauson and Clauson (1995) FLC 92-595; (1994) 18 FamLR 693

APPLICANT:

Mr Pethridge

RESPONDENT:

Ms Pethridge

FILE NUMBER:

SYC

6689

2007

DATE DELIVERED:

12 September 2008

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATE:

7 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr G. Foster
SOLICITOR FOR THE APPLICANT:	McDonell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT:	Mr J. Millar
SOLICITOR FOR THE RESPONDENT:	Anthony Ziade & Associates

Orders

Each party shall take all necessary steps and execute all necessary documents forthwith to cause the property situated and known as P property, being the whole of the land in folio identifier …/… (“the home”) to be listed for sale by private treaty on the following basis:
(a) The property will be listed with such agent as the parties agree to appoint and in default of agreement as to such agent within fourteen days after this order comes into effect, with such agent as the president of the Real Estate Institute of New South Wales or his nominee appoints, the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due
(b) The parties will list the home for sale at a price as may be agreed upon by the parties, but failing agreement within seven days at the price of $600,000.00;
(c) The parties will each cooperate in every way with the agent including but not limited to:
(i) Making the key available to the agent;
(ii)Allowing inspection of the home at all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)Ensuring that the home including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(v)Signing all documents requested by the agent in relation to the listing for sale of the home except a contract or agreement for sale which has not been authorised by the…

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 Pethridge and Pethridge

Details

AGLC: Pethridge and Pethridge [2008] FamCA 775
Case: [2008] FamCA 775
Decision Date: 12 September 2008

CaseChat Overview and Summary

This matter concerned orders made by Judicial Registrar Loughnan regarding the property settlement between the parties, Pethridge and Pethridge. The dispute centred on the sale of the parties' home, the distribution of sale proceeds, and the division of other assets and liabilities.

The court was required to determine the terms and conditions under which the parties' home would be listed for sale, including the method of sale (private treaty or auction), the setting of a sale price or reserve price, and the responsibilities of each party in facilitating the sale. Further issues included the priority of payments from the sale proceeds, the wife's sole use and occupation of the home pending sale, and the husband's obligation to pay a property settlement sum. The court also addressed the transfer of specific assets, including a life insurance policy, a caravan, and shares, as well as the closure of a joint bank account and indemnification for taxation liabilities.

Judicial Registrar Loughnan ordered that the home be listed for sale by private treaty, with specific provisions for agent appointment, pricing, and cooperation between the parties. If unsold after three months, the property was to be listed for auction, with further provisions for a reserve price and subsequent negotiation or re-auction. The proceeds of sale were to be applied first to sale costs, then agent and valuer fees, mortgage discharge, rates, and finally, any balance was to be paid to the wife. The wife was granted sole occupation of the home pending sale, with responsibility for outgoings and maintenance. The husband was ordered to pay a sum of $167,000 to the wife as property settlement, and a further adjustment was to be made based on the net sale proceeds of the home relative to $600,000. The orders also detailed the transfer of a life insurance policy, a caravan, and shares, the closure of a joint bank account, and the husband's indemnification for taxation on joint Citibank funds. Each party was declared the owner of personalty in their possession, except as otherwise provided. The operation of the orders was stayed for 14 days, with liberty to apply.

Orders

Orders of the court

Each party shall take all necessary steps and execute all necessary documents forthwith to cause the property situated and known as P property, being the whole of the land in folio identifier …/… (“the home”) to be listed for sale by private treaty on the following basis:

(a) The property will be listed with such agent as the parties agree to appoint and in default of agreement as to such agent within fourteen days after this order comes into effect, with such agent as the president of the Real Estate Institute of New South Wales or his nominee appoints, the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due

(b) The parties will list the home for sale at a price as may be agreed upon by the parties, but failing agreement within seven days at the price of $600,000.00;

(i) Making the key available to the agent;

(ii) Allowing inspection of the home at all reasonable times requested by the agent;

(iii) Doing or saying nothing to hinder or prevent a sale being effected;

(iv) Ensuring that the home including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

(v) Signing all documents requested by the agent in relation to the listing for sale of the home except a contract or agreement for sale which has not been authorised by the parties solicitors.

(d) The parties will each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated in (b) above;

(e) The wife’s solicitor will have the primary conduct of the sale on behalf of both parties provided the husband’s solicitor will be entitled to be independently advised and represent the husband in respect of the sale and all matters arising thereon and any costs properly payable to the husband’s solicitor will be and form part of the legal costs of sale and be deducted from the proceeds;

(f) Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the home or to any commission;

(g) In the event that the home remains unsold for a period of three months from the date upon which it was first listed for sale the parties will list the home for sale by public auction with such agent as the parties agree to appoint and in default of agreement as to agent, with such agent as the President of the Real Estate Institute of New South Wales appoints, the cost of and incidental to such appointment to be borne equally by the parties;

(h) A reserve price for the purpose of such auction will be such that the parties agree upon or failing agreement will be the price nominated as a fair market value by a licensed valuer appointed by the President of the New South Wales Division of the Australian Property Institute, the costs of such valuation to be borne by the parties equally;

(i) In the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the home at a price which is not more than 10% below the reserve price;

(j) If the home remains unsold, the parties will do all acts and things and sign all documents necessary to immediately re-list the home for sale by public auction again on a date nominated by the agent and at such auction there will be no reserve price;

On settlement of the sale of the home the proceeds be paid in the following manner and priority:

(a) All costs and expenses of sale including legal costs and disbursements.

(b) Agents commission, valuers fees and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties.

(d) The amounts required to pay all municipal and water rates outstanding with respect of the home;

(e) The balance then remaining to the wife.

Pending the sale of the said property the Wife shall have sole use and occupation thereof and shall pay as they fall due and be liable for Council and Water rates, insurances and statutory outgoings, and shall maintain the property in good repair and condition having regard to the condition of the said property as at the date of these orders.

The husband shall pay to the wife by way of property settlement the sum of $167,000 within one month.

In the event that the net sale proceeds of the home are less than $600,000, the husband shall pay to the wife an amount calculated to be 30% of the difference between the net sale proceeds and $600,000. In the event that the net sale proceeds of the home are greater than $600,000, the wife shall pay to the husband an amount calculated to be 30% of the difference between the net sale proceeds and $600,000.

A payment required by order 5 shall be made forthwith upon the completion of the sale or within such later time as the parties may agree.

Within 21 days the husband shall do all things and execute all documents forthwith to cause to be transferred to the wife the life insurance policy upon the wife’s life with MBF.

Within 21 days of the date of these orders, the Husband and the Wife do all acts and things and execute all documents necessary to formally close the joint Citibank Savings Account.

The husband shall do all things and pay all moneys to indemnify the wife and keep her indemnified with respect to any liabilities of taxation of any kind upon the interest earned by funds invested in the joint names of the parties with Citibank.

10.

Within 21 days the husband do all things and execute all documents to transfer all his right, title and interest in the caravan owned by the parties at B Caravan Park to the wife.

11.

Within 7 days of being provided with the relevant documents the wife shall do all things and execute all documents to cause her right, title and interest in 284 IAG shares presently held in the joint names of the husband and the wife to be transferred to the husband.

12.

Except as otherwise provided by these orders and upon compliance with these orders in full each party is to be declared the owner as against the other of all items of personality presently standing in the name of that party or in the possession of that party including without limitation motor vehicles, funds to the credit of a party in a bank account, household contents and furniture and superannuation entitlements.

13.

The operation of these orders is stayed for a period of 14 days and the parties are at liberty to apply within that period, on giving notice to the other party and the Associate to Judicial Registrar Loughnan, in relation to the wording of the orders.

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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