Phung & Phung
[2007] FamCA 1484
•11 December 2007
FAMILY COURT OF AUSTRALIA
| PHUNG & PHUNG | [2007] FamCA 1484 |
| FAMILY LAW - APPEAL – PROPERTY – Where the trial Judge divided the property of the parties 75% to the wife and 25% to the husband – Her Honour had found that the parties had contributed equally to the property pool and made a 25% adjustment in favour of the wife on account of s 75(2) factors – Whether the trial Judge erred in refusing to include two particular debts in the calculation of the net value of the parties’ property – Whether the trial Judge erred in finding that the husband had failed to provide all relevant documentation to the wife in circumstances where the wife had removed financial records from the husband – Whether the trial Judge erred in making a substantial s 75(2) adjustment in favour of the wife on the basis that the evidence of the husband’s financial position was unsatisfactory – Whether the trial Judge’s finding that a 25% adjustment was warranted was outside the proper exercise of her Honour’s discretion – Appeal allowed on the ground that the 25% adjustment was beyond the “generous ambit within which reasonable disagreement is possible” particularly when regard was had to the liabilities for which the husband was solely responsible – Discretion re-exercised on this basis. FAMILY LAW - CROSS APPEAL – Whether the trial Judge erred in including only 50% of the value of a business of the husband in the net value of the parties’ property in circumstances where her Honour had deducted 100% of the debts of that business when calculating the net value of the parties’ property – Cross appeal allowed on the basis that the full value of the business should have been included as an asset – Discretion re-exercised on this basis. |
| Family Law Act 1975 (Cth) Biltoft and Biltoft (1995) FLC 92-614 |
| APPELLANT: | Mr Phung |
| RESPONDENT: | Mrs Phung |
| FILE NUMBER: | PAF | 1400 | of | 2004 |
| APPEAL NUMBER: | EA | 22 | of | 2006 |
| DATE DELIVERED: | 11 December 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Finn, May and Boland JJ |
| HEARING DATE: | 8 November 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 February 2006 |
| LOWER COURT MNC: | [2006] FamCA 829 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPELLANT: | Ledinh Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Reeve (Solicitor) |
| SOLICITOR FOR THE RESPONDENT: | Marsdens Law Group |
Orders
That the appeal be allowed.
That the cross appeal be allowed.
That Orders 2 and 4.2.4 of the orders of the Honourable Justice Stevenson of 3 February 2006 be varied to substitute the figure of “$229,910” for the figure of “$92,500” appearing in those orders.
That there be liberty to both parties to apply to the Full Court within 90 days of the making of these orders for orders in the nature of enforcement orders in the event that the wife is unable to make the payment required to be made to the husband within that time.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Phung and Phung.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 22 of 2006
File Number: PAF 1400 of 2004
| Mr Phung |
Appellant
And
| Mrs Phung |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an appeal by the husband, Mr Phung, and a cross appeal by the wife, Mrs Phung, against orders for property settlement made by Stevenson J on 3 February 2006.
The effect of her Honour’s orders was to divide a pool of property which she found to have a net value of $985,985 as to 75 per cent ($739,489) to the wife and 25 per cent ($246,496) to the husband.
This distribution was made in circumstances where:
§ the husband (aged 49 at trial) and the wife (aged 45 at trial) had lived together for almost 25 years and had had three children, only one of whom was still under 18 at the time of the trial before her Honour;
§ it was common ground (according to her Honour’s reasons for judgment – paragraph 66) that the parties had had no significant assets at the commencement of cohabitation, and during their marriage had assumed traditional roles of the husband being the breadwinner and the wife being the home maker and primary carer of the children;
§ the parties had agreed, and accordingly her Honour had found, their contributions to be equal; and
§ her Honour had then made a 25 per cent adjustment in favour of the wife on account of the factors contained in s 75(2) of the Family Law Act 1975 (“the Act”), with the three main factors being (as recorded in paragraph 69 of her Honour’s reasons) the wife’s responsibilities to care for the parties’ 13 year old son, her significantly inferior capacity to re-establish herself financially compared with the husband, and the unsatisfactory evidence as to the husband’s financial position.
The terms of her Honour’s orders were as follows:
1.That, within 2 calendar months of the date of these orders, the parties shall do all things and execute all documents required to effect the transfer to the wife of the whole of the husband’s right title to and interest in the property situate at … in the State of New South Wales (‘[Property A]’).
2.That, simultaneously with the transfer provided by order 1, the wife shall pay to the husband the sum of $92,500.
3.That, at the time when the transfer provided by order 1 is effected:
3.1the husband shall pay to the wife any amount necessary to reduce the St George Bank mortgage on [Property A]to $300,000
3.2the husband shall do all things necessary to remove from the title to [Property A] all caveats and encumbrances with the exception of the St George Bank mortgage
3.3the husband shall pay to the wife any amount necessary to cause the outgoings in respect of [Property A] to be paid as at that date
3.4the wife shall do all things necessary to effect the discharge of the St George Bank mortgage on the title to [Property A].
4.That, in the event that the wife fails to effect the discharge of the St George Bank mortgage within 2 calendar months of the transfer provided by order 1, the wife shall:
4.1do all things necessary to effect the sale of [Property A] for the best price reasonably obtainable and
4.2 to distribute the proceeds of sale as follows:
4.2.1 in payment of agent’s commission and expenses
4.2.2in payment of legal costs and expenses incidental to such sale
4.2.3 in discharge of the St George Bank mortgage
4.2.4 in payment of $92,500 to the husband
4.2.5 in payment of the balance to the wife
5.That the husband do all things necessary to effect the transfer to the wife of the Honda motor vehicle.
6.That the wife be cleared to be solely entitled to the furniture in [Property A].
7.That, subject to these orders, each of the parties be declared to be solely entitled to all items of property, whether real or personal, which are presently in his and her respective possession or control.
The scope of husband’s appeal
According to the husband’s notice of appeal, he appeals all of her Honour’s orders. Two of his five grounds of appeal are directed to her Honour’s refusal to take into account two particular debts in her calculation of the net value of the parties’ property. The remaining three grounds of appeal are related in that they are directed to her Honour’s findings in relation to the Husband’s inadequate disclosure of his financial affairs and to her taking into account those findings in deciding to make a 25 per cent adjustment in favour of the wife with that adjustment being asserted to be outside a proper exercise of the discretion.
In the event that the appeal was successful, the husband sought that we should vary her Honour’s orders to provide that he make a cash payment to the wife of $450,000 and that on such payment, the wife should transfer her interests in all jointly owned property to the husband (but with the husband indemnifying the wife in respect of any mortgages or loans relating to the jointly owned properties).
The wife opposed the husband’s appeal. But in the event the appeal was to succeed, and although she had initially sought a re-trial, her solicitor ultimately accepted that we should re-exercise the discretion.
The scope of the wife’s cross appeal
The wife did not file a notice of cross appeal. Rather a few days prior to the hearing of the husband’s appeal, she filed “an application in a case” in which she sought the following orders:
2.That the Respondent wife be granted such leave as is necessary to seek the following Orders:
2.1That in the Orders of 3 February 2006 where in clause 4.2.4 the figure $92, 500.00 appears that that figure be deleted and substituted with the figure of $79, 386.00
Whether pursuant to Rule 17.02 [“the slip rule”] or by way of cross Appeal.
It emerged from the written summary of argument of the solicitor for the wife that this variation to her Honour’s orders was sought on the basis that her Honour had allegedly erred in including only half (50 per cent) of the value of the husband’s HD butchery business in calculating the net assets of the parties and their entitlements under her orders, in circumstances where she had deducted all (100 per cent) of the value of the debts of that business in calculating the net value of the parties’ property.
It was the submission of counsel for the husband, which we accept, that this asserted error would not be an appropriate matter for an application of the slip rule, but rather would need to be the subject of a cross appeal. We did not understand counsel for the husband to oppose our treating the application in a case as, in effect, a notice of cross appeal, although the cross appeal itself was opposed on behalf of the husband.
The issues raised by the appeal and the cross appeal in relation to “the pool”
It will be convenient to consider first the issues raised by the appeal and the cross appeal in relation to the net pool of property available for distribution between the parties.
The list of assets as found by her Honour (at paragraph 39 of her reasons for judgment) and the list of liabilities as found by her (at paragraph 63 of her reasons) were as follows:
1. [Property A] (J) $1,100,000
2. 50% [Property B] (H) $412,500
3. 50% [Property C] (H) $662,500
4. 50% [HD] Butchery business (H) $17,500
5. [L] BBQ business (H) $70,000
6. [L] Meat business at [Location X] (H) $100,000
7. 1999 Honda (W) $15,000
6. 1991 Commodore (H) $3,500
7. 1989 Mitsubishi van (H) $1,500
10. Money taken by wife on separation (W) $10,000
11. Commonwealth Bank term deposit (H) $186,000
12. Furniture in former matrimonial home (W) $7,000
TOTAL: $2,585,500
1. St George Bank mortgage on former matrimonial home $300,000
2. Sydney Mortgage Corporation (H) $206,000
3. 50% Eclipse Mortgage (H) $395,000
4. 50% Bank West mortgage (H) $226,250
5. Debt to [NP] (H) $70,000
6. Debt to [BCT] $100,000
7. Portion of debts to meat suppliers $271,597
8. Westpac equipment (H) $30,668
TOTAL: $1,599,515
By Grounds 2 and 3 it is asserted that her Honour erred in refusing to include in the lists of assets and liabilities, a debt of $40,000 owing by the husband to Mr GSP and a debt of $90,000 owing by the husband to Mr P respectively.
Her Honour’s reasons for refusing to include these two debts as liabilities for purposes of determining the net pool of property were as follows:
41.It was agreed that the parties borrowed $90,000 from Mr [P] and Mrs [P] on 12 December 1993. The loan agreement provided that this money was to be repaid within 1 month of demand. There was no evidence that Mr and Mrs [P] have ever made a demand for repayment and it seems unlikely that they will do so in the future. [The husband] said that they are now aged in their 90’s. In these circumstances, it was submitted on behalf of [the wife] that this debt should not be taken into account for the purposes of determining the net pool of property. I agree with this submission and the [P] debt will be treated accordingly.
42.In his affidavit [GSP] said that he loaned [the husband] $18,000 in February 1994 and $22,000 in May 1998. He said that this money has not been repaid and that they have an understanding that [the husband] will settle these debts when he is in a position to do so. [GSP] said:
“We came to this land empty handed – we risked our lives to get here and we have been friends ever since. These little debts are nothing compared to that.”
It will thus be seen that her Honour did not include the liabilities in question in her calculation of the net value of the parties’ property essentially because she concluded that both of these liabilities were unlikely to be enforced.
The oral evidence from the husband (given through an interpreter) in relation to the loan from Mr and Mrs [P] whom, it should be noted, did not give evidence, was as follows (Transcript, 15/11/05, pp 101-103):
MR REEVE: I want to ask you about some of your other debts, … One of them is to Mr and Mrs [P].
INTERPRETER: Yes, it’s the debt that both my wife and I owe to this couple a long time ago. More than 10 years ago.
MR REEVE: I suggest to you that you no longer owe that money to Mr and Mrs [P]?
INTERPRETER: No, we haven’t paid anything at all to that borrowing. And they are still chasing me for payment.
MR REEVE: Yes. I put it to you that it is not contained anywhere within your financial statement of April 2004, which, your Honour, is exhibit 13.
INTERPRETER: I mentioned it to my solicitor. I gave my solicitor the copy of that borrowing. I think you have a copy too, sir.
MR REEVE: Do you recall applying for finance with Westpac in or about – in or about February 2004? Do you recall that?
INTERPRETER: No.
MR REEVE: I show you this document. It’s annexure A to the wife’s affidavit, your Honour.
HER HONOUR: Thank you.
MR REEVE: Is that your signature…?
INTERPRETER: Yes, this is my signature, but what is this paper?
MR REEVE: If you turn to the front page you’ll see it’s a loan application form.
INTERPRETER: Yes.
MR REEVE: Have you provided the information to the Westpac Bank in order for that to be completed?
INTERPRETER: This is my signature, but I wasn’t sure what this all about, so would you just help me, please.
MR REEVE: Just turn to the front ---
INTERPRETER: When I put one sheet to another so just ---
HER HONOUR: …, just take your time. Go back to the beginning of the document and read the whole of it.
INTERPRETER: This is all the scrap paper because I signed it there, but then my wife – my wife didn’t sign it. And why do you have this copy?
MR REEVE: Sir, perhaps the document ---
HER HONOUR: Well, … please, Mr Reeve.
MR REEVE: I do beg your pardon, your Honour. …, if you look at the middle part of that document it sets out information abut your financial circumstances, doesn’t?
INTERPRETER: Would you help with what part of the document, then middle part.
MR REEVE: I will read it back to identify the part to show the witness, your Honour. Do you see the part that is opened up in front of you, headed Your Liabilities? There’s a reference there to the St George mortgage, isn’t there?
INTERPRETER: Yes.
MR REEVE: And it’s correct, isn’t it, there’s a mortgage and you had a mortgage in February and that was to the St George Bank.
INTERPRETER: Yes.
MR REEVE: You don’t disclose in that document anywhere else that is a debt to Mr or Mrs – Mr and Mr [P], do you?
INTERPRETER: When we did that application, my lawyer told me to put down all my liabilities. And when I look for all the paper and those debts that you mentioned was one of those papers that I couldn’t locate at that time. And only after that that I found the paper specifying the borrowing and I’d actually given it to my solicitor. Because when I mentioned the dates, and my lawyer said, “That you have to have evidence about it, that you just couldn’t say, “Oh, I owe these people.”’ But I have no evidence of it. Because the debt was more than 10 years back, so I thought, well, I’d better look for it and eventually I found the paper, but not then.
MR REEVE: Right. And when you were filling that out or providing the information so that it could be filled out to the bank, you didn’t include the [P] debt because it was an old debt and you paid it back.
INTERPRETER: Well, you can say that I’ve already paid, I can say whatever I say, but the truth is I haven’t paid and the people who can confirm are the – Mr and Mrs [P] there, they can tell you whether they receive any payment yet. And actually now because of all these problems about debts they create a rift in our family and that’s a beginning to the end – of the beginning of the end of our marriage. You can easily contact this couple. They are old people. They are up to their 90 years old now, and they are there for you to double check if you want to. Mr [P] is a Greek person. He is not some Asian who can say anything. He will stand by his words. You can check with him if you like.
The husband’s oral evidence in relation to the debt to Mr GSP was as follows (Transcript 16/11/05, p 117):
MR REEVE: In your affidavit – I withdraw that. When did you pay Mr [GSP] back?
INTERPRETER: I haven’t paid anybody at all, because everyone is hanging on there waiting for me to finish the Family Court matter nobody is chasing me for money and I’m not paying back anybody at the moment.
MR REEVE: Well, Mr [GSP] does not appear in your financial statement sworn on 12 November 2005.
INTERPRETER: Don’t we have statement regarding this once before.
MR REEVE: Well, you’ve made a statement in your financial statement at paragraph 53 when you say that your personal loans are $270,000, do you now say that that’s not correct?
INTERPRETER: As a matter of fact I didn’t include lots of liabilities. The reason for that was to please my wife. She’s aware of that. Otherwise I’m – if all debts in there there’s nothing left. I want to please her. I want to make her happy. In fact, I’m still owing ANZ Bank card for 5000, a St George card for another 5000, but I never mention it in the liabilities statement.
The oral evidence from Mr GSP (also given through an interpreter) was as follows (Transcript 16/11/05, pp 133-134):
MR REEVE: In your affidavit you say that you’ve lent money to [the husband] in 1994, is that right?
INTEPRETER: Yes. About 18,000.
MR REEVE: And I take it that besides being a business partner, [the husband] is a friend of yours?
INERPRETER: Correct.
MR REEVE: And the money hasn’t been paid for a period of 11 years.
INTERPRETER: Correct.
MR REEVE: A lot of things have happened in your business since then?
INTERPRETER: Correct.
MR REEVE: You’ve looked after the business for periods when [the husband] has been away, haven’t you?
INTERPRETER: There was a period of time that I was sole person who run the business and then I pay the rent to [the husband] that was our arrangements.
MR REEVE: And what happened after 1994?
INTERPRETER: It was in between 1994 to 1999 that was when I was running the business myself.
MR REEVE: And has [the husband] lent money over the time that you’ve been in a business relationship?
INTERPRETER: Yes.
MR REEVE: Is it a case where you don’t really mind whether this money back to you or not?
INTEPRETER: Yes, I have. I have paid all the money he lent.
MR REEVE: But is it a case where you’re not too concerned about when [the husband] pays you back the money that you lent him 11 years ago?
INTERPRETER: Let me explain, let me elaborate on this. We came to this land empty handed with nothing on us. We risked our lives to establish a new life here. We have been friends together since those days, and we have built up a business up to what it is now. Those little debts nothing compared to where we started together.
MR REEVE: You have come along way. Was the loan in 1994 ever recorded in writing? Is there any written evidence in that?
INTERPRETER: No, no.
MR REEVE: And in 1998, again, the money you say was just lent on a handshake, was it?
INTERPRETER: Correct.
MR REEVE: And when the 1994 money was lent was there any timeframe within which it was discussed that you would be repaid?
INTERPRETER: Well, it was understanding between us, as a friend, when he can he’ll pay me.
MR REEVE: And there’s no expectation that you will receive interest on that amount?
INTERPRETER: No.
MR REEVE: And the same conditions apply to the 1998 loan?
INTERPRETER: No – that’s correct, yes.
We do not accept the submission made by senior counsel for the husband in support of Grounds 2 and 3, that it was not open to her Honour to conclude on the evidence that neither of these debts was likely to be enforced. Rather to the contrary we consider that such a conclusion was open to her Honour on the basis of the oral evidence which we have just set out.
Having regard to the principles stated by the Full Court in Biltoft and Biltoft (1995) FLC 92-614, it cannot be said that her Honour’s discretion miscarried when she refused to include either of the liabilities in question in her calculation of the net value of the parties’ property for the reason that she had concluded that neither liability was likely to be enforced; this was, as we have said, a conclusion open to her on the evidence which we have set out. Thus Grounds 2 and 3 have not been established.
As earlier explained, the wife’s complaint by way of cross appeal relates to her Honour’s treatment of the value of the husband’s HD butchery business and the debts of that business (and a former butchery business conducted by the Husband at Location Y) in her calculation of the net value of the parties’ property. Also as earlier explained, there was no actual notice of cross appeal filed by the wife, and thus there is no formal statement of the ground or grounds of the cross appeal. In these circumstances, and in an endeavour to understand the exact terms of the wife’s complaint, we will rely on the following passage from her solicitor’s written summary of argument:
6.Cross Appeal/ Slip Rule Application
6.1Her Honour accepted the evidence in the Husband’s case that the [HD] butchery was a business of the Husband and not a partnership. This is discussed above at 1.5.12.
[It will be of some assistance if we here interpolate the discussion which appears at 1.5.12 of the Respondent’s written summary of argument:
1.5.12There was no documentation and indeed no evidence in any Affidavit about the fact that the [HD] Butchery was being operated solely by the Husband. This was contrary to the 2004 tax returns and the affidavit evidence of the Husband which described Mr [GSP] as the Husband’s “business partner” (AB 11.7 and 9). It emerged only on day two of the trial in cross examination of the husband and [GSP] (AB 17.105.45). Needless to say it was highly prejudicial to the Wife because it meant that those debts of the [HD] “partnership” that were allowed by her honour then reduced the asset pool dollar for dollar.]
6.2Having done so her honour then allowed 100% rather than 50% of the [HD] debts.
6.3It was either an error or an over sight then to include only one half of the value of the [HD] Butchery (AB 3.11.35 and 76).
6.4Once 100% of the value of the [HD] Butchery is included at $35,000.00 then where the Husband retains that asset the wife’s payout to the Husband ought to be reduced by 75% of the additional value.
6.5This amount is $13,125.00 and thus reduces the payment to the Husband by that amount of $79,386.00.
In support of the cross appeal the solicitor for the wife relied not only on the apparent inconsistency of including as an asset half the value of the HD butchery business only and then deducting as a liability the full value of the debts of the business (as found by her Honour), but also on the oral evidence of the husband to the effect that the value of his interest in the business was greater than the agreed value and to the effect that for periods of time he was entitled to the full benefit of the business.
In opposing the cross appeal we understood counsel for the husband to rely principally on the fact that the value of $17,500 for the husband’s interest in the HD Butchery business had been an agreed figure.
It is true that the case outlines of both parties which were before her Honour (as items 13 and 14 in the Appeal Book) show that at the commencement of the trial, the husband asserted a value of $17,250 for his half interest in the HD Butchery and the wife a value of $17,500 for his half interest. This is presumably why her Honour recorded in paragraph 35 of her reasons for judgment that there was “agreement as to the existence and value of” a 50 per cent interest in the HD Butchery at $17,500.
However the evidence of the husband given in cross examination upon which the solicitor for the wife relied in support of the cross appeal was as follows (Transcript 15/11/05, pp 54 – 55, and pp 105 – 106):
MR REEVE: Yes, I understood that. Well, do you recall that at some expense to herself, [the wife] arranged for a valuation to be prepared on the [HD] Butchery?
INTERPRETER: Is – the lawyer of my ex wife organised that for her.
MR REEVE: And you accepted the valuation that the expert put on the [HD] Butchery? In fact, you say in your affidavit, that you think it might be more valuable?
INTERPRETER: Well, I actually told my ex wife she can have – organise valuation because it’s her expense and we shouldn’t have that.
MR REEVE: Yes.
INTERPRETER: We shouldn’t have to do that because I’m quite happy to accept some sort of value, which is actually higher that the value of – suggested by her lawyer.
MR REEVE: Well, that appears in paragraph 11 of her affidavit sworn a few days ago?
INTERPRETER: Yes.
MR REEVE: Just to help you with that, you say there that you thought that it was worth about $45, 000?
INTERPRETER: Yes.
MR REEVE: So half of that is yours, that means that you thought that your interest was worth about 22,500?
INTERPRETER: Not correct.
MR REEVE: Are you saying that 45,000 - - -
INTERPRETER: 45,000 is my share. They all over value that business – and the value of that business 90,000, and my share is 50 per cent, which is 45. But the valuations say for the value of the shop of that business was only 70, and that was the valuation done by your lawyers.
MR REEVE: It certainly was. And that was $17, 500 for one half share?
INTERPRETER: Could you repeat that, please? Could you also identify what you are talking about, the value of the property or the value of the business. There are two different issues here. I’m a bit lost.
MR REEVE: Can I approach, your Honour.
HER HONOUR: Yes, you can too, if you like Ms Snelling?
MS SNELLING: Thank you, your Honour.
MR REEVE: This is the affidavit of the valuer. It was filed on 18 January 2005.
INTERPRETER: Yes.
MR REEVE: There’s a valuation of two retail butchery businesses. We’re not talking about the land. We’re talking about [HD] Butchery trading at [Property A], and [L] Meat trading at [Location Y]. This valuer said that [HD] – the whole thing was worth $35, 000.
INTERPRETER: Why so cheap?
MR REEVE: Well, I’m not asking you to answer me questions, just answer my questions.
INTERPRETER: So as to the value how – what - - -
MR REEVE: Just answer my questions.
INTERPRETER: What am I supposed to say about this?
MR REEVE: I’m asking you if you agree that the valuer said that the value of [HD] was $35, 000 for the whole thing. That’s what he said?
INTERPRETER: It was very cheap that valuation.
MR REEVE: Yes, you said that you think it’s worth $90, 000.
INTERPRETER: That’s what I told my wife to make her happy.
MR REEVE: What did you tell her to make her happy?
INTERPRETER: Because I told her that she shouldn’t spend money on the valuation, it’s a waste of money. I can offer a better value without this evaluation report.
…
MR REEVE: Well, the [HD] debts are partnership debts, aren’t they?
INTERPRETER: I already explained to you that the business – my business is not a partnership, the debt was mine.
MR REEVE: You completed tax returns at the end of the 2004 financial year, didn’t you?
INTERPRETER: I haven’t done it. I’m sorry, I would like to say that I’ve done the tax return for 2003/2004, but I haven’t done the tax return for 2003/2004.
MR REEVE: Well, dealing with what we have, the [HD] Butchery’s tax return for the period ending 30 June 2004, shows that there are two proprietors. One is you, and the other is Mr [GSP]?
INTERPRETER: Because the name’s in the company. There’s always the two names. That’s why it appeared there on the tax return. But you should check on the statement also that I, myself, pay rental to Mr [GSP], $1900 every month. That’s been the arrangement since 1999 up to the present time. The business is not for two people – it’s my business.
MR REEVE: In addition there are partnership tax returns would have been prepared and I don’t have the 2004 return but I have the 2003 tax return for the partnership. Do you accept that there’s been a partnership prepared for the [HD] Butchery?
INTERPRETER: Yes, because it always shows in the partnership paper, yes.
MR REEVE: Well, that was what the tax man was told, wasn’t it?
INTERPRETER: Yes, but because they – whenever I stop running this business the other guy will take over. That’s how – our undertakings to each other. We keep our names there. Because it’s – it was arrangement that lasted for five years when I was the one who collected the rent, and he was the one who ran the business. If you check with my wife, she’s quite aware of this arrangement between the two of us. Because she was the one who came to the shop to collect the rent money. At the time that my partner was running the business – and only in 199 [sic] that I took over and started running the business then and then I’m still doing it now.
In her final address to her Honour, counsel for the husband endeavoured to maintain the case for a half interest in the butchery business valued at $17,500, saying (Transcript 16/11/06, p 141):
MS SNELLING: The [HD] Butchery is now actually $17,500.
Interestingly, the husband want to convince the Court that it was actually worth more than that, but that’s what the valuer says. His half interest is worth $17, 500. …
The position taken on this issue by the solicitor for the wife in his final submissions to her Honour is not entirely clear as the following passages from the transcript reveal (Transcript 16/11/05, p 150 and pp 156 – 157):
Take, for example, the fact that we now are told on the second day of the trial that the [HD] Butchery business is actually a business which the other partner, Mr [GSP] has nothing to do with.
Absent that information from the cross-examination of the husband and Mr [GSP] and we just wouldn’t know about it. It doesn’t appear anywhere in his affidavit material and all the other documentation is quite different. It says something very different. Look, for example, at paragraphs 7,8,9 of his affidavit, sworn of 12 November 2005. Your Honour, “I established a butchering shop with two other business partners, [GSP] and [VN]. In 1987 Mr [VN] withdrew his name. Mr [GSP], my business partner and I then purchased the business property at [Property B] and continued to trade under the name of the [HD] Butchery.” It just can’t get anymore farcical than that, but we come to Court thinking that we’ve got a partnership and then finding out that the partnership only extends to the real property, and what do you know, the core business which has generated all this income, but which attracts all there creditors, we’re now in the for the whole of them, because Mr [GSP] has no part of the business of the [HD] Butchery.
…
Your Honour, the only other matter that I want to address you upon, is this proposition that the [HD] Butchery is all belonging to [the husband]. What we’re now told, very much at the eleventh hour, is there’s some sort of year or year about, or several year cycle where one partner has it one year, and the next has it the next year. Now, leaving aside all the stamp duty implications of transferring a business back and forwards, and the fact that it’s not documented, that came up, as I said now once before, in the second day of the trial, in cross-examination. And, in my submission, it’s almost a case where the husband should be estopped from saying that. I know we don’t have pleadings in this jurisdiction anymore.
But if he pleaded that he was full – an equal partner with [GSP] you wouldn’t then at midstream in cross-examination, allow him to say, “Well, hang on a minute, we’re not both partners, I’m the whole dealer here, and therefore all of the business debts are my problem.” At law, under the Partnership Act, the – business partners are certainly able to tweak how they distribute profit. And, no doubt, there is some arrangement on a handshake that we don’t know about between Mr [GSP] and [the husband] about how they do that.
But what they’re not able to do is to avoid their debts. They are equally, jointly and severally liable, under the Partnership Act for their debts. And the creditors of the [HD] Butchery are partnership debts.
In her reasons for judgment her Honour did not discuss the issues of the extent of the husband’s interest in the HD butchery business or the value of that interest. Rather, she proceeded on the basis, as we have earlier mentioned, that a half interest valued at $17,500 had been agreed.
Her Honour did, however, discuss at considerable length (paragraphs 44 to 63 of her reasons) the issue of the debts of the business. But the focus of her discussion was on how much of the amount of $464,691 claimed by the husband to be owed to trade creditors, should be taken into account as a liability in calculating the net value of the parties’ property, rather than on treating the debts as debts of a partnership in which the husband had a half interest.
Ultimately her Honour decided to deduct as a liability in calculating the net value of the parties’ property, an amount of $271,597 on account of debts to meat suppliers. It is unnecessary in this context to refer to her Honour’s reasons for arriving at that decision other than to say they did not involve any reference to the extent of the husband’s interest in the business – although we will return to the issue of the debts to the meat suppliers in the context of the appropriate s 75(2) adjustment in this case.
While we recognise the considerable difficulties which faced her Honour in determining these proceedings, we nevertheless have concluded that given the husband’s evidence concerning his interest in, and the value of, the business, her Honour’s failure to discuss that evidence and her inclusion in the assets of the parties of only a half interest in the business valued at $17,500 are errors which call for our intervention. We consider that the full value of the business at $35,000 should have been included as an asset and we would do this on a re-exercise of the discretion.
We are fortified in this conclusion by the following further evidence given by the husband in cross examination (Transcript 15/11/05, pp 90 – 91):
MR REEVE: But, [the husband], what we’re looking at here is an overdraft account which is in the name of both you and your business partner?
INTERPRETER: Yes, I’d like to explain that if I am allowed.
HER HONOUR: Please go ahead.
INTERPRETER: The two names – in 1981 we established the [HD] business, and then at that time I was n [sic] partnership with someone by the name of [GSP], and we have a commitment to each other. It’s a kind of undertaking that we both of us will sign all the paperwork even the council rates or whatever papers we do that, we also – under two names. It’s a business belonging to the two of us. However, either of us would run the business then that person has to pay the other. So the names – there are two names on the partnerships but I was the only one who runs the business. One person run it for five years, and then – because, say, if that person runs the business that person has to pay me. In other words one person has to pay rental of that premises to the other. So all the paper shows two names of the partnership, but in the accounting in the bookkeeping, it’s all belonging to one person. That business is run by one person. So whoever the person who run the business that particular year would have to be responsible for all expenditure that year on behalf of the other person. So when we approached the bank for the borrowing of $120,000 or the overdraft as well, both of the partners have to run, have to sign the application for the bank to approve our – to approve our borrowing because the building belongs to the two people. So the business is mine, but the partnership is two people.
Similarly the following evidence from the husband’s business partner, Mr GSP, is relevant (Transcript 16/11/05, p 128):
MR REEVE: And you’re a business partner you tell us in your affidavit with [the husband]?
INTERPRETER: Could you identify the business because we have properties business and other business.
MR REEVE: All right. The business that I’m talking about is the [HD] Butchery that trades from [Property A].
INTERPRETER: We used to be partners, but not anymore.
The husband’s disclosure of his financial position and the s 75(2) adjustment
Grounds 1, 4 and 5 are directed to her Honour’s findings in relation to the husband’s disclosure of his financial position and to her 25 per cent adjustment in favour of the wife, and are in the following terms:
1.That Her Honour erred in finding that in circumstances where the wife removed a large amount of financial records from the husband, he had failed in an obligation to provide all relevant documentation.
…
4.That Her Honour, in having found that the evidence of the husband’s financial position to be unsatisfactory, erred in using this fact as a reason for a substantial adjustment in favour of the wife.
5.That Her Honour’s finding that an adjustment of 25% is warranted was outside the proper exercise of Her Honour’s discretion.
In order to consider these grounds, it is necessary first to refer to the passages in her Honour’s reasons for judgment to which these grounds are apparently directed.
After she had outlined the financial history of the parties’ relationship, her Honour made the following observations concerning the evidence of the parties (emphasis added):
15.[The wife] was the only witness in her case. She swore an affidavit and Financial Statement on 16 December 2004 and gave relatively short oral evidence via an interpreter. [The wife] impressed me as an honest witness. [The husband] relied on his affidavits sworn on 28 February 2005 and 12 November 2005 and on a Financial Statement sworn on 12 November 2005. [The husband’s] business partner, Mr [GSP], swore an affidavit on 1 September 2004 and gave relatively brief oral evidence. Both [the husband] and [GSP] gave oral evidence via an interpreter.
16.Certainly, there were difficulties with [the husband’s] evidence but it was not my impression that he deliberately set out to disadvantage [the wife] or to mislead the court. In fact, some of his statements in the witness box might suggest that he had no wish at all to act to the detriment of [the wife]. Some examples were:
· “If I put in all of my liabilities there would be nothing left.”
· “My Financial Statement is inaccurate to the extent that I did not include all my liabilities – my wife and children would be disadvantaged. What would they think of me?”
· “I want to be honourable, at least in the eyes of my wife – I am the one in the future who can make money, my wife can’t.”
· “I think her valuation [[HD] Butchery] is very cheap – I told her that and I said she should not have wasted money because I could give her a better valuation.”
17.The last remark of [the husband] referred to valuations dated 21 December 2004 by Mr [CV] of the [HD] Butchery and [L] Meat Butchery. Mr [CV] valued the [HD] Butchery at $35,000 plus stock. [The husband] said in his evidence:
“The whole business is worth $90,000 and my 50% share is worth $45,000.”
18.The legal representative for [the wife] suggested that [the husband] was “caught out” in respect of the following specific matters:
· he failed to disclose his cash management account at the Commonwealth Bank
· he failed to disclose a rental account at the Westpac Bank
19.[The husband’s] explanation for his failure to disclose the Commonwealth Bank cash management account was that “it was not my money – it was only arranged to secure the release of the title deeds”. He said: “I did not conceal this $170,000 – why should I conceal anything? You can easily check with a phone call to the bank.”
20.It was suggested that [the husband’s] demeanour changed immediately when he was “confronted with the Commonwealth Bank document” and that “he sat up and immediately wanted to explain” at that point. It was not my impression that [the husband’s] demeanour changed significantly as alleged. Throughout his evidence, given via an interpreter, he seemed to me to be willing to provide explanations when questioned about any aspect of his financial circumstances.
21.[The husband] said that the Westpac Bank account was “nothing to do with [Property C] or [L] Meat – it is an account I share with someone else for collection of rentals and payment to the bank”. I understood that he meant that this account had no connection to the [L] BBQ or [Location X] businesses. [The husband] said that rental for [Property C] is banked into this account, together with money paid by the tenant who occupies the first floor of [Property B].
22.This Westpac Bank account is operated by [the husband] and [GSP]. Statements available show periodical repayments of $2,711 and $4,937.50 per month in respect of loans taken out to purchase [Property C]. The latter figure is the required monthly repayment in respect of the Eclipse Mortgage debt (exhibit 20).
23.It was submitted on behalf of [the wife] that [the husband] can properly be compared to the non-disclosing parties in Weir and Weir (1993) FLC 92-338, Black and Kellner (1992) FLC 92-287 and Chang and Su (2002) FLC 93-118. I am not satisfied that [the husband’s] conduct falls into this league.
Her Honour then summarised the facts of Black and Kellner, Weir and Weir, and Chang and Su and distinguished those cases from the present by saying:
27.There can be little doubt that the non-disclosing parties in these cases wished to advantage themselves, to the detriment of the other party. As I have said, I am not persuaded that [the husband] set out to obtain an advantage over [the wife] in these proceedings.
However, her Honour then went on to point our that the husband’s case had been presented in “a most unsatisfactory manner”, and that this had made the matter difficult to determine (emphasis added):
28.On the other hand, there is no question that [the husband’s] case was presented in a most unsatisfactory manner. He disclosed relevant matters only at a very late stage in the proceedings. For example, he informed the court and [the wife] of the existence of the new businesses only in his affidavit sworn on 12 November 2005. It was only by a document tendered during his evidence-in-chief that [the husband] sought to explain how he applied the funds received by the various businesses but not paid to the meat suppliers.
29.The only evidence of the value of the [Location X] and [L] BBQ businesses was [the husband’s] own estimate. There was no evidence at all of the trading position of these businesses.
30.It was obvious that [the husband] failed to provide documents relevant to his financial position. He said that [the wife] removed a large volume of financial records from his possession and I am inclined to believe that she did so. She admitted that she flung a quantity of eggs around the [HD] Butchery on one occasion, which would suggest that she was very angry with [the husband]. Nonetheless, [the husband] failed in his obligation to provide all relevant documentation.
31.These matters are intended to be illustrative, rather than an exhaustive list, of the difficulties in [the husband’s] case. Such deficiencies made the determination of the proceedings a challenging exercise.
Then in the context of her consideration of the s 75(2) matters and an appropriate adjustment on account of those matters, her Honour returned to the issue of the unsatisfactory evidence relating to the husband’s financial position, saying:
67.It was conceded on behalf of [the husband] that it is appropriate that there be a section 75(2) adjustment in favour of [the wife]. It was submitted on his behalf that a proper allowance would be 5%.
68.[The wife] sought an adjustment of 15% in her favour. It should be remembered that this adjustment was sought on the basis that her case was that the debts to the meat suppliers be excluded from the list of assets and liabilities.
69.In my view there are 3 main factors which justify a reasonably substantial adjustment in favour of [the wife]. Firstly, she has the responsibility to care for the parties’ son [W], who is 13 years old. Secondly, her capacity to re-establish herself financially is significantly inferior to that of [the husband]. Thirdly, the evidence as to [the husband’s] financial position was unsatisfactory.
70.[The wife] has worked only in the family butchery business and she has a limited ability to speak English. In my view, her prospects of finding gainful employment are slim. [The husband], on the other hand, has a proven capacity to engage successfully in business activities and accumulate assets. I have referred above to the statements made by [the husband] in his evidence, to the effect that he holds this view himself.
71.I have referred already to several of the problems in the evidence of [the husband]. I would add that there was no evidence at all about the trading position of “[L] BBQ” but [the husband] conceded that this business is in a good location. He said that the [Location X] business is “very successful”, in that he expected a much larger trading loss at this stage.
72.For these reasons I assess that an adjustment of 25% in favour of [the wife] is warranted. The result is that she will receive 75% of the net pool of property, as I have found such to be.
As we understood Ground One and the submissions made in support of that ground, the husband asserts that her Honour’s reasoning and/ or her findings regarding the husband’s disclosure of his financial position were inconsistent in two respects.
First, it is asserted that her Honour’s finding that she was not persuaded that the husband set out to obtain an advantage over the wife in the proceedings (paragraph 27) contradicted, or was inconsistent with, her findings that the husband’s case was presented in a most unsatisfactory manner (paragraph 28), that he failed in his obligation to provide documents relevant to his financial position (paragraph 30), and that the evidence concerning his financial position was unsatisfactory (paragraph 69).
The second asserted contradiction or inconsistency is that in paragraph 30 of her reasons, her Honour appeared to accept the husband’s evidence that the wife had removed a large volume of financial records from his possession, but then she also found that the husband had failed to provide all relevant documentation.
As to the first matter, we do not agree that the findings in question were necessarily contradictory or inconsistent. It is, in our view, conceivable, particularly in a case which had to be conducted through interpreters and where the parties have a foreign cultural background, that all necessary financial records may not be produced by a party, with the result that that party can be said to have failed in his or her duty of disclosure to the Court, but at the same time the trial Judge, who has had the advantage of seeing and hearing that party, may not be satisfied that that party set out to obtain an advantage over the other party in the proceedings. We acknowledge that such circumstances would be unusual, but we would not be prepared to interfere with her Honour’s orders on the basis that the findings in question were contradictory or inconsistent.
Similarly in relation to the second matter, we are not persuaded that these conclusions on her Honour’s part would be sufficiently contradictory or inconsistent to warrant our interference with her orders (at least on account of that matter alone). The wife may well have taken financial material from the husband’s possession, but that does not necessarily mean that records from banks or other third parties could not have been obtained by the husband and provided to her Honour.
We mention in connection with this second matter that in his written summary of argument, the solicitor for the wife provided us with a substantial list of matters in relation to which, it was alleged, the husband had provided inadequate disclosure, or of actual documents which he had failed to provide. For his part counsel for the husband went to considerable lengths in his oral submissions to us to explain the position in relation to the matters included in the list prepared by the solicitor for the wife. However we see little value in examining these particular matters, given the view which we ultimately take in relation to the husband’s appeal.
In relation to the husband’s complaint in Ground 4 concerning her Honour’s s 75(2) adjustment and the reasons for it, we do not see this case as an appropriate vehicle for a general examination of the principles governing an application of the s 75(2) factors in a case where there has been non-disclosure.
We take this view largely because it seems to us that her Honour’s statements in paragraph 69 of her reasons that the husband’s evidence of his financial position was unsatisfactory, and in paragraph 71 that there was no evidence at all about the trading position of “[L] BBQ” need not necessarily be read as indicating that her Honour intended that the husband should in some way be punished for his non-disclosure by having a 25 per cent adjustment made against him. Indeed such an interpretation of her Honour’s reasons would not sit easily with her earlier conclusions in paragraphs 16 and 20 of her reasons that the husband did not deliberately set out to disadvantage the wife or mislead the court, and that throughout his evidence the husband seemed willing to provide explanation when questioned about any aspect of his financial circumstances.
Rather, we think that what her Honour was endeavouring to do, was to compare and to make an adjustment on account of the clearly disparate financial prospects of the parties in circumstances where she had no evidence of the exact financial position of the husband. She knew only that he had “a proven capacity to engage successfully in business activities and accumulate assets”.
This then brings us to the husband’s final ground of appeal and the assertion that the 25 per cent adjustment was outside a proper exercise of her Honour’s discretion.
As a result of her Honour’s 25 per cent adjustment in favour of the wife to what would have been an equal distribution of the parties’ property on the basis of their contributions, the husband retained property to the value of only $246,496 with the wife receiving property to the value of $739,489. Significantly, however, the husband also retained responsibility for the balance of the debts to the meat suppliers which her Honour had not been prepared to deduct as a liability in calculating the net value of the parties’ property. That balance amounted to $193,094 ($464,691 - $271,597). Although her Honour was not prepared to include that balance in the liabilities to be taken into account in calculating the net value of the parties’ property, it is clear from the following passage from her reasons for judgment that she was satisfied that the debts were genuine and would have to be paid by the husband:
44.A major issue in the case was the way in which the trade creditors, particularly unpaid meat suppliers, should be treated. The invoices annexed to [the husband’s] affidavit suggest that the various businesses have the following debts to meat suppliers shows that the debts of the businesses are as follows:
[HD] Butchery
[MVM] Co. Pty Ltd 4.11.05 $165,274
[CM] Pty Ltd 3.11.05 $78,860
[GM] Pty Ltd 2.11.05 $15,700
[CP] 4.11.05 $33,074
[WM] 4.11.05 $12,097
[NFM] Pty Ltd 17.9.05 $43,997
$349,002
[L] Meat
[MVM] Co. Pty Ltd 4.11.05 $34,705
[GM] Pty Ltd 3.11.05 $10,383
[CP] 2.11.05 $9,008
$54,096
[L] Meat ([Location Y])
[MVM] Meat Co. Pty Ltd 31.12.04 $48,940
[W] Meats 4.11.05 $12,653
$61,593
The total amount outstanding to meat suppliers would thus be $464,691.
45.[The wife] disputed these debts but the figures above were extracted from copies of documents which appear to be invoices issued by the above meat suppliers. It seems to me to be most unlikely that 6 individual suppliers would collude with [the husband] to create a false picture of his level of debt in order to assist him in these proceedings.
46.When [the husband] was challenged about these debts he said words to the effect:
“My suppliers would never take legal action against me because we have been in business for 24 years – they trust me.”
He said also, in answer to a question from [the wife’s] legal representative:
“Because of your letters to my suppliers they know about my family problems, so I thank you sir.”
47.It would have been preferable that there was evidence from the meat suppliers as to these alleged debts. It is also unfortunate that the last invoice from [MVM] Co. Pty Limited to [L Meat] [Location Y] was dated 31 December 2004. Nonetheless, I am prepared to accept that [the husband] and/or the company [L] Meat Pty Limited have debts to meat suppliers as analysed above.
48.[The wife] has had no involvement in the business activities of [the husband] since the parties separated. For that reason, it would have been helpful if there had been evidence of the level of debt to meat suppliers as at the date of separation. The available evidence enables me to say only that the debts to meat suppliers increased steadily and substantially during 2004 and 2005. I simply cannot quantify the increase in these liabilities between the separation and the date of hearing.
49.There is another difficulty with the evidence relating to the debts to meat suppliers and the schedule of expenditure from the takings of the [HD] Butchery. The total of the amounts claimed to have been outlaid from that source in exhibit 2 exceeds the total of the unpaid invoices by approximately $132,500. There was no evidence at all as to the source of these funds.
50.In these circumstances it seems to me that it would be unjust to [the wife] if I were to make findings as to the value of the net pool of property by deducting the total of [the husband’s] /[L] Meat Pty Limited’s debts to meat suppliers. On the other hand, I cannot simply ignore the entirety of these liabilities. It seems that these debts were incurred, at least to some extent, because the income of the [HD] Butchery was applied to the acquisition or improvement of assets rather than the payment of meat suppliers. It thus seems to me that I should consider the categories of expenditure set out in the schedules contained in exhibit 2.
In endeavouring to persuade us that her Honour’s 25 per cent adjustment in favour of the wife was outside the proper exercise of the discretion, senior counsel for the husband placed particular reliance on the husband’s responsibility for the balance of the debts to the meat suppliers. This, in our view, was understandable for the reason that when regard is had to the amount of the debts for which the husband was solely responsible, the husband would on the basis of her Honour’s award, be left with assets with a net value of only about $50,000.
We acknowledge that the discretion in relation to the appropriate adjustment to be made when a court knows only that the financial circumstances and prospects of one party (and being a party who has the care of a child still only 13 years of age) are “significantly inferior” to those of the other party, but does not, for whatever reason, know the complete financial circumstances of the other party, must be wide.
Nevertheless, we consider that in this case her Honour’s award of a further 25 per cent to the wife (being in money terms a sum close to a quarter of a million dollars) which resulted in a total award to the wife of close to three-quarters of a million dollars, leaving the husband with property with a net value only in the region of a quarter of a million dollars but also with liabilities of almost $200,000, is beyond what has been described as the “generous ambit within which reasonable disagreement is possible” (per Brennan J in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712). On the basis of this matter, we are compelled to interfere with her Honour’s discretion.
Re-exercise of the discretion
In the event that we were to re-exercise the discretion, neither party sought to put updating evidence before us.
We have earlier indicated that on a re-exercise of the discretion, we would, because of the success of the cross appeal, increase the value of the net pool by $17,500, which would result in a figure of $1,003,485 (i.e. $985,985 + $17,500).
We would not, of course, interfere with the parties’ agreement that on the basis of their contributions alone, there should be an equal division of their property (that is, each would be entitled to property to the value of $501,742.50).
As to the s 75(2) adjustment, we are of the view that a 10 per cent ($100,348) adjustment in the wife’s favour on account of her responsibility for the child and for her significantly inferior financial circumstances and prospects, but having regard also to the husband’s responsibility for trade debts in the order of $193,000, would be a just and equitable adjustment.
Thus, the wife would be entitled to property to the net value of $602,090 ($501,742 + $100,348). The husband would be entitled to property to the net value of $401,395 ($1,003,485 - $602,090) but he would also have trade debts amounting to $193,094.
We adopt at this point the tables of figures which appear in paragraphs 75 and 76 of her Honour’s reasons and which show the assets which each party has – although it is necessary to increase the value of the husband’s butchery business to $35,000 and consequent totals:
75. [The wife]:
1. [Property A] $1,100,000
2. Honda motor vehicle $15,000
3. Furniture $7,000
4. Cash taken on separation $10,000
Sub-total $1,132,000
Less St George Bank mortgage $300,000
TOTAL: $832,000
…
76. [The husband]:
1. 50% [Property B] $412,500
2. 50% [Property C] 662,500
3. [HD] Butchery business $35,000
4. [L] BBQ business $70,000
5. [L] Meat business at [Location X] $100,000
6.Commodore motor vehicle $3,500
7. Mitsubishi van $1,500
8.Commonwealth Bank term deposit $186,000
Sub-total: $1,471,000
Less
1.Sydney Mortgage $206,000
2.50% Eclipse Mortgage $395,000
3.50% Bank West mortgage $226,250
4. Debt to [NP] $70,00 [sic]
5. Debt to [BCT] $100,000
6. Portion of debts to meat suppliers $271,597
7.Westpac equipment $30,668
TOTAL: $1,299,515
It will thus be seen that prior to any payment on account of property settlement, the wife is in possession of property to the value of $832,000 and the husband property to the net value of $171,485.
We will therefore vary her Honour’s orders to provide for a payment of $229,910 ($832,000 - $602,090; or $401,395 - $171,485) by the wife to the husband. We appreciate that this increase in the amount that the wife has to pay to the husband may mean that she cannot afford to keep the home. We received no submissions as to the appropriate orders to cover this eventuality. We think the appropriate course is to give liberty to the parties to apply within a further three months for further orders in the event the wife is unable to raise the amount required to be paid to the husband without the sale of the home.
Costs
Having regard to the submissions concerning costs made at the conclusion of the hearing before us and also to the outcome of the appeal and the cross appeal, we propose to grant each party a certificate under the Federal Proceedings (Costs) Act 1981.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 11 December 2007
Key Legal Topics
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Jurisdiction
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Statutory Construction
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