Pieters and Pieters - [2017] FamCA 991

FAMILY COURT OF AUSTRALIA

PIETERS & PIETERS

[2017] FamCA 991

FAMILY LAW – PROPERTY – where there is a modest amount of property yet significant contribution by the wife as a result of her relationship with a benefactor – where asset by asset approach is fairest – where husband desires to keep home but evidence does not support his capacity to do so. Husband should still have opportunity to try – where parties conducted business through a trust which held significant tax losses and each party seeks them – where the home valuation of a single expert is disputed.

Family Law Act 1975 (Cth)

Chorn & Hopkins (2004) FLC 93-204
Gosper and Gosper (1987) FLC 91-818
Pollard & Young [2010] FamCAFC 228
Robb and Robb (1995) FLC 92-555
Zalewski and Zalewski (2005) FLC 93-241

APPLICANT:

Ms Pieters

RESPONDENT:

Mr Pieters

FILE NUMBER:

MLC

5067

2013

DATE DELIVERED:

5 December 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Atkinson

SOLICITOR FOR THE APPLICANT:

Vadarlis & Associates

COUNSEL FOR THE RESPONDENT:

Ms McDiarmid

SOLICITOR FOR THE RESPONDENT:

GJ Legal Solicitors

Orders

By 4 pm on 19 January 2018, the husband pay to the wife $400,000 and provide her with written evidence of a release from any liability to F Bank in respect of the mortgage encumbering the real property at B Street, C Town.
Contemporaneously with the payment and the receipt of the release in paragraph 1, the wife transfer to the husband, at his expense, her interest in the C Town property and the wife thereafter relinquish any interest in any chattels and personal property otherwise contained or retained there.
If the husband defaults either in the payment in paragraph 1or the provision of the release referred to, he and wife forthwith thereafter place the C Town real property on the market for sale on terms and conditions to be agreed.
If agreement is not reached as to the terms of conditions of the sale of the C Town real property within one month of the default, each party has leave to make an urgent application for that issue to be determined by the Court.
Upon the settlement of the sale of the C Town real property, the proceeds be applied as follows:
(a)First, to pay the costs, commissions and advertising expenses of the sale of the C Town real property;
(b) Secondly, to discharge the mortgage to F Bank encumbering it;
(c)Thirdly, to add the balance to the sum referred to in paragraph 182 of the reasons for judgment delivered this day and that such sum then be divided according to the formula set out in paragraph 208 of those reasons.
That pursuant to s 78 of the Family Law Act 1975, the wife is declared the legal and equitable owner of the properties in Country J referred to in paragraph 182 of the said reasons for judgment and the business known and…

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.

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Details

Case: [2017] FamCA 991
Decision Date: 5 December 2017

CaseChat Overview and Summary

In *Pieters and Pieters*, the parties were a husband and wife involved in family law proceedings. The dispute concerned the division of their property interests. The matter came before Cronin J.

The court was required to determine the appropriate orders for the division of the parties' assets, including real property and a business, and to address the liabilities associated with these assets. Specifically, the court needed to make orders regarding the transfer of interests in a property located at C Town, the discharge of a mortgage, and the distribution of sale proceeds. Further issues included the declaration of ownership of properties in Country J and a business known as "D Pty Ltd", as well as the indemnification of liabilities related to that business.

Cronin J made orders that, by a specified date, the husband was to pay the wife $400,000 and provide evidence of her release from liability to F Bank concerning the mortgage on the C Town property. Contemporaneously, the wife was to transfer her interest in the C Town property to the husband and relinquish any interest in chattels and personal property there. The orders also stipulated that if the husband defaulted, the C Town property was to be placed on the market for sale, with specific provisions for agreement on sale terms or further court intervention if agreement was not reached. Upon sale, proceeds were to be applied first to sale costs, then to discharge the F Bank mortgage, and the balance was to be added to a sum previously referred to in the reasons for judgment and divided according to a specified formula. The court also declared the wife the legal and equitable owner of properties in Country J and the business "D Pty Ltd" pursuant to s 78 of the *Family Law Act 1975*, and ordered the wife to indemnify the husband against all liabilities arising from "D Pty Ltd". The parties' applications, save for costs, were dismissed.

Orders

Orders of the court

By 4 pm on 19 January 2018, the husband pay to the wife $400,000 and provide her with written evidence of a release from any liability to F Bank in respect of the mortgage encumbering the real property at B Street, C Town.

Contemporaneously with the payment and the receipt of the release in paragraph 1, the wife transfer to the husband, at his expense, her interest in the C Town property and the wife thereafter relinquish any interest in any chattels and personal property otherwise contained or retained there.

If the husband defaults either in the payment in paragraph 1or the provision of the release referred to, he and wife forthwith thereafter place the C Town real property on the market for sale on terms and conditions to be agreed.

If agreement is not reached as to the terms of conditions of the sale of the C Town real property within one month of the default, each party has leave to make an urgent application for that issue to be determined by the Court.

Upon the settlement of the sale of the C Town real property, the proceeds be applied as follows:

(a) First, to pay the costs, commissions and advertising expenses of the sale of the C Town real property;

(b) Secondly, to discharge the mortgage to F Bank encumbering it;

(c) Thirdly, to add the balance to the sum referred to in paragraph 182 of the reasons for judgment delivered this day and that such sum then be divided according to the formula set out in paragraph 208 of those reasons.

That pursuant to s 78 of the Family Law Act 1975, the wife is declared the legal and equitable owner of the properties in Country J referred to in paragraph 182 of the said reasons for judgment and the business known and described in those reasons as “D Pty Ltd”.

From this day onwards, the wife indemnify the husband, and pay, all liabilities specifically arising from D Pty Ltd.

That save as to issues of costs between the parties, the application of the wife filed 23 June 2017and the response of the husband filed 14 July 2017 are dismissed.

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

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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