Pitte and Pitte - [2009] FamCA 147

FAMILY COURT OF AUSTRALIA

PITTE & PITTE

[2009] FamCA 147

FAMILY LAW – PROPERTY SETTLEMENT – Major asset was a motel or set of 10 leased flats valued by joint experts on the basis of rental potential but parties agree wife to retain one unit as her residence – Two leased units were occupied by commercial business operators who wanted to buy them and had signed conditional contracts for significantly higher values than the discrete amounts fixed by the joint valuers – Determination of the appropriate amount to be put into the pool of assets – Wife had been in control of the financial affairs of the motel and had not paid various liabilities from income in circumstances where she used funds for her own purposes – Wife to bear responsibility for some of the liability – Wife’s desire to retain all of the motel and pay husband a fixed sum – Orders made for circumstances where wife is able and unable to buy the motel – Long marriage with arguments about non-financial contributions – Parties found to have contributed equally – Consideration of s 75(2) factors where both parties in their 70’s – Costs

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Chorn v Hopkins (2004) FLC 93-204
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980) 146 CLR 336
Flotilla Nominees Pty Ltd v Western Australian Land Authority and Anor (2003) 129 LGERA 65
GWR and VAR [2006] FamCA 894
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Spencer v the Commonwealth (1907) 4 CLR 418
Townsend (1995) FLC 92-569

APPLICANT:

Mr Pitte

RESPONDENT:

Ms Pitte

FILE NUMBER:

MLF

1141

2006

DATE DELIVERED:

5 March 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

18, 19 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS DELLIDIS

SOLICITOR FOR THE APPLICANT:

MARK SHENKEN

COUNSEL FOR THE RESPONDENT:

MR JAMES

Orders

That paragraph 6 of the orders made on 15 February 2008 is discharged.
That by 4.00pm on 14 April 2009 (“the due date”):
(a) The wife pay to the husband $360,558;
(b)The wife produce to the husband a release of the husband from the mortgage to Bank West encumbering the real property at L (“the motel”);
(c)Indemnify the husband in respect of and also pay, the following liabilities:
(i)Outstanding council rates and fees, $2486;
(ii)Outstanding water rates, $2064; and
(iii)Outstanding council legal fees, $18,000.
(d)Contemporaneously with the compliance by the wife with (a), (b) and (c), the husband relinquish any interest in H Pty Ltd (“the company”) and sign any necessary document requested by the wife to give effect to the transfer to the wife of any such interest including signing any resignation as officer holder in the company.
Pending either the transfer to the wife referred to in paragraph 2(d) or the completion of all sales referred to in paragraph 4 and 5 hereof, the rentals from the motel be applied according…

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 Pitte and Pitte

Details

AGLC: Pitte and Pitte [2009] FamCA 147
Case: [2009] FamCA 147
Decision Date: 5 March 2009

CaseChat Overview and Summary

The case of *Pitte and Pitte* concerned a dispute between a husband and wife regarding the division of their assets. The Honourable Justice Cronin presided over the matter, issuing orders that discharged previous orders and established a new framework for the distribution of property and liabilities.

The court was required to determine the terms of settlement between the parties, including the financial obligations of each party, the process for the sale of various properties and company interests, and the ultimate division of the net proceeds. Key issues included the valuation and disposition of a motel, company shares, and other real estate, as well as the allocation of outstanding debts and taxes.

Justice Cronin's reasoning involved a detailed ordering of financial transfers and property dispositions. The wife was ordered to pay a significant sum to the husband and to release him from a mortgage, while also indemnifying him for various outstanding rates and legal fees. In return, the husband was to relinquish his interest in a company. The orders also stipulated a process for the sale of units in the motel, both by private treaty and, if necessary, by auction, with specific instructions on how the proceeds of these sales were to be applied. The net proceeds from these sales, along with other specified assets, were to form a pool to be divided equally between the parties, with further adjustments for specific properties and costs.

Orders

Orders of the court

That paragraph 6 of the orders made on 15 February 2008 is discharged.

That by 4.00pm on 14 April 2009 (“the due date”):

(a) The wife pay to the husband $360,558;

(b) The wife produce to the husband a release of the husband from the mortgage to Bank West encumbering the real property at L (“the motel”);

(i) Outstanding council rates and fees, $2486;

(ii) Outstanding water rates, $2064; and

(iii) Outstanding council legal fees, $18,000.

(d) Contemporaneously with the compliance by the wife with (a), (b) and (c), the husband relinquish any interest in H Pty Ltd (“the company”) and sign any necessary document requested by the wife to give effect to the transfer to the wife of any such interest including signing any resignation as officer holder in the company.

Pending either the transfer to the wife referred to in paragraph 2(d) or the completion of all sales referred to in paragraph 4 and 5 hereof, the rentals from the motel be applied according to paragraph 3 of the orders made on 15 February 2008.

Upon the transfer to the wife referred to in paragraph 2(d) or the completion of all sales referred to in paragraphs 4 and 5, any funds held by the solicitor for the wife not so disbursed according to the orders made on 15 February 2008 shall be divided equally between the husband and the wife.

In default of payment of the sum referred to in paragraph 2(a) or the production of the documents required to establish the matters in 2(b) or 2(c) by the due date, each party do all acts and things and sign all necessary documents to facilitate the sale by H Pty Ltd of Unit 5 and accessory Unit 27 and Unit 6 and accessory Unit 28 of L property according to the contracts of sale dated 19 June 2008 and 21 April 2008 respectively.

In default of payment of the sum referred to in paragraph 2(a) or the production of the documents required to establish the matters in paragraph 2(b) or 2(c) by the due date, then immediately thereafter, each party do all things and sign all necessary documents to facilitate the sale initially by private treaty of the Units 1, 2, 3, 4, 7, 8 and 9 together with the associated accessory units at the L property.

If the units are not sold by private treaty within three months of them going on the market, unless the parties agree otherwise, the units be placed on the market for sale by public auction.

The parties jointly in their capacities as directors of the company be responsible for the conduct of the sale of the units and the reserve price be fixed in accordance with the values attributed to each unit other than Units 5 and 6 as set out in the joint statement of the two valuers Mr C and Mr N.

Upon the settlement of the sale of the said units and each of them, the proceeds of sale be applied:

(a) First, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge the mortgage to Bank West encumbering the L property;

(d) Fourthly, to pay into the trust account for the solicitor for the husband, such sum as is necessary to pay the capital gains tax arising from the sale of the various units; and

(e) Fifthly, to add the balance to the pool of assets set out in paragraph 10 hereof.

10.

For the purposes of the division of assets as between husband and wife, the pool shall comprise the following:

(a) The net sum referred to in paragraph 9(e);

(b) Unit 10 of the motel at $190,000;

(d) The R property at $44,444;

(e) The wife’s Indonesian property at $20,800;

(f) The wife’s cars at $6000;

(g) The rent retained by the wife at $4840; and

(h) The wife’s jewellery at $7500.

11.

The pool referred to in paragraph 9 shall be divided equally.

12.

From the pool, the wife retain and the husband relinquish any interest in:

(a) The L land;

(b) The wife’s Indonesian property;

(d) The balance up to 50 per cent in cash.

13.

From the pool, the husband retain and the wife relinquish any interest in the following:

(a) R property, $44,444; and

(b) The balance in cash to make up 50 per cent of the pool referred to in paragraph 10.

14.

From the wife’s share referred to in paragraph 11(d), there shall paid to the husband:

(a) $6050 for costs thrown away on 15 February 2008;

(b) $2160 for costs thrown away on 18 November 2008; and

15.

That the wife retain and the husband relinquish any interest in Unit 10 of the said motel noting that it is currently owned as registered proprietor by the company.

16.

That each party otherwise retain and the other relinquish any interest in, any interest in any property in that party’s possession or control as at the date of these orders.

17.

That all proceedings be otherwise dismissed.

18.

That all proceedings be removed from the list of cases awaiting a hearing.

19.

That any material produced under subpoenae be returned to the recipient of the subpoena.

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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