FAMILY COURT OF AUSTRALIA
| RAMON & RAMON | [2008] FamCA 324 |
| FAMILY LAW – PROPERTY – EVIDENCE – Expert Opinion – Valuations based on differing methodologies of two highly qualified experts considered – Whilst neither valuation correct or incorrect, Court preferred valuation which had regard to actual disposal transactions and was not solely theoretical. FAMILY LAW – PROPERTY – INVESTMENT – The husband facilitated the corporate trustee of the parties’ superannuation fund to provide capital to a corporation in which the trustee acquired shares when corporation unable to repay capital advances – Proceedings in the Equity Division of the New South Wales Supreme Court resulted in the winding up of the corporation – The initial capital contribution was found not to have been opposed by the wife – The husband was found to have acted unreasonably and without the wife’s consent in relation to later contributions – The later monies were accordingly considered in the context of contributions but not added back to asset pool. FAMILY LAW – PROPERTY – CONTRIBUTIONS – Husband found to have made greater initial financial contribution – Throughout the cohabitation the parties were found to have contributed equally save for recognition of the husband’s financial and non-financial contributions to the care of a child of the wife – Found that an adjustment to contributions post-separation necessary in light of unreasonable investment by the husband of monies relating to the parties’ superannuation fund – Overall contributions found to be 52.3 per cent to the husband and 47.7 per cent to the wife. FAMILY LAW – PROPERTY – SECTION 75(2) – Any hypothetical consequences for the earning capacity of the husband and of tax implications arising from the disposal of the business considered in context of s 75(2) – Husband found to have greater earning capacity than wife, even where a hypothetical sale of the business was considered – Hypothetical tax implications of sale of the business also considered – The wife found to suffer significant health difficulties – The husband cohabits with a new partner –Found these circumstances warranted an adjustment of 4 per cent. |
| Family Law Act 1975 (Cth) Corporations Act 2001 (Cth) |
| State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 IABH & HRBH [2006] FamCA 379 Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 Brisbane City Council v Valuer-General for State of Queensland (1978) 140 CLR 41 Housing Commission of New South Wales v San Sebastian Pty Ltd & Others (1978) 140 CLR 196 Valuer-General v Fenton Nominees Pty Ltd (1982) 150 CLR 160 In the Marriage of Davies (1995) FLC 92-646 GWR v VAR (2006) 36 Fam LR 237 Elsey v Elsey (1997) FLC 92-727 Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 Jones v Dunkel (1959) 101 CLR 298 Oriolo v Oriolo (1985) FLC 91-653 Weir v Weir (1993) FLC 92-338 Black v Kellner (1982)… |
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- AGLC
- Ramon & Ramon [2008] FamCA 324
- Case
- [2008] FamCA 324
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the valuation of assets, particularly where expert opinions diverged, and the appropriate treatment of certain investments made by the husband. Specifically, the court was required to determine how to assess the value of an asset when two qualified experts presented valuations using different approaches. Furthermore, the court had to consider the husband's actions in facilitating capital advances from the parties' superannuation fund to a corporation, which later became unable to repay these advances, and the consequences of his subsequent, unconsented contributions to that corporation. The court also needed to assess the overall contributions of each party to the marriage and determine if any adjustment was warranted under section 75(2) of the *Family Law Act 1975* (Cth), taking into account factors such as earning capacity, tax implications, and the health of the parties.
Coleman J resolved the valuation dispute by preferring the expert opinion that had regard to actual disposal transactions over a purely theoretical approach. Regarding the husband's investments, the court found that while the initial capital contribution was not opposed by the wife, his later contributions were unreasonable and made without her consent. These later monies were considered in the context of contributions but not added back to the asset pool. The court determined that the husband had made greater initial financial contributions, but throughout the cohabitation, contributions were largely equal, with a minor recognition of the husband's contributions to the care of a child. An adjustment was deemed necessary post-separation due to the husband's unreasonable investment of superannuation monies. After considering the husband's greater earning capacity, hypothetical tax implications of business disposal, and the wife's significant health difficulties, an adjustment of 4% was made under section 75(2) in favour of the wife. Overall contributions were assessed at 52.3% to the husband and 47.7% to the wife.
The court made detailed orders for the transfer of property, including the husband transferring his interest in the "H property" to the wife and indemnifying her against any mortgage liabilities, while the wife would transfer her interests in the "P", "B", and "D" properties to the husband. The husband was also ordered to pay the wife a sum of $950,000, with provisions for interest and the potential sale of the "P", "B", and "D" properties if payment was not made. Further orders addressed the transfer of shareholdings in various companies, the finalisation of superannuation entitlements, and the division of other assets, including a vehicle and a motor vehicle, with specific provisions for the husband to retain certain assets. Costs were reserved.
Orders
Orders of the court
1.
That within 90 days of the date of these orders the husband do all acts and things and execute all deeds, documents, instruments and writings necessary to transfer to the wife the husband’s right title and interest in the property known as H (“[H property]”).
2.
That the husband indemnify the wife and keep her indemnified against any proceedings suits, claims or demands of whatsoever nature brought against the wife in respect of the first mortgage registered against the title of the H property in favour of Permanent Custodians Limited in respect of the said home and within 180 days do all acts and things to cause the existing mortgage in favour of Permanent Custodians Limited to be discharged and the wife to be released from any liability pursuant to the personal covenants given by her in such mortgage.
3.
That within 180 days of the date of these orders or upon the husband subsequently complying with his obligations pursuant to such orders, the wife do all acts and things and execute all deeds, documents, instruments and writings necessary to transfer to the husband all the wife’s right title and interest in the properties known as:
(a) P (“[P Property]”);
(b) B (“[B Property]”); and
(c) D (“[D Property]”).
4.
That the husband indemnify the wife and keep her indemnified against any proceedings suits, claims or demands of whatsoever nature brought against the wife in respect of the existing mortgages registered against the titles of the P, D and B properties in favour of:
(a) Permanent Custodians Limited; and
(b) BankWest
and against all other liabilities secured or unsecured with respect to the said properties and each of them, including taxation or other costs of realisation of such properties or any of them.
5.
That within 180 days of the date of these orders, the husband pay to the wife the sum of $950 000.
6.
That, in the event of the husband failing to pay to the wife the said sum of $950 000 within 180 days of these orders, interest shall accrue upon such sum, or so much of such sum as then remains outstanding, at the prime interest rate from time to time prescribed by the Reserve Bank of Australia (currently 7.25 per cent).
7.
That, in the event of the husband failing to pay to the wife the said sum of $950 000, together with any interest accrued thereon pursuant to these orders, within 240 days of the date of these orders and/or comply with his obligations pursuant to order 2 hereof, the wife shall be entitled to require the husband to join in the sale of the P and/or B and/or D properties.
8.
In the event of the wife requiring the husband to sell the P and/or B and/or D properties pursuant to these orders, then, subject to order 11 hereof, the parties shall forthwith do all acts and things and sign all documents necessary to cause the sale of P property and/or B property and/or D property and in particular shall:
(a) Place the P and/or B and/or D properties with an estate agent in the area (hereinafter called “the auctioneer”) for the sale by auction at the earliest possible date.
(b) Execute all documents requested by the auctioneer for the sale of the said properties by auction.
(c) Request the auctioneer to recommend a reserve price to be placed on the said properties for the purpose of the auction sale and accept such recommended reserve price.
(d) Pay to the auctioneer any sum requested for advertising expenses in relation to the auction.
(e) Give such instructions as are necessary to solicitors agreed to by both parties, for the preparation of a contract for sale and for the contract for sale to be made available to the auctioneer prior to the auction.
(f) Attend at the auction sale of the said properties and negotiate with the highest bidder in the event that the reserve price is not reached.
(g) Accept the advice of the auctioneer as to the acceptance of a price less than the reserve price.
(h) Execute the contract for sale.
(i) Co-operate in every way with the auctioneer in relation to the auction of the said properties including making a key available, allowing inspection of the said properties and at all times requested by the auctioneer and ensuring that the said properties are in a neat and clean condition at the time of inspection by prospective purchasers.
(j) Execute all other documents necessary to complete the sale(s) of the properties.
9.
In the event that the said properties are not sold:
(a) at an auction pursuant to these orders; or
(b) within seven (7) days of the date of such auction by negotiation with the highest bidder at such auction,
the husband and the wife do all acts and things and execute all documents necessary to cause to be held a further action of the said properties within three (3) months after the date of the first auction.
10.
Upon the sale of the P, B and/or D properties the proceeds of sale be paid in the following manner and priority:
(a) Payment of agent’s commission and auction expenses if any due on the sale of the said properties.
(b) Payment of all monies necessary to discharge any existing mortgages on the abovementioned properties and the W property, then:
(i) Payment of legal costs on the sale of the said properties.
(ii) Water rates, council rates and other applicable conveyancing adjustments.
(iii) Payment of any relevant Capital Gains Tax as assessed by P Accountants.
(iv) $950 000 plus any accrued interest to the wife.
(v) Balance to the husband.
11.
That the sequence in which such of the P and/or B and/or D properties are sold pursuant to these orders be determined by the husband and advised to the wife in writing provided that the wife shall be entitled to require the husband to sell only so many of such properties as shall be necessary to satisfy the wife’s entitlement pursuant to these orders.
12.
That in compliance with these orders the wife do all acts and things and sign all documents transfers or writings to transfer to the husband or his nominee all her right title and interest in her shareholding in the companies known as:
(a) W Pty Ltd; and
(b) YY Partners Pty Ltd (“the companies”).
13.
That upon transfer to the husband of the said shareholding the husband do all acts and things necessary to indemnify the wife against any proceedings, suits or claims of whatsoever nature brought against the wife:
(a) in respect of any liability of the wife under any debt due to the companies;
(b) in relation to or arising out of the wife’s shareholding in the companies;
(c) in relation to or arising out of the wife’s directorship of the companies;
(d) in relation to any personal guarantees given by the wife in respect of any borrowings of money by the companies.
14.
The wife do all acts and things necessary to resign as a director of the abovementioned companies provided that the husband hands to the wife the copy of the minutes of a resolution of the companies recording the wife’s resignation as a director together with a properly drawn and executed form of notification to the National Companies and Securities Commission advising of the wife’s resignation.
15.
That upon transfer to the husband of the said shareholding other than for the purpose of enforcing these orders the wife shall otherwise assign to the husband any right or claim she may have at law or in equity against the companies.
16.
That the husband in compliance with these orders do all acts and things, call all necessary meetings of W Pty Ltd as trustee of the Ramon Family Trust and pass all such resolutions as may be requested by the accountants for the Ramon Family Trust to finalise all financial affairs with respect to the wife’s interest in the Ramon family Trust and to transfer the assets of the Family Trust to the husband.
17.
That the wife transfer to the husband her interest in any joint bank accounts and/or bank accounts of the companies.
18.
That the husband and the wife forthwith do all acts and things, call all necessary meetings of W Pty Ltd as trustee of the Ramon Superannuation Fund and pass all such resolutions as may be requested by the accountants for the Ramon Superannuation Fund to transfer to the wife all the wife’s right title and interest in the Ramon Superannuation Fund and to transfer the wife’s superannuation entitlement to a superannuation fund to be nominated by the wife to the trustee within one (1) month of the date of these orders.
19.
That the husband do all acts and things and sign all documents necessary to transfer all his right title and interest at law or in equity in the 2003 Toyota Prado motor vehicle registered number … to the wife.
20.
That the husband forthwith do all things necessary to transfer to the wife all of his right title and interest in the Australian Scholarship Association Fund.
21.
That subject upon compliance with these orders, the husband retain all his right title and interest in:-
(a) the boat;
(b) the roll-over bond; and
(c) the husband’s motor vehicle.
22.
That upon the husband’s compliance in full with these orders and otherwise subject to these orders, the wife shall transfer to the husband all her right title and interest including her shares in the following companies:-
(a) W Pty Limited; and
(b) L Pty Limited.
(c) E Pty Ltd.
23.
That the husband and wife are solely entitled to all other chattels, assets including their respective superannuation entitlements and resources in their respective names, possession or control or to which they are otherwise entitled and not otherwise referred to herein.
24.
That both parties do all things necessary and sign all documents necessary to give effect to these orders.
25.
That counsel have liberty to submit agreed minutes of order varying any provision of these orders.
26.
That there be liberty to apply on 72 hours notice in relation to implementation of these orders.
27.
That costs be reserved.
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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