Randle and Randle - [2014] FamCA 248

FAMILY COURT OF AUSTRALIA

RANDLE & RANDLE

[2014] FamCA 248

FAMILY LAW – PROPERTY – application by wife for division of property - contributions – superannuation -

FAMILY LAW – PROPERTY – Death of party to proceedings after reasons were given and orders were made – Leave granted for sons or punitive executors to apply as a legal personal executive

Family Law Act 1975 (Cth) ss 75(2), 79 and 79(8)

APPLICANT:

Ms Randle

RESPONDENT:

Mr Randle

FILE NUMBER:

HBC

668

2010

DATE DELIVERED:

19 February & 5 March 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

18 & 19 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dixon SC and Ms Foale

SOLICITOR FOR THE APPLICANT:

Simmons Wolfhagen

COUNSEL FOR THE RESPONDENT:

Ms C. Gibson

SOLICITOR FOR THE RESPONDENT:

Charmaine Gibson

Orders

These orders shall be binding upon the parties, their legal personal representatives; including any executor/s, administrator/s and/or assigns of one or other of the parties.
Within 120 days of the date of these orders the husband shall pay to the wife the sum of $328,740. Interest to accrue on that sum as and from 1 April 2014 at a rate of 6 per cent per annum until the date payable pursuant to these orders and thereafter interest to accrue as provided in the Family Law Rules 2004. Such payment to the wife may be made by way of a trust distribution from the Randle Family Trust, provided the husband pays and indemnifies the wife in respect of any tax liability arising from such payment.
Within 120 days from the date of these orders the wife shall transfer to the husband her interest in O Street, P Town (‘O Street’) and R Street, P Town (‘R Street’). The husband shall pay rates, taxes and insurance on these properties from the date of this order and shall indemnify the wife in that respect.
Within 120 days from the date of these orders the husband shall transfer to the wife his interest in S Street, P Town (‘S Street’). The wife shall pay rates, taxes and insurance on that property from the date of this order and shall indemnify the husband in that respect.
Within 120 days of the date of this Order, the husband shall cause the mortgage to E Bank over S Street (“the S Street mortgage”) to be discharged and the wife be released from her personal covenants in respect of that mortgage. Pending the discharge of the S Street mortgage the husband shall indemnity the wife in respect of the S Street mortgage and shall pay interest and normal loan repayments in respect of that mortgage as and when they fall due.
Within 120 days from the date of these orders the husband shall transfer to the wife his interest in T Street, P Town. Pending the transfer of T Street, the wife shall pay rates, taxes and insurance on that property from the date of this order and shall indemnify…

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 Randle and Randle

Details

AGLC: Randle and Randle [2014] FamCA 248
Case: [2014] FamCA 248
Decision Date: 5 March 2014

CaseChat Overview and Summary

This matter concerned orders made by Benjamin J in the Federal Circuit Court of Australia, dealing with the division of property between the parties, the husband and the wife. The dispute involved the distribution of various assets, including real estate, bank accounts, shares, and other personal property, as well as the discharge of mortgages and the payment of capital gains tax. The court was required to make binding orders to effectuate this division.

The court was tasked with determining the specific terms of the property settlement, including the valuation and transfer of assets, the allocation of liabilities such as mortgages and taxes, and the timeframe within which these actions were to be completed. This involved addressing the distribution of interests in multiple properties, the transfer of various financial assets including shares and bank accounts, and the management and sale of a jointly held property, Unit B Street, Suburb C. The court also needed to consider the implications of the husband's death, which occurred prior to the finalisation of these orders, and how this would affect the execution of the settlement.

Benjamin J's reasoning, as reflected in the orders, involved a detailed allocation of assets and liabilities between the parties. The orders specify monetary payments, property transfers, and the discharge of encumbrances, with strict timeframes for compliance. Notably, the court addressed the sale of Unit B Street, Suburb C, by private treaty, outlining a detailed process for its listing, sale, and the distribution of proceeds, including provisions for capital gains tax and reimbursement for repairs. The court also made specific provisions for the division of superannuation entitlements and the proceeds of a life insurance policy, and addressed the transfer of various personal chattels and vehicles.

The final orders established a comprehensive framework for the division of the parties' property and liabilities. These orders are binding on the parties and their legal personal representatives. The court granted leave for parties to apply in relation to the arithmetic and procedural aspects of the orders, particularly in light of the husband's death, and dismissed all extant applications not dealt with in the orders, save for costs.

Orders

Orders of the court

1. These orders shall be binding upon the parties, their legal personal representatives; including any executor/s, administrator/s and/or assigns of one or other of the parties.

2. Within 120 days of the date of these orders the husband shall pay to the wife the sum of $328,740. Interest to accrue on that sum as and from 1 April 2014 at a rate of 6 per cent per annum until the date payable pursuant to these orders and thereafter interest to accrue as provided in the Family Law Rules 2004. Such payment to the wife may be made by way of a trust distribution from the Randle Family Trust, provided the husband pays and indemnifies the wife in respect of any tax liability arising from such payment.

3. Within 120 days from the date of these orders the wife shall transfer to the husband her interest in O Street, P Town (‘O Street’) and R Street, P Town (‘R Street’). The husband shall pay rates, taxes and insurance on these properties from the date of this order and shall indemnify the wife in that respect.

4. Within 120 days from the date of these orders the husband shall transfer to the wife his interest in S Street, P Town (‘S Street’). The wife shall pay rates, taxes and insurance on that property from the date of this order and shall indemnify the husband in that respect.

5. Within 120 days of the date of this Order, the husband shall cause the mortgage to E Bank over S Street (“the S Street mortgage”) to be discharged and the wife be released from her personal covenants in respect of that mortgage. Pending the discharge of the S Street mortgage the husband shall indemnity the wife in respect of the S Street mortgage and shall pay interest and normal loan repayments in respect of that mortgage as and when they fall due.

6. Within 120 days from the date of these orders the husband shall transfer to the wife his interest in T Street, P Town. Pending the transfer of T Street, the wife shall pay rates, taxes and insurance on that property from the date of this order and shall indemnify the husband in that respect and from the date of the order shall be entitled to all rents and profits on that property.

7. Within 120 days from the date of these orders the husband will do all things necessary to transfer to the wife bank accounts and investments in the sole name of the wife;

(i) E Bank Account number …;

(ii) E Bank Saver Account number …;

(iii) E Bank Account number …;

(iv) E Bank Saver Account number …; and

(v) X Trustees Select Mortgage Fund, member number ...

(vi) All shares currently held in the name of the wife, including but not limited to her Y Pty Ltd shares;

(vii) Any furniture, household effects or any items of personality currently in the possession of the wife, save and except for antique furniture; and

(viii) Loan repayable by Mr AA to the wife in the sum of $40,000.00.

8. Within 120 days from the date of these orders the husband will do all things necessary to transfer his interest in the joint Commonwealth Bank account for T Street (account with number …), along with the balance funds of $943.00 and will provide to the wife all records, as are reasonably available, relating to the current tenancy, purchase and improvements to T Street property since acquisition for the purpose of potential capital gains tax that may arise in the future.

9. Within 120 days from the date of these orders (or such earlier time as agreed by the parties) the husband (in his personal capacity and as in his capacity as Director of Randle Pty Ltd as trustee for the Randle Family Trust) and wife shall do all acts and things and execute all documents necessary to list unit B Street, Suburb C in Queensland, including the furniture and contents contained therein (‘B Street’), for sale by private treaty as set out in the following manner:

(a) the parties shall appoint a local real estate agent as agreed between them (“the agent”);

(b) the listing price for the sale shall be as agreed between the parties and failing agreement as recommended by the agent, who shall have regard to any valuations provided by the parties or either of them;

(c) neither party shall sign or enter into a contract for sale of B Street without the consent of the other party or that parties legal personal representative or in the absence of consent, an order of this Court.

(d) the parties shall co-operate in every way with the agent including (without limiting the generality of the foregoing):-

(i) making the key available to the agent;

(ii) signing all documents requested by the agent to sell B Street;

(iii) subject to agreement or determination as to terms, executing a contract for sale in the form prepared by solicitors or conveyancers having the conduct of the sale at the sale price;

(iv) allowing inspection of B Street all reasonable times as requested by the agent;

(v) doing all necessary repairs or improvements as recommended by the agent,

(vi) not doing or saying anything to hinder or prevent a sale being effected;

(e) On settlement of the sale of B Street the proceeds of sale shall be distributed in the following manner and priority:

(i) all costs and agreed expenses of the sale including legal costs and disbursements, agent’s commission, advertising expenses and auction expenses;

(ii) an amount necessary to discharge the mortgage encumbering B Street property;

(iii) An amount reasonably calculated by either or both parties to meet any capital gains tax payable on the sale of B Street; Such sum so calculated to be paid to the husband, and

a) the husband shall lodge tax returns and he shall pay or cause to be paid such actual capital gains tax or cause such tax to be paid as soon as is practicable and shall indemnify the wife in respect of such capital gains tax,

b) when the actual capital gains tax is assessed, based on the completed sale of B Street; the husband shall within 7 days inform the wife of the amount of such assessed capital gains tax; and

I. shall pay to the wife an amount equivalent to 45 per cent of the difference between the assessed capital gains tax and the amount calculated at the time of sale, if the amount calculated at the time of sale is greater than assessed capital gains tax. and

II. the wife shall pay the husband an amount equivalent to 55 per cent of the difference between the assessed capital gains tax and the amount calculated at the time of sale (if the amount calculated at the time of sale is less than the assessed capital gains tax).

(iv) to reimburse any party who paid for any necessary repairs/maintenance or improvements to prepare B Street for sale – provided that such costs were approved by the other party before the work was carried out.

(v) the balance remaining shall be paid to the wife.

(f) The parties may, on 14 days notice, seek to relist the matter if they seek further orders in respect of the sale of B Street.

(g) In addition to the payment of the balance of proceeds of sale as provided in this order the husband shall, within 14 days of the completion of the sale of B Street, pay to the wife an amount equivalent to 45 per cent of the net proceeds of sale of that property (the ‘net balance due’). The net balance due is to be calculated by deducting from the gross sale price of B Street; the costs and agreed expenses of the sale including legal costs and disbursements, agent’s commission, advertising expenses, repairs or maintenance costs carried out with the consent of the parties and any auction expenses; the amount reasonably calculated by either or both parties to meet any capital gains tax payable on the sale; and the amount otherwise paid to the wife pursuant to order 9(e)(v).

(h) Pending the sale of B Street, the husband shall pay or cause to be paid the mortgage, rates, land tax, insurance, Body Corporate fees and all outgoings of whatsoever nature or kind pertaining to that property as they fall due.

10. Within 120 days of the date of this order the husband shall transfer to the wife all of his personal shareholdings on the Australian Stock Exchange; namely 243 D Pty Ltd shares and 1028 E Bank shares to the value of about $87,588; save and except for the 50 E Bank shares of a value of about $5,000 which shares remain the property of the husband.

11. Pursuant to paragraph 90MT(1)(b) Family Law Act 1975 (Cth), whenever the Trustee of the Randle Superannuation Fund (“the Fund”) makes a splittable payment from the interest held by the husband, the Trustee shall pay to the Applicant wife, 100 per cent of the splittable payment, and there shall be a corresponding reduction in the entitlement the husband would have had in the Fund but for this order.

(a) The previous paragraph has effect from the operative time.

(b) The operative time is four (4) days from the date this order is served upon the Trustee of the Fund.

(d) Each party and the Trustee of the Fund shall have liberty to apply in relation to this splitting order up and until 1 October 2014.

12. Within 120 days of the date of this order, the husband shall do all such things as are necessity to claim the funds receivable by the husband’s estate from the F Pty Ltd Insurance policy insuring the husband’s life held by the husband, identified as Contract number …, with commencement date 27 May 1996, including but not limited to the Death Benefit component of value $367,000 and pay same to the wife; and if necessary for the purpose of giving effect to this order, the husband shall make a binding nomination, nominating the wife as the beneficiary of the F Pty Ltd Insurance policy number … and provide evidence of that nomination to the wife and pay or cause to be paid the premiums on that policy as and when they fall due.

13. Within 120 days from the date of this order the wife will sign all documents to transfer to the husband all her interest, if any, in:

(a) G Pty Ltd;

(b) Randle Pty Ltd;

(d) H Pty Ltd;

(e) I Pty Ltd;

(f) Any furniture, household effects or any items of personality in the possession of the husband;

(g) E Bank shares; and

(h) All bank accounts held in the sole name of the husband, including the husband’s E Bank saver account ending.

(i) the motor vehicles in the possession of the husband, together valued at $6,000;

(j) any insurance policy insuring any property to be retained by the husband pursuant to these orders; and

(k) The antiques held at J Hall, valued at twelve hundred dollars ($1,200).

(l) The antique furniture, which items the wife will make available to the husband or his nominee for collection when reasonably requested within 120 days of the date of this order.

14. Any further monies, net of legal costs, received or receivable by the husband or his nominee pursuant to the recovery action commenced by K Lawyers be paid to the parties on the basis of 55 per cent to the husband and 45 per cent to the wife. To this end, the husband shall irrevocably authorise the wife to make enquires of the debt recovery agent at her own expense. The husband shall keep the wife reasonably informed as to the recovery of the debts.

15. Within 120 days of the date of this Order, the husband will sign all documents necessary to transfer to the wife the motor vehicle, registered number … and the motor vehicle, Queensland registered number ….

16. The wife provide to the husband, within 120 days of the date of this order, a Withdrawal of Caveat number …, together with a cheque made payable to the Recorder of Titles in the sum of $124.83.

17. As soon as is reasonably possible (and at least by 1 October 2014) each party shall forward or cause to be forwarded to the legal representative of the other party keys or security devices that the first party has to property transferred, or to be transferred, to the other party under these orders, including house and car keys.

18. The husband shall indemnify the wife from and against income tax liability on income received or deemed to have been received by the wife up to and including the date of these orders.

19. Subject to these orders and as between the parties:-

(a) each of the husband and wife is solely entitled (to the exclusion of the other) to property and chattels in the possession or control of such party as at the date of these orders; and

(b) that for this purpose Bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the Worker, whose age or working future provides the conditions for payment out of such entitlements;

20. Leave is given to each party and/or the legal personal representative of the husband to apply in relation to the arithmetic and/or mechanics of this order and/or the procedural orders sought pursuant to Rule 6.15 of the Family Law Rules 2004, such leave to be available up to 1 October 2014 or such other period as is otherwise ordered.

21. Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries, minutes of orders and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

22. All extant applications (except costs), including the husband’s divorce application and the wife’s spousal maintenance application, as are not dealt with in these orders are dismissed. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

IT IS CERTIFIED

23. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth), it was reasonable to engage Junior Counsel and Senior Counsel to attend.

THE COURT NOTES

24. The husband has requested return of his collection of military history books, 15 plates previously belonging to his mother, engraved silver teapot which was a gift to the husband from the army and silver salt and pepper shakers.

25. The motor vehicle in Queensland is owned by one or other of the husband’s business and has an agreed value of $3,000. As this vehicle is to be transferred to the wife, the value of G Pty Limited was reduced by $3,000 and the motor vehicle was treated as property with a value of $3,000 on the wife’s side of the ledger. If this approach is arithmetically incorrect, the parties (or either of them) have leave to apply to vary these orders pursuant to order 20 above; provided a legal personal representative has been appointed for the husband.

26. The wife made submissions as to the method of transferring the 45 per cent of the value of B Street to her. The approach adopted in these orders is to delay the payment to her of her share of the value of B Street until that property has been sold. It is not intended to double count to mortgage. If the approach is arithmetically incorrect, the parties (or either of them) have leave to apply to vary these orders, pursuant to order 20 above; provided a legal personal representative has been appointed for the husband.

27. The parties conceded, by way of agreed fact that the husband had died on Sunday 2 March 2014.

28. The husband’s counsel made further oral submissions to this Court on 5 March 2014 (when she appeared by genesis telephone link with the husband’s two sons present with her) and by way of letter lodged (pursuant to leave) dated 6 March 2014.

29. Senior counsel for the wife made oral submissions in court on 5 March 2014 (when he appeared by genesis telephone link with the wife and Ms Foale by telephone and Mr McKenna at the bar table) and the wife’s solicitor made written submission by document entitled ‘Submissions made on behalf of wife’ filed 7 March 2014 (pursuant to leave).

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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