Rapetti & Ors and Rapetti - [2011] FamCA 668

FAMILY COURT OF AUSTRALIA

RAPETTI AND ORS & RAPETTI

[2011] FamCA 668

FAMILY LAW - PROPERTY SETTLEMENT – assessment of contributions – adjustment in relation to s 75(2) matters – whether proposed orders are just and equitable - substantial gifts or loans by husband’s parents during the marriage – finding that the husband and wife have no debt to the interveners - Limitation Act 1969 (NSW) considered.

Family Law Act 1975 (Cth): ss 79(4); 75(2)

Drinkwater & Ors. v Caddyrack Pty Ltd & Ors. [1997] NSWSC 589;

Gleeson v Gleeson [2002] NSWSC 418;

Ogilvie v Adams [1981] VR 1041;

Re Brookers (Aus) Limited (in liq) (1986) 42 SASAR 380

APPLICANT:

Mr D Rapetti

RESPONDENT:

Ms M Rapetti

INTERVENERS:

Mr R & Ms P Rapetti

FILE NUMBER:

SYC

2311

2008

DATE DELIVERED:

26 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

4-7 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Kearney
SOLICITOR FOR THE APPLICANT:	Doolan Wagner & Callaghan

COUNSEL FOR THE RESPONDENT:	Ms Rees SC
SOLICITOR FOR THE RESPONDENT:	Watkins Tapsell Solicitors and Barristers

COUNSEL FOR THE INTERVENERS:	Mr Simpson SC
SOLICITOR FOR THE INTERVENERS:	Diamond Conway Lawyers

Orders

That all applications filed herein by the interveners are dismissed.
That the husband and wife (“the parties”) forthwith do all acts and things and sign all documents necessary so as to list for sale (providing such listing not take place prior to the completion by J of his HSC in 2011) and effect the sale of the property known as … M Street, M, in the State of New South Wales, being the whole of the land described as Folio Identifier … (“the M property”) for the best price reasonably attainable in the following manner:
2.1The husband and wife shall agree upon a licensed real estate agent and auctioneer (“the agent”) to conduct the sale of the M property within 42 days of the date of these Orders.
2.2In default of agreement as to the agent, within 42 days of the date of these Orders, the husband and wife shall do all things and sign all necessary documents to request the President of the Real Estate Institute of New South Wales to nominate a licensed real estate and auctioneer to conduct the sale of the M property and the husband and wife must accept such nomination.
2.3The husband and wife shall, within seven days of appointing the agent, agree upon the method of sale and price for sale, but, in default of agreement, then the husband and wife shall do all things and shall sign all necessary documents to list the M property with the agent for sale by auction.
2.4The reserve price for the auction sale of the M property shall be as agreed between the husband and wife within seven days of the date that the property is auctioned or, in default of such agreement, the husband and wife shall do all things and sign all necessary documents to request…

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 Rapetti & Ors and Rapetti

Details

AGLC: Rapetti & Ors and Rapetti [2011] FamCA 668
Case: [2011] FamCA 668
Decision Date: 26 August 2011

CaseChat Overview and Summary

Stevenson J made orders in proceedings between the husband and wife, concerning the division of their property. The interveners' applications were dismissed. The primary dispute revolved around the sale of a property located at M Street, M, New South Wales, and the distribution of the proceeds, as well as the division of various other assets and liabilities.

The court was required to determine the specific terms and conditions under which the M property should be listed for sale, including the appointment of an agent, the method of sale, the reserve price, and the timeline for the auction. Further issues included the distribution of the sale proceeds, the immediate closure of a joint bank account, the entitlement to specific items of personal property such as cartoon cells and sports memorabilia, and the division of a superannuation fund. The court also needed to address the retention of other assets and liabilities by each party.

Stevenson J ordered that the M property be listed for sale after the completion of the husband's Higher School Certificate examinations in 2011, and that the sale be conducted by a mutually agreed agent or one nominated by the President of the Real Estate Institute of New South Wales. The sale was to be by auction, with specific provisions for setting a reserve price and conducting subsequent auctions if the property was not sold. The proceeds were to be distributed in a defined order of priority, including costs, a debt owed to Ms N and Mr C, a sum to Ms K, and the balance divided 65% to the wife and 35% to the husband. The wife was made solely responsible for statutory rates and charges on the property pending sale. The court also made specific declarations regarding the entitlement to cartoon cells, sports memorabilia, and a superannuation fund, and outlined the retention of other assets and liabilities by each party.

Orders

Orders of the court

That all applications filed herein by the interveners are dismissed.

That the husband and wife (“the parties”) forthwith do all acts and things and sign all documents necessary so as to list for sale (providing such listing not take place prior to the completion by J of his HSC in 2011) and effect the sale of the property known as … M Street, M, in the State of New South Wales, being the whole of the land described as Folio Identifier … (“the M property”) for the best price reasonably attainable in the following manner:

2.1 The husband and wife shall agree upon a licensed real estate agent and auctioneer (“the agent”) to conduct the sale of the M property within 42 days of the date of these Orders.

2.2 In default of agreement as to the agent, within 42 days of the date of these Orders, the husband and wife shall do all things and sign all necessary documents to request the President of the Real Estate Institute of New South Wales to nominate a licensed real estate and auctioneer to conduct the sale of the M property and the husband and wife must accept such nomination.

2.3 The husband and wife shall, within seven days of appointing the agent, agree upon the method of sale and price for sale, but, in default of agreement, then the husband and wife shall do all things and shall sign all necessary documents to list the M property with the agent for sale by auction.

2.4 The reserve price for the auction sale of the M property shall be as agreed between the husband and wife within seven days of the date that the property is auctioned or, in default of such agreement, the husband and wife shall do all things and sign all necessary documents to request the President of the Real Estate Institute of New South Wales to nominate a reserve price for the auction of the M property.

2.5 The husband and wife shall do all things and shall sign all necessary documents to cause the agent to auction the M property no later than 28 February 2012.

2.6 The husband and wife shall do all things and shall sign all necessary documents to instruct the agent to accept the said reserve price in the event that a bid is made in this sum or a greater sum at the auction.

2.7 In the event the M property is not sold on the first occasion that it is auctioned, then the husband and wife shall do all things and shall sign all necessary documents to cause the agent to auction it again every six weeks until it shall be sold upon the same terms and conditions as stated in Orders 2.3, 2.4 and 2.6.

2.8 In the event the bidding at the auctions does not reach the reserve price, the husband or wife, or such of them as attends the relevant auctions, may negotiate with the highest bidders or any other interested person and effect a sale of the M property at a price which is not more than 5 per cent below the reserve price, or at such other price as the parties agree in writing.

2.9 The husband and wife shall each co-operate in every way with the agent, including:

2.9.1 Making the key available to the agent.

2.9.2 Allowing the inspection of the M property at all reasonable times as requested by the agent.

2.9.3 By ensuring that the M property, including the grounds, is in a neat and clean condition at the time of inspection by the agent or prospective purchasers.

2.9.4 Signing all documents requested by the agent in relation to the listing for sale of the M property, except a contract or agreement of sale which has not been authorised by the solicitor for the husband and wife acting in relation to the conveyance.

2.10 The husband and wife shall agree upon and instruct a solicitor to conduct the sale of the M property and, in the absence of agreement reached within 42 days of the date of these Orders, the husband and wife shall do all such things and sign all necessary documents to request the President of the Law Society of New South Wales to appoint a solicitor to act in relation to the sale.

2.11 The husband and wife shall do all things and sign all necessary documents and provide all necessary authorities to cause the proceeds of the sale of the M property to be distributed in the following manner and priority:

2.11.1 All costs and expenses of sale, including legal costs and disbursements, agent's commission, valuer’s fees and auction expenses (including repayment of any such expense as has been paid by either or both of the parties in relation to the sale).

2.11.2 Payment of the debt owning to Ms N and Mr C pursuant to the Orders of 6 July 2011.

2.11.3 Payment to Ms K the sum of $7,194.00.

2.11.4 The balance remaining to be divided between the parties as to 65% to the wife and 35% to the husband.

That pending the sale of the M property:

3.1 Each of the husband and the wife shall be and hereby are restrained from encumbering or dealing in any way with their interest in the said property other than in accordance with these Orders.

3.2 The wife shall be solely responsible for payment of all statutory rates and charges and outgoings in respect of the said property and, in the event that any such amount is outstanding at the date of settlement of the sale of the said property, shall reimburse the husband from her share of the sale proceeds in respect of any amount paid by him in respect of such liabilities by operation of these Orders.

That forthwith each of the husband and wife do all things necessary to close the Macquarie Bank controlled monies account in the joint names of the parties and to pay the balance thereof to the wife.

That the wife is declared to be solely entitled to the cartoon cells known as “[Cell 1]”, “[Cell 2]”, “[Cell 3]”, and “[Cell 4]”.

That the husband is declared to be solely entitled to the sports memorabilia (being all of those items identified in the valuation of Mr B prepared on the instructions of the parties for these proceedings) presently held at the M property and the wife shall make all such items available for collection by the husband from the M property in good order and condition within fourteen (14) days of the date of these Orders.

That in accordance with 90MT(1)(b) of the Family Law Act 1975:

7.1 The wife is entitled to be paid 25% out of the husband’s interest in the Rapetti Superannuation Fund; and

7.2 The husband’s entitlement in the Rapetti Superannuation Fund is correspondingly reduced.

That the Trustee of the Rapetti Superannuation Fund shall forthwith do all such acts and things and sign all documents as may be necessary to pay the entitlement whenever the Trustee makes a splittable payment out of the husband's interest in the Rapetti Superannuation Fund.

That, except as otherwise provided herein, the wife shall retain, to the exclusion of the husband, all of her right, title and interest in the following:

9.1 All furniture, jewellery and other chattels currently in her possession, custody or control.

9.2 Any motor vehicle registered in her name.

9.3 Any funds standing to her credit in any Bank, Credit Union or Building Society account.

9.4 Any shares in any public or private company.

9.5 Any superannuation fund in which she has an entitlement.

9.6 All and any leave or long service, or any other employment benefits or entitlements.

9.7 The horse R.

10.

That, except as otherwise provided herein, the husband shall retain, to the exclusion of the wife, all of his right, title and interest in the following:

10.1 His interest in the property at W, New South Wales.

10.2 All furniture, jewellery and other chattels, including the golf buggy and golf clubs, currently in his possession, custody or control.

10.3 Any motor vehicle registered in his name.

10.4 Any funds standing to his credit in any Bank, Credit Union or Building Society account.

10.5 Any shares in any public or private company.

10.6 Any superannuation fund in which he has an entitlement.

10.7 All and any leave or long service, or any other employment

benefits or entitlements.

11.

That, except as otherwise provided for in these Orders, each party shall be liable for, and shall indemnify the other, in respect of any liabilities in their name.

12.

That all material produced on subpoena be returned.

13.

That the proceedings be removed from the Active Pending Cases List.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.