Read and Fry & Anor

Case [2019] FamCA 201


FAMILY COURT OF AUSTRALIA

READ & FRY AND ANOR [2019] FamCA 201
FAMILY LAW – PROPERTY – Where the parties have interests in companies, property and personal assets both in Australia and the United States of America – Where the matter has been complicated by the involvement of an Intervener who asserts an interest in an Australian property of the Applicant and Respondent – Where the matter is further complicated by the existence of unfinished proceedings in the Supreme Court of Queensland – Where the Intervener seeks that the Respondent deliver possession of an Australian property to him and for the property to be sold – Where the action is statute barred – Where after considering the history and circumstances of the case and the parties and the current and future needs and earning capacity of the parties, an appropriate split of the property pool is 75/25 in favour of the Applicant – Where the Respondent is to provide the Applicant with vacant possession of the property in the United States of America and a further sum and the Applicant is to provide the Respondent with vacant possession of the properties in Australia.

Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Judiciary Act 1903 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Land Title Act 1994 (Qld)
Land Transfer Act 1908 (NZ)
Limitation Act 1969 (NSW)
Limitation of Actions Act 1974 (Qld)

Property Law Act 1974 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1
Australia & New Zealand Banking Group v Karam and others (2005) 64 NSWLR 149; [2005] NSWCA 344
Bahr v Nicolay [No. 2] (1988) 164 CLR 604; [1988] HCA 16
Black and Kellner (1992) FLC 92-287; [1992] FamCA 2
Bourseguin v Stannard Bros Holdings Pty Ltd [1994] 1 Qd R 231; [1991] QSCFC 57
Bucknell v Commercial Banking Co of Sydney Ltd (1937) 58 CLR 155; [1937] HCA 35
Campbell v District Land Registrar of Auckland (1910) 29 NZLR 332
Giunti and Giunti (1986) FLC 91-759; [1986] FamCA 15
Gordon v Macgregor (1909) 8 CLR 316; [1909] HCA 26
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
Friedman v Barrett; ex parte Friedman [1962] Qd R 498
Hepburn v McDonnell (1918) 25 CLR 199; [1918] HCA 43
Lewis v Plunkett [1937] 1 All ER 530
Mezzacappa and Mezzacappa (1987) FLC 91-853; [1987] FamCA 20
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5
Smart and Smart [2014] FamCA 262
Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71
Sucrogen Australia Pty Ltd v Westpac Banking Corporation [2012] 2 Qd R 175; [2011] QSC 393
Tara…

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AGLC
Read and Fry & Anor [2019] FamCA 201
Case
[2019] FamCA 201
Decision Date

CaseChat Overview and Summary

This matter concerned applications by an intervener, the respondent husband, and the applicant wife before Forrest J. The dispute involved the correction of land titles in Queensland to remove unenforceable mortgages, the payment of a sum of money by the respondent husband to the applicant wife, and the division of various assets and liabilities between the parties, including real property in Queensland and the United States.

The court was required to determine the enforceability of certain mortgage documents registered against three Queensland properties, the appropriate financial settlement between the parties, and the division of their respective assets and liabilities. This included the allocation of specific motor vehicles, personal possessions, bank accounts, superannuation interests, shares, business interests, and liabilities related to properties in the United States and credit card debts. The court also needed to address the process for correcting land registers and the consequences of non-compliance with its orders.

Forrest J ordered the removal of two specified mortgage documents from the title of three Queensland properties, declaring them unenforceable. The respondent husband was ordered to pay the applicant wife AUD107,110 within one month, failing which the properties would be sold to satisfy this amount. In return for this payment, the applicant wife was to remove a caveat from the titles. The court also ordered the transfer of a property in the United States from the respondent husband to the applicant wife, with the applicant wife indemnifying the respondent husband against a Citibank loan secured against that property. The parties were to exchange possession of the Queensland and United States properties upon completion of these transfers and payments. Specific allocations of other assets and liabilities were also made, with the Senior Registrar appointed to execute documents in case of non-compliance.

Orders

Orders of the court

1.

That all applications by the Intervener are dismissed.

2.

That all necessary steps be taken by the Intervener, the Respondent Husband, the Australian Securities and Investments Commission and/or the Registrar of Titles, Queensland, to cause the details entered in the Queensland freehold land register in respect of the following three real property lots:

(i) Lot 1 on RP … County of …, Parish of …, Queensland, Title Reference number …;

(ii) Lot 2 on RP … County of …, Parish of …, Queensland, Title Reference number …; and

(iii) Lot 3 on RP … County of …, Parish of …, Queensland, Title Reference number …;

to be corrected so that Mortgage Document No. …81 and Mortgage Document No. …84, which are hereby declared unenforceable, are removed from the title to those lots forthwith.

3.

That within one calendar month of the date hereof, the Respondent Husband shall pay to the Applicant Wife the sum of AUD107,110, in default of which the three real property lots listed in paragraph (2) hereof shall be sold and the Applicant Wife paid that sum plus interest in accordance with the Family Law Act 1975 (Cth) and Family Law Rules 2004 (Cth) from the sale proceeds, with the balance of any sale proceeds to be retained by the Respondent Husband.

4.

That in return for payment of the sum of AUD107,110, plus any interest owing, the Applicant Wife shall sign, if necessary, and deliver to the Respondent Husband all documents necessary to cause the removal of caveat number …58 from the details contained in the Queensland freehold land register in relation to the three real property lots listed in paragraph (2) hereof.

5.

That upon payment to the Applicant Wife of AUD107,110 plus any interest owing, in circumstances where the three real property lots listed in paragraph (2) hereof are not sold, the husband shall retain all right, title and interest in those three lots, or any one of them that is not sold, as his sole property absolutely.

6.

That within one calendar month of the date hereof, the Respondent Husband shall do all things necessary, including signing all documents as may be required to transfer all of his right, title and interest in the real property situation at Q Street, R Town, State K, United States of America, … (“the State K property”) to the Applicant Wife.

7.

That the Applicant Wife shall upon receipt of the transfer of the Respondent Husband’s right, title and interest in the State K property, indemnify the Respondent Husband against any and all liability owing to Citibank for the Home Equity Loan secured by lien or mortgage over the State K property and she shall immediately upon receipt of the payment of the sum of AUD107,110 plus any interest owing in respect of that amount pursuant to these Orders, the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth), cause that lien or mortgage pursuant to which the Respondent Husband may be jointly or severally liable, to be repaid and discharged or refinanced and discharged.

8.

That upon transfer of the Respondent Husband’s right, title and interest in the State K property to the Applicant Wife, the Respondent Husband shall give the Applicant Wife vacant possession of the State K property.

9.

That upon receipt of the transfer of the Respondent Husband’s right, title and interest in the State K property to the Applicant Wife and the delivery of vacant possession of that property to the Applicant Wife, the Applicant Wife shall deliver vacant possession of the three real property lots at Tara in the State of Queensland listed in paragraph (2) hereof to the Respondent Husband.

10.

That the Applicant Wife shall retain as her sole property absolutely, the following:

(i) The Motor vehicle 1;

(ii) The Motor vehicle 2;

(iii) Her personal possessions and the furniture located at Lot 3, T Street, Town B, Queensland; and

(iv) All money in bank accounts in her own name.

11.

The Applicant Wife shall retain as hers absolutely all her interests in various superannuation and retirement benefit funds whether in Australia or the United States of America.

12.

That the Respondent Husband shall retain as his sole property absolutely, the following:

(i) The motor vehicles 3 & 4 in his possession;

(ii) His personal possessions, tools and furniture located at the State K property;

(iii) All money in bank accounts in his name; and

(iv) All shares he owns or controls in any company and any business he owns or controls.

13.

That the Respondent Husband shall indemnify the Applicant Wife and keep her indemnified against any and all liability that may be owed by him and/or her in respect to a debt owed in relation to the acquisition by the company, N LLC, of a real property in State P, United States of America and against any and all liability that may be owed by him in respect of credit card liability or personal loan liability or any other liability for credit or debt incurred in his own name or in the name of any company in which he owns shares or which he controls.

14.

That should either the Applicant Wife or Respondent Husband refuse or neglect to sign any instrument required to be signed by her or him to comply with these Orders or refuse or neglect to do anything directed by these Orders, the Senior Registrar of the Brisbane Registry of this Court is hereby appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to execute the document or instrument in the name of the person who refuses to sign it and to do all acts and things necessary to give validity and operation to any such document or instrument.

15.

That should any or all of the three real property lots listed in paragraph (2) hereof have to be sold pursuant to paragraph (3) hereof, the Applicant Wife may apply, on the giving of written notice to the Respondent Husband, to the Court for further directions and/or Orders in respect to the process by which the properties are to be sold.

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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