Reicher & Reicher - [2008] FamCA 108

FAMILY COURT OF AUSTRALIA

REICHER & REICHER AND ANOR

[2008] FamCA 108

FAMILY LAW – PROPERTY – S79(2) Just and equitable property settlement

Family Law Act 1975 (Cth)

APPLICANT:

MRS REICHER

RESPONDENT:

MR REICHER

INTERVENOR:

MS MOSKOWITZ

FILE NUMBER:

MLF

2846

2006

DATE DELIVERED:

19 FEBRUARY 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

19 FEBRUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR SWEENEY

SOLICITOR FOR THE APPLICANT:

BERGER KORDOS

COUNSEL FOR THE RESPONDENT:

MS STOIKOVSKA

SOLICITOR FOR THE RESPONDENT:

GLEZER LANTERI & ASSOCIATES

COUNSEL FOR THE INTERVENOR:

MR SALAMANCA

SOLICITOR FOR THE INTERVENOR:

WEBB KORFIATIS

ORDERS

THAT the real property situate at and known as B… be offered for sale by public auction within sixty (60) days by an Estate Agent at a reserve price and on terms and conditions to be agreed between the husband and wife or in the absence of any agreement, on any matter within fourteen (14) days the matters be determined by the Chief Executive Officer of Real Estate Institute of Victoria or his or her nominee (“the REIV”).
THAT in the event that the B property not sell at auction then the property be offered at private sale at the reserve price or other price recommended by the selling agent and on terms and conditions agreed or as specified by the REIV in the event of disagreement.
THAT the solicitor who will be responsible for conducting the conveyance associated with the sale is to be agreed to between the parties within fourteen (14) days and failing agreement to be nominated by the President of the Law Institute of Victoria.
THAT the husband be entitled to visit and inspect B property on one (1) occasion prior to the property being placed on the market with the Estate Agent upon providing to the wife seven (7) days prior written notice and during that visit the Estate Agent determine whether any and if so what repairs or improvements ought to be undertaken to the dwelling at B to maximise the sale price.
THAT the parties follow the recommendations of the selling agent as to the expenditure of reasonable sums to maximise the sale price of B property such expenditure is to be limited to no more than $5,000.00.
THAT between this date and the settlement of the sale of B property:-
(a)the wife pay any interest on the mortgage and any rates due in that period and any arrears of rates and taxes as may have accumulated;
(b)the parties each ensure that B property is insured pending settlement and each be responsible for one half of such cost.
THAT upon the settlement of the sale of B property, the proceeds be applied as follows:
(a)first to pay the costs of and incidental to the sale;
(b)secondly to discharge the mortgage registered on the Title to B property (approximately $59,000);
(c)thirdly to pay to Ms Moskowitz (“the Intervener”) the sum of $28,000;
(d)fourthly to pay the costs of any recommended repairs…

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 Reicher & Reicher

Details

AGLC: Reicher & Reicher [2008] FamCA 108
Case: [2008] FamCA 108
Decision Date: 19 February 2008

CaseChat Overview and Summary

This matter came before Young J concerning the disposition of real property and related financial and personal matters between a husband and wife, with the intervention of a third party. The central dispute revolved around the sale of a jointly owned property, the distribution of its proceeds, and the resolution of various financial obligations and personal arrangements between the parties, including those pertaining to a Jewish religious divorce.

The court was required to determine the terms and conditions for the sale of the real property, including the method of sale, reserve price, and the appointment of an estate agent and solicitor. Further issues included the allocation of responsibility for property maintenance and insurance costs pending sale, the order of priority for the distribution of sale proceeds, and the resolution of financial claims between the parties and the intervener. The court also had to address the husband's obligation to participate in a Jewish religious divorce process and the severance of joint tenancies and the division of other property.

Young J ordered that the property be offered for sale by public auction within sixty days, with terms and conditions to be agreed between the parties or determined by the Chief Executive Officer of the Real Estate Institute of Victoria in the event of disagreement. The court detailed the application of sale proceeds, prioritising sale costs, mortgage discharge, a payment to the intervener, repair costs, insurance reimbursement, and then an equal division of the balance between the husband and wife. The wife was ordered to pay a sum to the intervener and indemnify the husband in respect of that payment, while the intervener was to release the husband from any debt. Crucially, the husband was ordered to appear before the Melbourne Beth Din and provide a gett if directed by that religious court, subject to specific provisos. Other extant applications were dismissed, and parties were to retain their respective other properties and superannuation entitlements.

Orders

Orders of the court

THAT the real property situate at and known as B… be offered for sale by public auction within sixty (60) days by an Estate Agent at a reserve price and on terms and conditions to be agreed between the husband and wife or in the absence of any agreement, on any matter within fourteen (14) days the matters be determined by the Chief Executive Officer of Real Estate Institute of Victoria or his or her nominee (“the REIV”).

THAT in the event that the B property not sell at auction then the property be offered at private sale at the reserve price or other price recommended by the selling agent and on terms and conditions agreed or as specified by the REIV in the event of disagreement.

THAT the solicitor who will be responsible for conducting the conveyance associated with the sale is to be agreed to between the parties within fourteen (14) days and failing agreement to be nominated by the President of the Law Institute of Victoria.

THAT the husband be entitled to visit and inspect B property on one (1) occasion prior to the property being placed on the market with the Estate Agent upon providing to the wife seven (7) days prior written notice and during that visit the Estate Agent determine whether any and if so what repairs or improvements ought to be undertaken to the dwelling at B to maximise the sale price.

THAT the parties follow the recommendations of the selling agent as to the expenditure of reasonable sums to maximise the sale price of B property such expenditure is to be limited to no more than $5,000.00.

THAT between this date and the settlement of the sale of B property:-

(a) the wife pay any interest on the mortgage and any rates due in that period and any arrears of rates and taxes as may have accumulated;

(b) the parties each ensure that B property is insured pending settlement and each be responsible for one half of such cost.

THAT upon the settlement of the sale of B property, the proceeds be applied as follows:

(a) first to pay the costs of and incidental to the sale;

(b) secondly to discharge the mortgage registered on the Title to B property (approximately $59,000);

(d) fourthly to pay the costs of any recommended repairs undertaken pursuant to paragraph 4 hereof;

(e) fifthly to reimburse the cost of any insurance paid on the dwelling at B in the event that either party fails to pay his/her share;

(f) the balance:

(i) 50% to the wife; and

(ii) 50% to the husband.

THAT the wife pay to the Intervener, if and when called upon to do so, the sum of $100,000 and she indemnify the husband in respect to that payment.

THAT the Intervener forthwith release the husband from any debt owing or liability to her of whatsoever nature and kind;

10.

THAT the husband forthwith appear, if and when called upon by the wife so to do, before the Melbourne Beth Din (Jewish Religious Court) and deliver into her hand a gett (Jewish Bill of Divorcement) if and when the same has been ordered, directed or recommended by the said Religious Court and do all other acts and things as may be required of them to give validity and operation, according to Halakhah (Orthodox Jewish law), to any such order, direction, recommendation or grant by the said Religious Court for a divorce in accordance with Orthodox Jewish law, provided always and it is hereby declared that this order not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious Court or in any way inhibiting the husband or wife in making any application, request or submission to the said Religious Court or, save as aforesaid, to deny him or her any right or privilege he or she would otherwise have.

11.

THAT unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent orders;

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the wife);

(b) each party retain their superannuation entitlements in their respective names;

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

(e) any joint tenancy of the party in any real or personal estate is hereby expressly severed;

12.

THAT the extant applications of the husband and the wife and the Intervener respectively (including the application of the husband for spousal maintenance) be otherwise dismissed and otherwise the proceedings be removed for the list of cases awaiting Trial.

13.

THAT all subpoenaed documents produced to the Court be forthwith returned to the Individual or organisation producing same.

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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