Reza & Reza - [2023] FedCFamC2F 179

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Reza & Reza [2023] FedCFamC2F 179

File number(s): SYC 677 of 2020

Judgment of: JUDGE MORLEY

Date of judgment: 24 February 2023

Catchwords:
FAMILY LAW – property – application for property order under section 79 – only asset to be considered in application being proceeds of sale of former matrimonial home – contributions prior to and during marriage equivalent between spouse parties – contributions post-separation significantly favour Wife – further adjustment appropriate in Wife’s favour.

FAMILY LAW – property – Husband a discharged bankrupt – trustee of the Husband’s bankrupt estate not a party to the proceedings as at time of final hearing – former trustee of the Husband’s bankrupt estate a party to the proceedings at time of final hearing – matrimonial asset pool only comprised of the proceeds of sale of the former matrimonial home – former trustee expended sums from the net proceeds of sale for costs and disbursements – Court finds that such expenditure was unacceptable and sum added back.

FAMILY LAW – property – previous undefended bankruptcy proceedings in Adelaide – bankrupt person resident in NSW – bankrupt estate comprised of assets in NSW – Federal Circuit Court of Australia sitting Adelaide – orders made pursuant to Law of Property Act 1936 (SA).

Legislation:
Bankruptcy Act 1966 (Cth) ss 58, 149, 153, 160.

Bankruptcy Amendment Act 1999 (Cth) s 27.

Conveyancing Act 1919 (NSW) s 66G.

Family Law Act 1975 (Cth) ss 75, 79, 79A, 90AB, 90AE, 106A, 117.

Federal Circuit Court of Australia Act 1999 (Cth) s 16.

Judiciary Act 1903 (Cth) s 79.

Law of Property Act 1936 (SA) ss 69, 70.

Victims Rights and Support Act 2013 (NSW)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13.

Cases cited:
Dickons & Dickons [2012] FamCAFC 154

Fontana & Fontana [2018] FamCAFC 63

Grier & Malphas (2017) 55 Fam LR 107

Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395

In the Marriage of Harris (1991) 104 FLR 458

Jabour & Jabour [2019] FamCAFC 78

Kennon & Kennon (1997) 139 FLR 118

Needham & Trustees of the Bankrupt Estate of Needham [2017] FamCAFC 94

Stanford & Stanford (2012) 247 CLR 108

Trustee of the Property of G Lemnos, a Bankrupt & Lemnos and Anor [2009] FamCAFC 20

Division: Division 2 Family Law

Number of paragraphs: 226

Date of last submissions: 6 June 2022

Date of hearing: 15 July 2021, 11 March 2022

Place: Sydney

Counsel for the Applicant: Ms Haughton

Solicitor for the Applicant: Avondale Lawyers

Solicitor for the First Respondent: The First Respondent did not appear

Counsel for the Second Respondent: Mr O’Brien

Solicitor for the Second Respondent: Birtsos Legal Pty Ltd
ORDERS

SYC 677 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS REZA

Applicant

AND:
MR REZA

First Respondent

MR VINNEY AS TRUSTEE OF THE BANKRUPT ESTATE OF MR REZA

Second Respondent

order made by:

JUDGE MORLEY

DATE OF…

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 Reza & Reza

Details

AGLC: Reza & Reza [2023] FedCFamC2F 179
Case: [2023] FedCFamC2F 179
Decision Date

CaseChat Overview and Summary

This case involved a property settlement between Ms Reza and Mr Reza, who were married in 1994 and separated in 2013. The only asset to be considered in the application was the proceeds from the sale of their former matrimonial home. Mr Reza was declared bankrupt in 2010, and his interest in the property vested in his trustee in bankruptcy. The former trustee of Mr Reza's bankrupt estate was a party to the proceedings, but the Official Trustee in Bankruptcy was not. The court found that the contributions of the parties during their marriage were equivalent, but the Wife's contributions post-separation significantly favoured her. The court also found that the expenditure by the former trustee from the net proceeds of sale for costs and disbursements was unacceptable and added the sum back. The court made an order that 80% of the net proceeds of sale, equivalent to $245,573.23, be paid to the Wife, and 20%, equivalent to $62,643.31, be paid to the bankrupt estate of the Husband through the Official Trustee. The court also found that the Wife was the sole owner of all personal property, financial assets, and financial resources currently in her power, possession, or control, except as otherwise dealt with in the orders, and that the Husband was the sole owner in law and in equity of all personal property, financial assets, and financial resources currently in his power, possession, or control, subject to vested bankruptcy property of his bankrupt estate.

Orders