SALTERS & SALTERS

FAMILY COURT OF AUSTRALIA

SALTERS & SALTERS

[2020] FamCA 138

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where each party seeks a marginal adjustment of their interests in property – Where the parties disagreed about the identification and value of items in the matrimonial asset pool – Where the husband sought to include interim property distributions in their relevant historical amounts – Where the wife contended that the assets should represent their current values – Wife’s approach favoured – Matrimonial pool calculated based on the current value of the relevant assets – Where the parties were married for 23 years – Where the husband made significant financial contributions during the marriage and following separation – Where the overwhelming majority of the homemaker contributions were made by the wife – Where each of the husband and the wife worked diligently to contribute to the marriage – Where the Court assessed the parties’ overall contributions to be equal – Where the wife’s role as homemaker facilitated the husband’s involvement in highly paid work – Where the husband has a greater earning capacity than the wife – Where joint funds were used to the wife’s benefit following separation – Where the wife had the benefit of residing in the former matrimonial home following separation – Where no adjustment is warranted under s 79(4) of the Family Law Act 1975 (Cth) – Orders made to facilitate the matrimonial assets to be distributed equally between the parties.

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

Dickons v Dickons (2012) 50 Fam LR 244
Gabel & Yardley (2008) FLC 93-386
In the Marriage of Lenehan (1987) FLC 91-814
In the Marriage of Norbis (1986) FLC 91-712
In the Marriage of Shewring (1988) FLC 91-926
In the Marriage of Zyk (1995) FLC 92-644
Pierce & Pierce (1999) FLC 92-844
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Salters

RESPONDENT:

Mr Salters

FILE NUMBER:

SYC

6952

2017

DATE DELIVERED:

11 March 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

17 – 18 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Gayle Meredith & Associates

Orders

Within seven days of the date of these Orders the parties shall do all acts and things to cause the funds standing to the credit of the offset account (account number ending #..27) to be applied in reduction of the debt to the Westpac Banking Corporation that is secured by mortgage number …57 (“the Suburb C mortgage”) which is registered on the title of the property situate and known as B Street, Suburb C in the State of New South Wales (“the Suburb C property”) and if practicable, to discharge that mortgage.
The parties shall disburse any funds remaining in the offset account, after they have complied with Order 1 herein, equally between them.
Within 21 days of the date of these Orders the parties do all things necessary to list the Suburb C property for sale for the best price reasonably obtainable as agreed and failing agreement, then as follows:
(a)By no later than seven days following the date of these Orders the parties shall jointly appoint a solicitor and real estate agent to act on the sale of the Suburb C property.
(b)In the event there is no agreement as to the appointment of a solicitor and/or agent to act on the sale of the Suburb C property within 14 days of these Orders, the wife shall nominate the names of three solicitors/conveyancers and three real estate agents and the husband shall select one solicitor and one real estate agent within seven days of receiving the wife's nominations.
First auction
(c)Unless otherwise agreed between the parties in writing, the Suburb C property shall be sold by auction on or before 1 May 2020 and the parties shall do all things necessary to cause the auction to take place.
(d)The parties shall do all acts and things and sign all documents necessary to appoint the nominated agent and nominated solicitor and give such instructions as are necessary for the preparation of a contract of sale, and for the contract of sale to be made available to the agent prior to the first auction date.
(e)The reserve price for the first auction of the Suburb C property shall be $7,000,000 unless otherwise agreed between the parties in writing.
(f)In the event that the Suburb C property does not reach the reserve price at the first auction, then unless otherwise agreed between the parties in writing, they shall negotiate with the highest bidders or any interested persons and effect the sale of the Suburb C property for the highest price bid or offered subsequent to the auction provided that the Suburb C property is sold for a price not less than 95 percent of the reserve price used for the first auction.
Sale by Private Treaty
(g)In the event the Suburb C property does not sell at the first auction then unless otherwise agreed between the parties in writing, the parties shall do all acts and things and sign all documents necessary to forthwith list the Suburb C property for sale by private treaty.
(h)For the purpose of the sale of the Suburb C property by private treaty, the list price shall be $6,300,000 unless otherwise agreed between the parties in writing.
Second auction
(i)In the event that the Suburb C property is not sold at the first auction or by way of private treaty, then the parties shall do all acts and things and sign all documents necessary to re-auction the Suburb C property by 1 July 2020 and for the purpose of such auction, the reserve price shall be $6,300,000.
(j)In the event that the Suburb C property does not reach the reserve price at the second auction, then unless otherwise agreed between the parties in writing, the parties shall negotiate with the highest bidders or any interested persons and effect the sale of the Suburb C property for the highest price bid or offered subsequent to the auction provided that the Suburb C property is sold for a price not less than 95 percent of the reserve price used for the second auction.
Third auction
(k)In the event that the Suburb C property is not sold at the second auction or by way of private treaty, then the parties shall do all acts and things and sign all documents necessary to re-auction the Suburb C property by 1 October 2020 and the reserve price for the purpose of such auction shall be $5,670,000 or such other price as the parties agree upon in writing.
(l)If prior to 1 October 2020 the wife elects to retain the Suburb C property at the value of $5,670,000 then the wife shall provide to the husband written notice that she wishes to retain the property at $5,670,000 or such other value as the parties may agree upon in writing and thereafter the provision of Order 7 shall apply.
(m)In the event that the Suburb C property does reach reserve price at the third auction and the wife has not given the notice provided for in Order 3(l), then unless otherwise agreed between the parties in writing, the parties shall negotiate with the highest bidders or any interested persons and effect the sale of the Suburb C property for the highest price bid or offered subsequent to the auction for the property provided that the Suburb C property is sold for a price not less than 95 percent of the reserve price used for the third auction.
Fourth auction
(n)In the event that the Suburb C property is not sold at the third auction or by way of private treaty, then the parties shall do all acts and things and sign all documents necessary to re-auction the Suburb C property by 1 December 2020 and the reserve price for the purpose of such auction shall be $5,103,000 or such other price as the parties agree upon in writing.
(o)If prior to 1 July 2021 the property is not sold and the wife elects to retain the Suburb C property at $5,103,000, then the wife shall provide to the husband written notice that she wishes to retain the Suburb C property at $5,103,000 or such other value as the parties may agree upon in writing, and thereafter the provisions of Order 7 shall apply.
(p)In the event that the Suburb C property does reach reserve price at the fourth auction, then unless otherwise agreed between the parties in writing, the parties shall negotiate with the highest bidders or any interested persons and effect the sale of the Suburb C property for the highest price bid or offered subsequent to the auction for the property provided that the Suburb C property is sold for a price not less than 95 percent of the reserve price used for the fourth auction.
(q)The wife is restrained from accepting an offer to purchase and executing a contract for sale at a price less than the list price, the reserve price or a price otherwise permitted by the terms of these orders, as the case may be, without the agreement in writing of the husband.
For the purpose of the sale of the Suburb C property, the husband and wife shall cooperate in every way with the solicitor and the agent, including but not limited to:
(a)making the keys available to the agent;
(b)facilitating unfettered access to the Suburb C property at all times upon a request being made by the agent for the purpose of effecting the sale of the Suburb C property, including but not limited to facilitating access for the purpose of inspections by prospective purchasers and the auction;
(c)by not saying or doing anything that is likely to hinder or prevent the sale of the Suburb C property being effected;
(d)by ensuring that the Suburb C property, including the grounds, are in a neat and clean condition at all times pending the sale, including but not limited to times when any inspections are held and on the day of the auction;
(e)maintaining the Suburb C property in reasonable condition and repair having regard to the present condition and the state of the property, pending completion of the sale;
(f)signing all documents requested by the solicitor and/or the agent in relation to the listing of the Suburb C property within the timeframe requested;
(g)in the event that either party maliciously or carelessly causes any damage to the Suburb C property, such repair will be at that party's own expense and shall be deducted from that party's share of the net sale proceeds provided for in Order 7 below;
(h)the parties shall accept the advice of the agent as to any minor repair works required to prepare the Suburb C property for sale provided such costs shall not exceed $10,000 unless otherwise agreed, and each of the parties shall meet one half of such expenses; and
(i)other than as provided for in (h) above, the parties shall otherwise be restrained from arranging for any others works to be carried out to the Suburb C property that has not been recommended by the agent without the prior written consent of the other party.
Pending the sale of the Suburb C property or the implementation of Order 7 (whichever occurs first):
(a)the wife shall have the exclusive use and occupation of the Suburb C property; and
(b)the parties shall pay one half of all outgoings for the Suburb C property, which outgoings shall include water rates, insurances, necessary maintenance and repair work and council rates as they fall due and payable.
In the event the Suburb C property sells at public auction or private treaty, then upon settlement of the sale of the Suburb C property, the parties shall do all acts and things and provide all such instructions as are necessary to procure payment of the proceeds of sale in the following manner and priority:
(a)payment of agent's commission and sale expenses due on the sale of the Suburb C property;
(b)payment of all advertising expenses incurred in marketing the Suburb C property for sale;
(c)payment of legal costs;
(d)payment necessary to discharge the Suburb C mortgage;
(e)subject to Order (4)(g) above, in reimbursement to either party the expenses they have incurred preparing the Suburb C property for sale; and;
(f)as to 50 percent of the remaining proceeds to the wife; and
(g)the balance to the husband.
In the event the wife retains the Suburb C property pursuant to Order (3)(l) or (3)(o), then within a further 21 days from the date that written notice is given to the husband of the wife's intention to retain the Suburb C property, the wife shall pay to the husband 50 percent of the amount representing the net value of the property being the value at which the wife retained the property minus the sale costs incurred to date.
Upon a payment being made in accordance with Order (6) the wife will remain the sole, legal and beneficial owner of the Suburb C property to the exclusion of the husband.
The D Trust
Within 30 days of these orders, the wife:
(a)transfer to the husband the whole of her right, title and interest in shares in her name in E Pty Ltd ACN …;
(b)assign to the husband the whole of her right, title and interest in any credit or debit loan account in the D Trust;
(c)resign as a joint appointor of the D Trust;
(d)be restrained from making a claim of any nature as a potential beneficiary of the D Trust;
(e)resign as a director of E Pty Ltd;
(f)transfer to the husband the whole of her interest in the Company F Portfolio number …02 and G Fund;
(g)resign from any position she holds in H Ltd and cause to be transferred to the husband all shares owned by her in H Ltd;
(h)be restrained from making any claim of any nature on the remaining entitlement of the husband in the H Superannuation; and
(i)sign all documents required to have her removed as a signatory on all bank accounts in the name of E Pty Ltd, the D Trust, the Company F Portfolio number …02 and the G Fund.
Within two months from the date of these Orders the husband shall pay to the wife the sum of $3,700,764.50 by way of property settlement.
In the event that the husband incurs an income tax liability for previous transfers of investments from the J Trust to the D Trust, the wife shall pay to the husband an amount reflecting one half of the tax assessed for that reason an shall pay that amount to the husband within 14 days of receipt of evidence of the assessment and of the husband’s payment of that tax.
The P Trust
Within 21 days of the date of these Orders the husband shall do all acts and things and sign all documents presented to him by the wife as are necessary for the husband to transfer or assign to the wife (as the wife may in her absolute discretion require), any loan account or beneficiary current account he has in the P Trust and relinquish all of his right, title and interest in the P Trust including as a principal and beneficiary of the P Trust, whether such interest may be actual, contingent or otherwise, including signing a disclaimer of interest in the Trust in the form presented to him by the wife and by giving written notice to the Trustee of the P Trust declaring that she is to be excluded from the class of beneficiary of the Trust.
Joint bank accounts
Subject to Order 1., within fourteen days of the date of the making of these Orders, the parties shall do all acts and things and sign all documents necessary to distribute the balance of all joint bank accounts between the parties equally and thereafter such joint bank accounts shall be closed.
Furniture and effects
The husband be entitled, to the exclusion of the wife, to all furniture and household effects and jewellery currently in his possession and which are set out in Schedule 1 to these orders, and all the furniture and household effects located at the property L Street, M Town.
The wife make available to the husband for his collection from the Suburb C property, the furniture, household effects and jewellery set out in Schedule 1 to these Orders within one calendar month of the date of these Orders, or such date as the parties agree upon in writing.
That the wife be entitled, to the exclusion of the husband, to all furniture and household effects and jewellery located in the Suburb C property, save and except for the items in Schedules 1, 3 and 4.
That the parties make available to the children of the marriage the items set out in Schedule 3, being items of personalty that belong to the children.
That the wife do all acts and things to cause the items in Schedule 4 to be sold for the best price reasonably achievable and shall cause the proceeds of sale to be applied as follows:
(a) in payment of sale costs; and
(b) the balance to be divided equally between the parties.
Unless otherwise provided for herein, each party shall otherwise retain to the exclusion of the other, all other assets, choses in action and/or financial resources in their respective possession, custody and control at any time, including but not limited to all or any monies standing to the credit of any account conducted by either of them with a financial institution, shareholdings, motor vehicles, superannuation entitlements and any present or future expectation under a trust or estate to which they may become entitled in the future.
Except where these Orders provide to the contrary, the husband shall be responsible for and indemnify the wife in relation to all present and future debts and liabilities in his name or in the name of any company, trust or other entity which is owned by and/or controlled by the husband, including:
(a)any credit card liabilities held by the husband either in his sole name or jointly with any third party (other than the wife);
(b)any liabilities due by the husband to the Australian Taxation Office including Capital Gains Tax and any penalties that may have accrued;
(c)income tax in the name of the husband, and/or income tax attributed to the wife (if any) as a result of payments to or by the D Trust;
(d)any debts the husband and wife have to the D Trust including any debit loan account; and
(e)any liability of whatsoever nature and kind arising as a consequence of the husband's retention of property in accordance with these Orders both presently and/or in the future.
Except where these Orders provide to the contrary,:
(a)the husband hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband; and
(b)the wife hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
Except where these Orders provide to the contrary, each of the husband and the wife release the other from all debts owing from one to the other.
Both parties sign all documents, deeds, instruments and writings and do all acts and things and give all consent necessary to give effect to these Orders.
Except as specifically provided for, in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, then a Registrar of the Family Court of Australia be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such document, deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
Leave is granted to either party to restore the proceedings to the list on application made within 14 days or such later time as the parties may agree, in relation to the wording but not the import of these orders.

Schedule 1
List of furniture, contents and jewellery to be retained by the Husband
[34 items valued by the Single Expert – total $61,970]
Schedule 2

List of furniture, contents and jewellery to be retained by the Wife
[81 items valued by the Single Expert – $109,675 (Jewellery - $77,800)]

Schedule 3

List of furniture and contents at Suburb C that belong to children

[4 items valued by the Single Expert – $14,250]

Schedule 4

Furniture and contents at Suburb C property to be sold

[63 items valued by the Single Expert – $10,680]

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salters & Salters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6952 of 2017

Ms Salters

Applicant

And

Mr Salters

Respondent

REASONS FOR JUDGMENT

introduction

These are proceedings for property settlement between Ms and Mr Salters arising from the breakdown of their 23 year marriage. The parties are now divorced but for convenience, I will refer to them as “the wife” and “the husband” respectively.
The parties each sought orders to change their interests in property. However they disagreed about the identification and value of the relevant pool of matrimonial assets. Save for paid legal fees, the wife contended that the balance sheet should be comprised of the current assets and liabilities at their current values. On the other hand, the husband argued that the certain preliminary distributions to the parties, including funds that were the subject of earlier partial property settlement orders, should be included in the balance sheet at the values distributed and that the fate of those funds, whether positive or negative, should be ignored. The parties agreed that the former matrimonial home located at B Street, Suburb C, NSW (“the Suburb C property”) be offered for sale with a particular reserve and they agreed that in some circumstances the wife should have the opportunity to retain the property. The parties largely agreed about the distribution of items of personalty. Each of the parties contended that they should receive marginally more than 50 percent of the matrimonial pools for which they separately contended.
What follows are the reasons for the orders set out at the commencement of these reasons.

Applications

The orders sought by the wife were set out in her Case Outline document which was received by the Court on 12 February 2020 and were as follows:
THE COURT NOTES:
DEFINITIONS:
1.         The following definitions apply for the purposes of these Orders:
1.1.      "The Act" means the Family Law Act 1975 (Cth);
1.2.      "Husband's Entities" means the following:
1.2.1.   E Pty Limited ACN …;
1.2.2.The D Trust established by Trust Deed dated 8 November 2005;
1.2.3.The J Trust established by Trust Deed dated 11 November 1999.
1.3."P Trust" means the Trust established by Trust Deed dated 17 December 2015 of which the corporate trustee is P Pty Limited ACN ….
1.4."Q Company" means the trading entity for P Pty Limited ACN ….
1.5."H Superannuation" means the selfmanaged superannuation fund established by Deed dated 25 November 1999 between R Limited (the Settlor) and S Limited (the Trustee) of which the husband is a member.
1.6."Husband" means Mr Salters.
1.7."Wife" means Ms Salters.
1.8."Wife's Entities" means the following:
1.8.1.T Investments Pty Limited ACN …;
1.8.2.    T Pty Limited ACN …;
1.8.3.    P Pty Limited ACN ….
1.9."Suburb C property" means the property situated at and known as B Street, Suburb C in the State of New South Wales, being the whole of the land contained in Folio Identifier … of which the wife is the sole registered proprietor subject to the Suburb C mortgage.
1.10.“Suburb C mortgage" means the mortgage number …57 to Westpac Banking Corporation registered on the title to the Suburb C property.
THE COURT ORDERS THAT:
1.That within 7 days of the date of these orders the parties shall do all acts and things to cause to be discharged the Suburb C mortgage and to give effect to this order the parties shall cause the funds standing to the credit of the offset account (account number ending #...27) to be applied in reduction of the funds presently owing under the terms of the Suburb C mortgage.
SALE OF SUBURB C
2.That within 21 days of the date of these Orders the parties do all things necessary to list the Suburb C property for sale for the best price reasonably obtainable as agreed and failing agreement then as follows:
2.1.By no later 7 days following the date of the making of these orders the parties shall jointly appoint a solicitor ("the solicitor") and real estate agent ("the Agent") to act on the sale of the Suburb C property.
2.2.In the event there is no agreement as to the appointment of a solicitor and/or agent to act on the sale of the Suburb C property within 14 days of the making of these orders, the Wife shall nominate the names of three (3) solicitors/conveyancers and three (3) real estate agents and the Husband shall select one solicitor and one real estate agent within seven (7) days of receiving the Wife's nominations.
First auction
2.3.Unless otherwise agreed between the parties by writing, the Suburb C property shall be sold by auction on or before 1 April 2020 and the parties shall do all things necessary to cause the auction to take place unless otherwise agreed in writing ("the first auction date").
2.4.The parties shall do all acts and things and sign all documents necessary to appoint the nominated Agent and nominated Solicitor and give such instructions as are necessary for the preparation of a contract of sale, and for the contract of sale to be made available to the agent prior to the first auction date.
2.5.The reserve price for the first auction of the Suburb C property shall be $7,000,000 unless otherwise agreed between the parties in writing.
2.6.In the event that the Suburb C property does reach reserve price at the first auction, then unless otherwise agreed between the parties in writing, the parties shall negotiate with the highest bidders or any interested persons and effect the sale of the Suburb C property for the highest price bid or offered subsequent to the auction provided that the Suburb C property is sold for a price not less than 95% of the reserve price used for the first auction, unless otherwise agreed between the parties in writing.
2.7.That in the event the Suburb C property does not sell at the first auction then unless otherwise agreed between the parties in writing, the parties shall do all acts and things and sign all documents necessary to forthwith list the Suburb C property for sale by private treaty.
2.8.For the purpose of the sale of the Suburb C property by private treaty, the list price shall be $6,300,000 unless otherwise agreed between the parties in writing.
Second auction
2.9.In the event that the Suburb C property is not sold at the first auction or by way of private treaty, then the parties shall do all acts and things and sign all documents necessary to re-auction the Suburb C property by 1 June 2020 and for the purpose of such auction the reserve price shall be $6,300,000.
2.10.In the event that the Suburb C property does reach reserve price at the second auction and the wife has not given the notice as provided for in Order 2.9, then unless otherwise agreed between the parties in writing, the parties shall negotiate with the highest bidders or any interested persons and effect the sale of the Suburb C property for the highest price bid or offered subsequent to the auction provided that the Suburb C property is sold for a price not less than 95% of the reserve price used for the first auction, unless otherwise agreed between the parties in writing.
Third auction
2.11.In the event that the Suburb C property is not sold at the second auction or by way of private treaty, then the parties shall do all acts and things and sign all documents necessary to re-auction the Suburb C property by 1 September 2020 and the reserve price for the purpose of such auction shall be $5,670,000 or such other price as the parties agree upon in writing.
2.12.If prior to 1 September 2020 the wife elects to retain the Suburb C property at a value of $5,670,000 then the Wife shall provide to the Husband notice in writing and confirmation that she wishes to retain the Suburb C property at a value of $5,670,000 or such other price as the parties may agree upon in writing and thereafter the provision of order 4 shall apply.
2.13.In the event that the Suburb C property does reach reserve price at the third auction and the wife has not given the notice as provided for in Order 2.12, then unless otherwise agreed between the parties in writing, the parties shall negotiate with the highest bidders or any interested persons and effect the sale of the Suburb C property for the highest price bid or offered subsequent to the auction for the property provided that the Suburb C property is sold for a price not less than 95% of the reserve price used for the third auction, unless otherwise agreed between the parties in writing.
Fourth auction
2.14.In the event that the Suburb C property is not sold at the third auction by way of private treaty, then the parties shall do all acts and things and sign all documents necessary to re-auction the Suburb C property by 1 November 2020 and the reserve price for the purpose of such auction shall be $5,103,000 or such other price as the parties agree upon in writing.
2.15.If prior to 1 June 2021 the wife elects to retain the Suburb C property at a sale price of $5,103,000, then the Wife shall provide to the husband in writing, confirmation that she wishes to retain the Suburb C property at value of $5,103,000 or such other price as the parties may agree upon in writing, and thereafter the provisions of order 4 shall apply.
2.16.In the event that the Suburb C property does reach reserve price at the fourth auction, then unless otherwise agreed between the parties in writing, the parties shall negotiate with the highest bidders or any interested persons and effect the sale of the Suburb C property for the highest price bid or offered subsequent to the auction for the property provided that the Suburb C property is sold for a price not less than 95% of the reserve price used for the first auction, unless otherwise agreed between the parties in writing
2.17.The parties shall execute all documents required to effect a sale of the Suburb C property in accordance with these Orders including but not limited to a contract of sale as required to give effect to these orders and in the event that either party fails, neglects or refuses to execute any document including a contract of sale for the sale of the Suburb C property as required by the others, then the Registrar shall be appointed pursuant to Section 106A of the Act to execute such documents in the name of the defaulting party to do all acts and things and necessary to give validity to the Orders.
3.That for the purpose of the sale of the Suburb C property, the Husband and Wife shall cooperate in every way with the Solicitor and the Agent including but not limited to as follows:
3.1.      making the keys available to the Agent;
3.2.facilitating unfettered access to the Suburb C property at all times upon a request being made by the Agent for the purpose of effecting the sale of the Suburb C property, including but not limited to facilitating access for the purpose of inspections by prospective purchasers and the auction;
3.3.by not saying or doing anything that is likely to hinder or prevent the sale of the Suburb C property being effected;
3.4.by ensuring that the Suburb C property including the grounds are in a neat and clean condition at all times pending the sale including but not limited to times when any inspections are held and on the day of the auction;
3.5.maintaining the Suburb C property in reasonable condition and repair having regard to the present condition and the state of the property, pending completion of the sale
3.6.signing all documents requested by the Solicitor and/or Agent in relation to the listing of the Suburb C property within the timeframe requested;
3.7.in the event that either party maliciously or carelessly causes any damage to the Suburb C property, such repair will be at that party's own expense and shall be deducted from that party's share of the net sale proceeds provided for in Order 8 below; and
3.8.the parties shall accept the advice of the Agent as to any minor repair works ("the works") required to prepare the Suburb C property for sale provided such costs shall not exceed $10,000 unless otherwise agreed, and each of the parties shall meet one half of such expenses.
3.9.That other than as provided for in Order 3.8, the parties shall otherwise be restrained from arranging for and/or undertaking for any others works to be carried out to the Suburb C property that has not been recommended by the Agent without the prior written consent of the other party.
4.In the event the wife retains the Suburb C property pursuant to orders 2.12 and 2.15, then within a further 21 days from the date that written notice is given of the Wife's intention to retain the Suburb C property, the Wife shall pay to the Husband 45% of the Suburb C property value, as nominated by the Wife and agreed upon by the husband and/or 45% of the value particularised in Order 2.12 ($5,670,000) and 2.15 ($5,1003,000) and being the reserve price for the Suburb C property for a particular auction and upon such payment being made the Wife will remain the sole, legal and beneficial owner of the Suburb C property to the exclusion of the Husband.
5.Pending the sale of the Suburb C property or the implementation of Order 4 (whichever occurs first):
5.1.The Wife shall have the exclusive use and occupation of the Suburb C property; and
5.2.The parties shall pay one half of all outgoings for the Suburb C property which outgoings shall include water rates, insurances, necessary maintenance and repair work and council rates as they fall due and payable.
6.In the event the Suburb C property sells at public auction or private treaty, then upon settlement of the sale of the Suburb C property, the parties shall do all acts and things and provide all such instructions as are necessary to procure payment of the proceeds of sale in the following manner and priority:
6.1.Payment of agent's commission and sale expenses due on the sale of the Suburb C property;
6.2.Payment of all advertising expenses incurred in marketing the Suburb C property for sale;
6.3.Payment of legal costs;
6.4.Payment necessary to discharge the Suburb C mortgage;
6.5.In reimbursement to either party the expenses they have incurred preparing the Suburb C property for sale; and
6.6.as to 55% to the Wife and 45% to the Husband.
7.That within fourteen (14) days of the date of the making of these Orders, the parties shall do all acts and things and sign all documents necessary to distribute the balance of all joint bank accounts between the parties equally and thereafter such joint bank accounts shall be closed.
D TRUST AND PAYMENT TO THE WIFE
8.That within 21 days of the date of these Orders:
8.1.The Husband pay to the Wife a sum equivalent to 55% of the total net property (inclusive of superannuation entitlements) subject to any adjustment for the property and superannuation entitlement to be retained by the Wife pursuant to these Orders; and
8.2.Do all acts and things and sign all documents presented to him by the Wife as are necessary for the Husband to transfer or assign to the Wife (as the wife may in her absolute) discretion require, any loan account or beneficiary current account he has the P Trust and relinquish all of his right, title and interest in the P Trust including as a principal and beneficiary of the P Trust, whether such interest may be actual, contingent or otherwise including signing a disclaimer of interest in the Trust in the form presented to him by the Wife and by giving written notice to the Trustee of the K Trust declaring that she is to be excluded from the class of beneficiary of the Trust.
9.Simultaneously with compliance with Order 8, the Wife do all acts and things and sign all documents presented to her by the Husband as are necessary for the Wife to:
9.1.transfer or assign to the Husband (as the Husband may in his absolute discretion require:
9.1.1.any loan account or beneficiary current account she has with the Trust;
9.1.2.any income accumulated from the Trust for the Wife;
9.1.3.any investments representing the income set aside by the Trust for the Wife    and an income arising on trust from those investments
9.1.4.any capital paid or set aside from the Trust for the Wife; and all other money payable by the Trust to or for the Wife;
9.2.relinquish all of her right, title and interest in the Trust including as a principal and beneficiary of the Trust, whether such interest may be actual, contingent or otherwise including signing a disclaimer of interest in the Trust in the form presented to her by the husband and by giving written notice to the Trustee of the Trust declaring that she is to be excluded from the class of beneficiary of the Trust.
10.Upon and subject to compliance by the Wife with paragraphs 10.1 and 10.2 of these Orders, the Husband by this paragraph of these Orders indemnifies and shall keep indemnified against any liability of any nature which the Wife has at any time arising in any way in respect the company and the Trust, whether:
10.1.by reason of the Wife having been an employee, director, officer and/or shareholder of the company and the Trust;
10.2.the receipt by the Wife of any money from the company and the Trust;
10.3.any liability of the company and the Trust;
10.4.any liability of the Wife to the company and the Trust;
10.5.or otherwise.
11.The Husband pay or cause to be paid all tax payable by the Wife in respect of any and all moneys she has received by way of distribution or otherwise from the company and the Trust up to and including the date of the making of these Orders.
PERSONAL PROPERTY
12.That the Wife make available to the Husband for his collection from the Suburb C property the furniture, household and effects and jewellery set out in Schedule 1 to these orders within one calendar month of the date of these orders, or such date as the parties agree upon in writing.
13.The Husband be entitled to the exclusion of the Wife all furniture and household effects and jewellery currently in his possession and which are set out in Schedule 1 to these orders, and all the furniture and household effects located at the property L Street, M Town.
14.That the Wife be entitled to the exclusion of the Husband to all furniture and household effects and jewellery located in the Suburb C property including but not limited to those items set out in Schedule 2, save and except for those items referred to in order 16.
15.That the parties make available to the children of the marriage the items set out in schedule 3, being items of personalty that belong to the children. That the parties do all acts and things to cause the items in Schedule 4 to be sold for the best price possible, and for not less than the value attributed to the items set valuation of DE Group unless otherwise agreed between the parties in writing and the parties shall cause the proceeds of sale to be applied as follows:
15.1.In payment of sale costs;
15.2.The balance to be divided equally between the parties in writing.
16.That unless otherwise provided for herein, each party shall otherwise retain to the exclusion of the other all other assets, choses in action and/ or financial resources in their respective possession, custody and control at any time including but not limited to all or any monies standing to the credit of any account conducted by either of them with a financial institution, shareholdings, motor vehicles, superannuation entitlements and any present of future expectation under a trust or estate to which they may become entitled in the future.
17.Except where these Orders provide to the contrary, the Husband shall be responsible for and indemnify the Wife in relation to all present and future debts and liabilities in his name or in the name of any company, trust or other entity which is owned by and/or controlled by the Husband:
17.1.any credit card liabilities held by the Husband either in his sole name or jointly with any third party ( other than the Wife);
17.2.any liabilities due by the Husband to the Australian Taxation Office ("ATO") including Capital Gains Tax and any penalties that may have accrued.
17.3.income tax in the name of the Husband, and/or income tax attributed to the Wife (if any) as a result of payments to or by the D Trust
17.4.any debts the Husband and Wife have to the D Trust including any debit loan account;
17.5.any liability of whatsoever nature and kind arising as a consequence of the Husband's retention of property in accordance with these Orders both presently and/or in the future.
18.Except as specifically provided for by any paragraph comprising these Orders to the contrary, the Wife shall be responsible for and indemnify the Husband in relation to all present and future debts and liabilities in her name whatsoever nature and whatsoever kind, including but not limited to:
18.1.any credit card liabilities held by the Wife either in her sole name or jointly with any third party ( other than the Husband).
18.2.any liability of whatsoever nature and kind arising as a consequence of the Wife's retention of property in accordance with these Orders both presently and/or in the future.
19.Except as specifically provided for by any paragraph comprising these Orders to the contrary:
19.1.the Husband hereby indemnifies the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband;
19.2.the Wife hereby indemnifies the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife;
20.Except as specifically provided for by any paragraph comprising these Orders to the contrary, each of the Husband and the Wife release the other from all debts owing from one to the other.
21.That both parties sign all documents, deeds, instruments and writings and do all acts and things and give all consent necessary to give effect to these orders.
22.Except as specifically provided for in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, then the Registrar of the court be appointed pursuant to Section 106A of the Family Law Act, 1975 to execute such documents, deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
23.Costs.

The orders sought by the husband were set out at attachment A to his Case Outline document received by the Court on 12 February 2020. That document was blank at paragraph 2.4 as to an adjusting payment. On 18 February 2020 an amended copy was provided to my chambers including the figure of $1,705,182 at that paragraph. The husband seeks the following orders:
1.That the husband and wife forthwith do all acts and execute all documents necessary to cause the property situated and known as B Street, Suburb C in the State of New South Wales (“the Suburb C property”) to be listed for sale and thereafter to do all acts and execute all documents to complete the sale of the property on the following basis:
1.1.that within 10 days of these orders that the property be listed for sale with a real estate agent as agreed by the husband and wife and failing agreement as to the agent within seven days of these orders that the agent be appointed by a representative of the President of the Real Estate Institute of New South Wales (“the agent”);
1.2.that within 10 days of these orders that the husband and wife agree on the solicitor or conveyancer to act for the wife as vendor on the sale and failing agreement as to the solicitor or conveyancer within seven days of these orders that a representative of the President of the Law Society of New South Wales appoint a solicitor to act on the sale (“the solicitor”);
1.3.that the property be listed for sale by such method as is advised by the agent as the best method of sale;
1.4.that in the event the property is listed for sale by private treaty that the list price be the price as agreed by the husband and the wife and failing agreement within seven days of listing the property with the agent that the list price be $7,000,000;
1.5.that in the event the property is listed for sale by public auction:
1.5.1.that the auction take place within seven weeks of the property being listed with the agent;
1.5.2.that the reserve price as agreed by the husband and wife and failing agreement be $7,000,000;
1.6.that in the event the property is initially listed for sale by public auction and does not sell at the auction or within 24 hours of the auction to the highest bidder or another prospective purchaser that the property be listed for sale by private treaty at a price as agreed by the husband and wife and failing agreement at a list price which equal to the market value as assessed by the agent plus 10%;
1.7.that in the event an offer to purchase the property is made by a prospective purchaser at a price less than the list price or less than the reserve price that in the event the husband and the wife agree to accept the price offered that they be at liberty to do so;
1.8.that the wife be restrained from accepting an offer to purchase and executing a contract for sale at a price less than the list price or the reserve price without the agreement in writing of the husband;
1.9.that the wife be restrained from accepting an offer to purchase and executing a contract for sale at a price less than the list price or the reserve price without the agreement in writing of the husband;
1.10.that the wife provide access to the agent and prospective purchasers at all reasonable times as requested by the agent.
2.That on completion of the sale of the Suburb C property in accordance with Order 1 herein that the proceeds of sale of the property be paid as follows:
2.1.in payment of all agent’s commission, auctioneer’s fees (if any) and other sales and marketing costs relating to the sale and solicitor’s and/or conveyancer’s fees and disbursements referable to the sale;
2.2.in discharge of any loan secured by mortgage on the property;
2.3.in payment of any tax payable by each of the husband and wife on the final winding up of the J Trust.
2.4.To the wife by way of adjustment for the value of other assets to be retained by each of the husband and the wife the sum of $1,705,182;
2.5.as to the balance, 55% to the husband and 45% to the wife.
3.That pending completion of the sale of the Suburb C property that the husband and wife be restrained from withdrawing any of the monies held in the Westpac offset account number ended …27 (“the Westpac offset account”) and simultaneous with completion of the sale of the Suburb C property that the husband and wife do all acts and execute all documents necessary to cause the Westpac offset account to be closed and the net proceeds of sale to be paid as to 55% to the husband and 45% to the wife.
4.That in relation to the furniture, household effects and jewellery at the Suburb C property and in the husband’s possession at his rented premises that the husband be entitled to those items set out in Schedule 1 hereto and that upon the husband providing the wife seven days’ notice in writing of the date and time he wishes to collect the items from the Suburb C property that the wife make them available for his collection.
5.That within 14 days of these orders that the husband assign to the wife the whole of his interest in the credit loan accounts in the name of the husband and the wife in the P Trust and in the business previously operated by the Trust known as “Q Company”.
6.That within 30 days of these orders that the wife:
6.1.transfer to the husband the whole of her right, title and interest in shares in her name in E Pty Ltd ACN …;
6.2.assign to the husband the whole of her right, title and interest in any credit or debit loan account in the D Trust;
6.3.resign as a joint appointor of the D Trust;
6.4.be restrained from making a claim of any nature as a potential beneficiary of the D Trust;
6.5.resign as a director of E Pty Ltd;
6.6.transfer to the husband the whole of her interest in the Company F Portfolio number …02 and G Fund;
6.7.resign from any position she holds in H Ltd and cause to be transferred to the husband all shares owned by her in H Ltd;
6.8.be restrained from making any claim of any nature on the remaining entitlement of the husband in the H Superannuation;
6.9.sign all documents required to have her removed as a signatory on all bank accounts in the name of E Pty Ltd, the D Trust, the Company F Portfolio number …02 and the G Fund.
7.That within 14 days of these orders that the husband and wife do all acts and execute all documents necessary to cause the EE Bank account number ended …63 and the Westpac Bank account number ended …59 in the joint names of the husband and the wife to be closed and to cause the balance to be divided as to 55% to the husband and 45% to the wife.
8.That subject to these orders that the wife be entitled to the exclusion of the husband to all property both real and personal in her ownership, possession and control now and in the future including but not limited to:
8.1.the motor vehicle 1 in her name;
8.2.all bank accounts in her name;
8.3.the partial property settlements received by the wife totalling $800,000;
8.4.the sports club memberships in her name;
8.5.the P Trust and the business operated by the Trust known as Q Company;
8.6.the shares owned by the wife in P Pty Ltd, T Pty Ltd and T Investments Pty Ltd and her entitlement in the T Trust;
8.7.subject to order 4 herein, the remaining furniture, art and household effects at the Suburb C property except that owned by the children of the marriage;
8.8.her superannuation with OO Superannuation.
9.That subject to these orders that the husband be entitled to the exclusion of the wife to all property both real and personal in his ownership, possession and control now and in the future including but not limited to:
9.1.his motor vehicle 2;
9.2.monies in bank accounts in his name;
9.3.the partial property settlements received by the husband totalling $800,000;
9.4.the shares in E Pty Ltd, BC Pty Ltd, CD Pty Ltd and H Ltd;
9.5.the D Trust;
9.6.his memberships in sports clubs;
9.7.the loan accounts in the D Trust;
9.8.the Company F Portfolio number …02 and G Fund
9.9.the furniture, art and household effects in Schedule 1 and those at the property L Street, M Town, NSW;
9.10.his superannuation entitlement with U Superannuation;
9.11.his entitlement in the H Superannuation.
10.That the wife pay the husband’s costs.
As is referred to above, although not mentioned in the orders he seeks, I understand that in principle the husband is not opposed to the wife electing to retain the property if it cannot be sold.

Written Evidence

The wife relied on:
·Initiating Application filed on 23 October 2017;
·wife’s Financial Statement filed on 24 January 2020;
·wife’s affidavit filed on 24 January 2020;
·affidavit of Ms V filed on 6 February 2020; and
·affidavit of Dr W filed on 7 February 2020.
The husband relied on:
·Response to Initiating Application filed on 15 November 2017;
·husband’s Financial Statement filed on 24 January 2020; and
·husband’s affidavit filed on 24 January 2020.

Expert Evidence

The following expert evidence was relied on:
· single expert report of Mr AA as to the value of B Street, Suburb C dated 31 January 2020; and
· single expert report of Mr BB as to the value of L Street, M Town dated 31 January 2020.

The Hearing

The hearing was listed for three days commencing on 17 February 2020. However, the oral evidence concluded before the end of the first day of the hearing. It was agreed that submissions would commence on 18 February 2020. On 18 February 2020 submissions were made and immediately after lunch on that day, judgment was reserved. The parties were excused on delivery of judgment.
It was and remains to me, something of a mystery that two obviously intelligent, sophisticated parties, each advised by specialist firms and senior counsel, would surrender to a Court decisions about the division of their assets. It is also odd that proceedings requiring less that two days of trial time would be conducted in a superior court. But there it is.

Short History

The husband was born on … 1962 and was aged 57 years at the time of the hearing. The wife was born on … 1963 and was also aged 57 years at the time of the hearing. The parties commenced to live together in March 1993 in Country DD. They were married on … 1993 and finally separated on 27 December 2016 when the husband left the former matrimonial home. The parties were divorced with effect on … 2018. There are three adult children of the marriage, namely:
·    Mr X, who was born on … 1994 and is aged 25 years;
·    Mr Y, who was born on … 1996 and is aged 23 years; and
·    Ms Z, who was born on … 1998 is aged 21 years.

Credibility

The only witnesses required for cross-examination were the parties themselves. The proceedings were argued over a very narrow factual compass and that is reflected in the fact that the oral evidence occupied less than three hours. In my view, the credit of the parties was not justifiably called into question. No doubt the parties each recall some matters based on their perceptions and in some instances their recollections may be faulty. In some instances the parties’ depositions proved incorrect. For example, the husband conceded that his Financial Questionnaire was wrong in one aspect and that he was wrong about the part of his termination payment from QR Corporation being paid into the join ANZ account.[1] The issue of credit was raised in the wife’s case and therefore I should say that in particular I did not detect in the husband a deliberate attempt to mislead the Court in any significant way.
[1] At paragraph 16.2 of the husband’s trial affidavit.

Background Facts

The husband was born on … 1962 in Country CC.
The wife was born in NSW on … 1963.
The parties moved to Country DD in March 1993 and commenced to live together.
The parties were married in Sydney on … 1993.
At the commencement of the relationship, the wife’s assets included the following:
·FF Street, Suburb GG (“the Suburb GG property”) with an equity of $280,000 (according to the wife, although she concedes that the husband paid the last $50,000 of the mortgage) or $10,000 (according to the husband);
·savings worth $4,534.97 (according to the wife) or $5,000 (according to the husband);
·long service leave payout from QR Corporation of $41,513;
·QR Corporation shares worth about $64,512.51; and
·$5,000 from the sale of a motor vehicle 3.
The husband’s evidence about his initial contributions was amended from the position to which he deposed in his affidavit. It was ultimately his evidence that at the commencement of the relationship he had control or possession of assets including:
·HH Street, Suburb O (“the Suburb O property”) with an equity of $328,066;
·savings and termination entitlements of $362,624 (the wife contends that the husband had leave entitlements of $21,670 and an ANZ savings account with a balance of $6,099.26);
·QR Corporation shares which were sold in July 1993 for a net return of $20,928.01;
·22,223 fully paid QR Corporation shares worth $78,892 based on a value of $3.53.[2] The wife says that she thought that the shares were worth more like $3.20 each;
·the wife contends that the husband (only) had 10,868 QR Corporation shares worth $35,056.10;
·an investment in QR Corporation Investment Management of $15,007.87;
·2000 Company JJ shares worth $4,800; and
·a one third interest in a property in Country PQ.
The wife contends that the husband also had $17,417.50 in superannuation.
[2] 22,223 multiplied by $3.53 is $78,447.19 but nothing turns on the apparent error in the husband’s calculations.
At the commencement of cohabitation the wife was unemployed, having left a senior position with QR Corporation in late 1992. Under her visa conditions the wife was precluded from paid employment in Country DD but she assisted a friend with ticket sales for a show. She also undertook three contracts, one in each of Country LL, Country MM and Country NN, earning $5,000 for each in addition to payment of her travel expenses.
Prior to the commencement of cohabitation the husband had accepted a position as a portfolio manager for OO Corporation Country DD.
The husband’s income grew substantially over the years. He started on Country DD180,000 plus other allowances and a bonus of Country DD180,000. By 1999 he was earning Country DD285,000 in salary. In that year he also received USD5,669,123 in bonuses. In 1999 OO Corporation merged with PP Corporation, as a result of which the husband received a payment of USD7,033,632,987.
The wife sold the Suburb GG property in late 1997 for $450,000. She discharged the mortgage on the property and the net proceeds were deposited into a joint account of the parties.
In 1998 the parties bought the property located at QQ Street, Suburb RR (“the Suburb RR property”) for $3,200,000 with the assistance of a mortgage of $2,100,000. They used their savings, including the proceeds of the Suburb GG property, to complete the purchase. The property was tenanted and the rental income of about $2,750 per week was applied towards the outgoings and mortgage instalments on that property.
In 1999 the husband moved to the United Kingdom to commence his employment with PP Corporation as a Managing Director. His income was GBP110,000 per annum with a minimum bonus of USD1,000,000 and a retention bonus of USD4,000,000 payable two years after the merger took place.
The husband was retrenched later in 1999 but was still paid the USD4,000,000 retention bonus.
The parties then returned to Australia. They lived in a rental property in Suburb SS until the tenant in the Suburb RR property moved out. The husband established the TT Fund and worked in that business from home.
In November 1999 the parties established the H Superannuation Scheme in Country UU, with the parties as the members. The husband made a contribution to the fund of USD5,000,000. According to the wife, as at 30 June 2000 the fund held USD8,948,000.
On 11 November 1999 the parties established the J Trust with DD Limited as the trustee[3]. The parties and their children are beneficiaries. The parties periodically received disbursements from the J Trust to pay a Westpac drawdown facility that they were using to pay for daily expenses.
[3][3] At paragraph 23.2 the husband says that the parties are the trustee. Nothing turns on that issue.
In 2002 the husband decided to close down the TT Fund.
The husband established the VV Fund in 2004 and worked in that business from home.
On 8 November 2005 the parties established the D Trust with E Pty Ltd as the trustee and the husband as the appointor.
In January 2006 the parties’ purchase of the property at L Street, M Town, NSW (“the M Town property”) was settled. The property was purchased at a cost of $1,950,000, in the name of E Pty Ltd on behalf of the D Trust. The purchase was funded by way of a disbursement received from the H Superannuation Scheme. The husband says that in addition, some assets redeemed from the J Trust were applied to the purchase. The parties conducted farming on the property and used it for family accommodation and activities with their children.
In October 2008 the parties completed the sale of the Suburb RR property for $6,135,000 and bought the Suburb C property for $4,500,000, subject to a mortgage to Westpac. A line of credit that had been secured over the Suburb RR property was thereafter secured by the Suburb C property. According to the husband, the remaining proceeds of sale from the Suburb RR property were invested in the Company F portfolio held by the J Trust and the H Superannuation Scheme.
From about mid-2007 the husband ceased operating the VV Fund. He was not involved in paid employment, instead trading the parties’ investments from home. He attended the M Town property and assisted with capital investments and maintenance and running the farm business. He also assisted with the care of the children.
In late April or May 2010 the wife returned to paid employment, working one day per fortnight for WW Business and earning $10,000 per annum.
In 2010 the husband commenced working with the HJ Corporation. He says that he earnt just over $200,000 in each of the financial years ending on 30 June 2011 and 30 June 2012.
The husband resigned from his position with the HJ Corporation in December 2012 and resumed working from home.
At the end of 2012 the wife commenced working two days per fortnight earning $800 per fortnight. She commenced to work three days per week at WW Business from about July 2013, earning about $1000 per fortnight. That continued until June 2015 when she started to work 4 days per week earning an annual pro-rata salary of $50,000, [4] until her resignation on 22 December 2015. Her income was deposited into a joint account.
[4] The husband says that the wife was earning $70,000 per annum. Nothing turns on the difference in the parties’ evidence.
In 2014 the husband commenced working for KL Company, earning a salary of $360,000 per annum.
In December 2015 the wife established a company called P Pty Limited to be the corporate trustee of the P Trust, which in turn was the holding entity of her retail business in Suburb O, called Q Company. Later that month the wife resigned from WW Business.
In February 2016 the wife said to the husband:
We don’t have to start the business. I have not signed the lease yet … the only costs incurred would be the buying trip to Europe …. I want to concentrate on saving the marriage”
The husband responded:
No we should open. It will be a good thing for you …. let’s do this. It is only a 3 year lease.

The parties’ application of funds after separation was affected by the circumstances in which they found themselves after the breakdown of the marriage, decisions they both made and the exigencies of life. For example, in no small part because of a decision prompted by the husband, after separation the wife was left with a business operating in premises that were leased until February 2019. The Court has often accepted in this context that life does not stop at the point of separation and it is not the Court’s role to conduct an audit of the comparative expenditure of the parties whether during the marriage or since.
Otherwise nothing comes to attention here.

(p) the terms of any financial agreement that is binding on the parties.

This does not apply.

Section 79(4)(f)

Beyond those referred to above, there are no relevant orders made under the Act.

Section 79(4)(g)

This is not a relevant consideration in these proceedings.

Conclusion

It is submitted for the wife that there should be an adjustment from the outcome warranted by contributions alone, of up to five percent in her favour. The husband opposes that and seeks for himself an allowance that fairly accommodates the parties’ respective use of funds that were the subject of partial distribution or partial property settlement since separation.
An adjustment for the non-contribution aspects of s 79(4) is not a device designed to leave the parties in a similar financial position. The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
·both the husband’s income from paid employment and his earning capacity are greater than those of the wife. The practical impact of those differences will depend on what the parties, and in particular, what the husband does by way of remunerative employment;
·it is likely that the wife’s efforts during the marriage contributed to the husband’s earning capacity and that the marriage adversely impacted her earning capacity; and
·after separation, joint funds were used to subsidise the Q Company business and the wife’s household expenses.
Those considerations have a countervailing effect. In my view there should be no adjustment to the contributions-based entitlement.

Just and Equitable

The first issue is whether it would be just and equitable to make any order changing the parties’ interests in property. The net assets have a value of $21,697,553 ($18,680,413 - $1,528,837 + $4,545,977). Of those net assets $4,545,977 is in the form of superannuation and $17,151,576 is in the form of non-superannuation assets. If there is an equal division then each of the parties would have about $10,848,777.
As to the current legal title, $10,135,970 is in the wife’s name, $5,022,715 is in the name of the husband and $6,538,868 is jointly owned. There is no suggestion that it would be just and equitable to leave that situation unchanged. Each of the parties seeks orders for settlement of property. The first s 79(2) question is answered in the affirmative. It is necessary to change the parties’ interests in property.
I will turn to the question of identifying orders that will affect a just and equitable settlement of property. The parties have agreed that the Suburb C property be sold. I will make separate orders about that property and will provide for the equity in that property to be dealt with in the same proportions as the overall settlement. In that way the parties will share in the benefit or detriment of any difference between the value allowed for the property in the balance sheet and the value crystallised according to the orders (by sale, retention by the wife or as agreed between the parties). The Suburb C property is represented by the following figures from the balance sheet:

Suburb C

Ownership		Description	Value
1	W	B Street, Suburb C	7,000,000
2 3	H & W	Mortgage secured over B Street, Suburb C @29.10.19	-889,085
3	H&W	Estimated costs of sale for Suburb C	-135,000
Total		5,975,915

The jointly held property is represented by the following figures from the balance sheet:

Ownership		Description	Value
1	H & W	Westpac Offset account #...27 @29.10.19	890,000
2	H & W	D Trust (including the following assets) - Property at L Street, M Town, NSW - Livestock, plant & equipment at M Town property - Investment account with EE Bank Limited - Liability to parties including re J Trust assets - AB Pty Ltd	3,740,166
3	H & W	Company F portfolio #...02 & G Fund @ 31.12.19 - €134,691 (formerly J Trust)	206,005
4 2	H & W	Credit loan to D Trust (from J Trust) @31.12.19	2,094,649
5 3	H & W	Loan account D Trust @31.12.2019	-391,952
NET ASSETS		6,538,868

Apart from the Suburb C property, of the assets and liabilities the wife has the following:

Ownership		Description		Value
1	W	EE Bank accounts #...51, #...63, #...88 and DF Bank #...87, #...90 and ZZ Bank #...93 and #...57		1,018,823
2	W	2 of 4 ordinary shares in E (ATF The D Trust)		2
3	W	2 of 2 ordinary shares in P Pty Ltd (ATF the P Trust)		2
4	W	Motor vehicle 1, registration …		44,530
5 2	W	Personalty – schedule 2		109,675
6	W	Membership (Sports Club)		800
7 2	W	T Trust		987,423
8 3	W	T Investments Pty Ltd		1,686,160
9	W	Moneys in trust account of Barkus Doolan		80,123
10 3	W	Legal fees paid by wife		203,884
Total		4,131,422
Superannuation
Member		Name of Fund	Type of Interest	Value
11 4	W	T Super Fund	28,633
Total		28,633
Total		Total Net Assets inclusive of Superannuation		4,160,055

In order to bring the wife to 50 percent of the net assets she would receive one half of the net proceeds of the Suburb C sale ($2,987,957.50), retain what she has and responsibility for what she owes (net $4,160,055) and would receive $3,700,764.50 from the joint assets.
That would leave the husband with the following assets and liabilities:

Ownership		Description		Value
1	H	EE Bank account #...27		6,500
2	H	NP card – €11 @ October 2018		18
3	H	2 of 4 ordinary shares in E (ATF The D Trust)		2
4 1	H	Loan from the Husband to the D Trust		234,961
5	H	10 of 10 ordinary shares in BC Pty Ltd		10
6	H	10 of 10 ordinary shares in CD Pty Ltd		10
7	H	Motor vehicle		65,900
8	H	Personalty – schedule 1		61,970
1 2	H	Furniture and effects located in the upstairs portion of the residence at M Town property		9,000
9 2	H	Membership (sports Club)		10,000
10	H	Moneys held in solicitor’s trust account		52,800
11	H	Legal fees paid by husband		177,000
12	H	Ms YY		-112,800
Total		505,371
Superannuation
Member		Name of Fund	Type of Interest	Value
13 4	H	H Superannuation	Self-managed	4,030,555
				56,707
14 4	H	U Superannuation @14.01.2020	Accumulation	430,082
Total		4,517,344
One half of the net proceeds of Suburb C				2,987,957.50
The balance of the net jointly owned property				2,838,103.50
Grand Total		$10,848,776

As to the form of orders, the orders proposed by the parties are complicated and there was not much by way of submissions to assist me in drafting orders. I will make a set of orders but will permit the parties to restore the matter to the list in respect of the wording but not the effect of the orders, by notifying the Court and each other within 14 days of the date of the orders. The parties are obliged to reach agreement about any necessary changes if that is possible.
Orders in respect of the Suburb C property
The parties propose different orders in respect of the Suburb C property. The wife proposes that the mortgage on the property be discharged with the funds in the off-set account. The husband does not seek that order. The wife’s proposal seems a sensible one. The balance of the off-set account is in a similar sum to the amount outstanding on the mortgage. I will make the order sought by the wife.
Each of the parties seeks that the property be sold with a reserve of $7,000,000 unless another figure is agreed. The proposed orders differ as to how any dispute in identifying a solicitor or agent for the sale will be resolved. The wife suggests it be left to the parties, with her to suggest three names and the husband to choose, while the husband proposes that the choice be made by the Presidents of the NSW Law Society and of the Real Estate Institute, respectively. I will adopt the wife’s mechanism. I understand that the property is in the wife’s name. If so, the orders requiring the husband to sign documents and do things in respect of the sale would seem largely unnecessary. However, the husband has an interest in the property achieving the best price on sale and will probably wish to be actively involved. I will leave the orders largely as the wife has framed them.
If the property does not achieve the reserve price and the parties do not agree to sell it for a lesser price, the wife proposes that the parties negotiate with the highest bidders and sell for the highest offer, provided that unless they agree to do so, they are not required to sell for less than 95 percent of the reserve. The husband does not propose that the parties be required to sell under the reserve price unless they agree.
If the property does not sell at the first auction both parties propose that the property be offered for sale by private treaty. The wife proposes that unless the parties otherwise agree they offer the property for sale at $6,300,000 unless they agree to a different figure. The husband proposes that they offer the property for sale at an agreed figure and in the absence of agreement at a price which is the market value as assessed by the real estate agent plus 10 percent. Again, I will adopt the wife’s proposal. I would not favour leaving the parties entirely in the hands of an agent.
If the property does not sell by private treaty the husband’s proposals make no further provision for sale, beyond something on which the parties can agree. The wife, however, proposes that if the property does not sell by private treaty it be offered at a second, and if necessary, a third and fourth auction. The wife seeks that $6,300,000 is used as the reserve in default of an agreed figure for the second auction; $5,670,000 as the reserve in default of an agreed figure for the third auction and $5,103,000 as the reserve in default of an agreed figure for the fourth auction. However, at that point and provided the property is not already sold, the wife seeks the option of retaining the property herself at $5,670,000 upon giving notice by 1 September 2020 that she will take up that option or if the property is not sold or retained by the wife before then, at $5,103,000 upon giving notice by 1 June 2021 that she will take up that option. I understand that the husband has no objection in principle to the wife retaining the property. I was not told of any specific objection by the husband to the wife’s proposed orders. I will base the orders on the wife’s proposal.
As to the mechanics of the sale process, the husband proposes at paragraph 1.7 an order that records that the parties are at liberty to sell the property at a price they agree. There is no need for such an order. At paragraph 1.8 (and repeated at 1.9) the husband proposes that the wife be restrained from accepting an offer that is less than the list, reserve or agreed price. I will make an order of that nature but will include a reference to the conditions for sale set out in the orders. The husband seeks an order at paragraph 1.10 that deals with access to the property for the agent and purchasers. The wife has that provision in a more comprehensive order, binding both parties. The property is in the name of the wife and she occupies it. Virtually all of the obligations that the wife addresses in her proposed order 3 will necessarily fall to her. Nevertheless, I will make an order in the terms sought by the wife.
In order to allow for the delay in making these orders, I will push the sale timetable proposed by the wife out by one month.
Understandably, only the wife’s orders address what happens if the wife retains the property. At paragraph 4 she proposes an order that provides for her to pay to the husband the equivalent of 45 percent of the value under the orders or otherwise agreed, at which the wife retained the property. I will make orders in not dissimilar terms, substituting 50 percent for the wife’s figure and making provision for the applicable costs of sale. Even if the wife retains the property, it is likely that she will incur obligations to the agent under the agency agreement. It would be unfair if those charges were met by the wife alone. I will provide for any such expenses to be taken into account before the husband is paid one half of the value of the property.
At paragraph 5 of her proposed orders the wife seeks provision for the use and occupation of the Suburb C property pending sale and for the responsibility for outgoings to be shared. I will make that order.
At paragraph 3 the husband seeks a restraint on himself and the wife in respect of drawing on the offset account. That order should not be required as I will order that the offset account be used to discharge the mortgage.
As to the disbursement of the proceeds of sale the husband and wife set out their respective proposals at paragraphs 2 and 6 of their orders. The husband proposes that the net proceeds be used to make the adjustment required between the parties and to pay some tax. That would lead to some confusion if the wife retains the property. I will use the wife’s proposed order.
Orders in respect of the P Trust
The parties agree that the wife will retain the P Trust. I do not understand the final provisions of the wife’s proposed 8.2 which refers to the husband being asked to give notice to the trustee that the wife would be removed as a beneficiary. I will use the first part of the order proposed by the wife:
8. That within 21 days of the date of these orders:
….
8.2Do all acts and things and sign all documents presented to him by the Wife as are necessary for the Husband to transfer or assign to the Wife (as the wife may in her absolute) discretion require, any loan account or beneficiary current account he has the P Trust and relinquish all of his right, title and interest in the P Trust including as a principal and beneficiary of the P Trust.
Orders in respect of the D Trust
The parties broadly agree about the disposition of the D Trust. The orders proposed by the husband are at paragraph 6 of his proposed orders. It is not clear what orders the wife proposes in respect of the D Trust. That trust is included in a heading before paragraph 8 of her proposed orders but the only trust referred to in paragraph 8 is the P Trust. It is possible but not clear that paragraphs 9, 10 and 11 of the orders proposed by the wife are intended to address the D Trust. I will use the husband’s paragraph 6.
The adjusting order
That leaves the question of an order that adjusts the property between the parties. According to my calculations, the wife will require $3,700,734.50 to bring her to 50 percent of the net assets. I will order that the husband pay the wife that sum within two months of the date of these orders.
Orders in respect of furniture and effects
The wife’s proposed orders make reference to the schedules referred to in these reasons. I will use her proposed orders save that, as I indicated above, I will require her to sell the items in schedule 4 and to account to the husband for half of the net proceeds.

Conclusion under Section 79

The parties were married for over 23 years. Very significant contributions were made by each of them. They acquired substantial assets and provided for themselves and their children. Overall their contributions were equal and although there are factors that would indicate the need for an adjustment from that outcome for various reasons, they have a compensating effect and no adjustment is required. In my view, the division of property resulting from the orders I propose will reflect a just and equitable division of their property.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 March 2020.

Associate:

Date: 11 March 2020

[2020] FamCA 138

11 March 2020

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Remedies

Constructive Trust

Fiduciary Duty

Costs

Injunction

Res Judicata