Searle (Formerly Pencious) & Pencious And Anor - [2013] FamCA 375

FAMILY COURT OF AUSTRALIA

SEARLE (FORMERLY PENCIOUS) & PENCIOUS AND ANOR

[2013] FamCA 375

FAMILY LAW – PROPERTY SETTLEMENT – TRUSTS – THIRD PARTIES – Highly conflicted parties – Issues as to the extent of husband’s property and extent of his liabilities – Value of property – Conflicting evidence – Failure by the husband to make full and frank disclosure – Long relationship and alleged reduction in the husband’s wealth – A claim for debt against a third party – The wife’s parents’ family trust and a claim that one third of that trust’s corpus was property of the wife – A claim by the wife for a ‘Kennon’ type contribution and broader issues as to contribution – Issues as to the husband’s health and its impact on property adjustment

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

AC and Ors & VC and Anor [2013] FamCAFC 60
Af Petersens and Af Petersens (1981) FLC 91-095
Albion Hotel Pty Ltd v Federal Commissioner of Taxation (1965) 115 CLR 78
Black and Kellner (1992) FLC 92-287
Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98
Essex & Essex [2009] FamCAFC 236
Hickey v Hickey and the Attorney General for the Commonwealth of Australia [2003] FamCA 395
Kennon & Kennon (1997) FLC 92-757
Kennon v Spry (2008) 238 CLR 366
Lend Lease Corporation Ltd v Commissioner of Taxation (1990) 21 ATR 402
Livesey (formerly Jenkins) v Jenkins (1985) 1 All ER 106
Manzi v Smith (1975) 132 CLR 671
Oriolo v Oriolo [1985] FLC 91-653
Stanford v Stanford [2012] HCA 52
Pittman & Pittman [2010] FamCAFC 30
Vernon & Bosley (No. 2) [1997] 1 All ER 614
Weir & Weir [1993] FLC 92-338

APPLICANT:

Ms Searle (formerly Pencious)

RESPONDENT:

Mr Pencious

INTERVENER:

Searle Pty Ltd as trustee of the Searle Family Trust

FILE NUMBER:

MLC

11069

2008

DATE DELIVERED:

28 May 2013.

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

29, 30 & 31 January 2013, 13 February 2013 (directions), 20, 21 & 22 March 2013, 17 & 23 April 2013 and 13 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wood

SOLICITOR FOR THE APPLICANT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Carlile

SOLICITOR FOR THE RESPONDENT:

Altona Legal

COUNSEL FOR THE INTERVENER:

Mr Tsalanidis

SOLICITOR FOR THE INTERVENER:

Halperin & Co Pty Limited

Orders

Within ninety days from the date of this Order the wife pay to the husband the sum of $346,720.
Within seven days from the date of this Order the husband do all acts and execute all documents to transfer to the wife the registration and his interest and ownership in … Mercedes … sedan motor vehicle Registration No. …, (if he has not already done so).
The husband shall indemnify the wife in respect any liability of hers arising out of husband’s and F Pty Ltd debt to the…

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.

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Details

Case: [2013] FamCA 375
Decision Date: 28 May 2013.

CaseChat Overview and Summary

In the matter of Searle (Formerly Pencious) & Pencious And Anor, Benjamin J made orders concerning the financial and property settlement between the parties. The dispute involved the division of assets and liabilities, including a significant sum of money, a motor vehicle, and various other property and superannuation entitlements. The court also addressed the issue of indemnification for a specific debt.

The court was required to determine the final distribution of property and the allocation of financial responsibilities between the parties. This included deciding the quantum of a payment to be made by the wife to the husband, the transfer of a vehicle, and the extent to which each party would retain their existing property and superannuation. Furthermore, the court considered the implications of outstanding costs orders and the procedure for their resolution.

Benjamin J ordered the wife to pay the husband a sum of $346,720 within ninety days, and to transfer a Mercedes sedan to the wife. The husband was ordered to indemnify the wife against a Citibank Savings liability. Each party was to retain all other property and superannuation in their possession, with specific deeming provisions for bank accounts, insurance policies, and superannuation entitlements. The court also made provision for the wife to apply to deduct outstanding costs orders from the payment due to the husband, and for all other outstanding applications to be dismissed.

Orders

Orders of the court

Within ninety days from the date of this Order the wife pay to the husband the sum of $346,720.

Within seven days from the date of this Order the husband do all acts and execute all documents to transfer to the wife the registration and his interest and ownership in … Mercedes … sedan motor vehicle Registration No. …, (if he has not already done so).

The husband shall indemnify the wife in respect any liability of hers arising out of husband’s and F Pty Ltd debt to the Citibank Savings liability of about $63,500.

Within seven days of the date of this order the wife shall cause to be delivered to the husband’s solicitors, Altona Legal, (if she has not already done so) the three volume Greek Cookbook.

Each party shall be solely entitled, against the other party and to the exclusion of the other party, to all other property and superannuation benefits, (including chattels) in the possession and/or control of such party as at the date of these orders; and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.

Order 1 of these Orders is subject to any order this Court may make to apply all or part of the $346,720 towards any outstanding costs order in favour of the wife against the husband and/or any security for costs order made against the husband.

Leave is given to the wife to file an application in a case (with affidavits in support) in respect of her application to deduct, from the sum payable to the husband pursuant to these orders, the amount payable to her pursuant to the costs orders made 5 April 2012 and/or retain an amount likely to meet that order. Such application to be filed within twenty eight days from the date of these orders and be listed before Benjamin J after 15 July 2013.

Any application/s for costs by one and/or other of the parties to these proceedings to be dealt with according to the Family Law Rules 2004 (Cth); including the lodgement of any application in a case together with an affidavit in support within the time specified in the said Rules.

All other extant applications for orders are otherwise dismissed and removed from the list of cases awaiting finalisation.

10.

Following the expiration of the appeal period, all subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

11.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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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