Sindal and Sindal - [2010] FamCA 784

FAMILY COURT OF AUSTRALIA

SINDAL & SINDAL

[2010] FamCA 784

FAMILY LAW – PROPERTY – Settlement in relation to marriage – significant financial contribution by wife of pre-marital assets and inheritance and post-marital bequests – hotel owned by the parties – intermingling of three entities

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sindal

RESPONDENT:

Ms Sindal

FILE NUMBER:

SYC

1122

2008

DATE DELIVERED:

6 September 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

7-8 July and 19 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

COUNSEL FOR THE RESPONDENT:

Mr Dura

Orders

The husband and the wife forthwith do all things and execute all documents necessary to list the property known as … (“the T property”) being Folio Identifier … for sale at the best price reasonably obtainable.
The listing shall in the first instance be by private treaty and the price for the property shall be such price as is agreed between the parties and in default of such agreement within seven (7) days at a price recommended by the agent.
The agent on sale shall be such agent as agreed between the parties or in default of agreement shall be Mr J.
Each party is to notify the other within twenty four (24) hours of receipt of an offer for purchase whether the offer is acceptable to them.
In the event that they do not otherwise agree an offer shall be accepted by each party if it is within five (5) percent of the listed sale price.
On settlement of a sale of the T property the proceeds of sale shall be paid as follows:
(a)       In payment of all real estate agent’s commission and legal fees on sale
(b)       In discharge of the mortgages charged upon the said property
(c)       In discharge of any business debts of the Sindal Partnership
(d)The balance of the nett proceeds of sale shall be paid as to the husband 24.35 percent thereof and the balance as to the wife.
In the event that the T property is not sold within a period of three (3) months by private treaty or the date of these orders then both parties shall do all such acts and things and execute all such documents as may be necessary to list the property for sale by auction.
The agent on the sale by auction shall be such agent as the parties shall agree and in the absence of agreement shall be Mr J.
On any auction the reserve price shall be such price as is agreed between the parties within forty eight (48) hours of the expiration of the period set in Order 7 and in default of agreement at a reserve fixed by the agent.
Upon a sale by auction the proceeds of sale shall be distributed in the manner and priority set forth above in Order 6.
At auction the parties shall accept an offer for sale within five (5) percent of the reserve price.
If 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.

Continue reading Sindal and Sindal

Details

AGLC: Sindal and Sindal [2010] FamCA 784
Case: [2010] FamCA 784
Decision Date: 6 September 2010

CaseChat Overview and Summary

In *Sindal and Sindal*, Justice Fowler of the Family Court of Australia made orders concerning the division of property and the finalisation of the parties' financial relationship. The dispute involved the sale of a jointly owned property, the "T property," and the distribution of its proceeds, as well as the division of other assets and liabilities.

The court was required to determine the terms of sale for the T property, including the method of sale, the sale price, the appointed agent, and the acceptance of offers. Further issues included the distribution of sale proceeds, the handling of capital gains tax, the closure of joint bank accounts, the transfer of another property (the "C property"), the dissolution of a partnership and a company, the sale of jointly held shares, and the allocation of various personal items and liabilities. The court also needed to ensure that its orders finally determined the financial relationship between the parties.

Justice Fowler's reasoning, as evidenced by the detailed orders, focused on achieving a practical and final resolution of the parties' financial affairs. The court applied principles of property division under the *Family Law Act 1975* (Cth), particularly section 81, to ensure the orders were as final as possible. The orders prescribed a clear process for the sale of the T property, including provisions for private treaty and auction sales, with specific parameters for pricing and offer acceptance. The proceeds were to be applied first to sale costs and mortgages, then business debts, with the balance distributed according to a specified percentage. The court also addressed the transfer of the C property, the dissolution of the partnership and company, and the division of personal effects, including specific items of furniture, electronics, and artwork, as well as the allocation of credit card liabilities.

The court made extensive orders to give effect to these determinations. These included directions for the listing and sale of the T property, the distribution of sale proceeds, the transfer of the C property, the dissolution of the partnership and company, and the division of various personal assets and liabilities. The orders also stipulated that they were intended to finally determine the financial relationship between the parties pursuant to section 81 of the *Family Law Act 1975* (Cth), with provisions for the Registrar to execute documents if a party failed to do so.

Orders

Orders of the court

The husband and the wife forthwith do all things and execute all documents necessary to list the property known as … (“the T property”) being Folio Identifier … for sale at the best price reasonably obtainable.

The listing shall in the first instance be by private treaty and the price for the property shall be such price as is agreed between the parties and in default of such agreement within seven (7) days at a price recommended by the agent.

The agent on sale shall be such agent as agreed between the parties or in default of agreement shall be Mr J.

Each party is to notify the other within twenty four (24) hours of receipt of an offer for purchase whether the offer is acceptable to them.

In the event that they do not otherwise agree an offer shall be accepted by each party if it is within five (5) percent of the listed sale price.

On settlement of a sale of the T property the proceeds of sale shall be paid as follows:

(a) In payment of all real estate agent’s commission and legal fees on sale

(b) In discharge of the mortgages charged upon the said property

(d) The balance of the nett proceeds of sale shall be paid as to the husband 24.35 percent thereof and the balance as to the wife.

In the event that the T property is not sold within a period of three (3) months by private treaty or the date of these orders then both parties shall do all such acts and things and execute all such documents as may be necessary to list the property for sale by auction.

The agent on the sale by auction shall be such agent as the parties shall agree and in the absence of agreement shall be Mr J.

On any auction the reserve price shall be such price as is agreed between the parties within forty eight (48) hours of the expiration of the period set in Order 7 and in default of agreement at a reserve fixed by the agent.

10.

Upon a sale by auction the proceeds of sale shall be distributed in the manner and priority set forth above in Order 6.

11.

At auction the parties shall accept an offer for sale within five (5) percent of the reserve price.

12.

If the T property remains unsold at the auction provided for above the parties shall unless otherwise agreed do all acts and things and shall sign all such documents as may be necessary to re-list the property for sale by successive public auctions on dates nominated by the real estate agent until sold with the reserve price to be five (5) percent less at each subsequent auction.

13.

On assessment of any Capital Gains Tax liability arising by virtue of the sale of the partnership property the parties shall pay such liability in the proportion of 75.65 percent thereof by the wife and 24.35 percent thereof by the husband and each party shall indemnify the other with respect to the obligation created to the Australian Taxation Office by virtue of the assessment of such Capital Gains Tax for the proportionate amount of such assessment payable by him or her pursuant to this Order.

14.

Within 14 days of the date of these Orders the husband and wife are to do all such acts and things and execute all such documents as may be necessary to close any joint bank account in the names of the parties and pay those funds equally to the husband and the wife.

15.

Within 28 days of the date of these Orders the husband is to do all acts and things and execute all documents, instruments and writings necessary to transfer to the wife all the husband’s right, title and interest in the property known as … in the State of New South Wales (“the C property”) being Folio Identifier ….

16.

Simultaneously with compliance with Order 15, the husband and wife are to do all acts and things and execute all documents, instruments and writings necessary to procure a discharge of the husband’s liability under the mortgage registered over the C property whereupon the wife shall become the sole mortgagor, and thereafter the wife indemnify the husband in relation to all actions, suits, claims or demands made on the husband in relation to the C property, or any mortgage charged thereon.

17.

Contemporaneously with the sale of the T property, the husband and wife are to do all acts and things and execute all documents, instruments and writings necessary to dissolve the Sindal Partnership.

18.

Contemporaneously with the sale of the T property, the husband and wife are to do all acts and things and execute all documents, instruments and writings necessary to resign as Directors of H Company Pty Ltd ACN … and forthwith wind up that company.

19.

Within twenty eight (28) days of the date of these Orders the husband and the wife are to do all such acts and things and sign all such documents as may be necessary to procure sale of their jointly held shares and after payment of any costs of sale (including any commission) the nett proceeds of such sale shall be divided equally between the parties.

20.

The husband is declared to have all right, title and interest in the sum of $50,000 paid to him by the wife pursuant to Order 1, 2 and 3 made by the Family Court on 16 April 2008.

21.

The wife retain the wine cellar but for the wine given to the parties by Mr B which shall be retained by the husband.

22.

The wife retain the Golf motor vehicle with registration number …

23.

The wife transfer to the husband within fourteen (14) days of the date of these Orders all her right, title and interest in the golf club membership.

24.

The husband retain his grandfather’s artworks on the condition that he pay for their removal from the premises of the H Hotel and organise their removal within twenty eight (28) days of the date of these Orders.

25.

The husband shall be entitled to collect those items referred to in Annexure A of these Orders from the T property at his cost and provided he gives the wife not less than fourteen (14) days prior notice and retain ownership and possession of the same.

26.

The husband be responsible for his personal credit cards and indemnify the wife from any future liability in respect of his credit cards.

27.

Subject to the above Orders, the husband and wife retain to the exclusion of the other all items of real and personal property including superannuation, loans, savings, investments, insurance policies, furnishings, furniture and household effects in their respective possession as at the date of these Orders.

28.

Pursuant to section 81 of the Family Law Act 1975 (Cth), these Orders are intended so far as is possible to finally determine the financial relationship between the parties.

29.

In the event that either party refuses or neglects to sign any documents, instruments or writings so as to give effect to these Orders within a period of fourteen (14) days from the date of being served with a copy of these Orders and any such document, instrument or writing the Registrar of this Honourable Court may pursuant to Section 106A of the Family Law Act 1975 (Cth) do all acts and things necessary to give validity and operation to the said document, instrument or writing so as to effect compliance with the Orders.

30.

All material produced in response to subpoenas is to be returned to the party who produced it.

31.

The matter is removed from the list of Active Pending Cases.

Annexure “A”

Items to be retained by the husband

Items to be collected prior to the sale of the T property

(a) White wine glasses x 4

(b) Red wine glasses x 4

(d) Dinner plates x 4

(e) Bread and butter plates x 4

(f) Water glasses x 4

(g) Bowls x 4

(h) Cypress trophy ice bucket/matching glasses

(i) Vintage trophy glasses

(j) Trophies

(k) Books/music from the office

(l) Matching sheets sets x 2

(m) Matching doona and cover x 1

(n) Pillows x 4

(o) Blanket x 1

(p) Telescope

(q) Coathangers

(r) Black towels x 2

(s) All wiring/leads from phone and computer.

Items to be collected following exchange and prior to the settlement of the sale of the T property

(t) Leather office chair

(u) Filing cabinets x 2

(v) BBQ (1 x 5 burner)

(w) Bose stereo and all components

(x) LG Plasma screen tv

(y) Tools from tool shed

(z) Sunbeam 4 slice toaster

(aa) Electric kettle.

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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