Sindal and Sindal

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 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.
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.
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.
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 ….
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.
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.
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.
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.
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.
The wife retain the wine cellar but for the wine given to the parties by Mr B which shall be retained by the husband.
The wife retain the Golf motor vehicle with registration number …
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.
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.
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.
The husband be responsible for his personal credit cards and indemnify the wife from any future liability in respect of his credit cards.
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.
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.
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.
All material produced in response to subpoenas is to be returned to the party who produced it.
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
(c)       Champagne flute 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.

IT IS NOTED that publication of this judgment under the pseudonym Sindal & Sindal is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1122 of 2008

MR SINDAL

Applicant

And

MS SINDAL

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings for the alteration of the interests of the parties in certain property where there is brought before the Court evidence in relation to the conceded significantly greater financial contribution of the wife to its acquisition, conservation and improvement largely derived from her inheritances and her pre-maritally owned assets. Indeed the sum of those inheritances and pre-marital assets exceeded the value of the net assets presently available for division.
The issue for determination is what is the correct balance to strike in determining what is just and equitable having regard to the contributions made aliunde by the husband and other the matters required by law to be taken into account.
The wife says that the husband should receive fifteen percent of the nett assets found and the husband says that a just result would be that he receive one-third of the assets as found.
Issues have further arisen in relation to the size of the asset pool. There has been a real melange of the three entities in this case, namely, the parties individually; the parties in partnership with each other; and the corporation which was incorporated to run a business known as the “H Hotel”, and in relation to which scant regard has been paid as between them for their separate existence.
The wife has made representations to the Court as to her outgoings which reflect such absence of proper regard to the differences. Her financial disclosures do not appear to be the product of informed or careful consideration.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1959 the husband was born and is presently 51 years of age.
In 1963 the wife was born and is presently 47 years of age.
In 1990 the husband suffered a back injury which he says despite treatment required him to give up work as a full-time labourer.
In 1997 the parties commenced cohabitation at the property owned by the wife in Sydney. The wife had significant equity in the property although it was the subject of a mortgage. The wife also owned a business which provided concierge services.
At the commencement of cohabitation the husband had modest savings, some furniture and household goods and a wine collection. The husband was employed as a purchasing manager.
In February 1998 the wife sold the Sydney property for $755,000 to a developer and retained salvage rights in relation to the property.
The net proceeds of sale were said to be $645,000 and were applied to the purchase of a property at M (“the M property”) in the joint names of the parties for the sum of $670,000 together with the purchase costs.
The husband procured finance in relation to that purchase through his employer at a concessional rate from a bank lender. The amount borrowed was $400,000. The husband asserts that the sum would not have been lent but for his income and the wife asserts that the sum would not have been lent but for the equity she was able to contribute to the purchase. Both statements I find are probably true.
The parties set about renovating their new home and each of the husband and the wife contributed physically and in other ways toward the process and each set out what they did in that regard. Each of the husband and the wife conceded that the other worked hard, albeit differently, in relation to the renovations. The husband said, and I accept, that their respective contributions in labour and time were likely to have been equal. Major building works to that property were done in two stages.
In 1999 the parties were married.
In 2000 the husband inherited some $9,000 from the estate of his late grandmother.
On 31 July 2001 the husband ceased his employment as a purchasing manager and worked full-time completing the renovations to the M property.
The husband received the sum of $18,873.79 on cessation of his employment and the use of his former company car for as long as he required it. The wife concedes that at this time the husband spent significant time in the process of renovation of the property but of course could only have done so because she continued in her employment and was a major support of the household. The husband says that notwithstanding the wife’s working hours she also expended significant effort in relation to the renovations. It seemed to me on the conclusion of the evidence in relation to the renovations, that the contributions of the parties, although different, should be treated as equal.
In 2001 the husband assisted his mother-in-law by carrying out renovations and repairs to her property at Q (“the Q property”).
In October 2001 the wife’s mother died, after having lived with the parties for three months during the terminal stages of her fatal illness, so that they could care for her.
Upon her mother’s death the wife inherited interests in the properties at

Q and E, together with shares and monies held in bank accounts.
The M property was sold for $1,400,000 and after the discharge of the mortgage the proceeds amounted to about $1,000,000. Following the sale the parties resided at the Q property, which was the former home of the wife’s late mother, for about one year. The parties made an arrangement with the wife’s brother who was an equal beneficiary with the wife in the estate of her mother to lend him $500,000 interest free for one year which was repaid at the end of that year.
In December 2001 the parties purchased a property at T. The purchase price was $290,000 and a home and hotel were erected on the property. The hotel consisted of eight rooms together with a lounge area and pool.
In relation to this venture the husband asserts he assisted in drawing up a business plan and working with the builders on a daily management basis as well as running the operation of the hotel.
The husband also asserts that he was engaged in carrying out significant landscaping, repairs and general maintenance in relation to the hotel.
In August 2002 the parties purchased property at C as joint tenants for an amount of $345,000. Of this amount an amount of approximately $200,000 was borrowed from the Australian National Credit Union to finance the purchase. The husband and the wife were each involved in the renovation of this property and some of those renovations were effected by tradespersons under their supervision.
In October 2002 the wife sold her concierge services business for the sum of about $80,000.
In November 2002 the company, H Pty Limited, was incorporated and it managed the business the H Hotel.
The property of the estate of the wife’s late mother was sold for $959,976 and the nett proceeds of sale were passed to the wife and her brother. No agent was involved in the sale.
In November 2002 the parties rented a property in regional New South Wales where they resided for about two years and in December 2004 the parties moved into the house built upon the property at T. The parties both had responsibilities in the running of the hotel.
In December 2006 the wife received a bequest from her late grandmother’s estate in the sum of $107,000 and a bequest from her late aunt’s estate in the sum of $98,840.
In January 2007 the parties separated.
In June 2007 the wife caused the husband to be removed as a director of H Pty Limited. He neither consented to or knew of that removal at that time.
In November 2007 the wife received a further distribution for $105,000 from her late grandmother’s estate.
In January 2008 the husband went to the United Kingdom to commence a business venture. He sold his Holden utility for $12,000. The sum was applied to the husband’s expenses for living and costs in respect of the venture.
In April 2008 the wife paid the husband an amount of $50,000 by way of partial property settlement.
In September 2008 the husband returned to Australia following the failure of his business venture and sought employment. He was not successful in gaining employment until January 2010. Between October 2008 and January 2010 the husband received government financial assistance.
In March 2009 the parties were divorced.
The husband presently works for D Business on an employment contract at an annual salary of close to $60,000 together with a car allowance of nearly $15,000.
The wife presently continues to manage the H Hotel on salary of some $50,000. The husband notes that by reason of her position she has the benefit of accommodation and probably other benefits. The wife also receives the investment income from the unit at C which she estimates at $400 per week. The wife’s income will cease upon the sale of the hotel but nevertheless she clearly has a capacity to earn an income. Having regard to the hours which she says she works and which she estimates at about 70 hours per week, she is probably underpaid in her present employment.

The Issues

At issue is what assets and liabilities should be included in the balance sheet of assets and liabilities to determine justly the net amount available for distribution between the parties.
What is a just and equitable distribution of the property of the parties or either of them and what orders should be made to give effect to that distribution.

Property matters

The first step I must undertake is to identify the property of the parties or either of them available for division between them.
The Court at the commencement of the hearing was provided with the balance sheet which following the evidence was amended to remove certain items. For example, liabilities which were liabilities of the company were removed. However, disputes remained. The balance sheet presented at the conclusion of the case is as set out hereunder.

The Balance Sheet

Wife/de facto partner value	Husband/ de facto partner’s value
Assets	($)	($)
T property (Single Expert valuation) (joint)	1,650,000	1,650,000
C property (Single Expert valuation) (joint)	445,000	445,000
H Pty Ltd (Single Expert valuation) (joint)	Nil	Nil
Sindal Partnership (Single Expert) (joint)	Nil	112,657
Personal Westpac account (w)	E1,000	E1,000
Miscellaneous Shares (joint)	E8,586	E8,586
VW Golf motor vehicle (w)	E18,000	E18,000
Wine cellar (in wife’s possession) (h)	E2,500	E2,500
Golf Club membership (joint)	E1,000	E1,000
Tools (h)	E5,000	E5,000
Household contents (joint)	E5,000	E5,000
Total	$2,136,086	$2,240,737

Wife/de facto partner value	Husband/ de facto partner’s value
Add backs	($)	($)
Partial Property Settlement – Interim Order 16.04.08 (h)	50,000	50,000
Holden (sold) (h)	12,000	Nil
Total	$62,000	$50,000

Wife/de facto partner value	Husband/ de facto partner’s value
Liabilities	($)	($)
Mortgage registered over T property (joint)	E1,021,854	E1,021,854
Mortgage registered over C property (joint)	E159,750	E159,750
Westpac Mastercard and Visa card (h)	Nil	40,918
Previous solicitors – Smyth Turner Wall (h)	Nil	5,834
Loan from Mr R to H hotel (joint/w)	60,000
Total	$1,261,604	$1,228,356

Wife/de facto partner value	Husband/ de facto partner’s value
Superannuation	($)	($)
MLC Masterkey Fund – Accumulation (w)	50,142.46	50,142.46
Westpac Superannuation Fund – Accumulation (h)	42,144.66	42,144.66
Total	$92,287.12	$92,287.12

Wife/de facto partner value	Husband/de facto partner’s value
Financial Resources	($)	($)
Unclaimed share proceeds (h)	17,256
Total	$17,256

Except in the case of partial property settlement and legal costs it is not my practice to include in balance sheets assets or liabilities which do not exist. I do not intend to depart from that practice. It is equally my practice to include in balance sheets items of liability which do exist unless otherwise agreed by the parties. Any adjustment which has to be made in relation to disputed items which are sought to be “added back” can otherwise be made upon a consideration either of assessment of contribution or under the provisions of section 75(2) and, where appropriate, I will do so in this case.

The value of the partnership of the husband and the wife

The first matter which was in issue was what was said to be the residual assets of the partnership of the husband and the wife. Those assets were calculated after taking out of the balance sheet dated 2007 of the partnership and annexed to the affidavit of the accountant, the real estate asset of the partnership and the liability secured upon it. That calculation produced the figure above which is in dispute, and with the wife asserting that there are presently no such assets.
It was argued by the husband that this sum should be included as a current asset even though the calculation was based on outdated figures. In the course of the proceedings there was tendered without objection a set of 2009 accounts for the company H Hotel Pty Limited and the partnership of the husband and the wife.
It was suggested that it was not accompanied by the evidence of an expert. However, the evidence is that the figures are correct as accounts for the company and can be read and understood.
The significant assets set forth in the 2009 balance sheet are:
a)Sundry Debtors. This is an amount which is due to the partnership by the company H Hotel Pty Limited. It seems generally accepted that the company does not have the money to repay this amount and so it is unlikely to be recovered. This is supported by the financial statements of the company for the 2009 financial year.
b)Prepaid borrowing expenses. This is an amount of $809 and in this case a minimus.
Ignoring, as I was asked by the husband to do for this purpose, the asset of the land owned by the partnership and the liability which is attached to it, the partnership has liabilities aliunde as follows:
a)For output tax the sum of $45,176
b)To H Hotel Pty Limited the sum of $199,972.
Given the provision of up to date figures I have chosen to adopt those figures for the purpose of the discussion since to do otherwise would be to make a decision on out of date figures, which would be flawed.
It seems to me that, having regard to the unlikelihood of the recovery of the debt from H Hotel Pty Limited and the ability of that company in any case to offset the amount which it is owed by the partnership, that the debt should properly be ignored as an asset of the partnership. In those circumstances there is no surplus to claim and I will not include in the balance sheet the amount sought to be included.

The husband’s motor vehicle

The husband sold a motor vehicle in the circumstances set out below. It is no longer an asset and will not be added into the balance sheet. It is not something that I need to take into account since it is my view that the monies were spent appropriately post separation in a way consistent with the authorities as being part of the husband’s reasonable expenses.

The husband’s unclaimed shares and entitlements

There was an amount included in the balance sheet which was said to be unclaimed benefits or shares referred to in certain letters received by the husband. The husband says that they are not his and he does not wish to pursue the claims. He says that he is so certain of those facts that he is prepared to assign whatever claims he might have in that regard to the wife and that she may collect the sums if due without affecting the balance sheet. I have removed the amount from the balance sheet and note the agreement to assign.

The husband’s credit card liability

The husband has the credit card liability set out above. The wife asserts that the sum should not be included as a liability in the balance sheet since it was an expense which was incurred post separation and deals significantly with the husband’s expenses. The wife says that she did not access the account after separation. The wife however conceded that some of the expenses which were referred to in the accounts were of the H Hotel, for which she had sole managerial responsibility shortly after separation and represented charges made to the credit card on its behalf under standing arrangements. She was unable to be precise as to what such charges were. There was produced a statement of the account with notes upon it although there was some significant dispute as to what the notes meant. The wife having had the matter drawn to her attention did not ask for any adjournment or leave to reopen to deal with the allegations which had been made. She did however point out that even though that be so the husband’s allegations were far from detailed. She also gave evidence of an amount of some $20,000 which had been paid to the husband post separation.
The husband stood by his assertion that the markings on the statement which started with a “H” were those of the H hotel. In the event it is not possible to be definitive about where the responsibility for the liability lay. In any event, it is my intention to include the liability in the balance sheet as it actually exists and I will take into account the differential beneficiaries of the creation of the liability in determining the parties’ entitlements to property.

The loan from the wife’s brother

It was agreed by the wife that the monies referred to in this part of the balance sheet had been lent by her brother to the company H Hotel Pty Limited. She had said that she told her brother afterward that if the company could not pay it then she would do so. There are no documents in relation to the loan and no other evidence of the statement. The brother was not on affidavit. There is therefore an admitted position that the loan is to the company and no supporting evidence (which one would have expected might be available) as to the alleged collateral agreement. In the circumstances it is my intention to remove it from the balance sheet.

Items removed by consent

I am asked by the parties to remove by consent the items comprising tools and household effects since agreement has been reached between them for a division of those assets in specie. I am also asked to delete by consent the item referred to as the husband’s costs of his prior solicitor. The wine cellar is to be divided between the parties by agreement and in specie. It is accordingly removed from the balance sheet.
Accordingly, I find that the property of the parties or either of them is as follows:

Assets	($)	($)
T property (Single Expert valuation) (joint)	1,650,000
C property (Single Expert valuation) (joint)	445,000
H Hotel Pty Ltd (Single Expert valuation) (joint)	0
Sindal Partnership (Single Expert) (joint)	0
Personal Westpac account (w)	1,000
Miscellaneous Shares (joint)	8,586
VW Golf motor vehicle (w)	18,000
Golf Club membership (joint)	1,000	2,123,586
Add backs
Partial Property Settlement – Interim Order 16.04.08 (h)	50,000	50,000
Total	$2,173,586
Liabilities
Mortgage registered over T property (joint)	1,021,854
Mortgage registered over C property (joint)	159,750
Westpac Mastercard and Visa card (h)	40,918	1,222,522
Total	$1,222,522
Net Assets excluding superannuation	$951,064
Superannuation
MLC Masterkey Fund – Accumulation	50,142
Westpac Superannuation Fund – Accumulation	42,144	92,286
Total	$92,286
Nett assets plus superannuation	$1,043,350

Section 79(4) contributions

Initial Contributions

The wife’s capital financial contributions in relation to the acquisition, conservation and improvement of the property of the parties or either of them significantly favour the wife. In all those contributions which were derived from pre-marital property and post-marital bequests are estimated by the wife to be in the order of $1,000,000 from her mother’s estate and $212,000 from her grandmother’s estate. The wife also received an inheritance from her aunt’s estate in the sum of about $99,000. The husband accepts the pre-marital contribution in the form of the equity in the wife’s home as set out above and agrees that the post-marital bequests were in the order claimed.
That is not to say that the husband did not make a financial contribution. He worked as a purchasing manager in the first years of the marriage, earning a salary of $80,000 and he also received some bonus payments and had significant motor vehicle allowances and other benefits attaching to that employment as set out in his affidavit, including a concession on mortgage interest.
The wife at this time was working in her own business providing concierge services. It appears that at this time the husband’s income was higher than that of the wife. The husband contributed to the marriage in addition to his salary as an amount that he received by way of redundancy payment on his retirement and also some monies which were received by him from a bequest received during the course of the marriage.
However, the husband said that for medical reasons he was unable for a time to engage in paid employment, although he did work for the company the H Hotel Pty Limited which was established by the parties during the course of the marriage. In that company he performed tasks in the maintenance of the company’s property and assisted in the management of the hotel premises. The wife managed in-house and also generally assisted with the management of the premises.

Contributions to date of separation

I estimate the value of the parties’ contributions to the date of separation in the order of 80:20 in favour of the wife.

Contributions post separation

Post separation the wife continued to manage the H Hotel. She says that she worked up to 70 hours per week and was initially paid a salary of about $50,000 per year and later that was increased. The husband was keen to point out that the wife had the benefit of the occupancy of the home which the parties had at the hotel and the other “benefits” which he said were in food, perhaps wine and some household requisites which reasonably he said one might expect to fall the way of someone in that management position. She procured additional capital for the hotel.
The wife in her evidence did not entirely dispel the assumption as to “benefits” but sought to place some limits on it. Following the parties’ separation the husband was unemployed and he sold a motor vehicle and applied the proceeds to the payment of some of his debts which he had incurred and to the costs of his travel to the United Kingdom to further a joint venture in a business. The business did not succeed and the money of some $12,000 was fully spent. The husband was for a time unemployed and in receipt of government assistance. The husband is presently employed and is in receipt of an income as previously set out.
The husband incurred some liabilities on his credit card for the purpose of funding operations of the hotel but the wife or the hotel reimbursed him for some of that funding. The husband retains liability for the debt which has accrued on the card and interest thereon.

Conclusion based on contribution

All in all, I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them, including such property which is no longer the property of the parties to the marriage or either of them, to be 80 percent by the wife and

20 percent by the husband to the date of the hearing.

Section 75(2) considerations

I take into account the matters referred to above but on balance take the view that there should be no adjustment thereby to the finding on contribution. The husband is earning more than the wife. True the wife will have the benefit of more capital for the future but I find that in the circumstances of this case that is just. Although the wife will have a continued earning capacity that capacity will, after the sale of the hotel, cease until she is re-employed. It is true that some of the husband’s liability for debt arose by reason of debts incurred by the enterprise under the control of the wife but equally the enterprise was a joint one and regrettably the evidence in my view does not support an accurate apportionment of the debt between the expenses of the husband and the expenses of the enterprise in any event.

Conclusion on section 75(2)

For all the reasons referred to above I do not propose to make any change to my assessment of the proportions for division of the assets based on the factors referred to and required to be taken into account under the provisions of section 75(2).

Overall division of assets

The above determination will see the wife receive 80% of the parties’ assets and the husband receive 20%.

Just and equitable

The division of assets would see the wife receive net assets to the value of $834,680 and the husband receive net assets to the value of $208,670.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

I propose orders which will give effect to the following division:
a)the wife will receive:

Assets	($)	($)
Proceeds of sale of T property (estimated)	1,650,000
C property	445,000
Personal Westpac Account	1,000
Miscellaneous Shares	4,293
VW Golf Motor Vehicle	18,000
MLC Masterkey superannuation fund	50,142	2,168,435
Total Assets	$2,168,435
Liabilities
Mortgage registered over T property	1,021,854
Mortgage registered over the C property	159,750
Amount payable to the husband	152,151	1,333,755
Total Liabilities	$1,333,755
Net Assets (including superannuation)	$834,680

b)the husband will receive:

Assets	($)	($)
Partial Property Settlement	50,000
Westpac Superannuation	42,144
Payment from wife	152,151
Golf Club Membership	1,000
Half shares	4,293	249,588
Total Assets (including superannuation)	$249,588
Liabilities
Westpac Master Card	40,918	40,918
Total Liabilities	$40,918
Net Assets (including superannuation)	$208,670

Form of Orders

The amount payable by the wife to the husband assumes a sale of the T property for its value at no significant cost. That may not however be the position. The property may sell for more or less.
In order to provide some benefit or burden to the husband arising out of such a sale it is my intention to express the amount payable to him as a percentage of the net value of the T property and provide further for that to be the percentage payable to him from the actual net proceeds of sale. T property has a current net value of $628,854 of which the amount payable to the husband represents 24.06%.
It seems to me that the costs of sale should be met from the proceeds since it is agreed that the property should be sold to give effect to the orders of the Court. However, the Capital Gains Tax should when assessed be born in proportion to the share of the benefit of the gain each receives by virtue of these Orders.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 6 September 2010.

Associate:

Date: 6 September 2010

[2010] FamCA 784

6 September 2010

Key Legal Topics

Areas of Law

Family Law

Property Law

Commercial Law

Legal Concepts

Remedies

Jurisdiction

Costs

Statutory Construction

Procedural Fairness