Sindel and Sindel - [2009] FamCA 882

FAMILY COURT OF AUSTRALIA

SINDEL & SINDEL

[2009] FamCA 882

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – equal contributions after small adjustment made in favour of the wife under s75(2) – self-managed superannuation fund

Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001

APPLICANT:

Ms Sindel

RESPONDENT:

Mr Sindel

FILE NUMBER:

SYC

5856

2007

DATE DELIVERED:

19 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

29-31 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

RESPONDENT:

In person

Orders

Forthwith from the making of these orders the parties are to do all acts and things and sign all documents necessary to sell the property at 13 P in the State of New South Wales for the best price reasonably obtainable and the following is to apply unless agreed to the contrary:
(a)       the sale is to be by way of public auction as soon as practicable;
(b)the reserve price is to be agreed or as determined by the President of the Real Estate Institute of New South Wales or his/her nominee;
(c)in the event the P property does not sell by auction the parties shall do all things, pay all necessary monies (equally) and sign all documents to cause the P property to be offered by sale by public auction successively each six (6) weeks until sold and unless otherwise agreed, at a reserve price five (5) per cent below the reserve price set at the auction pursuant to Order 1(b) above, and for each subsequent auction at a reserve price five (5) per cent lower than the last. The orders in relation to the sale by auction shall otherwise apply.
(d)the parties are to pay equally all necessary and reasonable costs in relation to the sale of the property;
(e)the husband is to pay all council and water rates and insurance whilst ever he remains in occupation of the P property, and on his vacating the same such costs are to be borne equally;
(f)       each party is entitled to bid at auction, as permitted by law; and
(g)       on completion of the sale the proceeds of sale are to be paid as follows:
(i)in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser; and
(ii)as to the balance 50% thereof to the wife and the balance to the husband.
Forthwith from the making of these orders the parties are to do all acts and things and sign all documents necessary to sell the property at G in the State of New South Wales for the best price reasonably obtainable and the following is to apply unless agreed to the contrary:
(a) the sale is to be by way of public auction as soon as practicable;
(b)the reserve price is to be agreed or as determined by the President of the Real Estate Institute of New South Wales or his/her nominee;
(c)in the event the G property does not sell by…

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 Sindel and Sindel

Details

AGLC: Sindel and Sindel [2009] FamCA 882
Case: [2009] FamCA 882
Decision Date: 19 August 2009

CaseChat Overview and Summary

This matter concerned orders made by Justice Fowler in the Family Court of Australia concerning the division of property between the parties, Mr and Mrs Sindel. The dispute involved the sale of two properties located at 13 P and G in New South Wales, the distribution of sale proceeds, and the division of a superannuation fund.

The court was required to determine the terms and conditions under which the two properties should be sold, including the method of sale, reserve prices, and the allocation of sale costs and proceeds. Further issues included the husband's obligation to pay a specific sum to the wife from his share of the sale proceeds, the transfer of the husband's interest in a Macquarie Cash Management Account to the wife, and the division of the Sindel Superannuation Fund. The court also needed to address the wife's cessation as a member and trustee of the superannuation fund and the procedure for calculating and paying entitlements from the fund.

Justice Fowler ordered that both properties be sold by public auction as soon as practicable, with provisions for successive auctions at progressively reduced reserve prices if the initial auction was unsuccessful. The parties were to share equally the costs of sale, with specific arrangements for council rates, water rates, and insurance depending on occupation. The proceeds of sale were to be applied first to commission, expenses, and legal costs, with the balance to be divided equally between the parties. The husband was ordered to pay the wife a sum of $238,529.40 from his share of the sale proceeds, with this obligation to be charged against those proceeds. The husband was also ordered to transfer his interest in a specified cash management account to the wife. Crucially, pursuant to section 90MT(1) of the *Family Law Act 1975*, the parties, as trustees of the Sindel Superannuation Fund, were directed to execute documents to facilitate a splittable payment to an eligible superannuation fund nominated by the wife, granting her 44.4% of the husband's interest in the fund. The wife was also to cease being a member and resign as a trustee of the fund. The court also made provisions for the appointment of a Registrar to execute documents if a party refused to do so, and outlined a detailed procedure for any applications for costs.

Orders

Orders of the court

Forthwith from the making of these orders the parties are to do all acts and things and sign all documents necessary to sell the property at 13 P in the State of New South Wales for the best price reasonably obtainable and the following is to apply unless agreed to the contrary:

(a) the sale is to be by way of public auction as soon as practicable;

(b) the reserve price is to be agreed or as determined by the President of the Real Estate Institute of New South Wales or his/her nominee;

(c) in the event the P property does not sell by auction the parties shall do all things, pay all necessary monies (equally) and sign all documents to cause the P property to be offered by sale by public auction successively each six (6) weeks until sold and unless otherwise agreed, at a reserve price five (5) per cent below the reserve price set at the auction pursuant to Order 1(b) above, and for each subsequent auction at a reserve price five (5) per cent lower than the last. The orders in relation to the sale by auction shall otherwise apply.

(d) the parties are to pay equally all necessary and reasonable costs in relation to the sale of the property;

(e) the husband is to pay all council and water rates and insurance whilst ever he remains in occupation of the P property, and on his vacating the same such costs are to be borne equally;

(f) each party is entitled to bid at auction, as permitted by law; and

(g) on completion of the sale the proceeds of sale are to be paid as follows:

(i) in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser; and

(ii) as to the balance 50% thereof to the wife and the balance to the husband.

Forthwith from the making of these orders the parties are to do all acts and things and sign all documents necessary to sell the property at G in the State of New South Wales for the best price reasonably obtainable and the following is to apply unless agreed to the contrary:

(a) the sale is to be by way of public auction as soon as practicable;

(b) the reserve price is to be agreed or as determined by the President of the Real Estate Institute of New South Wales or his/her nominee;

(c) in the event the G property does not sell by auction the parties shall do all things, pay all necessary monies (equally) and sign all documents to cause the G property to be offered by sale by public auction successively each six (6) weeks until sold and unless otherwise agreed, at a reserve price five (5) per cent below the reserve price set at the auction pursuant to Order 2(b) above, and for each subsequent auction at a reserve price five (5) per cent lower than the last. The orders in relation to the sale by auction shall otherwise apply.

(d) the parties are to pay equally all necessary and reasonable costs in relation to the sale of the property;

(e) the parties are to share equally the cost of all council and water rates and insurance until the date of sale;

(f) each party is entitled to bid at auction, as permitted by law; and

(g) on completion of the sale the proceeds of sale are to be paid as follows:

(i) in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser; and

(ii) as to the balance 50% thereof to the wife and the balance to the husband.

For the purposes of Orders 1 and 2 above the husband and wife shall co-operate in every way with the agent, including (without limiting the generality of the foregoing):

(a) making the key(s) to the property available to the agent(s);

(b) allowing inspection of the property at all reasonable times requested by the agent(s);

(d) ensuring that the property, including the grounds, is in a neat and clean condition at the time of inspection by the agent(s) and prospective purchasers;

(e) signing all documents requested by the agent in relation to the listing for sale of the property;

(f) undertaking a marketing campaign in accordance with the recommendations of the agent; and

(g) attending the auction.

From the proceeds of sale received by the husband under Order 1(g)(ii) above or Order 2(g)(ii) above, the husband is to contemporaneously pay the wife the sum of $238,529.40, unless otherwise paid beforehand. The husband shall forthwith apply the proceeds of any sale to which he is entitled in payment of his obligation to pay the wife the sum of $238,529.40, and the proceeds of sale shall be charged with that obligation.

Forthwith upon the making of these orders the husband is to sign all documents and do all things necessary to transfer to the wife his interest in the funds held in the Macquarie Cash Management Account.

Pursuant to s90MT(1) of the Family Law Act 1975 (“the Act”) the parties as Trustees of the Sindel Superannuation Fund do all acts and things and execute all deeds, documents, instruments and writings necessary to cause the Sindel Superannuation Fund (“the Superannuation Fund”) to make a splittable payment to an eligible superannuation fund nominated by the wife and for that purpose the wife is entitled to 44.4% of the husband’s interest in the Superannuation Fund at the operative date and the husband’s entitlement in the Superannuation Fund is correspondingly reduced.

The parties do all such acts and things as shall be necessary to cause the wife to cease to be a member of the Superannuation Fund and to resign as a trustee of the said fund.

The Trustees of the Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 the entitlement created for the wife in Order 6 above; and

(b) Pay the respective entitlements whenever the Trustee makes a splittable payment out of the wife’s interest in the Superannuation Fund.

Having been afforded procedural fairness, Orders 6, 7, and 8 bind the Trustee of the Sindel Superannuation Fund to observe the requirements of the Act and the Family Law (Superannuation) Regulations 2001.

10.

The operative time for Order 6 is the date of this order.

11.

Unless specified in these orders, each party is otherwise entitled to retain absolutely to the exclusion of the other all property of whatsoever nature or kind owned by that party and held in the name or possession of that party as at the date of these orders.

12.

If either party refuses or neglects to sign, within fourteen (14) days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

13.

Any application for costs be filed an served within 28 days of the Orders herein made, and subject to the following;

(a) any costs application is to be accompanied by affidavits setting out the evidence in chief on which the applicant wishes to rely together with any written submission in support of that application;

(b) any respondent to a costs application must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting out the evidence in chief upon which they wish to rely; and

14.

In the event that no application is filed within the time limit specified in Order 13 above, then each party is to pay their own costs of an incidental to these proceedings.

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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