Singh and Dala - [2017] FCCA 2945

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & DALA

[2017] FCCA 2945

Catchwords:
FAMILY LAW – Property – husband giving false and dishonest evidence – property allegedly in India – this court has no power to make orders about foreign land according to the Mozambique Principles [1893] AC 602.

Legislation:

Evidence Act 1995 (Cth), s.174

Family Law Act 1975 (Cth)

Hindu Succession Act

Cases cited:

Applicants in V 722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1059
British South Africa Co v Companhia de Mocambique [1893] AC 602
Kennon v Spry (2008) 238 CLR 366
Re F: Litigants in Person Guidelines [2011] FamCA 348
Re Tang [2017] VSCA 171

Applicant:

MS SINGH

Respondent:

MR DALA

File Number:

MLC 6131 of 2016

Judgment of:

Judge Wilson

Hearing date:

6 October 2017

Date of Last Submission:

6 October 2017

Delivered at:

Melbourne

Delivered on:

29 November 2017

REPRESENTATION

Applicant in person

Respondent in person

ORDERS

Within 30 days of the date of this order, the husband pay to the wife the sum of $15,000.00.
The parties do all such acts and things as may be required to forthwith sell the property situate at and known as Property A in the State of Victoria (“the property”).
Pending the payment or completion of the sale of the property –
(a)the husband have the sole right to occupy the property;
(b)during such right of occupation, the husband is to pay all instalments pursuant to the mortgage and rates, taxes and like outgoings of the property as they fall due; and
(c)neither party encumber the property without the prior written consent of the other party.
Upon completion of the sale of the property, the proceeds of the sale be applied as follows –
(a)first, to pay all costs, commissions and expenses of the sale;
(b)second, to discharge the mortgage secured against the property and any other encumbrance affecting the property; and
(c)third, the remainder divided between the parties in equal shares.
The parties do all such acts and things as may be required to forthwith sell the following property and divide the proceeds in equal shares –
(a)the motor vehicle; and
(b)the jewellery.
The wife return the husband’s calculator to the husband.
Within 42 days of the date of this order –
(a)the parties prepare a draft minute of order seeking a split of the husband’s superannuation in the sum of $11,632.00 to the wife and provide same to the trustee of the fund sought to be the subject of the superannuation splitting order; and
(b)provide to the court a copy of the draft minute of order, together with a letter confirming that the trustee of the fund has no objection to the superannuation splitting order contained in the draft minute of order.
Unless otherwise specified in these orders –
(a)each party is solely entitled, to the exclusion of the other, to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)each party…

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 Singh and Dala

Details

AGLC: Singh and Dala [2017] FCCA 2945
Case: [2017] FCCA 2945
Decision Date: 29 November 2017

CaseChat Overview and Summary

In the matter of Singh and Dala, heard by Judge Wilson, the dispute concerned the division of property between the parties. The court was required to make orders regarding the sale and distribution of proceeds from various assets, including a property, a motor vehicle, and jewellery, as well as addressing the division of superannuation and other financial matters.

The court determined the specific terms for the division of the parties' assets and liabilities. This involved orders for the payment of a sum of money, the sale of a property with specific conditions for occupation and outgoings pending sale, and the equal division of proceeds from the sale of a motor vehicle and jewellery. Further orders addressed the splitting of the husband's superannuation and the allocation of all other property and liabilities not specifically mentioned.

The court ordered the husband to pay $15,000 to the wife within 30 days. The parties were directed to sell the property at Property A, with the husband having sole occupation rights pending sale, during which he was to meet mortgage payments and outgoings. Proceeds from the sale were to cover sale costs, discharge encumbrances, and the remainder was to be divided equally. The motor vehicle and jewellery were also to be sold and proceeds divided equally. The wife was to return a calculator to the husband. The parties were to prepare draft orders for superannuation splitting and provide them to the court and the trustee. All other extant applications were dismissed, with each party retaining sole entitlement to other property in their possession and being solely liable for associated liabilities.

Orders

Orders of the court

Within 30 days of the date of this order, the husband pay to the wife the sum of $15,000.00.

The parties do all such acts and things as may be required to forthwith sell the property situate at and known as Property A in the State of Victoria (“the property”).

Pending the payment or completion of the sale of the property –

(a) the husband have the sole right to occupy the property;

(b) during such right of occupation, the husband is to pay all instalments pursuant to the mortgage and rates, taxes and like outgoings of the property as they fall due; and

Upon completion of the sale of the property, the proceeds of the sale be applied as follows –

(a) first, to pay all costs, commissions and expenses of the sale;

(b) second, to discharge the mortgage secured against the property and any other encumbrance affecting the property; and

The parties do all such acts and things as may be required to forthwith sell the following property and divide the proceeds in equal shares –

(a) the motor vehicle; and

(b) the jewellery.

The wife return the husband’s calculator to the husband.

Within 42 days of the date of this order –

(a) the parties prepare a draft minute of order seeking a split of the husband’s superannuation in the sum of $11,632.00 to the wife and provide same to the trustee of the fund sought to be the subject of the superannuation splitting order; and

(b) provide to the court a copy of the draft minute of order, together with a letter confirming that the trustee of the fund has no objection to the superannuation splitting order contained in the draft minute of order.

Unless otherwise specified in these orders –

(a) each party is solely entitled, to the exclusion of the other, to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

(b) each party relinquish to the other all and any claims they may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to or earned by the other;

(c) monies standing to the credit of the parties in any bank account are to become the property of the party in whose name such bank account is held;

(d) insurance policies remain the sole property of the party named therein;

(e) each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(f) each party is solely liable for and indemnifies the other against any liability in that party’s sole name; and

(g) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

All extant applications are otherwise dismissed.

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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