Sledge and Pinder and Anor - [2017] FCCA 3051

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLEDGE & PINDER & ANOR

[2017] FCCA 3051

Catchwords:
FAMILY LAW – Property – just and equitable settlement – whether the Intervenor holds an equitable interest in the parties’ property and if so, in what quantum – where there are significant initial contributions on the part of the Applicant – where the Respondent has made no post-separation contributions.

Legislation:

Family Law Act 1975(Cth), ss.90MT(1)(a), 90SF(3), 79(2), 90SM(3), 90SM(1), 90SM(4)
Family Law (Superannuation) Regulations 2001 (Cth), Part VI, reg.13

Cases cited:

Goldstraw v Goldstraw [2002] VSC 491

Baumgartner v Baumgartner (1987) 164 CLR 137
Allen v Snyder (1977) 1 NSWLR 685
Stanford v Stanford (2012) FLC 93-518
Bevan &Bevan [2013]FamCAFC 116

Applicant:

MS SLEDGE

First Respondent:

MR PINDER

Intervenor:

MS POTTS

File Number:

MLC 3002 of 2015

Judgment of:

Judge Small

Hearing dates:

27, 28 & 29 March 2017

Date of Last Submission:

1 May 2017

Delivered at:

Melbourne

Delivered on:

15 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Marshall

Solicitors for the Applicant:

Anthony's Solicitors

Counsel for the Respondent:

Mr Isles

Solicitors for the Respondent:

Counsel for the Intervenor:

Callahans Lawyers

Mr McIvor

Solicitors for the Intervenor:

Jim McCarthy Lawyers

DECLARATION

THE COURT DECLARES THAT

The Applicant and the Respondent were engaged in de facto relationship between 1999 and 2014.
The Applicant and the Respondent hold 75.9% of the net proceeds of sale of the property known as and situate at Property A in the State of Victoria on a constructive trust for the Intervenor being in the sum of $260,098.

ORDERS

Within 60 days (“the due date”), the Applicant shall do all such acts and things and sign all such documents as may be necessary to pay to the Intervenor the sum of $140,098 (“the first payment”).
Within 60 days (that is, by the due date) the Applicant shall pay to the Respondent the sum of $45,054.80 (“the second payment”).
If the first and second payments are not made by the due date, then the Applicant and the Respondent shall do all such acts and things and sign all such documents as may be necessary to place the property situate at and known as Property B in the State of Victoria (“the real property”) on the market for sale (“the sale”), and the proceeds of the sale shall be distributed as follows:
(a)first to pay all costs and commissions of the sale;
(b)second to discharge any encumbrances over the real property;
(c)third to pay so much of the first and second payments as is outstanding to the Intervenor and Respondent respectively, plus interest from the due date to the date of each payment at the rate of 10% per annum; and
(d)fourth the remainder to be retained by the Applicant.
In the event that the real property is to be sold pursuant to the provisions of paragraph (5) hereof:
(a)the Applicant and the Respondent shall agree on a Real Estate Agent to conduct the sale, and failing agreement they shall ask 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 Sledge and Pinder and Anor

Details

AGLC: Sledge and Pinder and Anor [2017] FCCA 3051
Case: [2017] FCCA 3051
Decision Date: 15 December 2017

CaseChat Overview and Summary

This matter concerned orders made by Judge Small in the Federal Circuit and Family Court of Australia. The proceedings involved the Applicant, Ms Sledge, and the Respondent, Mr Pinder, and an Intervenor. The dispute centred on the division of property and financial resources between the parties.

The court was required to determine the terms of the property settlement, including the payment of specific sums by the Applicant to the Intervenor and Respondent, and the consequences of non-payment. Further issues included the sale of a property if payment defaults, the distribution of sale proceeds, and the retention of motor vehicles by each party. The court also addressed the division of superannuation interests and the obligations of the superannuation fund trustee.

The court ordered that the Applicant pay a sum of $140,098 to the Intervenor and $45,054.80 to the Respondent within 60 days. In the event of default, the real property was to be placed on the market for sale, with proceeds distributed first to sale costs, then to discharge encumbrances, then to satisfy outstanding payments with interest, and any remainder to the Applicant. The Applicant was granted sole occupation of the property pending sale, with responsibility for mortgage and outgoings. Each party was permitted to retain their respective motor vehicles. Funds held in trust by the Applicant's solicitors were to be released to the Respondent. The Applicant's superannuation interest was to be split, with the Respondent entitled to a calculated amount, and the trustee of the fund was ordered to comply with the Family Law Act 1975 (Cth) and associated regulations. The Applicant was restrained from making death benefit nominations that would diminish the Respondent's entitlement. The parties were also ordered to facilitate the rollover of the Applicant's superannuation entitlements to a fund nominated by the Respondent.

Orders

Orders of the court

Within 60 days (“the due date”), the Applicant shall do all such acts and things and sign all such documents as may be necessary to pay to the Intervenor the sum of $140,098 (“the first payment”).

Within 60 days (that is, by the due date) the Applicant shall pay to the Respondent the sum of $45,054.80 (“the second payment”).

If the first and second payments are not made by the due date, then the Applicant and the Respondent shall do all such acts and things and sign all such documents as may be necessary to place the property situate at and known as Property B in the State of Victoria (“the real property”) on the market for sale (“the sale”), and the proceeds of the sale shall be distributed as follows:

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

(b) second to discharge any encumbrances over the real property;

(c) third to pay so much of the first and second payments as is outstanding to the Intervenor and Respondent respectively, plus interest from the due date to the date of each payment at the rate of 10% per annum; and

(d) fourth the remainder to be retained by the Applicant.

In the event that the real property is to be sold pursuant to the provisions of paragraph (5) hereof:

(a) the Applicant and the Respondent shall agree on a Real Estate Agent to conduct the sale, and failing agreement they shall ask the President of the Real Estate Institute of Victoria to provide the names of three Real Estate Agents operating in (omitted) and surrounding areas and each of the Applicant and the First Respondent shall have the right to reject one name provided; and

(b) pending settlement of the sale, the Applicant shall have the sole right of occupation of the real property and shall make all payments in relation to the mortgage and other outgoings as and when they fall due.

The Applicant shall retain for her own use and benefit absolutely the BMW motor vehicle registration number (omitted), or any proceeds from the sale of that vehicle.

The Respondent shall retain for his own use and benefit absolutely his Subaru motor vehicle or any proceeds from the sale of that vehicle.

The funds held in trust by the Applicant’s solicitors on behalf of the Applicant and the Respondent shall become the property of the Respondent and shall be released to him forthwith.

10.

In accordance with s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the Applicant Ms Sledge in the (employer omitted) Superannuation Plan (“the Fund”), the Respondent Mr Pinder will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $33,681 (thirty three thousand six hundred and eighty one dollars) and there will be a corresponding reduction in the entitlement of the Applicant.

11.

The trustee of the Fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth).

12.

The Applicant is hereby restrained by herself her servants and agents from making any binding death benefit nomination to the trustee of the Fund in favour of any person who is an eligible beneficiary within the meaning of reg.13 of the Family Law (Superannuation) Regulations 2001 (Cth) which would have the effect of diminishing the value to the Respondent of the splitting order made in paragraph 10 hereof.

13.

Paragraphs 10 and 11 of these Orders bind the trustee of the Fund when these paragraphs take effect from the operative time, being the fourth business day after the date these Orders are served upon the trustee.

14.

The Applicant and the Respondent shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the Fund of the Applicant’s entitlements pursuant to paragraph 10 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the Respondent as soon as that is practicably possible after the operative time.

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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