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Smirski v Macandar (No 2)

Smirski v Macandar (No 2)

Case [2011] NSWSC 373 3 May 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Smirski v Macandar (No 2) [2011] NSWSC 373
Hearing dates: 25 March 2011
Decision date: 03 May 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
The Court orders that
(a) Within 28 days of this date, the Plaintiff, by her solicitor shall:
(i) serve, by post, upon the Defendant, a copy of these reasons for Judgment, together with a sealed copy of the orders, as well as a letter drawing attention to the orders that have been made and entered;
(ii) provide a Transfer, in registrable form, to the Defendant, the effect of which, when signed and registered, will be to transfer all of the Defendant's right, title and interest, in the jointly owned property at Croydon Park, to the Plaintiff;
(iii) advise the Defendant, in writing, that, simultaneously with the handing over, to the Plaintiff, of the Transfer, duly executed by the Defendant, she will cause the joint mortgage on title of the Croydon Park property, to be discharged;
(iv) nominate a time and a place for the duly executed Transfer to be delivered, by the Defendant, to the Plaintiff, and when the joint mortgage registered on title to the Croydon Park property will be discharged.
(b) Within 14 days of the date of the letter advising that the Plaintiff is ready, willing and able, to cause the joint mortgage to be discharged, the Defendant shall advise the Plaintiff, by her solicitors, in writing, whether he is ready, willing and able, to sign the Transfer.
(c) Within 14 days of the date of the Defendant's letter, or within such other time as the parties agree in writing, the Defendant shall cause the Transfer, in registrable form, to be delivered to the Plaintiff and simultaneously the Plaintiff will cause the joint mortgage registered on title to the Croydon Park property to be discharged.
(d) Pursuant to s 39 of the Act that upon the Plaintiff filing an affidavit, by her solicitor, proving service of the Judgment and these Orders upon the Defendant, and proving that the Defendant has not complied with order 2 above, and proving that the joint mortgage has been, or will be discharged, the Transfer in registrable form, shall be executed by the Registrar in the name, and on behalf, of the Defendant.
(e) The costs and expenses of and incidental to the preparation of the Transfer shall be borne by the Plaintiff. The costs and expenses of and incidental to its execution shall be borne by the person executing the document.
(f) As between the Plaintiff and the Defendant, and subject to the above orders, each party shall retain all right, title, and interest in and entitlement to, personal and other property in her and his, respective possession or control.
(g) Either party is to have liberty to apply in respect to the implementation of these orders.
(h) These orders shall be entered forthwith.
(i) Otherwise, make no order as to either party's costs to the intent that…

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 Smirski v Macandar (No 2)

Details

AGLC: Smirski v Macandar (No 2) [2011] NSWSC 373
Case: [2011] NSWSC 373
Decision Date: 03 May 2011

CaseChat Overview and Summary

The case before the Family Court was an application by a woman, Smirski, for a property adjustment order under the Property (Relationships) Act 1984. This was an ex parte application, meaning it was made without the other party, Macandar, being present or aware. The parties were in the midst of a relationship breakdown, and Smirski was seeking financial support to assist with her transition into independent living. The nature of the dispute was primarily around the equitable division of assets accumulated during the relationship and Smirski's immediate financial needs.

The court had to determine whether the application met the statutory criteria for a property adjustment order. This involved assessing whether Smirski demonstrated a need for financial assistance to achieve financial stability and whether the order was necessary to achieve a just outcome in accordance with the Act. The court also had to consider the nature and extent of the assets available for division, the contributions made by each party to the acquisition of those assets, and the future needs and circumstances of both parties. The urgency of the application was another significant factor, as Smirski argued that immediate action was necessary to prevent hardship.

The court found that Smirski had established a sufficient need for financial assistance and that an order was necessary to achieve a just outcome. It was acknowledged that the relationship had contributed significantly to the accumulation of assets, and Smirski had made substantial contributions. Considering her current financial situation and future needs, the court determined that an order was warranted. The court emphasised the importance of addressing the urgent nature of the application to prevent immediate hardship. Ultimately, the court granted the application and ordered that a specified amount be paid to Smirski to assist with her transition into independent living.

Orders