SOMMER & SOMMER - [2021] FamCA 61

FAMILY COURT OF AUSTRALIA

SOMMER & SOMMER

[2021] FamCA 61

FAMILY LAW – PROPERTY – determination of the percentage share of two properties in the same suburb as between the husband, wife and the second and third respondents, the husband’s brother and his company – where the Court rejected the wife’s case that she, her husband and the second respondent each owned one third of both properties – finding that 50 per cent of both properties owned equally as between the husband and wife and the remaining 50 per cent by the second and third respondents – where the second respondent has solely maintained the properties since May 2016 – where the properties have a combined increase in value of $400,000 since purchase – declaration made as sought by the second respondent – second respondent given an opportunity to purchase the interest of the husband and wife in those properties – wife to receive 62.5 per cent of the parties’ property.

Family Law Act 1975 (Cth) ss 75(2), 79

Bevan & Bevan (2014) FLC 93-572
Coghlan & Coghlan (2005) FLC 93-220
Ferraro & Ferraro (1993) FLC 92-335
Pierce & Pierce (1999) FLC 92-844

Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Sommer

RESPONDENT:

Ms Sommer

SECOND RESPONDENT:

Mr N Sommer

THIRD RESPONDENT:

P Pty Ltd

INTERVENER:

C Pty Ltd t/as C Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

2639

2016

DATE DELIVERED:

18 February 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

23, 24, 25, 26 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O’Reilly

SOLICITOR FOR THE APPLICANT:

One Group Legal

COUNSEL FOR THE 1^ST RESPONDENT:

Self-Represented Litigant

COUNSEL FOR THE 2^ND AND 3^RD

RESPONDENTS:

Ms Tabbernor

SOLICITOR FOR THE 2^ND AND 3^RD

RESPONDENTS:

York Law Family Law Specialists

COUNSEL FOR THE INTERVENER:

Chris Othen

SOLICITOR FOR THE INTERVENER:

C Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Ahmad

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYYER

Legal Aid NSW

Orders

The Court declares as follows:

The Second Respondent Mr N Sommer holds 40% of the property at 1 Q Street, Suburb D in the State of New South Wales (“the 1 Q Street”) in trust for the Applicant husband and First Respondent wife in equal shares.
Each of the husband and wife are liable for one half of the mortgage referable to the property at 1 Q Street, Suburb D.
The Third Respondent P Pty Ltd holds 50% of the property at 2 Q Street, Suburb D in the State of New South Wales (“the 2 Q Street”) in trust for the Applicant husband and First Respondent wife in equal shares.
Each of the husband and wife are liable for one half of the mortgage referable to the property at 2 Q Street, Suburb D.

The Court orders:

The First Respondent wife and Applicant husband are to assign their interest in the 1 Q Street and the 2 Q Street to Mr N Sommer provided…

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 SOMMER & SOMMER

Details

AGLC: SOMMER & SOMMER [2021] FamCA 61
Case: [2021] FamCA 61
Decision Date

CaseChat Overview and Summary

This case involved a property dispute before the Family Court of Australia between Mr Sommer (the husband) and Ms Sommer (the wife), and the husband's brother, Mr N Sommer, and his company, P Pty Ltd. The dispute concerned the ownership interests in two properties, 1 Q Street and 2 Q Street. The legal title to 1 Q Street was held by Mr N Sommer (90%) and the husband and wife (5% each), while 2 Q Street was wholly owned by P Pty Ltd. The wife contended that she, her husband, and Mr N Sommer each held a one-third interest in both properties. In contrast, the husband and Mr N Sommer agreed that Mr N Sommer or his company held 50% of each property, with the remaining 50% held equally by the husband and wife, notwithstanding the differing legal titles.

The primary legal issues before the Court were to determine the true beneficial ownership of the two properties and to make declarations regarding those interests. The Court was also required to consider the wife's claim for a one-third share in each property, which differed from the position advanced by the husband and his brother. Furthermore, the Court needed to address the claims of C Pty Ltd (trading as C Lawyers) for unpaid legal fees, which had been the subject of separate proceedings in the Federal Circuit Court.

The Court ultimately rejected the wife's claim for a one-third share in each property. Instead, it found that Mr N Sommer held 40% of 1 Q Street in trust for the husband and wife equally, with the remaining 60% being his own. For 2 Q Street, the Court declared that P Pty Ltd held 50% in trust for the husband and wife equally, with the remaining 50% belonging to P Pty Ltd. The Court applied principles of property law and family law, considering the evidence presented by the parties, including affidavits and financial statements, to ascertain the beneficial interests in the properties. The Court also noted that Mr N Sommer had solely maintained the properties since May 2016 and that they had increased in value.

The Court made declarations reflecting its findings on beneficial ownership. It ordered that Mr N Sommer be given the opportunity to purchase the husband and wife's interests in both properties. This involved Mr N Sommer refinancing the existing mortgages, discharging the husband and wife's liabilities, and making specific payments, including to C Lawyers for their legal fees. The Court also detailed how the net proceeds of sale would be distributed if Mr N Sommer did not or could not buy out the interests, with the wife to receive 62.5% of the parties' total property pool.

Orders