Sparr and Sparr - [2007] FamCA 1229

FAMILY COURT OF AUSTRALIA

SPARR & SPARR

[2007] FamCA 1229

FAMILY LAW – PROPERTY – Alteration of property interests – Contributions – Subsection 75(2)

Family Law Act 1975 (Cth)

APPLICANT:

MRS SPARR

RESPONDENT:	MR SPARR
FILE NUMBER:		NCF	475	of		2005

DATE DELIVERED:

16 October 2007

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

JUSTICE MULLANE

HEARING DATES:

29 & 30 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P. Hartley

SOLICITOR FOR THE APPLICANT:

Merten & Co, Lawyers

COUNSEL FOR THE RESPONDENT:

Mr T. Hodgson

SOLICITOR FOR THE RESPONDENT:

Nash Allen Williams & Wotton, Solicitors

Orders

On or before 15 November 2007 the husband must do all acts and execute all documents submitted by the wife to purchase from S2 Pty Ltd on the wife’s behalf the motor vehicle owned by the company and currently in the wife’s possession and transfer unencumbered ownership and the registration of the vehicle to the wife.

On or before 15 November 2007 the husband must do all acts and execute all documents submitted by the wife to transfer to the wife the following property unencumbered:

2.1the property owned by the parties being P Property;
2.2the shares (other than any shares in S2 Pty Ltd) held by either of them or both of them on behalf of their partnership being shares referred to in items, 14, 15, 16, and 17 of the Schedule of Assets in Exhibit A in these proceedings; and
2.3the shares held by the wife pursuant to the CBA margin loan and being items 19, 21, 24 and 26 of the same schedule

In consideration for and contemporaneous with the husband’s compliance with Orders 1 and 2 the wife must do all acts and execute all documents submitted by the husband to:

3.1transfer to the husband any other assets of their partnership (items 39 and 40 of the schedule) including any debt owing to the partnership by the husband;
3.2transfer to the husband the parties’ property at F being the whole of the land in Certificate of Title Folio Identifier …;
3.3transfer to the husband the wife’s shares in S2 Pty Ltd;
3.4resign the directorship and any other office the wife holds with S2 Pty Ltd; and
3.5assign to the husband any interest she has in any loan account she has with S2 Pty Ltd.

4 The partnership of the parties is dissolved.
5 The husband must indemnify the wife in respect of:

5.1any debt owing by them or either of them to the partnership or to S2 Pty Ltd;
5.2any liability in respect of the property at F; and,
5.3the husband’s CGA overdraft, St George Bank Margin Loan, and CBA Margin Loan being items 30,31 and 32 of the said schedule to Exhibit A.

The wife must indemnify the husband and the company S2 Pty Ltd in respect of:
6.1any liability in respect of the P property; and

6.2any liability in respect of the motor vehicle of the company she has in her possession other than any existing encumbrance.

Except…

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 Sparr and Sparr

Details

AGLC: Sparr and Sparr [2007] FamCA 1229
Case: [2007] FamCA 1229
Decision Date: 16 October 2007

CaseChat Overview and Summary

In *Sparr and Sparr*, Justice Mullane made orders dissolving the parties' partnership and dividing their assets and liabilities. The dispute concerned the distribution of various properties, shares, and debts between the husband and wife, including assets held by a company, S2 Pty Ltd, and personal and partnership assets.

The court was required to determine how the parties' respective interests in their partnership assets, including real property, shares, and company-related assets and liabilities, should be divided. This involved considering the transfer of ownership of specific assets and the allocation of responsibility for various debts and liabilities.

Justice Mullane ordered the husband to transfer unencumbered ownership of a motor vehicle and certain shares to the wife. In return, the wife was to transfer other partnership assets, a property at F, her shares in S2 Pty Ltd, and resign her directorship and any other office with S2 Pty Ltd to the husband. The partnership was dissolved, and the husband was ordered to indemnify the wife against specific debts and liabilities, including those related to the partnership, S2 Pty Ltd, and various loans. Conversely, the wife was ordered to indemnify the husband and S2 Pty Ltd in respect of liabilities related to the P property and the motor vehicle. Each party was declared to have no interest in any property in the possession of the other, except as otherwise provided.

Orders

Orders of the court

On or before 15 November 2007 the husband must do all acts and execute all documents submitted by the wife to purchase from S2 Pty Ltd on the wife’s behalf the motor vehicle owned by the company and currently in the wife’s possession and transfer unencumbered ownership and the registration of the vehicle to the wife.

On or before 15 November 2007 the husband must do all acts and execute all documents submitted by the wife to transfer to the wife the following property unencumbered:

2.1 the property owned by the parties being P Property;

2.2 the shares (other than any shares in S2 Pty Ltd) held by either of them or both of them on behalf of their partnership being shares referred to in items, 14, 15, 16, and 17 of the Schedule of Assets in Exhibit A in these proceedings; and

2.3 the shares held by the wife pursuant to the CBA margin loan and being items 19, 21, 24 and 26 of the same schedule

In consideration for and contemporaneous with the husband’s compliance with Orders 1 and 2 the wife must do all acts and execute all documents submitted by the husband to:

3.1 transfer to the husband any other assets of their partnership (items 39 and 40 of the schedule) including any debt owing to the partnership by the husband;

3.2 transfer to the husband the parties’ property at F being the whole of the land in Certificate of Title Folio Identifier …;

3.3 transfer to the husband the wife’s shares in S2 Pty Ltd;

3.4 resign the directorship and any other office the wife holds with S2 Pty Ltd; and

3.5 assign to the husband any interest she has in any loan account she has with S2 Pty Ltd.

4 The partnership of the parties is dissolved.

5 The husband must indemnify the wife in respect of:

5.1 any debt owing by them or either of them to the partnership or to S2 Pty Ltd;

5.2 any liability in respect of the property at F; and,

5.3 the husband’s CGA overdraft, St George Bank Margin Loan, and CBA Margin Loan being items 30,31 and 32 of the said schedule to Exhibit A.

The wife must indemnify the husband and the company S2 Pty Ltd in respect of:

6.1 any liability in respect of the P property; and

6.2 any liability in respect of the motor vehicle of the company she has in her possession other than any existing encumbrance.

Except as otherwise provided in these orders each party is declared to have no interest in any property in the possession of the other.

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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