FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPEARS & SPEARS | [2017] FCCA 3203 |
| Catchwords: FAMILY LAW – Property – assessment of contributions. |
| Legislation: Family Law Act 1975, ss.75, 79 |
| Cases cited: Bevan & Bevan [2014] FamCAFC 19 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Robb & Robb (1994) 18 FamLR 489 |
| Applicant: | MS SPEARS |
| Respondent: | MR SPEARS |
| File Number: | PAC 2101 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 6 December 2016, 20 – 21 April 2017, 10 July 2017 |
| Date of Last Submission: | 10 July 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitors for the Applicant: | Mark Brown & Associates |
| Counsel for the Respondent: | Ms Haughton |
| Solicitors for the Respondent: | Yeend & Associates |
ORDERS
Within two months of the date of this order, the husband is to pay to the wife the sum of $267,060.
In the event that the husband fails to comply with order 1 above each party shall take all necessary steps to sign all necessary documents to cause the property situate at and known as Property A, in the State of New South Wales, and being more particularly described in folio identifier (omitted), to be sold by private treaty at the earliest possible date at a price to be agreed to between the parties and failing such agreement to be determined by the President of the New South Wales Division of the Australian Property Institute or his nominee, and that the said proceeds of sale be disbursed in accordance with these orders.
In the event that the said property fails to be sold by private treaty within a period of four months, the parties shall at the request of either of them, take all necessary steps and execute all necessary documents to cause the said property to be sole by auction at the earliest possible date at a reserve to be agreed between the parties and failing agreement, to be determined by the President of the New South Wales Division of the Australian Property Institute or his nominee and that the proceeds of the said sale be disbursed in accordance with these orders.
If the property is not sold at auction then the parties shall follow the directions contained in order 2 and 3 above so far as they apply provided a…
Keep reading for free
Create a free CaseChat account to read SPEARS and SPEARS and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] FCCA 3203
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the quantum of the financial settlement to be paid by the husband to the wife, and the mechanism for achieving this settlement, including the potential sale of a property. The court also considered the allocation of responsibility for ongoing expenses related to the property and the consequences of non-compliance with its orders.
Judge Obradovic ordered the husband to pay the wife a sum of $267,060 within two months. In the event of non-compliance, the property was to be sold by private treaty, with a fallback to auction if private sale failed within a specified timeframe. The proceeds of sale were to be applied first to legal and agent's costs, then to any mortgage, followed by the payment to the wife of the $267,060 plus interest, with the balance to the husband. The husband was also ordered to continue paying all regular instalments for the mortgage, rates, and insurance, and to pay any arrears, indemnifying the wife. The Registrar was appointed to execute documents if either party refused to do so. Each party was to retain sole ownership of other property in their possession.
Orders
Orders of the court
1.
Within two months of the date of this order, the husband is to pay to the wife the sum of $267,060.
2.
In the event that the husband fails to comply with order 1 above each party shall take all necessary steps to sign all necessary documents to cause the property situate at and known as Property A, in the State of New South Wales, and being more particularly described in folio identifier (omitted), to be sold by private treaty at the earliest possible date at a price to be agreed to between the parties and failing such agreement to be determined by the President of the New South Wales Division of the Australian Property Institute or his nominee, and that the said proceeds of sale be disbursed in accordance with these orders.
3.
In the event that the said property fails to be sold by private treaty within a period of four months, the parties shall at the request of either of them, take all necessary steps and execute all necessary documents to cause the said property to be sole by auction at the earliest possible date at a reserve to be agreed between the parties and failing agreement, to be determined by the President of the New South Wales Division of the Australian Property Institute or his nominee and that the proceeds of the said sale be disbursed in accordance with these orders.
4.
If the property is not sold at auction then the parties shall follow the directions contained in order 2 and 3 above so far as they apply provided a period of five calendar months shall elapse after the attempted auction sale before the property is again put to public auction.
5.
The proceeds of sale of the property situate at and known as Property A, be disbursed in the following manner:
(a) The payment of legal costs and agent’s costs on sale;
(b) The payment of any mortgage; and
(c) In payment to the wife in the sum of $267,060 together with interest as provided herein and the balance to the husband.
6.
In the event of the husband failing to comply with order 1 above the husband shall pay to the wife from his share of proceeds of sale in addition to the said sum, interest on such sum calculated from a date two months from the date of these orders until payment at a rate prescribed by the Rules of the Court.
7.
The husband shall continue to pay as they fall due, all regular instalments in respect of the mortgage, council rates, water rates, household insurance in respect of the property and forthwith pay any arrears in respect of the said instalments and indemnify the wife in respect of all such outgoings.
8.
The husband and wife shall do all things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
9.
In the event that either party refuses to execute any deed or instrument necessary to give effect to these orders, within 7 days of being requested so to do, the Registrar of the Court is appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
10.
Except for otherwise provided for in this order the husband and wife each be the sole legal and beneficial owners of all items of all property including furniture, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively to the exclusion of the other.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.