Spoke and Spoke (No. 2) - [2009] FamCA 40

FAMILY COURT OF AUSTRALIA

SPOKE & SPOKE (NO. 2)

[2009] FamCA 40

FAMILY LAW – PROPERTY SETTLEMENT – Wife seeks case guardian, McKenzie Friend and adjournment – Need for matters to be brought to a head and concluded – Wife seeks audit of company after two years – No evidence to support suggestion of any impropriety – Very limited asset pool – Dilemma where parties do not provide up to date financial material as to valuation of corporate entities – Assessing value based upon balance sheets of corporate entity after single expert witness two years earlier valued the entity on the basis of future maintainable earnings – Substantial s 75(2) factors favour the wife – Wife to receive nothing having regard to consent orders signed by her giving all of her entitlement to litigation funding lender

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Kennon v Spry; Spry v Kennon [2008] HCA 56
MG and MG [2000] FamCA 893
Queensland v J L Holdings Pty Ltd [1997] HCA 1
Re F: Litigants in person guidelines [2001] FamCA 348
Sali v SPC Ltd [1993] HCA 47

APPLICANT:

Mr Spoke

RESPONDENT:

Ms Spoke

FILE NUMBER:

MLF

1437

2006

DATE DELIVERED:

2 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

15, 16 & 21 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR O'CONNOR

SOLICITOR FOR THE APPLICANT:

DAWES & VARY PTY LTD

COUNSEL FOR THE RESPONDENT:

IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

That by 4.00pm on 1 August 2009 and by way of final settlement pursuant to s 79 of the Family Law Act 1975 (Cth), the husband pay to Ask Funding Pty Ltd for and on behalf of the wife the sum of $75,000 in part satisfaction of their entitlements from the wife under orders made on 15 January 2009.
That all extant orders in relation to the use and occupation of the property at E be discharged.
That the wife have the sole use and occupation of E property until 1 August 2009 on condition that she continues to reside in the property.
That upon the payment by the husband of the sum referred to in paragraph (1) hereof but not earlier than 1 August 2009 unless the parties otherwise agree, the wife do all acts and things and sign all necessary documents to transfer to the husband at his expense, all of her interest in the property at E.
That forthwith, and upon the request of the husband, the wife sign any necessary document to transfer to the husband all and any shareholding in her name in N Company.
That by no later than 1 August 2009, the husband provide to the wife a document evidencing the release of the wife from any liability of N Company including any debt personally guaranteed by the wife in relation to the said company.
That in default…

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 Spoke and Spoke (No. 2)

Details

AGLC: Spoke and Spoke (No. 2) [2009] FamCA 40
Case: [2009] FamCA 40
Decision Date: 2 February 2009

CaseChat Overview and Summary

In *Spoke and Spoke (No. 2)*, Justice Cronin of the Family Court of Australia made orders concerning the property settlement and financial affairs of a married couple. The dispute involved the division of assets, including a property, shareholdings in a company named N Company, and superannuation entitlements, as well as the resolution of outstanding debts and liabilities associated with N Company.

The court was required to determine the terms of a final settlement pursuant to section 79 of the *Family Law Act 1975* (Cth). This involved establishing the specific financial contributions to be made by the husband to the wife, the future use and occupation of a property, the transfer of interests in that property and shareholdings in N Company, and the release of the wife from company liabilities. The court also needed to address the potential sale of the property and liquidation of N Company in the event of default, and the division of any recovered unauthorised expenses.

Justice Cronin's reasoning led to a comprehensive set of orders designed to achieve a final resolution. The husband was ordered to pay a sum of $75,000 to Ask Funding Pty Ltd for the wife, and the wife was granted sole use and occupation of the property until 1 August 2009, provided she continued to reside there. Upon payment and not earlier than 1 August 2009, the wife was to transfer her interest in the property to the husband at his expense. The wife was also to transfer her shareholding in N Company to the husband upon his request. The husband was required to provide the wife with a release from any liability related to N Company by 10 August 2009. In default, the property was to be sold and N Company liquidated, with net proceeds from the property sale to be paid to the wife after company obligations and liquidation costs were discharged. The husband was to gain exclusive occupancy of the property upon payment of the $75,000. Provisions were also made for the equal division of any recovered unauthorised expenses by N Company, subject to prior orders, and for each party to retain their superannuation and personal possessions, with a limited period for agreement on chattels. The wife was also to return a company vehicle to the husband.

Orders

Orders of the court

That by 4.00pm on 1 August 2009 and by way of final settlement pursuant to s 79 of the Family Law Act 1975 (Cth), the husband pay to Ask Funding Pty Ltd for and on behalf of the wife the sum of $75,000 in part satisfaction of their entitlements from the wife under orders made on 15 January 2009.

That all extant orders in relation to the use and occupation of the property at E be discharged.

That the wife have the sole use and occupation of E property until 1 August 2009 on condition that she continues to reside in the property.

That upon the payment by the husband of the sum referred to in paragraph (1) hereof but not earlier than 1 August 2009 unless the parties otherwise agree, the wife do all acts and things and sign all necessary documents to transfer to the husband at his expense, all of her interest in the property at E.

That forthwith, and upon the request of the husband, the wife sign any necessary document to transfer to the husband all and any shareholding in her name in N Company.

That by no later than 1 August 2009, the husband provide to the wife a document evidencing the release of the wife from any liability of N Company including any debt personally guaranteed by the wife in relation to the said company.

That in default of the provision by the husband to the wife of the releases referred to in paragraph (6) by 10 August 2009, the husband and the wife do all things necessary to:

(a) Sell the real property at E; and

(b) Place N Company in the hands of a liquidator for its liquidation under the Corporations Law, and upon the said disposals, the net balance (if any) from the sale of the said home be paid to the wife after all obligations of the company N Company including the costs of liquidation are discharged.

That upon the payment by the husband to the wife of the sum referred to in paragraph (1) hereof, the wife vacate the home at E and the husband have exclusive occupancy and entitlement thereto, thereafter.

That upon N Company or its successor in title or any authority or person on its behalf recovering monies otherwise declared in the books of accounts as at 30 June 2008 to be unauthorised expenses, such net sums shall be divided equally between the parties upon their receipt.

10.

That any payment due to the wife pursuant to paragraph (9) shall be subject to the orders relating to Ask Funding Pty Ltd made 15 January 2009.

11.

That each party otherwise retain and become the absolute owner of and the other party relinquish any interest in, any superannuation entitlement of that party as at the date of these orders.

12.

That each party otherwise retain and become the exclusive owner of and the other party relinquish any interest in, all furniture, personal possessions and like chattels in their possession or control save for agreement reached within the next month from the date of these orders as to the division of those items.

13.

That by 1 August 2009, the wife return to the husband the motor vehicle in her possession belonging to N Company.

14.

That there be general liberty to apply to both parties in respect of the implementation of these orders.

15.

That all outstanding applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

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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