Spurling & Spurling & Ors

In *Spurling & Spurling & Ors*, the wife sought to set aside a transaction involving a third respondent under section 106B of the *Family Law Act 1975* (Cth), alleging it was conducted at an undervalue. The wife also sought spousal maintenance and an adjustment to the property settlement. It was common ground that the husband had not acted dishonestly or collusively in the transaction.

The court was required to determine whether the wife had established that the impugned transaction occurred at an undervalue, and if so, whether the third respondent was a bona fide purchaser or otherwise interested. Further, the court had to consider whether the wife had demonstrated that she was unable to adequately support herself for the purposes of spousal maintenance, and in relation to the property settlement, whether the husband's conduct warranted an adjustment under the principles of *Kowaliw & Kowaliw* and whether any adjustment was required under section 75(2) of the Act.

Regarding the section 106B application, Johnston J found that the wife had failed to establish that the transaction took place at an undervalue, noting that it was not appropriate to accept the expert valuation presented. Consequently, the wife's application to set aside the transaction was dismissed, as she could not practically achieve the order sought. On the issue of spousal maintenance, the wife failed to meet the threshold requirement under section 72(1) of the Act by not establishing that she was unable to support herself adequately. However, in relation to the property settlement, while the wife had not established a loss or reduction of matrimonial property due to the husband's conduct, Johnston J considered the husband's significantly greater earning capacity compared to the wife under section 75(2).

An adjustment of 15 per cent of the available property and superannuation was made in favour of the wife. Taking into account a substantial component of the husband's assets being a superannuation pension, the court ordered an overall division of property and superannuation in the proportions of 65 per cent in favour of the wife and 35 per cent in favour of the husband.