Starkey and Starkey and Anor (No. 2) - [2009] FamCA 432

FAMILY COURT OF AUSTRALIA

STARKEY & STARKEY AND ANOR (NO. 2)

[2009] FamCA 432

FAMILY LAW – PROPERTY SETTLEMENT – Breakdown of Consortium Vitae – Capacity to Commence s 79 Property Proceedings

Family Law Act 1975 (Cth)

Jennings & Jennings (1997) FLC 92-773

APPLICANT:

Mr Starkey

1^st RESPONDENT:

Ms Starkey

2^nd RESPONDENT:

D Starkey

FILE NUMBER:

LEC

245

2007

DATE DELIVERED:

24 March 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

MURPHY J

HEARING DATE:

24 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cameron

SOLICITOR FOR THE APPLICANT:

SP Lawyers

Byron Bay

COUNSEL FOR THE RESPONDENT:

Mr Page SC

SOLICITOR FOR THE 1^ST RESPONDENT:

Stephensons Solicitors

Alstonville

2^ND RESPONDENT:

Appearing in person

Orders
IT IS ORDERED THAT

The Wife shall within 14 days transfer to the Husband all her interest in the following properties:
(i)the G Street unit (Title Reference …);
(ii)the L Street unit (Title Reference …);
(iii)Units 1 and 2 O Street (Lot 1 SP … and Lot 2 SP …);
(iv)the M Street property (Lot … SP …).
The Husband shall indemnify the Wife in respect of any liabilities relating to any of the above transferred properties, and shall be entitled to all rentals accruing after 1 April 2009 whether or not the transfers have been effected by that date.
The Husband will within 14 days transfer to the Wife all of his interest in the following properties:
(i)the Z Street property (Lot … DP …);
(ii)the A Street property (Lot … SP …);
(iii)The partnership business known as “Starkey & Starkey”, and including the parcel of land at T (Lot … DP …).
Subject to Order 5 below, the Wife shall indemnify the Husband in respect of any liabilities relating to any of the above transferred properties, and shall be entitled to all rentals and income accruing after 1 April 2009 whether or not the transfers have been effected by that date.
The parties shall forthwith do all things necessary to dissolve the partnership Starkey & Starkey as at 31 March 2009, and upon the taking of accounts, the assets of the partnership then remaining as are not otherwise dealt with by these orders shall be divided equally between the parties. The winding up of the partnership and the taking of accounts is to be conducted by Mr N who will consult with Mr V. In the event there is any dispute, such dispute shall be referred out to W Accountants, as referees.
The parties shall forthwith do all things and sign such documents as required to discharge the current mortgage security held by Westpac Banking Corporation over the properties at O Street or any other real property situate in New South Wales or Queensland.
Contemporaneously with the transfers referred to in Order 3 above, the Wife shall pay to the Husband the sum of $131,000.
The business Starkey Company (comprising inter alia, the benefit of Contracts A and B with the Director-General [“Director – General”] of the Ministry…

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.

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Details

Case: [2009] FamCA 432
Decision Date: 24 March 2009

CaseChat Overview and Summary

This matter concerned the division of property between a husband and wife, heard by Murphy J. The dispute involved numerous properties, a partnership business, and a company business, with the court tasked with determining how these assets and associated liabilities should be distributed between the parties.

The court was required to make orders regarding the transfer of various real estate properties, including units and houses, between the husband and wife. Further, the court needed to address the disposition of a partnership business, "Starkey & Starkey," and a company business, "Starkey Company," including its contracts, land, equipment, and goodwill. The court also had to determine the financial adjustments and indemnities required in relation to these property transfers and the dissolution of the partnership, as well as the allocation of costs.

Murphy J ordered a significant redistribution of assets. The wife was to transfer her interests in several properties to the husband, who would indemnify her for liabilities and receive accruing rentals. Conversely, the husband was to transfer his interests in other properties and a partnership business to the wife, who would indemnify him for liabilities and receive accruing rentals and income. The partnership "Starkey & Starkey" was to be dissolved, with remaining assets to be divided equally after an account was taken, overseen by appointed referees in case of dispute. The company business "Starkey Company" was vested in the wife, with specific provisions for registration. A substantial sum was to be paid by the wife to the husband contemporaneously with certain transfers. The court also made orders regarding the discharge of a mortgage, the dismissal of certain claims and applications, and each party bearing their own costs.

Orders

Orders of the court

IT IS ORDERED THAT

The Wife shall within 14 days transfer to the Husband all her interest in the following properties:

(i) the G Street unit (Title Reference …);

(ii) the L Street unit (Title Reference …);

(iii) Units 1 and 2 O Street (Lot 1 SP … and Lot 2 SP …);

(iv) the M Street property (Lot … SP …).

The Husband shall indemnify the Wife in respect of any liabilities relating to any of the above transferred properties, and shall be entitled to all rentals accruing after 1 April 2009 whether or not the transfers have been effected by that date.

The Husband will within 14 days transfer to the Wife all of his interest in the following properties:

(i) the Z Street property (Lot … DP …);

(ii) the A Street property (Lot … SP …);

(iii) The partnership business known as “Starkey & Starkey”, and including the parcel of land at T (Lot … DP …).

Subject to Order 5 below, the Wife shall indemnify the Husband in respect of any liabilities relating to any of the above transferred properties, and shall be entitled to all rentals and income accruing after 1 April 2009 whether or not the transfers have been effected by that date.

The parties shall forthwith do all things necessary to dissolve the partnership Starkey & Starkey as at 31 March 2009, and upon the taking of accounts, the assets of the partnership then remaining as are not otherwise dealt with by these orders shall be divided equally between the parties. The winding up of the partnership and the taking of accounts is to be conducted by Mr N who will consult with Mr V. In the event there is any dispute, such dispute shall be referred out to W Accountants, as referees.

The parties shall forthwith do all things and sign such documents as required to discharge the current mortgage security held by Westpac Banking Corporation over the properties at O Street or any other real property situate in New South Wales or Queensland.

Contemporaneously with the transfers referred to in Order 3 above, the Wife shall pay to the Husband the sum of $131,000.

The business Starkey Company (comprising inter alia, the benefit of Contracts A and B with the Director-General [“Director – General”] of the Ministry of Transport, New South Wales; land known as Lot 51 in Deposited Plan … at …; the company’s equipment; and goodwill be vested in the wife as and from 1 April 2009 and contemporaneously with the payment provided for in paragraph 7 hereof.

The said Director- General, the Registrar General, Department of Lands, New South Wales and any other registering authority register the name of the wife as transferee of the business referred to in the preceding paragraph, acting upon the signatures of the Case Guardians, accompanied by a sealed copy of these orders, without further enquiry.

10.

To the extent that any Affidavit or any document filed by or on behalf of Mr D Starkey indicates a claim by him in these proceedings, such claim be dismissed.

11.

Each of the parties will do all such things and execute all such documents required to give full effect to the terms of this order and in the event that either party shall refuse or neglect to do any thing or execute any document required to be done then the Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane is appointed to do such thing and execute such document in the name of that person and to do all such things and execute all such documents necessary top give validity and operation to the thing or document and an affidavit of the solicitor for the requesting party shall be sufficient proof of the refusal or neglect.

12.

Each party pay their own costs and any order for costs or reserved costs be discharged.

13.

That any of the parties hereto be at liberty to provide a copy of these orders to the Office of the Protective Commissioner and/or the Guardianship Tribunal of NSW.

IT IS FURTHER ORDERED THAT

14.

Paragraphs 1 and 6 of the Amended Response to an Application for Final Orders filed by the Wife on 15 February 2008 are dismissed.

15.

The Application in a Case filed on 19 January 2009 is dismissed.

16.

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

17.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

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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