FEDERAL CIRCUIT COURT OF AUSTRALIA
| STEVENSON & BRANDON & ANOR | [2018] FCCA 1971 |
| Catchwords: FAMILY LAW – Property – Determination of asset pool for distribution between the husband & wife – transactions to defeat claims – whether contract of sale to third party a sham – consideration of s.106B of the Family Law Act1975 – rule in Browne & Dunn (when issues are clearly in dispute). |
| Legislation: Family Law Act 1975, ss.79, 90AK, 106B Federal Circuit Court Rules 2001 r.1.05(2) |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Pierce & D’Cruz and Pierce & T [2010] FamCAFC 99 Jones v Dunkel (1959) 101 CLR 298 Browne & Dunn (1989) 6R 67 D’Cruz & Pierce [2008] FamCA 819 Balnaves v Balnaves [1988] FamCA 6 In the marriage of Heath (No 2) (1984) 9 Fam LR 642 Heath and Heath; Westpac Banking Corporation (1983) 9 Fam LR 97 Halabi v Artillaga (1993) 17 Fam LR 675 Stanford v Stanford [2012] HCA 52 In the Marriage of Hickey [2003] FamCA 395 ANZ Banking Group v Harper (1987) 11 Fam LR 649 |
| Applicant: | MS STEVENSON |
| First Respondent: | MR BRANDON |
| Second Respondent: | MS KALMAR |
| File Number: | MLC 6333 of 2016 |
| Judgment of: | Judge Williams |
| Hearing dates: | 8 – 10 November 2017, 26 – 28 March 2018, 10 – 11 April 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trim |
| Solicitors for the Applicant: | T J Mulvany & Co |
| Counsel for the First Respondent: | Mr Hoult |
| Solicitors for the First Respondent: | Luat Tran & Associates |
| Counsel for the Second Respondent: | Mr Korman |
| Solicitors for the Second Respondent: | Dang Quach, Legal Practitioner |
ORDERS
The Amended Response of the second respondent filed 30 October 2017 is dismissed.
The husband and the second respondent forthwith do all acts and things to withdraw Transfer of Land from Land Registry Services.
Until compliance with order two hereof, the Registrar of Titles be restrained by injunction from registering the transfer (omitted) pursuant to section 90 (2) of the Transfer of Land Act 1958.
Pending payment to the wife, as provided in paragraph 9 of these orders, the husband and the second respondent and their servants and agents are hereby restrained by injunction from lodging at Land Registry Services any Transfer of Land in relation to the property situated at Property A, (“the Property A property”) being the land comprised in Certificate of Title Volume.
The purported sale of the Property A property between the Husband and Second Respondent be set aside pursuant to s.106B of the Family Law Act 1975.
The wife be at…
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- Stevenson and Brandon and Anor [2018] FCCA 1971
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- [2018] FCCA 1971
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CaseChat Overview and Summary
The court was required to determine whether the sale of the property to the second respondent should be set aside, and to make orders for the just and equitable division of the parties' property. This involved considering the respective contributions of the husband and wife to their assets and their future needs.
The court reasoned that the purported sale of the property to the second respondent was invalid and ordered it to be set aside pursuant to s. 106B of the *Family Law Act 1975*. The court then made orders by consent between the husband and wife, which provided for a division of assets resulting in the wife receiving 33.6% and the husband 66.4% of the total superannuation and non-superannuation assets. These orders facilitated the division by either the husband paying the wife a sum of $275,000 to retain the property, or by the sale of the property with the proceeds to be applied in a specified manner. The court also made orders regarding the occupation of the property pending payment or sale, and the severance of joint tenancies.
Orders
Orders of the court
1.
The Amended Response of the second respondent filed 30 October 2017 is dismissed.
2.
The husband and the second respondent forthwith do all acts and things to withdraw Transfer of Land from Land Registry Services.
3.
Until compliance with order two hereof, the Registrar of Titles be restrained by injunction from registering the transfer (omitted) pursuant to section 90 (2) of the Transfer of Land Act 1958.
4.
Pending payment to the wife, as provided in paragraph 9 of these orders, the husband and the second respondent and their servants and agents are hereby restrained by injunction from lodging at Land Registry Services any Transfer of Land in relation to the property situated at Property A, (“the Property A property”) being the land comprised in Certificate of Title Volume.
5.
The purported sale of the Property A property between the Husband and Second Respondent be set aside pursuant to s.106B of the Family Law Act 1975.
6.
The wife be at liberty to direct her solicitors to release to her the sum of $15,000 held in their trust account pursuant to order 3 of the orders made by consent on 17 August 2016.
7.
That all previous the Orders made by this Court in this proceeding be discharged.
8.
The Husband pay to the Wife the sum of $275,000.00 within 90 days of the date of this order.
9.
That contemporaneously with the payment:
(a) The Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband/Wife at the expense of the Husband all of her right, title and interest in the Property A property (including arranging the release of her caveat);
(b) The Husband be liable for and indemnify the Wife with respect to any mortgage registered against the Property A property, and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind;
(c) The wife shall vacate the Property A property.
10.
That in the event that the whole of the payment has not been made by the date; then the Husband sign all documents and do all things necessary to sell the Property A property forthwith altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a) first to pay all costs, commissions and expenses of the sale;
(b) secondly to discharge the mortgage (if necessary) and any other encumbrance affecting the real property;
(c) thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the Wife;
(d) fourthly the balance to the Husband.
11.
That pending the payment or completion of the sale:
(a) The Wife have the sole right to occupy the Property A property and during such right of occupation the Husband pay all instalments pursuant to the mortgage (if any), and all rates and taxes of the Property A Property, and the wife pay the apportionable outgoings of the real property as they fall due;
(b) The husband and the wife hold their respective interests in the Property A property upon trust pursuant to these orders; and
(c) Neither party encumber the Property A property without the consent in writing of the other party, save for the purpose of making the payment.
12.
That the Husband be liable for and indemnify the Wife against all payments in respect of any monies he allegedly owes the second respondent (if any), and any future costs incurred by the Applicant wife regarding this issue.
13.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Wife).
(b) Monies standing to the credit of the parties in any joint bank account are to become the property of the Wife.
(c) Each party foregoes any claims they may have to any superannuation benefits belonging to or earned by the other;
(d) Insurance policies remain the sole property of the owner/beneficiary named thereon/in;
(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
14.
In the event any party refuses or neglects to comply with any provision of these Orders:
(a) a Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders; and
(b) the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing these Orders;
(c) for the purpose of these Orders, an affidavit setting out the defaulting party’s failure to comply with the Orders shall be sufficient evidence of neglect and default.
15.
Within 28 days the parties file and serve any submissions as to costs.
NOTATION
16.
Orders 7 to 14 inclusive are by consent as between the husband and the wife.
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
This is not a relevant consideration.(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:(i) a party to the marriage; or(ii) a person who is a party to a de facto relationship with a party to the marriage; or(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and This is not a relevant consideration.(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and This is not a relevant consideration.(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and All relevant factors have been referred to in these reasons.(p) the terms of any financial agreement that is binding on the parties to the marriage; and There is no binding financial agreement. The agreement entered into between the parties on 11 June 2009 was signed by the wife without the benefit of legal advice, and without an interpreter.(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage. I refer to the previous paragraph. There were no submissions made by either party as to the appropriate adjustment arising from their respective future needs. Both parties have sought orders adjusting their respective interests in property and have agreed to an adjustment. As a result of the evidence as to respective contributions and future needs, I am satisfied it is just and equitable to make orders sought by the husband and wife, adjusting property between them. The parties have agreed on the respective adjustments of the property. The division of assets proposed by them is as follows: Wife’s Assets The proposed division of assets between the husband and the wife results in the wife receiving 33.6% of the total superannuation and non-superannuation assets and the husband receiving 66.4%. The wife initially sought spousal maintenance from the husband, however, when agreement as to distribution of assets was reached by the parties, this claim was not pursued by the wife. Having considered the respective contributions and future needs of the parties I am satisfied that the division of proposed assets is just and equitable. I will make the orders sought by the husband and wife. The division of assets referred to in the preceding paragraph will be achieved by the husband either borrowing sufficient funds to enable him to pay the wife and retain the Property A property, or alternatively a sale of the Property A property. In the event the Property A property is sold, the husband will receive a substantial cash payment. The husband would be able to rehouse himself, either by purchasing another property or renting. The wife will have sufficient funds from the payment she will receive from the husband to rehouse herself, either by renting or purchasing a modest property. The cash sum she will receive addresses her immediate needs.