Sunday and Sunday - [2008] FamCA 638

FAMILY COURT OF AUSTRALIA

SUNDAY & SUNDAY

[2008] FamCA 638

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – no issue as to other factors – weight to be given to significant initial contributions of husband – valuation of livestock and question of determining cost of sale to assess their value.

Family Law Act 1975 (Cth) ss 75(2), 79

Blake and Blake [2007] FamCA 10
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Rosati and Rosati (1998) FLC 92-804

APPLICANT:

Ms Sunday

RESPONDENT:

Mr Sunday

FILE NUMBER:

LNC

117

2007

DATE DELIVERED:

30 July 2008

PLACE DELIVERED:

Hobart

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

25 & 26 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J Waterhouse

SOLICITOR FOR THE APPLICANT:

Corby & Co

COUNSEL FOR THE RESPONDENT:

Ms A Trezise

SOLICITOR FOR THE RESPONDENT:

Andrea Trezise

Orders

The husband pay to the wife the sum of $837,740.80 within sixty (60) days from the date of this order.
At the time of payment referred to in order 1 above, the wife do all acts and sign all documents to transfer to the husband the whole of her right title and interest in the:-
(a)Property known as “E” and described in Land Titles Office as “…” as more particularly described in Certificate of Title Volume … Folio …; and
(b)Property known as “C” and described in the Land Titles Office as “…” and described in Certificate of Title Volume … Folio …;
(c)Property known as “M” situate at … in Tasmania and described in Certificates of Title Volume … Folios … and … described by the Land Titles Office as … (and General Law Conveyance Registered No. …);
(d)Assets of the farming business known and trading as Sundays, including plant and equipment but excluding livestock ;
(e)Holden Rodeo motor vehicle, boat, trailer and accessories in the possession of the husband;
(f)Furniture and contents formerly used by the parties jointly but now in the possession or control of the husband;
(g)Any monies at banks, credit unions, savings accounts, investments in the sole name of the husband;
(h)Loan to Mr K
to the intent the husband will be the sole and absolute legal owner of the above property as against any claim or interest sought by the wife.
The husband do all acts and sign all documents to transfer to the wife his interest in:-
(a)B Property, including mooring buoy;
(b)Mercedes Compressor motor vehicle registered No: …;
(c)Money at banks, credit unions, savings accounts and investments in the sole name of the wife;
(d)Furniture and contents formerly used by the parties jointly but now in possession and control of the wife;
(e)Any interest the wife has in T Hire Pty Ltd;
(f)The wife’s interest in the Mooring Buoy adjacent to the home at B;
(g)Wife’s RBF Super fund.
Each party shall otherwise be entitled against the other to property (whether real or personal) in their possession or control (except as otherwise dealt with by…

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 Sunday and Sunday

Details

AGLC: Sunday and Sunday [2008] FamCA 638
Case: [2008] FamCA 638
Decision Date: 30 July 2008

CaseChat Overview and Summary

This matter concerned the division of property between a husband and wife, heard by Benjamin J. The dispute involved the allocation of various assets, including real estate, business interests, vehicles, and financial accounts, following the breakdown of the marriage.

The court was required to determine how the parties' various assets and liabilities should be divided and to make orders for the transfer of property and payment of sums between them. This included deciding the fate of several properties, the assets of a farming business, livestock, vehicles, and financial holdings.

Benjamin J ordered the husband to pay the wife a sum of $837,740.80 within sixty days, in exchange for which the wife was to transfer her interests in several properties, the assets of the farming business (excluding livestock), a motor vehicle, boat, trailer, jointly used furniture, and any monies in bank accounts or investments solely in the husband's name, as well as a loan to a Mr K. The husband was also ordered to transfer his interest in another property, a motor vehicle, monies in the wife's sole name, jointly used furniture in the wife's possession, her interest in a company, a mooring buoy, and her superannuation fund to the wife. The parties were otherwise to retain property in their possession. The husband was given an election to pay specific sums for the transfer of sheep and cattle livestock, with detailed provisions for the sale and division of proceeds if he did not elect to take the livestock.

Orders

Orders of the court

The husband pay to the wife the sum of $837,740.80 within sixty (60) days from the date of this order.

At the time of payment referred to in order 1 above, the wife do all acts and sign all documents to transfer to the husband the whole of her right title and interest in the:-

(a) Property known as “E” and described in Land Titles Office as “…” as more particularly described in Certificate of Title Volume … Folio …; and

(b) Property known as “C” and described in the Land Titles Office as “…” and described in Certificate of Title Volume … Folio …;

(c) Property known as “M” situate at … in Tasmania and described in Certificates of Title Volume … Folios … and … described by the Land Titles Office as … (and General Law Conveyance Registered No. …);

(d) Assets of the farming business known and trading as Sundays, including plant and equipment but excluding livestock ;

(e) Holden Rodeo motor vehicle, boat, trailer and accessories in the possession of the husband;

(f) Furniture and contents formerly used by the parties jointly but now in the possession or control of the husband;

(g) Any monies at banks, credit unions, savings accounts, investments in the sole name of the husband;

(h) Loan to Mr K

to the intent the husband will be the sole and absolute legal owner of the above property as against any claim or interest sought by the wife.

The husband do all acts and sign all documents to transfer to the wife his interest in:-

(a) B Property, including mooring buoy;

(b) Mercedes Compressor motor vehicle registered No: …;

(d) Furniture and contents formerly used by the parties jointly but now in possession and control of the wife;

(e) Any interest the wife has in T Hire Pty Ltd;

(f) The wife’s interest in the Mooring Buoy adjacent to the home at B;

(g) Wife’s RBF Super fund.

Each party shall otherwise be entitled against the other to property (whether real or personal) in their possession or control (except as otherwise dealt with by these orders).

Within thirty (30) days of the date of this order the husband transfer to the wife his interest in the 1000 Telstra shares jointly owned by the parties and the 600 Telstra shares owned by the husband.

At the election of the husband he pay to the wife the sum of $32,944.40 within thirty days from the date of this order and upon such payment all of the sheep livestock referred to in the expert report of Mr W sworn 4 June 2008 be transferred to the husband.

At the election of the husband he pay to the wife the sum of $23,408.80 within thirty days from the date of this order and upon such payment all of the cattle livestock referred to in the expert report of Mr W sworn 4 June 2008 be transferred to the husband.

In the event that the husband does not elect to take the cattle livestock and/or the sheep livestock, such livestock as is not acquired by him in accordance with these orders (save and except any stock sold or acquired in the normal course of business between the date of valuation of stock and the date of this order) then;

A. The Husband forthwith do all acts and things so as to effect a sale of all sheep and/or cattle owned by him for the best price reasonably obtainable in the following manner:

a) the sheep/cattle shall be listed for sale by auction to be conducted by Elders Ltd (“the agent”) at the property “M”;

b) the sale price of the sheep/cattle shall be unreserved with the Husband and the Wife each having the right to bid at the auction;

c) the Husband and the Wife shall each cooperate in every way with the agent including (without limiting the generality of the foregoing):

i. doing or saying nothing to hinder or prevent the sale being effected;

ii. ensuring that the sheep are in reasonable condition at the time of auction;

iii. signing all documents requested by the agent in relation to the sale of the sheep including any authorisation for advertising;

d) the Husband shall pay 60% and the wife 40% of all costs of the auction incurred by or on behalf of the agent including but not confined to advertising, commission, hire of equipment and/or staffing for the preparation for or conduct of the auction;

B. On settlement of sale of the sheep the proceeds of sale be paid in the following manner and priority:

a) all costs and expenses of the sale including the agent’s commission and auction expenses (including repayment of any expenses for the preparation for or conduct of the auction as have been paid by the Husband);

b) the balance then remaining be divided as to 60% to the husband and 40% to the wife.

This matter be removed from the list of cases requiring determination.

10.

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

IT IS CERTIFIED

11.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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