Surridge and Surridge (No. 2) - [2017] FamCAFC 68

FAMILY COURT OF AUSTRALIA

SURRIDGE & SURRIDGE (NO. 2)

[2017] FamCAFC 68

FAMILY LAW – APPEAL – PROPERTY – Form of orders – Where the appeal was allowed – Where the Full Court re-exercised the discretion under s 79 of the Family Law Act 1975 (Cth) and ordered the parties to file with the registry an agreed form of orders in accordance with the Full Court’s reasons for judgment – Where the parties failed to comply with that order – Parties directed to file Short Minutes of Order and form of orders determined by the Full Court in chambers.

Family Law Act 1975 (Cth) ss 79, 106A

Surridge & Surridge (2017) FLC 93-757

APPELLANT:

Ms Surridge

RESPONDENT:

Mr Surridge

FILE NUMBER:

PAC

4412

2012

APPEAL NUMBER:

120

2015

DATE DELIVERED:

19 April 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

In chambers

JUDGMENT OF:

Murphy, Aldridge & Kent JJ

HEARING DATE:

By way of oral submissions considered in chambers

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 June 2015

LOWER COURT MNC:

[2015] FamCA 493

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Gillies

SOLICITOR FOR THE APPELLANT:

Matthews Folbigg Pty Ltd

THE RESPONDENT:

In person

Orders

That the parties forthwith do all acts and things and sign all documents to cause the following things to occur with respect to the company B Pty Ltd:
(a)The 2013 and 2014 statements of financial position to be amended so as to consolidate into one loan account in the joint names of the parties all advances and loan accounts of the parties reported in the statements of financial position;
(b)Dividends then to be declared to each of the parties fully franked for each of the following financial years:
(i)For the 2013 financial year $37,479 imputation credit and $87,452 franked amount;
(ii)For the 2014 financial year $15,366 imputation credit and $35,855 franked amount;
(iii)For the 2015 financial year $115,505 fully franked;
(c)That on the dividends being declared and the 2015 financial statements and tax return prepared and lodged the company to be struck off the company register conducted by ASIC;
(d)The 2015 financial statements to be prepared so as to:
(i)Write off the office equipment;
(ii)Write off the loan to C Pty Ltd;
(iii)Write off the loan to D Pty Ltd.
That each of the parties shall pay one half of the costs of implementation of these orders including accounting and ASIC fees.

It is further ordered:

That within two (2) months from the date of these orders the husband do all necessary things and sign all necessary documents so as to transfer to the wife his interest in the property at E Street Suburb F New South Wales being the whole of the land comprised in Folio Identifier … (hereinafter referred to as the Suburb F property) and that concurrently with that transfer the wife do all necessary things and sign all necessary documents so as to procure a discharge of the present mortgages secured over the said property in…

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: [2017] FamCAFC 68
Decision Date: 19 April 2017

CaseChat Overview and Summary

The case of Surridge and Surridge (No. 2) was heard by the Family Court of Australia, where the primary matter at hand was the division of assets and liabilities between the parties. The court was tasked with making detailed orders concerning the financial and property interests of the parties, stemming from their divorce proceedings. This included the adjustment of financial records, the division of property, and the management of debts and superannuation.

The legal issues before the court encompassed the equitable division of assets and the determination of the respective financial responsibilities of the parties. The court had to decide on the consolidation of certain loan accounts, the calculation and declaration of dividends, the preparation and lodgement of financial statements, and the striking off of the company from the ASIC register. Additionally, the court needed to address the transfer of specific properties, the discharge of mortgages, and the reallocation of personal assets, including vehicles and other personal property.

In reaching its decision, the court meticulously examined the financial records and the nature of the assets and liabilities in question. It issued comprehensive orders that detailed the steps required to adjust the financial statements of the company, the declaration of dividends, and the subsequent striking off of the company. The court also ordered the transfer of specific properties and the discharge of mortgages, alongside the division of personal assets and the management of superannuation funds. The court emphasised the need for both parties to indemnify each other against certain liabilities arising from the division of assets. Furthermore, the court empowered a Registrar to intervene and act on behalf of a party who failed to comply with the orders, ensuring the effective implementation of the court's directives.

In conclusion, the court's orders provided a clear and structured path for the division of assets, the management of financial liabilities, and the transfer of property between the parties, ensuring a fair and equitable resolution of the dispute.

Orders

Orders of the court

That the parties forthwith do all acts and things and sign all documents to cause the following things to occur with respect to the company B Pty Ltd:

(a) The 2013 and 2014 statements of financial position to be amended so as to consolidate into one loan account in the joint names of the parties all advances and loan accounts of the parties reported in the statements of financial position;

(b) Dividends then to be declared to each of the parties fully franked for each of the following financial years:

(i) For the 2013 financial year $37,479 imputation credit and $87,452 franked amount;

(ii) For the 2014 financial year $15,366 imputation credit and $35,855 franked amount;

(iii) For the 2015 financial year $115,505 fully franked;

(c) That on the dividends being declared and the 2015 financial statements and tax return prepared and lodged the company to be struck off the company register conducted by ASIC;

(d) The 2015 financial statements to be prepared so as to:

(i) Write off the office equipment;

(ii) Write off the loan to C Pty Ltd;

(iii) Write off the loan to D Pty Ltd.

That each of the parties shall pay one half of the costs of implementation of these orders including accounting and ASIC fees.

It is further ordered:

That within two (2) months from the date of these orders the husband do all necessary things and sign all necessary documents so as to transfer to the wife his interest in the property at E Street Suburb F New South Wales being the whole of the land comprised in Folio Identifier … (hereinafter referred to as the Suburb F property) and that concurrently with that transfer the wife do all necessary things and sign all necessary documents so as to procure a discharge of the present mortgages secured over the said property in favour of the Commonwealth Bank of Australia being home loan number … and line of credit account number … and in respect of such discharge the husband shall sign all necessary documents for his part necessary to facilitate the wife obtaining a discharge of the said mortgages.

That the wife hereinafter indemnify the husband from all or any liability arising out of the present mortgages secured over the Suburb F property.

That within two (2) months from the date of these Orders:

(a) The husband and wife shall do all things and sign all documents necessary including as director of D Pty Ltd (ACN …) to cause D Pty Ltd as trustee of the Surridge Unit Trust to transfer to the wife the property at CC Street Suburb U being the whole of the land in Lot X Deposited Plan … (hereinafter referred to as the Suburb U property), and to assign to the wife all entitlements pursuant to any lease in respect of the Suburb U property;

(b) The wife shall refinance the mortgage to Citibank secured over the Suburb U property and shall indemnify and keep indemnified the husband as to same;

(c) That subject to these Orders, the wife shall otherwise sign all documents necessary to relinquish any interest and transfer to the husband any units in the Surridge Unit Trust, any interest in the Surridge Family Trust and D Pty Ltd. The wife shall resign all positions that she holds in the trustee company D Pty Ltd and shall transfer to the husband her shareholding in the said company.

That the husband shall hereinafter indemnify and save harmless the wife from all or any liability including any liability to the Australian Taxation Office arising from the activities of the Surridge Unit Trust or its trustee D Pty Ltd.

That otherwise the wife shall be declared solely entitled to:

(a) The 4WD motor vehicle;

(b) Her horse float, horses and equipment;

(d) Her jewellery;

(e) Her K Superannuation Fund interest;

and that subject to these orders otherwise the wife is declared solely entitled to the exclusion of the husband to all items of personalty in her possession, custody and control including but not limited to motor vehicles, cash at bank, superannuation, furniture and personal belongings.

That the wife shall hereinafter indemnify and save harmless the husband from all or any liability pursuant to the judgment obtained against the parties by the wife’s parents Mr and Ms G.

That otherwise the husband shall be declared solely entitled to:

(a) His K Superannuation Fund interest;

(b) New boat shell;

(d) Boat “B”;

(e) Car parts;

(f) Boat equipment;

(g) Utility vehicle;

(h) Vintage car 1;

(i) Vintage car 2;

(j) Vintage car 3;

(k) Vintage car 4;

(l) Bike;

(m) Motorcycle 1;

(n) Motorcycle 2;

(o) Watch (Swiss);

(p) Watch (Gold);

(q) Watch (Stainless Steel);

(r) B Pty Ltd Bank account;

(s) D Pty Ltd account;

(t) Bank of America account;

(u) German motor vehicle (net);

(v) The loan of $9,709 owed by the husband’s parents to the husband and wife;

and that subject to these orders otherwise the husband is declared solely entitled to the exclusion of the wife to all items of personalty in his possession, custody and control including but not limited to motor vehicles, cash at bank, superannuation, furniture and personal belongings.

10.

That the wife shall within seven (7) days from the date of these orders cause to make available for collection by the husband or his nominee any of the items referred to in the previous order that remain in her possession or control.

11.

That within fourteen (14) days from the date of these orders the wife shall do all acts and things necessary to cause her existing superannuation entitlements in the K Superannuation Fund to be rolled out of that fund to an approved superannuation fund nominated by the wife and upon completion of that rollover the wife shall resign all positions that she holds in the trustee of the K Superannuation Fund, L Pty Ltd, and transfer her shareholding in that company to the husband and the husband shall for his part do all acts and things necessary to promptly facilitate the rollover of the wife’s entitlements in the said fund.

12.

That in the event that either party should neglect or refuse to sign any document or give any consent necessary to give effect to these Orders then a Registrar of the Family Court shall and is hereby empowered pursuant to section 106A of the Family Law Act 1975 (Cth) to sign such documents or give such consents on behalf of the defaulting party, such default to be proved by affidavit.

13.

Liberty to apply as to implementation or enforcement of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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