FAMILY COURT OF AUSTRALIA
| SURRIDGE & SURRIDGE | [2015] FamCA 493 |
| FAMILY LAW – PROPERTY – property settlement – where issue as to the present assets and liabilities of the parties – where issue as to the wife’s hurt on duty pension – where two pools approach adopted – where contributions to primary pool assessed as equal – where wife’s contribution to her pension overwhelming – consideration of relevant s 75(2) factors – where division is just and equitable. |
| Family Law Act 1975 (Cth) ss 75, 79 Police Regulation Superannuation Act 1906 (NSW) s 10B(3)(a) |
| Aleksovski v Aleksovski (1996) FLC 92-705 Bevan& Bevan [2014] FamCAFC 19 Chapman & Chapman [2014] FamCAFC 91 Crawford & Crawford (2013) 48 Fam LR 539 Dickons & Dickons [2012] FamCAFC 154 DJ & AJ (2006) FLC 93-289 Lane & Lemott [2013] FamCA 604 Russell & Russell (1999) FLC 92-877 Schmidt & Schmidt (2009) FamCA 1386 Scott & Danton [2014] FamCAFC 203 Semperton & Semperton (2012) 47 Fam LR 626 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 Trott & Trott (2006) FLC 93-263 Wheeldon & Wheeldon [2011] FamCA 40 |
| APPLICANT: | Ms Surridge |
| RESPONDENT: | Ms Surridge |
| FILE NUMBER: | PAC | 4412 | of | 2012 |
| DATE DELIVERED: | 29 June 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 22, 27, 28, 29 January 2015, 4 and 5 March 2015 and 5 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg |
| COUNSEL FOR THE RESPONDENT: | Mr Rosic |
| SOLICITOR FOR THE RESPONDENT: | Q Family Law & Mediation |
Orders
By Consent:
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 the husband shall assign to the wife the benefit of any loan account in his favour created by virtue of Order (1)(d)(iii) in the event that the wife retains that company and the units in the Surridge Unit Trust pursuant to the final orders for property settlement.
That each of the parties shall pay…
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- AGLC
- SURRIDGE & SURRIDGE [2015] FamCA 493
- Case
- [2015] FamCA 493
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of the property settlement, including how certain company financial statements and tax returns should be amended, the declaration and franking of dividends, and the subsequent striking off of a company. Further issues included the transfer of interests in real property, the discharge of mortgages, the payment of a sum of money, and the transfer of interests in a unit trust and a trustee company. The court also needed to address the allocation of various personal assets and liabilities, including indemnities for specific debts and liabilities.
The court's reasoning was based on the consent of the parties, who had agreed to the detailed terms of the property settlement. The orders reflect a comprehensive division of assets and liabilities, with specific provisions for the amendment of financial records, the transfer of property, the payment of money, and the indemnification of each party from certain debts. The court applied principles of property settlement law by formalising the agreed-upon division of the parties' financial interests.
By consent, the court made detailed orders regarding the amendment of financial statements for B Pty Ltd, the declaration of dividends, and the striking off of the company. The husband was ordered to transfer his interest in a property at E Street, Suburb F, New South Wales, to the wife, who was to procure the discharge of existing mortgages. The husband was also ordered to pay the wife $129,683, and concurrently, the wife was to transfer her interest in the Surridge Unit Trust and her shareholding in D Pty Ltd to the husband. The parties were to indemnify each other from various liabilities, and specific personal assets were allocated to each party. Liberty to apply was granted for implementation or enforcement, and any application for costs was to be filed within one month.
Orders
Orders of the court
By Consent:
1.
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.
2.
That the husband shall assign to the wife the benefit of any loan account in his favour created by virtue of Order (1)(d)(iii) in the event that the wife retains that company and the units in the Surridge Unit Trust pursuant to the final orders for property settlement.
3.
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:
4.
That within that 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 … 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.
5.
That the wife hereinafter indemnify the husband from all or any liability arising out of the present mortgages secured over the Suburb F property.
6.
That within 2 months from the date of these orders the husband pay to the wife $129,683 and concurrently with that payment the wife do all necessary things and sign all necessary documents to transfer to the husband her interest in any units in the Surridge Unit Trust and any other entitlements that she may have in or against the trust, resign all positions that she holds in the trustee company D Pty Ltd ACN … and transferred to the husband her shareholding in the said company.
7.
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.
8.
That otherwise the wife shall be declared solely entitled to:
(a) The 4WD motor vehicle;
(b) Her Horse float, horses and equipment;
(c) Her Gold watch;
(d) Her Jewellery;
(e) Her K Super Fund interest;
and that subject to these orders otherwise the wife is declared solely entitled to the exclusion of the husband of 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.
9.
That the wife shall hereinafter indemnify and save harmless the husband from all or any liability pursuant to the judgement obtained against the parties by the wife’s parents Mr and Ms G.
10.
That otherwise the husband shall be declared solely entitled to:
(a) His K Super Fund interest;
(b) New boat shell;
(c) Boat “A”;
(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);
and that subject to these orders otherwise the husband is declared solely entitled to the exclusion of the wife of 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
11.
That the wife shall within 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.
12.
The husband shall hereinafter indemnify the wife from all or any liability arising from monies advanced to the husband by his parents Mr H Surridge and Ms I Surridge and any moneys owing to J Repairs.
13.
That within 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 Super 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 Super 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.
14.
Liberty to apply as to implementation or enforcement of these orders.
15.
That any application for costs be by way of an application in a case filed within one month from the date of these orders supported by affidavit.
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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