Swinnerton and Peters (No 2)

[2011] FamCA 315

FAMILY COURT OF AUSTRALIA

SWINNERTON & PETERS (NO 2) [2011] FamCA 315

FAMILY LAW – PROPERTY

APPLICANT: Ms Swinnerton

RESPONDENT: Mr Peter

FILE NUMBER: BRC 10664 of 2007

DATE DELIVERED: 9 May 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 23 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge of Counsel

SOLICITOR FOR THE APPLICANT: Burns Lawyers of Springwood

COUNSEL FOR THE RESPONDENT: The Respondent appeared on his own behalf by telephone link

Orders

1. The Wife be paid an amount of $506,059 and that she be paid that amount as follows:

   (a)       The Husband transfer any interest that he has in the former matrimonial home at H Town to the Wife.

   (b)       The Husband pay to the Wife an amount of $148,038 within three (3) months.

2. The Husband pay the Wife’s costs on an indemnity basis.

IT IS NOTED that publication of this judgment under the pseudonym Swinnerton & Peters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10664  of 2007

Ms Swinnerton

Applicant

And

Mr Peters

Respondent

REASONS FOR JUDGMENT

1. I have found that the assets of the parties or either of them should be divided 50/50.  Of course the next question is “How much is that?”

2. I have had placed before me a list of the assets and liabilities of the parties as best as can be done by the applicant since, as I have indicated, no up to date material has been put before the Court by the respondent.  There is one matter that has concerned me a little and that is the boat which was estimated to be worth $100,000.  This boat appears, according to an exhibit put before me, to be unencumbered and I therefore am of the view that the value of it is available for distribution.

3. Another concern is that there was some submissions from Selfridge of Counsel that a mortgage or mortgages on the K Street property (two in number, ie 1 and 2) were for an amount in excess of $700,000.  The only evidence that I have been able to find is that as has been set out in Mr N’s report in which the mortgage of some $400,106 is included in the trust assets and it will of course, be considered to be part of the trust assets and the trust assets are, according to Mr N’s latest report, valued at net $106,881.

4. Consequently, doing the best I can, I incorporate in the list of assets and liabilities put before me.  It appears that there is available for distribution, taking into consideration that there is no evidence to the contrary and consequently I will accept the values put upon the assets by the wife. 

PROPERTY	Wife	Husband	TOTAL
Q Street	$435,000	$435,000
1K Street	$320,000	$320,000
2 K Street	$410,000	$410,000
Motor vehicle 1	$6,550	$6,550
Contents	$5,000	$7,500	$12,500
Bank Accounts	$8,875	$12,000	$20,875
ANZ Shares	$7,630	$7,630
4WD	Included in Trust (E$73,750)
Boat 1	$100,000	$100,000
Boat 2	$5,000	$5,000
Motorbike	$12,000	$12,000
Peters Pty Ltd	Included in Trust ($299)
Interest in L Pty Ltd	Included in Trust ($106,881)
Interest in L Pty Ltd for L Unit Trust	Included in Super Fund ($142,041)
Estate R	$56,700	$56,700
Superannuation	$81,918 ANZ Bank	$144,991 MP Super Fund	$226,909
TOTAL ASSETS	$544,973	$1,068,191	$1,613,164
Mortgage	$188,897	Included in Trust ($400,106)	$188,897
Credit Accounts	$7,150	$10,955	$18,105
Bendigo Bank Chattel Mortgage (4WD)	Included in Trust ($82,555)
Bendigo Bank Business Loan	Included in Trust ($1,768)
Queensland Marine Finance	$95,177	$95,177
Loan from Trust	$130,000	$130,000
Trust	$54,877	$54,877
TOTAL LIABILITIES	$196,047	$291,009	$487,056
TOTAL	$348,926	$777,182	$1,126,108
Current	31%	69%
50/50	$563,054	$563,054

1. It would require the wife to be paid an amount of $506,059 to be equivalent to 50 per cent of the assets of the parties.  The document, of course, speaks for itself.

2. How then is the wife to be paid out?

3. The house at Q Street in which she resides is valued at $435,000 but there is owing an amount of $188,897 by way of mortgage.  Consequently, should she get the equity in the house it is $246,103. 

4. The wife has in her possession an amount of something like $30,000 plus superannuation entitlements of $81,918.  I must take those into consideration which would mean that the wife would have to recover an amount of $114,055.  Deducting $114,055 from the amount left owing aforesaid it would appear that she requires a further amount of $148,038.

5. The properties at K Street referred to hereinbefore and as appears in the valuations to be worth some $730,000 in total will of course be subject to the mortgage with the best I can do is an amount of $400,106 which is included in the trust.  These properties are, as I understand, for sale and an order has been made in relation to their sale.  Should the properties be sold for that amount it would appear to me that there would be a remaining equity of something like $320,000.  Consequently, if these properties are sold at that figure, I will order that of the net proceeds of the sale an amount of $148,038 be transferred to the wife.

6. I note, of course however, that since the evidence is lacking in the extreme in relation to the saleability of these properties, I would consider that I would have to unfortunately grant liberty to the parties to apply in case the order is not complied with and/or it may be necessary for the Court to consider other assets, they being for instance the respondent’s superannuation fund of some $144,991 and the boat of $100,000. 

7. What it should suggest is that she has available in her possession the house, her superannuation entitlement and those matters of personal property such as the motor vehicle 1, bank accounts and shares etc..

8. It would appear that deducting what she has from what she is entitled to it would need approximately $148,038 to pay her out.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 9 May 2011.

Associate:     

Date:              9 May 2011