Taunton and Fiore - [2013] FamCA 909

FAMILY COURT OF AUSTRALIA

TAUNTON & FIORE

[2013] FamCA 909

FAMILY LAW – PROPERTY – Contributions and adjustments – relationship of 16 years – husband had higher initial contribution - contributions during marriage equal – adjustment made in favour of the husband for injuries sustained in a car accident – balance of compensation payout included in asset pool – husband injured in car accident four months after separation - husband’s ability to work diminished – husband received compensation payment that is included in the matrimonial pool - 7.5 per cent adjustment made in favour of the wife – husband’s child support contributions substandard – wife has the majority of the care for the parties two children – wife in poor health - husband had exclusive use of the matrimonial home post-separation – wife’s standard of living dropped after separation – overall distribution of property interests 67.5 to the husband and 32.5 to the wife

Family Law Act (1975) (Cth) ss 74, 79, 90MT, 106A, 117
Motor Accidents Compensation Act 1999

Marriage of Biltoft (1995) 19 Fam LR 82
Marriage of Jacobson (1988) 12 Faml LR 828

Marriage of Lee Steere (1985) 10 Fam LR 431

Omacini v Omacini (2005) 33 Fam LR 134

Stanford & Stanford (2012) 247 CLR 108

Williams v Williams (1985) FLC 91-628

APPLICANT:

Mr Taunton

RESPONDENT:

Ms Fiore

FILE NUMBER:

(P)NCC

2185

2009

DATE DELIVERED:

22 November 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

22, 23, 24 & 26 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Mr C Adamson

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Stacks Lawyers

Orders

That the husband pay to the solicitor for the wife on her behalf the sum of $365,827 (the “principal sum”) on or before 42 days from the date of these Orders.
That contemporaneously with the husband’s compliance with Order 1 hereof:
(a)the wife shall do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of his right title and interest in the property situate at and known as B Street, C Town in the State of New South Wales, being the whole of the land more particularly described in Certificate of Title Folio Identifier … (“the real property”) subject to the encumbrance thereof.
That simultaneously with the wife’s compliance with Order 2 hereof the husband shall do all such acts and things and refinance the mortgage secured over the real property (if any) and release and indemnify the wife from the said mortgage.
That in the event that the husband fails, omits or neglects to comply with Order 1 hereof, then the parties do all acts and things and sign all documents necessary so as to effect a sale of the real property for the best price reasonable obtainable in the following manner:
(a)list the real property for sale by private treaty with…

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 Taunton and Fiore

Details

AGLC: Taunton and Fiore [2013] FamCA 909
Case: [2013] FamCA 909
Decision Date: 22 November 2013

CaseChat Overview and Summary

Cleary J made orders concerning the financial and property settlement between a husband and wife. The dispute involved the division of a jointly owned property, a company shareholding, and various financial liabilities and indemnities.

The court was required to determine the terms of the property settlement, including the payment of a principal sum by the husband to the wife, the transfer of a jointly owned property, and the refinancing of a mortgage. Further issues included the procedure for the sale of the property if the husband failed to comply with payment orders, the distribution of sale proceeds, and the husband's sole right to occupy the property pending sale. The court also addressed the transfer of the wife's shareholding in a company to the husband, and the extent of the husband's indemnities to the wife concerning company debts, personal guarantees, and tax liabilities.

Cleary J ordered the husband to pay a principal sum to the wife's solicitor within 42 days, and contemporaneously, the wife was to transfer her interest in the real property to the husband, who was to refinance any mortgage. In the event of the husband's default in payment, the real property was to be sold by private treaty, with specific provisions for listing, valuation, and sale price determination. If private treaty failed within six months, the property was to be sold by public auction. The proceeds of sale were to be applied first to sale costs, then to discharge mortgages and rates, then to repay any work costs, with the balance to be paid to the wife's solicitor for the principal sum and interest, and any remainder to the husband. The husband was granted sole occupation of the property pending sale, with obligations to pay mortgage instalments, rates, and outgoings. The wife was to transfer her company shareholding to the husband, and resign as director and/or secretary, with the husband to indemnify her against various liabilities related to the company and personal guarantees. The husband was also to indemnify the wife for future tax liabilities arising from his entities or transactions pursuant to the orders. Other property, including superannuation and chattels, was to remain with the party in possession. A Registrar was appointed to execute documents in the event of default.

Orders

Orders of the court

That the husband pay to the solicitor for the wife on her behalf the sum of $365,827 (the “principal sum”) on or before 42 days from the date of these Orders.

That contemporaneously with the husband’s compliance with Order 1 hereof:

(a) the wife shall do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of his right title and interest in the property situate at and known as B Street, C Town in the State of New South Wales, being the whole of the land more particularly described in Certificate of Title Folio Identifier … (“the real property”) subject to the encumbrance thereof.

That simultaneously with the wife’s compliance with Order 2 hereof the husband shall do all such acts and things and refinance the mortgage secured over the real property (if any) and release and indemnify the wife from the said mortgage.

That in the event that the husband fails, omits or neglects to comply with Order 1 hereof, then the parties do all acts and things and sign all documents necessary so as to effect a sale of the real property for the best price reasonable obtainable in the following manner:

(a) list the real property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement as to agent within 14 days with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be borne by the husband as and when same fall due;

(b) the sale price at which the real property shall be listed shall be mutually agreed upon by the parties or, in the absence of agreement reached within 14 days of the date of these Orders shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the New South Wales Division of Australian Institute of Valuers and Land Administrators (Incorporated) (“the valuer”), the costs of and incidental to such appointment and valuation to be borne by the husband as and when same fall due;

(c) the valuer shall, if required by either the husband or the wife at a date three calendar months after the date upon which the real property is first listed pursuant to pa (a) hereof and thereafter at three calendar monthly intervals until the real property is sold, nominate a sale price other than the originally nominated sale price;

(d) the parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):

(i) making the key available to the agent;

(ii) allowing inspection of the real property at all reasonable times requested by the agent;

(iii) ensuring the real property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

(iv) signing all documents requested by the agents in relating to the listing for sale of the real property except a contract or agreement for sale which has not been authorised by the parties’ solicitors;

(e) the parties shall each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer pursuant to pars (b) and (c) hereof;

(f) the parties shall instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within 14 days shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales (“the solicitor”) the costs of and incidental to such appointment to be borne by the husband as and when same fall due;

(g) neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the real property or to any commission;

(h) the party not in possession shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the real property;

(i) if the agent shall certify in writing to the parties’ solicitors it is reasonable necessary for the work specified in such notice to be carried out to the real property so as to assist in effecting a sale and provided the cost of any such work is less than $500 either party may cause such work to be carried out and the costs thereof shall be recoverable by that party from the proceeds of sale.

In the event the real property is not sold by private treaty within six calendar months after this Order comes into effect:

(a) the parties shall list the real property for sale by public auction with the agent appointed pursuant to order 4(a) hereof;

(b) the reserve price for the purpose of such auction shall be such as the parties agree upon within 14 days after the date upon which the real property is first listed for sale in accordance with Order 5(a) hereof or in the absence of agreement a price determined by the valuer appointed pursuant to Order 4(b) and (c) hereof;

(c) in the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the real property at a price which is not more than 5 per cent below the reserve price;

(d) if the real property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the real property for sale by public auction again, on a date nominated by the said agent.

On settlement of the sale of the real property to proceeds of sale be paid in the following manner and priority:

(a) all costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and auction expenses (including payment of any such expenses as have been paid by either or both of the parties);

(b) the amounts required to discharge the mortgage(s) (if any);

(d) the amount required to repay to the party carrying out work for the real property for the cost of such work carried out in accordance with order 4(i) hereof;

(e) the balance then remaining shall be divided as follows:

(i) the principal sum to the Solicitor for the wife on her behalf together with interest thereon under the Family Law Rules from the date of default until date of payment;

(ii) the balance to the husband.

That pending the payment or completion of the sale:

(a) the husband have the sole right to occupy the real property;

(b) the husband pay all instalments pursuant to the mortgage and all rates, taxes and outgoings of the real property as they fall due;

(c) neither party encumber or further encumber the real property without the consent of the other party or prior order of the Court.

That liberty be granted to the parties on three days notice for implementation of these Orders.

In the event that the net proceeds of the sale of the real property do not satisfy the principal sum and interest the husband shall simultaneously with the completion of the sale pay the difference between such net sale proceeds and the principal sum with interest to the solicitor for the wife on her behalf.

10.

The husband’s failure to comply with Order 9 shall constitute a default entitling the wife at her election to enforce the payment referred to therein or to serve a sealed copy of these orders upon D Pty Ltd being the trustee of the E Superannuation Plan and seek the splitting orders as provided for in Orders 10(a) and 10(b) herein.

(a) In accordance with section 90MT(1)(a) of the Family Law Act, 1975 (the Act) becomes payable to or on behalf of the husband from his interest in the E Superannuation Plan (the Fund) the wife is entitled to be paid by the Trustee of the Fund the amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $100,000 and there is a corresponding reduction in the entitlement the husband would have received but for these Orders.

(b) The operative time for Order 10(a) above is four business days after service of the sealed orders on the Trustee of the Fund.

11.

That within seven days of the date of these Orders, the wife do all acts and things and sign all necessary documents prepared by the husband at his expense to:

(a) transfer to the husband her shareholding in Taunton Pty Ltd Pty Ltd ACN … trading as Taunton Pty Ltd (formerly known as F Pty Ltd trading as G Pty Ltd) (“the company”);

(b) to resign as a director and/or secretary of the said company.

12.

The husband do all acts and things necessary to indemnify and keep indemnified the wife against any proceedings or suits or claims of whatsoever nature brought against the wife:

(a) in respect of any liability of the wife under any debt due to the company, husband or his father Mr Taunton Snr (the “husband’s father”);

(b) in relation to or arising out of the wife’s shareholding in the company;

(d) in relation to any liability of the wife to pay income tax to the Australian Taxation Office in respect of income derived by her from the company as a director, officer, employee or shareholder of the company;

(e) in relation to any personal guarantees including any personal guarantees to the Commonwealth Bank of Australia given by the wife in respect of any borrowings of money by her, the company, the husband or the husband’s father;

(f) in respect of any liability of the wife in relation to the construction and/or renovation and furnishing of the real property;

(g) in respect of any monies borrowed by the wife on the security of the real property.

13.

Other than is specifically provided for in these Orders the husband indemnify the wife in respect of all liability to pay tax including income tax, goods and services tax, capital gains, penalty tax and interest which may arise in the future in respect of any tax returns lodged on behalf of the husband or any entity in which he has an interest to the date of these Orders or in respect of any transactions pursuant to these Orders.

14.

Other than is specifically provided for in these Orders the parties are solely entitled to the exclusion of the other to all other property including superannuation and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these orders.

15.

In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of this Court be appointed pursuant to s 106A of the Act to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.