Terzi and Terzi (No. 5) - [2019] FamCA 1009

FAMILY COURT OF AUSTRALIA

TERZI & TERZI (NO. 5)

[2019] FamCA 1009

FAMILY LAW – PROPERTY – Property adjustment – Undefended hearing – Where consideration of applicable principles – Where consideration of relevant contributions and s 75(2) factors – Where orders made for property adjustment.

Family Law Act 1975 (Cth) ss 69ZN, 75, 79
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aleksovski v Aleksovski (1996) FLC 92-705
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688
Dickons & Dickons [2012] FamCAFC 154
Harris & Harris (1991) 104 FLR 458
Jarrah & Fadel [2014] FamCAFC 14
Russell & Russell (1999) FLC 92-877
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Terzi & Terzi [2019] FamCA 357
Terzi & Terzi (No 2) [2019] FamCA 490
Terzi & Terzi (No 3) [2019] FamCA 523

APPLICANT:

Mr Terzi

RESPONDENT:

Ms Terzi

FILE NUMBER:

PAC

2690

2016

DATE DELIVERED:

20 December 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 November 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Cairns

SOLICITOR FOR THE RESPONDENT:

Auslawyers

Orders

That upon noting that the wife has been appointed as trustee for sale of the property at B Street, Town C (“the Town C property”) being all of the land comprised, the wife do all things necessary to disburse the proceeds of sale of the said property as follows:
(a)in discharge of the mortgage secured over the Town C property;
(b)      in payment of real estate agent’s commission and expenses on the sale;
(c)in payment of proper legal costs and disbursements of and incidental to the sale;
(d)in contractual adjustment of rates, levies and taxes in respect to the property;
(e)in payment to the wife of $2,620 representing funds expended by the wife on the property getting the property ready for sale;
(f)in payment of 40 per cent of the balance then remaining to the husband or as he may direct in writing;
(g)      in payment of a further sum of $3,542 to the husband; and
(h)      in payment of the balance then remaining to the wife.
That the wife do all things necessary to transfer to the husband her interest in the Y Shares.
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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Terzi & Terzi (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a…

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.

Keep reading for free

Create a free CaseChat account to read Terzi and Terzi (No. 5) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FamCA 1009
Decision Date: 20 December 2019

CaseChat Overview and Summary

In *Terzi and Terzi (No. 5)*, Foster J of the Family Court of Australia considered the disbursement of proceeds from the sale of a property and the transfer of shares between the parties. The dispute concerned the division of assets following the breakdown of the marriage.

The primary legal issue before the court was how the net proceeds of the sale of the Town C property should be distributed between the husband and wife. Additionally, the court was required to determine the disposition of the wife's interest in certain Y Shares.

Foster J ordered that the wife, as trustee for sale of the Town C property, was to disburse the proceeds in a specific order of priority. This included discharging the mortgage, paying sale expenses and legal costs, making contractual adjustments, reimbursing the wife for funds expended on preparing the property for sale, and then distributing the remaining balance. The husband was to receive 40 per cent of this balance, followed by a further fixed sum of $3,542. The ultimate balance was to be paid to the wife. The court also ordered the wife to transfer her interest in the Y Shares to the husband. Liberty to apply was granted for the implementation or enforcement of these orders.

Orders

Orders of the court

That upon noting that the wife has been appointed as trustee for sale of the property at B Street, Town C (“the Town C property”) being all of the land comprised, the wife do all things necessary to disburse the proceeds of sale of the said property as follows:

(a) in discharge of the mortgage secured over the Town C property;

(b) in payment of real estate agent’s commission and expenses on the sale;

(d) in contractual adjustment of rates, levies and taxes in respect to the property;

(e) in payment to the wife of $2,620 representing funds expended by the wife on the property getting the property ready for sale;

(f) in payment of 40 per cent of the balance then remaining to the husband or as he may direct in writing;

(g) in payment of a further sum of $3,542 to the husband; and

(h) in payment of the balance then remaining to the wife.

That the wife do all things necessary to transfer to the husband her interest in the Y Shares.

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

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.