Torr & Amberson - [2015] FamCA 290

FAMILY COURT OF AUSTRALIA

TORR & AMBERSON

[2015] FamCA 290

FAMILY LAW – PROPERTY – Interim Orders – significant liabilities attached to farming property - where husband seeks injunction requiring wife to sign necessary documents for refinancing of loan on more favourable terms – where wife disputes viability of farming enterprise but does not seek sale of farm – orders made requiring wife to sign all such documents necessary for the refinancing to occur.

Family Law Act 1975 (Cth) s 114

ENRC Marketing AG v OJSC “Magnitogorsk Metallurgical Kombinat” (2011) 285 ALR 444
Epitoma Pty Ltd v Australasian Meat Industries Employees Union & Ors (1984) 54 ALR 730
European Bank Ltd v Evans (2010) 240 CLR 432
First Netcom Pty Ltd v Telstra Corporation Ltd (2000) 179 ALR 725
Luadaka & Luadaka (1998) FLC 92-830
Martiniello & Martiniello (1981) FLC 91-050
Mullen & De Bry (2006) FLC 93-293
Waugh & Waugh (2000) FLC 93-052

APPLICANT:

Ms Torr

RESPONDENT:

Mr Amberson

FILE NUMBER:

ADC

2307

2014

DATE DELIVERED:

23 April 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

16 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Mellows

SOLICITOR FOR THE RESPONDENT:

Clelands Lawyers

Orders

That provided the extent of finance sought from the Commonwealth Bank of Australia is not greater than the ANZ facility it replaces, the wife do forthwith sign the following documents necessary to enable the husband to discharge all loan facilities with the ANZ Bank and to obtain refinancing with the Commonwealth Bank of Australia:-
(a)The ANZ Discharge and Variation Authority in relation to the following loans in the joint names of Mr Amberson and Ms Torr:-
(i)ANZ Fully Drawn Advance …;
(ii)ANZ Fully Drawn Advance …; and
(iii)ANZ Fully Drawn Advance …;
(b)The ANZ Discharge and Variation Authority in relation to the following loans in the names of J & Mr Amberson:-
(i)ANZ Cheque Account 4959-10363; and
(ii)ANZ Fully Drawn Advance 3809-76637.
The wife shall do all such things and sign all such further documents as shall be required from time to time to facilitate the husband refinancing the ANZ Bank loan accounts with the Commonwealth Bank of Australia.
That pursuant to orders (1) and (2) herein, the wife shall not be required to sign any document or do any act or thing which would have the effect of making her personally liable to the Commonwealth Bank of Australia either by way of a borrower or guarantor.
That subject to the successful refinancing of the ANZ Bank loan with the Commonwealth Bank of Australia, the husband will cause the wife to receive a release in writing from the ANZ Bank in respect of any or all liability that she currently has whether by way of borrower and/or guarantor.
That the husband indemnify the wife in relation to any loss, damage or diminution to the property interests of the parties arising directly from the husband’s refinance of…

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 Torr & Amberson

Details

AGLC: Torr & Amberson [2015] FamCA 290
Case: [2015] FamCA 290
Decision Date: 23 April 2015

CaseChat Overview and Summary

In this matter before Berman J, the dispute concerned the wife's obligation to sign documents to facilitate the husband's refinancing of existing loan facilities with the ANZ Bank. The wife sought to avoid personal liability for any new or existing debts arising from this refinancing.

The central legal issue before the court was whether the wife should be compelled to sign documents authorising the discharge and variation of loan facilities with the ANZ Bank, and to assist in obtaining new financing with the Commonwealth Bank of Australia, whilst ensuring she was not personally liable for the new Commonwealth Bank facilities. The court also considered the husband's obligations regarding the wife's release from ANZ liabilities and indemnification for any diminution in property interests.

Berman J reasoned that the wife should be required to sign the necessary documents for the refinancing, provided the extent of the finance sought from the Commonwealth Bank did not exceed the ANZ facility it replaced. This approach aimed to facilitate the husband's refinancing while protecting the wife from increased personal liability. The court ordered that the wife sign specific ANZ discharge and variation authorities and any further documents required for the refinancing, but crucially, stipulated that she would not be required to become personally liable to the Commonwealth Bank as a borrower or guarantor. The husband was ordered to procure a written release for the wife from the ANZ Bank and to indemnify her against any loss or diminution to their property interests arising from the refinancing. Furthermore, the husband was directed to provide the wife with quarterly profit and loss statements for the farming enterprise.

Orders

Orders of the court

That provided the extent of finance sought from the Commonwealth Bank of Australia is not greater than the ANZ facility it replaces, the wife do forthwith sign the following documents necessary to enable the husband to discharge all loan facilities with the ANZ Bank and to obtain refinancing with the Commonwealth Bank of Australia:-

(a) The ANZ Discharge and Variation Authority in relation to the following loans in the joint names of Mr Amberson and Ms Torr:-

(i) ANZ Fully Drawn Advance …;

(ii) ANZ Fully Drawn Advance …; and

(iii) ANZ Fully Drawn Advance …;

(b) The ANZ Discharge and Variation Authority in relation to the following loans in the names of J & Mr Amberson:-

(i) ANZ Cheque Account 4959-10363; and

(ii) ANZ Fully Drawn Advance 3809-76637.

The wife shall do all such things and sign all such further documents as shall be required from time to time to facilitate the husband refinancing the ANZ Bank loan accounts with the Commonwealth Bank of Australia.

That pursuant to orders (1) and (2) herein, the wife shall not be required to sign any document or do any act or thing which would have the effect of making her personally liable to the Commonwealth Bank of Australia either by way of a borrower or guarantor.

That subject to the successful refinancing of the ANZ Bank loan with the Commonwealth Bank of Australia, the husband will cause the wife to receive a release in writing from the ANZ Bank in respect of any or all liability that she currently has whether by way of borrower and/or guarantor.

That the husband indemnify the wife in relation to any loss, damage or diminution to the property interests of the parties arising directly from the husband’s refinance of the existing ANZ farming loan facilities with the Commonwealth Bank of Australia.

That until further order the husband do provide to the wife a Profit and Loss Statement for the farming enterprise within fourteen (14) days of the conclusion of each financial quarter.

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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