Trant and Farlow - [2008] FamCA 337

FAMILY COURT OF AUSTRALIA

FARLOW & TRANT

[2008] FamCA 337

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Adjustment for other matters – Just and equitable

Family Law Act 1975 (Cth) ss 75 and 79

In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
VAK & AK [2005] FamCA 803
In the Marriage of Pellegrino (1997) 22 Fam LR 474
Kessey & Kessey (1994) FLC 92-495

APPLICANT:

Mr Farlow

RESPONDENT:

Ms Trant

FILE NUMBER:

NCC

1306

2007

DATE DELIVERED:

16 May 2008

PLACE DELIVERED:	Sydney
PLACE HEARD:	Newcastle

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATE:

7 & 8 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Gould

SOLICITOR FOR THE APPLICANT:

Attwaters Solicitors

COUNSEL FOR THE RESPONDENT:

Mr W. Tregilgas

SOLICITOR FOR THE RESPONDENT:

The Family Law Firm

Orders

Forthwith upon payment of $10,000 by the wife to the husband, the parties shall do all such acts and execute all such documents as are necessary to transfer the husband’s right, title and interest in Lots 2 and 3 … and Lots 7, 9 and 10 in …, at M in the State of New south Wales together with any associated water rights, to the wife.
The husband and wife shall do all such acts and execute all such documents as are necessary to sell F property, being the whole of the land in Certificate of Title Folio Identifier … for the best price reasonably obtainable and to disburse the proceeds of sale as follows:
(a)In the payment of selling agent’s commission and/or auctioneer’s fees and expenses;
(b)In the payment of solicitor’s or conveyancer’s costs, professional fees and disbursements of acting for the vendors on sale;
(c)In the payment of the “usual” adjustment of rates and statutory charges;
(d)In the discharge of any mortgage secured over any real property owned by the husband the wife together or to which the husband and the wife are parties including as guarantor, particularly including mortgages to … Building Society Limited registered numbers … and …;
(e)In the payment of any Capital Gains Tax assessed as payable by the Australian Taxation Office in consequence of the sale of the unit;
(f)In the payment of 50% of the balance then remaining to the husband; and
(g)In the payment to the wife of the balance then remaining;
The husband shall pay all mortgage instalments and other necessary outgoings in relation to the F property pending the sale.
The husband and wife do all such acts and execute all such documents as are necessary:
(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.

Continue reading Trant and Farlow

Details

AGLC: Trant and Farlow [2008] FamCA 337
Case: [2008] FamCA 337
Decision Date: 16 May 2008

CaseChat Overview and Summary

This matter concerned orders made by Judicial Registrar Loughnan in the Family Court of Australia, detailing the division of property between a husband and wife. The dispute involved the transfer of various real estate properties, company interests, and superannuation entitlements.

The court was required to determine the specific terms of the property settlement, including the valuation and distribution of assets and liabilities. Key issues included the transfer of land and associated water rights, the sale of a jointly owned property with a detailed distribution of proceeds, the division of interests in a private company, and the allocation of superannuation benefits. The orders also addressed the indemnification of liabilities and the process for giving effect to the settlement.

The Judicial Registrar's reasoning, as reflected in the orders, involved a comprehensive division of the parties' financial interests. This included directing the wife to pay a sum to the husband for his interest in certain properties, mandating the sale of another property with specific priorities for the disbursement of sale proceeds, and ordering the transfer of company shares and loans. A significant aspect of the decision was the division of the husband's superannuation interest, with the wife entitled to a specified amount pursuant to the *Family Law Act 1975* (Cth) and associated regulations. The orders also clarified that each party would retain sole ownership of other assets and liabilities not specifically addressed, and provided for a Registrar to execute documents on behalf of a defaulting party.

Orders

Orders of the court

Forthwith upon payment of $10,000 by the wife to the husband, the parties shall do all such acts and execute all such documents as are necessary to transfer the husband’s right, title and interest in Lots 2 and 3 … and Lots 7, 9 and 10 in …, at M in the State of New south Wales together with any associated water rights, to the wife.

The husband and wife shall do all such acts and execute all such documents as are necessary to sell F property, being the whole of the land in Certificate of Title Folio Identifier … for the best price reasonably obtainable and to disburse the proceeds of sale as follows:

(a) In the payment of selling agent’s commission and/or auctioneer’s fees and expenses;

(b) In the payment of solicitor’s or conveyancer’s costs, professional fees and disbursements of acting for the vendors on sale;

(d) In the discharge of any mortgage secured over any real property owned by the husband the wife together or to which the husband and the wife are parties including as guarantor, particularly including mortgages to … Building Society Limited registered numbers … and …;

(e) In the payment of any Capital Gains Tax assessed as payable by the Australian Taxation Office in consequence of the sale of the unit;

(f) In the payment of 50% of the balance then remaining to the husband; and

(g) In the payment to the wife of the balance then remaining;

The husband shall pay all mortgage instalments and other necessary outgoings in relation to the F property pending the sale.

The husband and wife do all such acts and execute all such documents as are necessary:

(a) to transfer the wife’s right, title and interest, whether as a shareholder, director or secretary in F Pty Limited to the husband, save that the Mercedes Benz motor vehicle, registered number … be transferred to the wife;

(b) to transfer the loans identified, in the Financial Statements of F Pty Limited (ACN …) for the year ended 30 June, 2007 as:

(i) loan – wife;

(ii) loan - Property Purchase L; and

(iii) loan – husband and wife

to the husband.

The husband shall indemnify and keep indemnified the wife as to all liabilities arising from the wife’s interest in such company including her interest as a shareholder, director or secretary, or otherwise and including any taxation liability arising out of the loans referred to in order 4 (b) above.

The husband and the wife shall do all such acts and execute all such documents as are necessary to close the account holding the proceeds of sale of L property (approximately $516,189) and to pay the balance of that account to the husband.

Pursuant to Section 90MT(1)(a) of the Family Law Act 1975 (Cth) as amended, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in Farlow Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $71,448 and there shall be a corresponding reduction in the entitlement the husband would have had but for these orders.

Order 7 above shall have effect from the operative time and shall bind the trustee and that operative time for the purposes of these orders shall be the beginning of the 4th business day after the day on which a sealed copy of these orders is served on the trustee.

The trustee of Farlow Superannuation Fund, in accordance with the trustees obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all documents as may be necessary to calculate the entitlement of the wife, and make payments in accordance with order 7 of these orders.

10.

Unless the parties otherwise agree in writing, within 7 days after the wife receives the payment split notice from the trustee under regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 she shall do all things and execute all documents to make a request pursuant to the Regulations, for the trustee of the fund to roll over or transfer the transferable benefits of the wife, together with her member entitlements to a fund nominated by her in writing.

11.

Except as otherwise specified herein, each party retain sole right, title and interest to any other assets or resources currently in their respective sole name or possession, including but not limited to furniture, personal effects, chattels, shares, funds held in any superannuation fund, redundancy entitlements, interest in any family trust or company.

12.

Each party retain sole responsibility for any liabilities in their respective sole name including but not limited to credit card debts, loans from family members and each party shall indemnify and keep the other indemnified with respect to all such liabilities.

13.

Both parties shall do all acts and things and sign all documents necessary to give effect to these Orders and in the event either party refuses or neglects to do such act or thing or sign such document within seven days of such act or thing being required or such document being submitted to them for signature, then pursuant to Section 106A of the Family Law Act 1975, a Registrar of the Family Court shall have power to do such act or thing or sign such document on behalf of the defaulting party.

14.

Leave is granted to either party to restore the proceedings within 21 days and on giving at least 7 days prior notice to the Court and the other party in relation to the form of these orders.

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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