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Tuck and Dunst & Anor

Tuck and Dunst & Anor

Case [2015] FamCA 318 30 April 2015

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FAMILY COURT OF AUSTRALIA

TUCK & DUNST AND ANOR

[2015] FamCA 318

FAMILY LAW – PROPERTY –– where the husband has made significant financial contributions to the welfare of the children post separation – where the husband has made substantial financial contributions post separation to the former matrimonial home –– where the husband drew significant funds from a line of credit post separation – whether such funds ought to be added back - where the wife executed a mortgage over her interest in the former matrimonial home as security for legal costs – whether the mortgage should be set aside – where the wife’s future earning capacity is negligible – where the wife seeks spousal maintenance.

Family Law Act 1975 (Cth) s74, 75, 79, 79A, 81, 90AE, 106B.
Family Law Rules 2004 (Cth)

Baglio & Baglio [2013] FamCA 105
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Brandt & Brandt (1997) FLC 92-758
Brown & Brown (2007) FLC 93-316
Cerini & Cerini [1998] FamCA 143
Harper & Harper [2013] FamCA 528
Kouper & Kouper (No 3) [2009] FamCA 1080
Lovine & Connor and Anor (2012) FLC 93-515
M & M [1998] FamCA 42
Mallett & Mallett (1984) 156 CLR 605
Mitchell & Mitchell (1995) FLC 92-601
Norbis & Norbis (1986) 161 CLR 513
Omacini & Omacini (2005) FLC 93-218; (2005) 33 FamLR 134
Stanford & Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Watson & Ling (2013) FLC 93-527; [2013] FamCA 57

APPLICANT:

Mr Tuck

FIRST RESPONDENT:

Ms Dunst
who appeared by her guardian the Public Trustee in the property proceedings

SECOND RESPONDENT:

Cassandra Pullos Lawyers Pty Ltd

FILE NUMBER:

BRC

3538

2009

DATE DELIVERED:

30 April 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

20, 21, 22, 23 & 25 May 2013 and 5 July 2013

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Ms Carmody

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Hallam of Carne Reidy Herd Lawyers and now from M + K Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Ms Pullos of Cassandra Pullos Lawyers

Orders

BY WAY OF FINAL ORDER IT IS ORDERED THAT:

Within 90 days of the date of this Order, the husband pay:
(a)the sum of $61,707.21 by bank cheque drawn in favour of Cassandra Pullos Lawyers Pty Ltd on behalf of the wife to discharge the wife’s indebtedness to that entity; and
(b)the sum of $33,859.66 to the wife via deposit into the trust account of her solicitors, M + K Lawyers.
Contemporaneously with the payments made pursuant to Clause (1), the wife shall do all acts and things necessary, including signing all necessary documents, so as to transfer and assign to the husband all of her right, title and interest in and to the real property situated at B Street, C Town in the State of Queensland more particularly described as Lot … on Registered Plan …, County of D, Parish of E, Title Reference … (the C Town…

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 Tuck and Dunst & Anor

Details

AGLC: Tuck and Dunst & Anor [2015] FamCA 318
Case: [2015] FamCA 318
Decision Date: 30 April 2015

CaseChat Overview and Summary

This matter concerned final orders made by Hogan J in proceedings between a husband and wife. The dispute involved the division of property and the discharge of financial obligations between the parties. The orders addressed the transfer of a property, payment of debts, and the distribution of various assets and liabilities.

The court was required to determine the specific terms of the property settlement, including the financial contributions to be made by each party, the disposition of real estate, and the allocation of outstanding debts. The orders also dealt with the parties' respective interests in superannuation funds and the appointment of a new trustee for one of the superannuation funds.

The court's reasoning, as reflected in the final orders, involved a comprehensive division of the parties' net property. The husband was ordered to make specific payments to discharge the wife's legal debts and to facilitate the transfer of a property located in C Town, Queensland, into his sole name. The wife was to transfer her interest in this property to the husband, and he was to refinance the associated mortgage. In the event of non-compliance by the husband, the property was to be listed for sale by private treaty, and if not sold within three months, it was to be sold by auction. The proceeds of any sale were to be applied in a specific order, including discharging the Commonwealth Bank loan, covering sale costs, repaying the wife's legal costs, and ensuring the wife received 30% of the net property. The orders also stipulated the retention of other assets and liabilities by each party, including bank accounts, superannuation interests, and motor vehicles, and addressed the retirement of both parties as trustees of the Tuck Superannuation Fund, with a corporate entity to be appointed as the new trustee.

Orders

Orders of the court

BY WAY OF FINAL ORDER IT IS ORDERED THAT:

Within 90 days of the date of this Order, the husband pay:

(a) the sum of $61,707.21 by bank cheque drawn in favour of Cassandra Pullos Lawyers Pty Ltd on behalf of the wife to discharge the wife’s indebtedness to that entity; and

(b) the sum of $33,859.66 to the wife via deposit into the trust account of her solicitors, M + K Lawyers.

Contemporaneously with the payments made pursuant to Clause (1), the wife shall do all acts and things necessary, including signing all necessary documents, so as to transfer and assign to the husband all of her right, title and interest in and to the real property situated at B Street, C Town in the State of Queensland more particularly described as Lot … on Registered Plan …, County of D, Parish of E, Title Reference … (the C Town property).

Contemporaneously with the payment made pursuant to Clause (1)(a), the second respondent shall do all things as may be necessary to release the mortgage held by it over the C Town property.

Contemporaneously with the transfer made pursuant to Clause (2), the husband shall refinance the outstanding liability currently owing to the Commonwealth Bank of Australia and secured over the C Town property into his sole name and shall indemnify the wife and keep her indemnified against all liabilities relating to the C Town property.

In the event the husband does not to comply with Clause (1) of this Order, the operation of Clauses (2), (3) and (4) shall be stayed and the husband and wife shall do all acts and things and sign all documents necessary to forthwith:

(a) engage a real estate agent as agreed between the parties, and failing agreement as nominated by the Real Estate Institute of Queensland (nominated real estate agent); and

(b) list the C Town property for sale with the nominated real estate agent by private treaty at a price agreed between the parties or failing agreement, at a price determined by the nominated real estate agent.

In the event that the C Town property is not sold by private treaty within three (3) months of being placed on the market for sale (or such further time as may be agreed upon between the parties in writing), the parties shall do all acts and things necessary for the sale of the said property by auction and, in particular:

(a) the auctioneer used for the sale shall be as agreed between the husband and wife in writing and, failing agreement, as nominated by the nominated real estate agent; and

(b) the parties shall execute all documents requested by the auctioneer to affect the C Town property for sale by auction; and

(c) the parties shall request the auctioneer to recommend a reserve price to be placed on the C Town property for the purpose of the auction and shall accept such reasonable recommended reserve price; and

(d) the parties shall pay to the auctioneer any sums reasonably requested for advertising expenses in relation to the auction of the C Town property, with such costs to be borne at first instance by the husband but to be shared equally by the parties following the settlement of the sale of the C Town property; and

(e) the parties shall execute any contract of sale and shall cooperate in any way with the auctioneer in relation to the auction of the C Town property, including by making a key available to allow inspection of the property at all times as reasonably requested by the auctioneer.

Upon the sale of the C Town property, the husband and wife shall do all acts and things and sign all documents necessary to disperse the sale proceeds of the property in the following manner and priority:

(a) to discharge the loan to the Commonwealth Bank of Australia, being the Viridian Line of Credit secured over the property; and

(b) in payment of costs, commissions, expenses of sale, including any auction costs and reasonable legal fees associated with the sale of the property; and

(d) by payment to the wife of the money necessary to ensure that she receive 30 per cent of the nett property of the parties (as found and explained in the Reasons for Judgment delivered on 30 April 2015, subject to the substitution of the actual sale price received for the C Town property for the figure of $450,000.00 attributed to that property) after taking into account the payment to Cassandra Pullos Lawyers Pty Ltd on her behalf referred to in Clause (7)(c) above, her ownership of chattels valued at $9,000.00 and her entitlement to superannuation valued at $14,000.00; and

(e) by payment of the balance to the husband.

Pending the transfer or sale of the C Town property:

(a) the husband is entitled to exclusive occupation of the C Town property; and

(b) the husband shall pay and be liable for all mortgage repayments and outgoings in relation to the C Town property; and

(c) both the husband and wife are restrained from redrawing against any mortgage secured against the C Town property or from further encumbering that property.

The wife shall retain as her absolute property and the husband shall relinquish and/or transfer all his right, title and interest in the following property to the wife:

(a) the funds held in all bank accounts in the wife’s sole name; and

(b) the wife’s interest in the HESTA Superannuation Fund; and

(d) all other property currently within her possession.

10.

The husband shall retain as his absolute property and the wife shall relinquish and/or transfer all her right, title and interest in the following property to the husband:

(a) the funds held in all bank accounts in the husband sole name; and

(b) all shareholdings or equities held in the husband sole name; and

(d) all of the property currently within his possession.

11.

Forthwith upon compliance with Clauses (1), (2), (3) and (4) or, if the C Town property is to be sold, Clause (6) of this Order, the parties in their capacity as trustees of the Tuck Superannuation Fund shall do all acts and things and sign all documents (including amending the trust deed to ensure that the provisions of this Order are given effect) necessary to cause:

(a) the wife to retire as a trustee of the Tuck Superannuation Fund; and

(b) the husband to retire as trustee of the Tuck Superannuation Fund; and

(c) the appointment of a corporate entity of the husband’s choice (the new corporate trustee) as trustee of the Tuck Superannuation Fund; and

(d) the husband and wife to transfer and vest in the new corporate trustee, the trust fund of the Tuck Superannuation Fund; and

(e) the wife to be excluded from the definition of “dependent”, “spouse”, and “member” under the trust deed and to be excluded from future, actual or contingent rights to any benefit under the Tuck Superannuation Fund.

12.

Unless otherwise specified in this Order, the wife retain liability for and indemnify the husband in relation to all other liabilities in the wife’s name or attaching to any item of property she is to retain or receive pursuant to this Order.

13.

Unless otherwise specified in this Order, the husband retain liability for and indemnify the wife in relation to all other liabilities in the husband’s name or attaching to any item of property he is to retain or receive pursuant to this Order, with this to specifically include any liability to his mother.

14.

The parties do all acts and things necessary, including the signing of all necessary documents, to give full force and effect to the provisions of this Order and, in the event that either party refuses or neglects to comply with any provision of this Order within 14 days of a written request to do so by the other party, then a Registrar of the Family Court of Australia is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of that party and do all acts and things necessary to give validity and operation to this Order.

15.

The husband pay the wife’s costs of and incidental to the application to re-open, fixed in the amount of $4,800.31 and such payment shall be made to the trust account of the wife’s solicitors M+K Lawyers by no later than the earlier of 4.00 pm on 30 June 2015 or the payment to the wife pursuant to Clause (1).

16.

In the event the second respondent seeks an order that the husband pay the costs of and incidental to the proceedings determined by this Order, that party:

(a) shall file and serve on the other brief written submissions in support of such application for costs within fourteen (14) days of today; and

(b) the party from whom costs are sought shall file and serve any brief written submissions in answer to the submissions filed and served within a further fourteen (14) days thereafter; and

(c) the first party shall file and serve any brief further written submissions, strictly in reply to the submissions filed and served pursuant to Order 16(b), within seven (7) days of service,

and any such application for costs shall be considered in Chambers.

17.

In the event the husband seeks an order that the second respondent pay the costs of and incidental to the proceedings determined by this Order, that party:

(a) shall file and serve on the other brief written submissions in support of such application for costs within fourteen (14) days of today; and

(b) the party from whom costs are sought shall file and serve any brief written submissions in answer to the submissions filed and served within a further fourteen (14) days thereafter; and

(c) the first party shall file and serve any brief further written submissions, strictly in reply to the submissions filed and served pursuant to Order 17(b), within seven (7) days of service,

and any such application for costs shall be considered in Chambers.

18.

All extant Applications are dismissed.

19.

The parties have liberty to apply in relation to the interpretation of the terms of this Order.

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.

Citations

AGLC Citation

Tuck and Dunst & Anor [2015] FamCA 318

Most Recent Citation

Schofield and McCann [2015] FCCA 3061

Cases citing this decision · 1 of 1 shown

SCHOFIELD & MCCANN
[2015] FCCA 3061 Para 5

…Counsel also draws my attention to paragraphs 87 to 94 of Tuck & Dunst and Anor [2015] FamCA 318 and submits that the approach to quantifying a spousal maintenance claim is set out as: 1.Determining what the claim for spousal maintenance is; 2.Determining whether the de facto wife is unable to support herself adequ…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Harper & Harper
[2013] FamCA 528 Para 15

…In Harper & Harper [2013] FamCA 528 (delivered 19 July 2013) Macmillan J stated at [63] and [64]: The clear statement of principle in Stanford is that in order for the Court to determine whether it is just and equitable to make orders pursuant to s 79, it must first identify the existing legal and equitable interes…
Watson & Ling
[2013] FamCA 57 Para 11

…In Watson & Ling [2013] FamCA 57 [19] , delivered after Stanford , Murphy J, sitting at first instance, said as follows: [29]Where, but for the disposal of money or other property by one party, legal or equitable interests in it would have been part of those existing at trial, it may be possible to assert, in the…
Stanford v Stanford
[2012] HCA 52 Para 6

…end any “assumption that any adjustment to those interests could be effected consensually as needed or desired”.[1] [1] Stanford and Stanford (2012) 247 CLR 108, [42].…
Kouper & Kouper (No 3)
[2009] FamCA 1080 Para 10

…s 79. [17] M&M [1998] FamCA 42; Cerini & Cerini [1998] FamCA 143, [46] ; Omacini & Omacini (2005) 33 Fam LR 134, [39] ; Kouper & Kouper (No 3) [2009] FamCA 1080, [107]. [18] Delivered 24 October 2012 – pre Stanford…
Steinbrenner & Steinbrenner
[2008] FamCAFC 193 Para 6

…to figures.[34] [33] See: Norbis v Norbis (1986) 161 CLR 513 at 522; Brandt and Brandt (1997) FLC 92-758. [34] Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] per Coleman J.…
Norbis v Norbis
[1986] HCA 17 Para 6

…of contributions to a quantitative reflection of such evaluation” – that is, a “leap” from words to figures.[34] [33] See: Norbis v Norbis (1986) 161 CLR 513 at 522; Brandt and Brandt (1997) FLC 92-758. [34] Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] per Coleman J.…
Mallet v Mallet
[1984] HCA 21 Para 1

…25] [23] Stanford and Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J. [24] Mallet v Mallet (1984) 156 CLR 605. [25] Bevan & Bevan [2013] FamCAFC 116, [73].…
Hepworth v Hepworth
[1963] HCA 49 Para 1

…be different from those determined by common law and equity.[25] [23] Stanford and Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J. [24] Mallet v Mallet (1984) 156 CLR 605. [25] Bevan & Bevan [2013] FamCAFC 116, [73].…
Baglio & Baglio
[2013] FamCA 105 Para 14

…sts of the parties at trial. In that respect, I repeat here what I said in Watson & Ling [2013] FamCA 57 at [27] – [35]. [21] [2013] FamCA 105, delivered 27 February 2013.…
Bevan & Bevan
[2013] FamCAFC 116 Para 1

…47 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J. [24] Mallet v Mallet (1984) 156 CLR 605. [25] Bevan & Bevan [2013] FamCAFC 116, [73].…
C & C
[1998] FAMCA 143 Para 10

…wnsend (1995) FLC 92-569; Kowaliw & Kowaliw (1981) FLC 91-092; Browne & Green (1999) FLC 92-873; Chorn & Hopkins (2004) FLC 93-204; Cerini & Cerini [1998] FamCA 143; Polonius & York (supra)). 102. Undoubtedly such guidelines promote uniformity of approach and diminish the risks of inconsistency and capricious and a…
Marker & Marker sub nom M & M
[1998] FAMCA 42 Para 10

…the issue of notional add-back is to be treated within the overarching discretion of determining just and equitable orders under s 79. [17] M&M [1998] FamCA 42; Cerini & Cerini [1998] FamCA 143, [46] ; Omacini & Omacini (2005) 33 Fam LR 134, [39] ; Kouper & Kouper (No 3) [2009] FamCA 1080, [107]. [18] Delivered 24…
Bevan & Bevan
[2103] FAMCAFC 116 Para 12

…In Bevan & Bevan [2103] FamCAFC 116 the plurality[20] said, at [79]: We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenabl…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
106B, 74, 75, 79, 79A, 81, 90AE 8 mentions (from Para 14)
Family Law Rules 2004 (Cth)
1 mention
Trust Accounts Act 1973 (Qld)
1 mention (from Para 3)