Turay & Nagi - [2023] FedCFamC2F 720

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Turay & Nagi [2023] FedCFamC2F 720

File number(s): PAC 3777 of 2022

Judgment of: JUDGE NEWBRUN

Date of judgment: 15 June 2023

Catchwords: FAMILY LAW – PROPERTY – Just and equitable Orders made.

Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 106A

Cases cited: Lotta & Lotta [2017] FamCA 50

Division: Division 2 Family Law

Number of paragraphs: 83

Date of hearing: 29–30 May 2023

Place: Parramatta

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr Lipert

Solicitor for the Respondent: Dehsabzi Lawyers
ORDERS

PAC 3777 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TURAY

Applicant

AND:
MR NAGI

Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

15 June 2023

THE COURT ORDERS THAT:
1.Subject to Order 2 below, the wife do all such acts and things and sign all necessary documents so as to transfer to the husband her right title and interest in the former matrimonial home situated at B Street, Suburb C (“the property”);
2.That contemporaneously with the transfer set out in Order 1 above:
(a)the husband do all such acts and things and sign all necessary documents so as to refinance the mortgage loan over the property into his sole name,
(b)the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the property,
(c)the husband pay to the wife the sum of $396,796.

3.That in the event that the husband is unable to refinance the mortgage loan over the property into his sole name within six weeks of these Orders, the husband and wife forthwith do all such things and sign all deeds, documents and instruments as maybe necessary to effect a private sale of the property.
4.That upon the sale of the property, the proceeds of the sale be distributed in the following priorities:
(a)Discharge of the mortgage loan over the property;
(b)Payment of all sales expenses and costs associated with the sale of the property including agent fees and legal fees;
(c)Payment to the wife of $396,796 less her half share of the fees in (b) above;
(d)Payment to the husband of $477,331 less his half share of the fees in (b) above.

5.Subject to the above Orders, that the parties retain all their right title and interest in and to their respective superannuation entitlements and any other property in their respective possession, custody or control.
6.That in the event that either party or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all the acts and things necessary to give validity to the operation to the deed or instrument.
7.Each party has liberty to apply in relation to the implementation or enforcement of these Orders upon 14 days’ notice.

Note: The…

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 Turay & Nagi

Details

AGLC: Turay & Nagi [2023] FedCFamC2F 720
Case: [2023] FedCFamC2F 720
Decision Date

CaseChat Overview and Summary

This case involved a property settlement hearing in the Federal Circuit and Family Court of Australia, Division 2. The applicant, Ms Turay, and the respondent, Mr Nagi, were in a relationship that commenced in 1997 and ended in February 2022. Ms Turay sought orders for the sale of the former matrimonial home, with her receiving 70 per cent of the sale proceeds after the mortgage and agent fees were paid, and an additional 5 per cent for alimony/maintenance due to her disability and inability to work full time. Mr Nagi sought an overall division of the property pool of 60 per cent to him and 40 per cent to Ms Turay. The court considered the contributions made by the parties, their health conditions, and other relevant factors to determine a just and equitable property settlement. The court found that the parties' contributions to the net relationship assets were approximately equal and decided on an adjusted division of the property pool of 52.5 per cent to Mr Nagi and 47.5 per cent to Ms Turay. The court ordered that Mr Nagi retain the former matrimonial home, and if he failed to pay Ms Turay $396,796 within six weeks, the property would be sold. If sold, the net proceeds would be distributed to cover the mortgage debt, sales expenses, and costs, followed by payments to Ms Turay and Mr Nagi based on their respective shares of the net assets.

The court made orders for the transfer of the former matrimonial home to Mr Nagi, subject to him refinancing the mortgage into his sole name and paying Ms Turay $396,796. If Mr Nagi could not refinance the mortgage within six weeks, the property would be sold, and the net proceeds distributed as per the court's orders. Additionally, each party was granted liberty to apply in relation to the implementation or enforcement of these orders upon 14 days' notice.

Orders