Ward & Ward - [2004] FMCAfam 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WARD & WARD

[2004] FMCAfam 193

FAMILY LAW – PROPERTY – Parties contributions to the pool of assets – whether certain assets should be added back to the pool – husband’s interest in testamentary trust – inheritance has not vested, husband says object of trust is “to put my inheritance out of the reach of my wife” – inheritance must be taken into account under s.75(2)(b) Family Law Act 1975.

Bonnici and Bonnici (1992) FLC 92
De Angelis [1999] FamCA 1609

Applicant:

PETER JESSUP WARD

Respondent:

SANDRA ROBYN WARD

File No:

BRM2905 OF 2002

Delivered on:

15 March 2004

Delivered at:

Brisbane

Hearing dates:

11 & 12 March 2004

Judgment of:

Baumann FM

REPRESENTATION

Counsel for the Applicant:

Mr Waterman

Solicitors for the Applicant:

Pattison & Barry Solicitors

Counsel for the Respondent:

Ms Carew

Solicitors for the Respondent:

Nina Stratton-Funk & Associates

ORDERS

That the former matrimonial home at 2753 Moggill Road, Pullenvale in the State of Queensland (“the home”) be sold forthwith pursuant to the following terms and conditions:
(a)That the home be forthwith placed on the market with Brisbane Real Estate and Brookfield Agencies for sale by private treaty for the sum of $570,000 with the husband and wife agreeing to accept offers of not less than $530,000 or such other sum as may be agreed in writing between the husband and wife.
(b)That in the event that the home is not sold by private treaty within a period of two months from the date the property is listed for sale in accordance with 1(a) hereof that the husband and wife shall forthwith take all necessary steps to sell the home by public auction.
(c)That the home be placed in the hands of Brisbane Real Estate for auction.
(d)That the husband and wife execute all documents as may be necessary to authorise the Auctioneer to sell the property.
(e)That in the event that the parties do not agree in writing as to the reserve price to be placed on the property at auction then the matter be re-listed before Federal Magistrate Baumann by either party upon the giving of two days written notice.
(f)That the parties shall each pay to the auctioneer one half of any sums reasonably required for advertising expenses in relation to the Auction. If one of the parties advances all of the said expenses, he or she shall be reimbursed from the proceeds of sale as a cost of sale before any division between the Husband and Wife.
(g)That the Husband and Wife attend at the auction sale and in the event that the property is not sold, shall negotiate with the highest bidder. In the event that an offer is made below the agreed reserve price and the parties do not agree as to whether or not it should be accepted, the parties shall take advice from the auctioneer as to the selling price and be bound by his advice as to the selling price…

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 Ward & Ward

Details

AGLC: Ward & Ward [2004] FMCAfam 193
Case: [2004] FMCAfam 193
Decision Date: 15 March 2004

CaseChat Overview and Summary

In the matter of Ward & Ward, the court was tasked with resolving the division of matrimonial property between the parties. The dispute primarily revolved around the sale and distribution of the former matrimonial home, a Toyota Celica motor vehicle, and a business called Rylstone Enterprises Pty Ltd trading as Gailey News. The legal issues at hand included determining the appropriate sale price for these assets, establishing the method for selling them, and ensuring an equitable distribution of the proceeds among the parties.

The court meticulously outlined the steps for selling the assets, specifying the real estate agents and auction houses to be used, and the reserve prices to be set. It also addressed the division of the sale proceeds, stipulating that 57.5% of the net proceeds should go to the wife and 42.5% to the husband. Furthermore, the court addressed the need for cooperation between the parties in facilitating the sales and the sharing of expenses related to the properties. It also dealt with the division of personal belongings, setting timelines for their collection and sale, and ensuring that the net proceeds from these sales were distributed according to the court's directive.

The reasoning behind the court's decisions was to ensure a fair and efficient division of the assets, while also promoting cooperation between the parties to facilitate the sales. The court emphasized the importance of adhering to the terms set out in the orders to avoid potential legal complications and financial losses. The court appointed the Registrar of the Federal Magistrates Court to enforce compliance with the orders, ensuring that any breaches would result in penalties, including damages and costs.

The final orders included detailed instructions on the sale of the home, the motor vehicle, and the business, as well as the division of proceeds and personal belongings. The court also provided for the deregistration of the business and outlined the consequences of non-compliance with the orders. This comprehensive approach aimed to provide clarity and ensure that both parties could move forward with their lives in an orderly and equitable manner.

Orders

Orders of the court

That the former matrimonial home at 2753 Moggill Road, Pullenvale in the State of Queensland (“the home”) be sold forthwith pursuant to the following terms and conditions:

(a) That the home be forthwith placed on the market with Brisbane Real Estate and Brookfield Agencies for sale by private treaty for the sum of $570,000 with the husband and wife agreeing to accept offers of not less than $530,000 or such other sum as may be agreed in writing between the husband and wife.

(b) That in the event that the home is not sold by private treaty within a period of two months from the date the property is listed for sale in accordance with 1(a) hereof that the husband and wife shall forthwith take all necessary steps to sell the home by public auction.

(d) That the husband and wife execute all documents as may be necessary to authorise the Auctioneer to sell the property.

(e) That in the event that the parties do not agree in writing as to the reserve price to be placed on the property at auction then the matter be re-listed before Federal Magistrate Baumann by either party upon the giving of two days written notice.

(f) That the parties shall each pay to the auctioneer one half of any sums reasonably required for advertising expenses in relation to the Auction. If one of the parties advances all of the said expenses, he or she shall be reimbursed from the proceeds of sale as a cost of sale before any division between the Husband and Wife.

(g) That the Husband and Wife attend at the auction sale and in the event that the property is not sold, shall negotiate with the highest bidder. In the event that an offer is made below the agreed reserve price and the parties do not agree as to whether or not it should be accepted, the parties shall take advice from the auctioneer as to the selling price and be bound by his advice as to the selling price of the property.

(h) That the Wife co-operate in every way with the agent in relation to the sale by private treaty or auction including being present for all inspections (or if she is unavailable for the husband to be present), allowing the inspection of the home at times reasonably requested by the Agent.

(i) That pending the settlement of the contract of sale of the home, that the wife and the husband each pay one half of the rates, insurances, and security expenses in respect of the home.

(j) That upon the settlement of the contract of sale of the home that the sale proceeds be disbursed as follows:

(i) payment of costs of sale and agents commission;

(ii) payment of mortgage to ANZ Banking Group if not paid out upon the earlier sale of the Gailey News;

(iii) subject to this order the balance then remaining to be distributed between the parties to give effect to an overall distribution of property between the husband and wife of 57.5% in favour of wife and 42.5% in favour of the husband.

That the Toyota Celica motor vehicle be forthwith listed for sale at $13,000 and in the event that a sale is not achieved at that price within a period of two months then the said car be sold at a price to be agreed and failing agreement as recommended by a Toyota dealer to be agreed between the parties and that the proceeds of sale be divided in the proportion 57.5% to the wife and 42.5% to the husband.

That the business known as Rylstone Enterprises Pty Ltd (“Rylstone Enterprises") trading as Gailey News (“Gailey News”) and having its principal place of business at Shop 7, 144 Indooroopilly Road, Taringa, Brisbane in the said State, be sold.

That in order to effect the sale of Gailey News that the husband and wife, as directors of Rylstone Enterprises, forthwith appoint Brian Fox Real Estate of 1 Sandgate Road, Breakfast Creek, Brisbane, and Newsagency Sales (Qld) Pty Ltd of 931 Nudgee Road Banyo to list Gailey News for sale at a sale price of $430,000 plus stock or such other price as may be agreed in writing between the parties and if not sold for this price within two months of being listed for sale that it be sold at such price as may be agreed between the parties and failing agreement as may be determined by Federal Magistrate Baumann.

That the husband and wife as the only directors and shareholders of Rylstone Enterprises Pty Ltd direct that the proceeds of Gailey News be divided as follows:

(a) payment of the costs and expenses of sale, including legal costs and outlays and agent’s commission;

(b) payment of any encumbrances affecting Rylstone Enterprises Pty Ltd and Gailey News if not already paid out upon the sale of the home referred to in paragraph 1 hereof;

(d) payment of any tax including capital gains tax and/or goods and services tax; and

(e) subject to this order cause any credit in the joint loan account to be distributed between the parties to give effect to an overall distribution of property between the husband and wife of 57.5% in favour of the wife and 42.5% in favour of the husband.

(f) subject to this order the balance remaining to be distributed between the parties to give effect to an overall distribution of property between the husband and wife of 57.5% in favour of the wife and 42.5% in favour of the husband.

That the husband and wife do all necessary acts and things both personally and/or as directors of Rylstone Enterprises to deregister the said company, with the costs of same to be shared equally between the parties.

The husband and wife retain all right title and interest in and to the furniture and chattels in their respective possession save that the husband shall within thirty (30) days make available for collection by the wife the items listed in annexure “S (a) and (b)”of the wife’s affidavit filed on the 23rd February 2004 and the wife shall within thirty (30) days make available for collection by the husband the items listed in paragraph 3.6 of the husband’s amended outline of case document and that the items that neither party wish to retain shall be listed for sale within sixty (60) days and the proceeds (nett of sales costs which shall be borne equally by the parties) divided so as to achieve an overall distribution between the husband and the wife of 57.5% to the wife and 42.5% in favour of the husband.

That unless specified in these Orders:

(a) each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders; and

(b) each party be solely liable for and indemnify the other against any liability covering any item of property to which that party is entitled pursuant to these Orders.

That in the event that either party refuses or neglects to comply with the provisions of these Orders:

(a) The Registrar of the Federal Magistrates Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the names of the parties and do all acts and things necessary to give validity and operation to the said Orders;

(b) The party in default is ordered to pay any and all foreseeable damages to the other party caused by the default;

(c) The party in default is ordered to pay all reasonable costs incurred by the other party for the purposes of enforcing this Order and proving the damages.

10.

That the husband reimburse the wife for expenditure relating to the rates, insurance and security expenses for the home in the sum of $5,030.34 from his share of the sale proceeds of the home or the newsagency business whichever sells first.

11.

That the parties have liberty to apply on the giving of seven (7) days written notice to the other about the working out of these orders.

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.