Waterman and Waterman - [2020] FamCA 369

FAMILY COURT OF AUSTRALIA

WATERMAN & WATERMAN

[2020] FamCA 369

FAMILY LAW – PROPERTY – Where it is just and equitable to make a property division order – Treatment of assets acquired and liabilities incurred post separation – Whether funds spent on legal fees should be added back to the property pool – Where the husband contends for an adjustment based on his contributions particularly a significant initial contribution with the size of the adjustment contingent on findings as to the size of the property pool – Where the husband contends that an adjustment should be made in his favour to account for matters referred to in section 75(2) of the Family Law Act 1975 (Cth) namely the wife’s earning capacity and his health circumstances also with the size of the adjustment to depend on findings in relation to the property pool available for distribution – Where the wife at final submissions contended that the parties’ contributions during the relationship and post separation should be regarded as equal – Where the wife contends that no adjustment be made for section 75(2) factors – Orders made that result in the property pool being divided equally.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan [2013] FamCAFC 116
Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595; 18 Fam LR
Chorn & Hopkins [2004] FamCA 633; (2004) FLC 93-204; (2004) 32 Fam LR 518
Diggelen & Diggelen [2014] FamCAFC 160
Hurst & Webber [2009] FamCAFC 137
Omacini & Omacini [2005] FLC 93-218
Pierce & Pierce [1998] FamCA 74
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173
Wayne & Wayne [2010] FamCAFC 33
Williams & Williams [2007] FamCA 313

APPLICANT:

Mr Waterman

RESPONDENT:

Ms Waterman

FILE NUMBER:

PAC

3930

2015

DATE DELIVERED:

15 May 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

11, 12, 13 November 2019, 17 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT:

Mr Gould
Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Solari & Stock Lawyers

Orders

That the husband and wife forthwith do all acts and things and execute all documents required to cause the net proceeds of sale of the properties situated at E Street, F Town (folio identifier …46) and G Street, H Town NSW (Folio Identifier …73) held in a controlled monies account with Solari & Stock Lawyers, to be paid to the wife.
That within 28 days of these Orders, the husband pay to the wife the sum of $82,451.50 ("the said sum").
That in the event that the husband fails or neglects to pay to the wife the said sum in Order 2 hereof by the due date, then the husband shall do all acts and things and sign all necessary documents to effect a sale of the property situate at and known as J Street, K Town, NSW (being the whole of the land…

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 Waterman and Waterman

Details

AGLC: Waterman and Waterman [2020] FamCA 369
Case: [2020] FamCA 369
Decision Date: 15 May 2020

CaseChat Overview and Summary

This case concerned a dispute between a husband and wife, heard before Hannam J. The primary dispute revolved around the division of property and financial matters between the parties.

The court was required to determine the appropriate orders for the distribution of various assets, including real estate, company shares, and bank accounts. Key issues included the payment of a sum of money from the husband to the wife, the sale of a property if that payment was not made, the closure of joint bank accounts, and the transfer of the wife's interest in a company to the husband, along with an indemnity for liabilities. The court also needed to address the entitlement to chattels, other personal property, and superannuation benefits, and to make provision for the execution of necessary documents.

Hannam J ordered that the net proceeds of sale of two properties be paid to the wife. The husband was ordered to pay a specific sum to the wife within 28 days, with a provision that if he failed to do so, a property known as the K Town property was to be sold by public auction on terms detailed in the orders. These terms included provisions for the appointment of an agent, reserve price, bidding, cooperation, conduct of the sale, agency rights, inspection, auction expenses, and subsequent auctions if the property did not sell. The proceeds of the K Town property sale were to be applied first to sale costs, then any mortgage, then the outstanding sum owed to the wife with interest, and finally any balance to the husband. The court also ordered the closure of joint bank accounts with their balances to be paid to the wife. The wife was to transfer her shareholding in D Pty Ltd to the husband, who was to indemnify her against all liabilities related to the company. General orders were made regarding the entitlement to chattels, moneys, shares, debentures, and superannuation, with each party being solely liable for their own debts and liabilities. Finally, an officer of the Court was appointed pursuant to Section 106A of the Family Law Act to execute documents if a party failed to do so, with the defaulting party ordered to pay costs.

Orders

Orders of the court

That the husband and wife forthwith do all acts and things and execute all documents required to cause the net proceeds of sale of the properties situated at E Street, F Town (folio identifier …46) and G Street, H Town NSW (Folio Identifier …73) held in a controlled monies account with Solari & Stock Lawyers, to be paid to the wife.

That within 28 days of these Orders, the husband pay to the wife the sum of $82,451.50 ("the said sum").

That in the event that the husband fails or neglects to pay to the wife the said sum in Order 2 hereof by the due date, then the husband shall do all acts and things and sign all necessary documents to effect a sale of the property situate at and known as J Street, K Town, NSW (being the whole of the land comprised in Certificate of Title …) (hereinafter referred to as "the K Town property") by public auction ("the auction") upon the following terms:

(a) The parties are to agree upon the appointment of a real estate agent and failing agreement be an agent as nominated by the nominee of the President of the Real Estate Institute of New South Wales;

(b) The auction shall take place at a time and place nominated by the agent so as to enable the K Town property to be properly advertised for sale;

(d) Either party shall be at liberty to bid at the auction;

(e) The parties shall each cooperate in every way with the Agent including (without limiting the generality of the foregoing):

(i) making the key available to the Agent;

(ii) allowing inspection of the K Town property at all reasonable times requested by the Agent;

(iii) doing or saying nothing to hinder or prevent a sale being effected;

(iv) ensuring the K Town property, including the grounds, are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers; and

(v) signing all documents requested by the Agents in relation to the listing for sale of the K Town property, except a contract or agreement for sale which has not been authorised by the parties' Solicitors.

(f) The parties shall instruct such Solicitor or Conveyancer as they agree upon to have the conduct of the sale of the K Town property on behalf of the parties or in the absence of agreement reached within 14 days of the date of these Orders, instructs such Solicitor as may be appointed by the President for the time being of the Law Society of NSW ("the Solicitor"), the costs of and incidental of such appointment to be borne equally by the parties as and when they fall due;

(g) Neither party may confer on any Agent, without the consent of the other party, any right to any sole or exclusive agency in respect of the K Town property or to any commission;

(h) The party not in possession is entitled upon reasonable notice, once per fortnight, to enter and view the state of repair of the K Town property;

(i) The husband shall be responsible for and pay the auction expenses payable for the said auction;

(j) That in the event the K Town property is not so sold at the first auction provided herein, then the parties shall do all acts and things so as to list the K Town property to be resubmitted for a further auction within three (3) months of the first auction or such other times as agreed between the parties in writing at a reserved price to be agreed between the husband and wife and failing agreement ten percent (10%) below the reserve price at the first auction and otherwise on the same terms and conditions as the first auction. If the K Town property does not sell at further auction, the parties will do all acts and things so as to continue to auction the K Town property on the same terms and conditions hereof, within two (2) months of the previous auction and reducing the reserve price on each occasion as agreed between the parties and if not agreed, by ten percent (10%) of the previous reserve price as applied to the first auction provided for herein.

(k) That upon completion of the sale of the K Town property the proceeds of sale shall be applied as follows:

(i) in payment of all costs and expenses of sale, including legal costs and disbursements, Agent's commissions, advertising expenses, Valuer's fees and auction expenses, including repayment of any such expenses as have been paid by either or both of the parties;

(ii) in payment of any mortgage registered on the title of the K Town property;

(iii) in payment to the wife of the said sum or such part thereof as remains unpaid together with interest on the sum or so much as remains unpaid from the due date of payment at the rate applicable pursuant to the Family Law Rules; and

(iv) in payment to the husband of the balance.

Each party shall attend any such further auction and in the event that the reserve price set for that auction is not reached will negotiate with the highest bidder and the second highest bidder and will accept the highest offer to purchase made within 10 percent of the reserve price set for that auction unless the husband and wife otherwise agree.

Bank Accounts

That within 14 days the husband and wife do all acts and things and sign all documents necessary to close all joint bank accounts in their names, including but not limited to:

(a) National Australia Bank account number …66;

(b) L Bank account number …60

and pay the balances held in those accounts to the wife.

D Pty Ltd

That within 28 days of the date of these Orders:

(a) The wife do all acts and things and sign all documents necessary as prepared by the husband to transfer to the husband her shareholding and interest in D Pty Ltd A.C.N. …;

(b) That the husband hereby indemnifies the wife against all manner of actions, suits, causes of action, debts, loans, guarantees, liabilities, dues, costs, interests, tax liabilities (including penalties and interest) and demands whatsoever both at law and in equity in relation to D Pty Ltd, both current or at any future time.

General

That unless otherwise specified in these Orders:

(a) each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at the date of these Orders;

(b) each party be solely entitled to any moneys, shares and debentures which stand in such party's name as at the date of these Orders;

(c) each party be solely entitled to any superannuation benefits held in such party's name and each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and

(d) each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party's name as at the date of these Orders.

Both the Husband and the Wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.

Section 106A

That in the event that either party refuses or neglects to execute any deed or instrument within seven days of that deed or instrument being forwarded to him or her or his or her solicitor, an officer of the Court is hereby appointed pursuant to Section 106A of the Family Law Act, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument. The party in default is ordered to pay all reasonable solicitor/client costs incurred by the party not in default for the purpose of enforcing this order, to be taxed if not agreed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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