Watts & Evans - [2022] FedCFamC1F 1063

Federal Circuit and Family Court of Australia
(DIVISION 1)
Watts & Evans [2022] FedCFamC1F 1063

File number(s): PAC 275 of 2021

Judgment of: HARPER J

Date of judgment: 9 December 2022

Catchwords: FAMILY LAW – INTERIM PROPERTY – Litigation funding – Property pool in the region of $20 million – Wife seeks $350,000 – Husband’s proposal of $100,000 would simply go to discharging wife’s existing liabilities to former lawyers – Orders made for wife to receive $350,000 – Characterisation left to trial judge – Orders previously made for sale of commercial properties – Where sale process has failed – Fresh orders made requiring sale by public auction.

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 9 December 2022

Place: Sydney

Solicitor for the Applicant: Marsdens Law Group

The Respondent: Litigant in person
ORDERS

PAC 275 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR WATTS

Applicant

AND:
MS EVANS

Respondent

order made by:

HARPER J

DATE OF ORDER:

9 DECEMBER 2022

THE COURT ORDERS THAT:
1.The Respondent Husband ("the husband") shall do all things necessary to cause B Pty Ltd to pay to him a dividend using whatever franking credits may be available to him and/or B Pty Ltd according to law, so that he retains, after allowance for any tax impost, an amount of $350,000.
2.The husband shall pay, from the dividend, to the Applicant Wife ("the wife") the amount of $350,000 for the purpose of meeting legal costs in these proceedings, which such payment to be characterised by the trial judge.
3.The payment of $350,000 shall be made within 14 days of the date of these orders.
4.Order 1 made on 11 February 2022 be discharged, and replaced with the following:
(a)By no later than 4.00pm on 15 January 2023, the husband shall do all acts and things and execute all documents necessary to cause C Pty Ltd to sell the commercial properties by public auction for the best price reasonably obtainable in the following manner:
(b)Do all things and sign all documents to list the commercial properties for sale with D Real Estate, including executing a selling agency agreement with D Real Estate which names C Pty Ltd, the husband, and the wife as parties thereto;
(c)The husband shall instruct the commercial agents to supply to the wife all information reasonably required by the wife in relation to the said sales by public auction, and shall execute any necessary authority in writing to the commercial agents for that purpose;
(d)The reserve price for the purposes of the sale by auction shall be such price as is mutually agreed by the parties, or in the absence of agreement, in accordance with the recommendations of the commercial agents;
(e)The parties shall instruct E Solicitors to have conduct of the sale on behalf of all parties as conveyancing solicitors;
(f)The husband, as director of C Pty Ltd, shall take all necessary steps and cooperate with the selling agent for the purposes of…

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 Watts & Evans

Details

AGLC: Watts & Evans [2022] FedCFamC1F 1063
Case: [2022] FedCFamC1F 1063
Decision Date

CaseChat Overview and Summary

The case of Watts & Evans was heard in the Federal Circuit and Family Court of Australia. The matter involved a dispute between Mr. Watts and Ms. Evans regarding the division of their property and the provision of litigation funding. The Court was tasked with deciding whether an order should be made for litigation funding in favor of the wife in the amount of up to $350,000, as well as whether the orders made on February 11, 2022, concerning the sale of commercial properties should be discharged or varied.

The court found that the wife was entitled to $350,000 for litigation funding, which would be paid from the husband's company, B Pty Ltd, in order to avoid discharging the wife's existing liabilities to her former lawyers. The characterisation of the payment was to be determined by the trial judge. The court also found that the previous orders for the sale of the commercial properties had failed and replaced them with fresh orders for the sale of the properties by public auction.

In reaching its decision, the court considered the substantial asset pool available to the parties, the husband's concession that an adjustment of the property interests in favor of the wife would be necessary, and the wife's inability to purchase one of the properties due to the failure of the sale of another property. The court also noted that the husband had engaged in a course of conduct designed to cause the wife to remain subject to various onerous liabilities and that there had been a failure to disclose by the husband.

In summary, the court made orders for the husband to pay the wife $350,000 for litigation funding and for the sale of the commercial properties by public auction. The characterisation of the litigation funding payment was left to the trial judge, and the matter was stood over for mention on March 3, 2023.

Orders