Westgarth and Westgarth - [2008] FMCAfam 967

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WESTGARTH & WESTGARTH

[2008] FMCAfam 967

FAMILY LAW – Property settlement – informal agreement – weight to be given to initial contributions – rent free accommodation – gift of property from wife’s father – post separation contribution – contested debt.

Family Law Act 1975, ss.75(2), 79

DW & GT [2005] FamCA 161
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513
Pellegrino (1997) FLC 92-789
Pierce v Pierce (1998) FLC 92-844
Williams & Williams [2007] FamCA 313

Applicant:

MR WESTGARTH

Respondent:

MS WESTGARTH

File Number:

WOC 530 of 2007

Judgment of:

Altobelli FM

Hearing date:

28 July 2008

Date of Last Submission:

29 July 2008

Delivered at:

Sydney

Delivered on:

9 September 2008

REPRESENTATION

Counsel for the Applicant:

Mr Wong

Solicitors for the Applicant:

Lough Wells Duncan

Counsel for the Respondent:

Ms Christie

Solicitors for the Respondent:

Fox O'Brien

ORDERS

That the parties forthwith do all acts and things necessary to list the property situated at and known as Property N (“the Property N property”), NSW, being the whole of the land described in Folio Identifier [5] by private treaty and following the sale of the Property N property the proceeds shall be disbursed as follows:
(a)in payment of agent’s commission and legal expenses associated with the sale;
(b)discharge the existing mortgage;
(c)the net sale proceeds to the Husband.
That within 42 days from the date hereof, the wife shall pay to the husband the sum of seventy-two thousand, nine hundred and twenty dollars ($72,920.00)
That each party be responsible for all debts and other loans which stand in their sole name. The husband is solely responsible for paying the mortgage on the Property N property pending sale.
That the husband and wife be entitled to have sole right title and interest in:
(a)any chattels, goods, furnishings and other property which are at the date hereof in their possession respectively; and
(b)any real property, moneys, shares, debentures and superannuation entitlements which stand in their sole name respectively as at the date hereof.
In the event the wife fails to comply with Order 2, then the wife shall forthwith do all acts and things necessary to list the property at Property C (“the Property C property”), NSW, being the whole of the land described in Folio Identifier [2] for sale by private treaty for a period of six months at a price to be agreed to between the parties and failing such agreement to be determined by the President of the Real Estate Institute of NSW or his/her Nominee.
That in the event the Property C property fails to be sold by private treaty within a period of six months then the parties at the expiration of the six month period shall forthwith do all acts and things necessary to list the property for sale by public auction with a reserve price to be agreed to by the parties but failing such agreement…

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 Westgarth and Westgarth

Details

AGLC: Westgarth and Westgarth [2008] FMCAfam 967
Case: [2008] FMCAfam 967
Decision Date: 9 September 2008

CaseChat Overview and Summary

Westgarth and Westgarth involved a property dispute between the husband and wife, where the court was tasked with determining the division of assets following their separation. The Family Court of Australia presided over the case, focusing on the fair distribution of assets and liabilities accrued during the marriage. The central legal issues the court had to address were the equitable division of the couple's properties, financial liabilities, and personal belongings. This included resolving the ownership and sale of two specific properties, determining the disbursement of sale proceeds, and assigning personal assets and financial obligations to each party.

The court carefully examined the contributions, needs, and future circumstances of both parties to ensure a just and equitable outcome. It found that the husband should be entitled to certain property proceeds, while the wife had to make a specified payment to the husband within a stipulated timeframe. The court also outlined that each party should retain ownership of their respective personal assets and liabilities. Furthermore, the court mandated the sale of a second property if the wife failed to meet her financial obligation, with detailed instructions on the sale process and disbursement of proceeds. The court concluded by ensuring compliance with the orders through potential enforcement mechanisms, including the registration of caveats and the appointment of a registrar to execute necessary deeds if either party failed to comply.

Orders

Orders of the court

That the parties forthwith do all acts and things necessary to list the property situated at and known as Property N (“the Property N property”), NSW, being the whole of the land described in Folio Identifier [5] by private treaty and following the sale of the Property N property the proceeds shall be disbursed as follows:

(a) in payment of agent’s commission and legal expenses associated with the sale;

(b) discharge the existing mortgage;

That within 42 days from the date hereof, the wife shall pay to the husband the sum of seventy-two thousand, nine hundred and twenty dollars ($72,920.00)

That each party be responsible for all debts and other loans which stand in their sole name. The husband is solely responsible for paying the mortgage on the Property N property pending sale.

That the husband and wife be entitled to have sole right title and interest in:

(a) any chattels, goods, furnishings and other property which are at the date hereof in their possession respectively; and

(b) any real property, moneys, shares, debentures and superannuation entitlements which stand in their sole name respectively as at the date hereof.

In the event the wife fails to comply with Order 2, then the wife shall forthwith do all acts and things necessary to list the property at Property C (“the Property C property”), NSW, being the whole of the land described in Folio Identifier [2] for sale by private treaty for a period of six months at a price to be agreed to between the parties and failing such agreement to be determined by the President of the Real Estate Institute of NSW or his/her Nominee.

That in the event the Property C property fails to be sold by private treaty within a period of six months then the parties at the expiration of the six month period shall forthwith do all acts and things necessary to list the property for sale by public auction with a reserve price to be agreed to by the parties but failing such agreement to be determined by the President of Real Estate Institute of NSW or his/her Nominee.

That following settlement of the sale of the Property C property pursuant to order 5 or 6 the sale proceeds be disbursed as follows:

(a) in payment of agent’s commission and legal expenses associated with the sale;

(b) to discharge the existing mortgage to RAMS;

(i) the first $72,920.00 plus interest in accordance with the Family Law Act, calculated from the due date for payment in accordance with these Orders to the Husband;

(ii) The balance thereafter to the Wife.

That in the event the wife fails to comply with order 2 then the wife shall consent to the registration of a Caveat on the title of the Property C property, noting the Husband’s interest in the Property C property by way of charge for the amount outstanding pursuant to order 2.

Within 28 days of the date of these Orders, the husband to do all things necessary to effect a transfer to the wife of any interest he has in their IAG shares.

10.

That each party do all necessary acts and things to give effect to these orders.

11.

That in the event that either party refuses or neglects to execute any Deed or Instrument, the Registrar of the Court be appointed pursuant to Section 106A to execute such Deed of Instrument in the name of such party and do all acts and things necessary to give validity to the Deed or Instrument.

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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