FAMILY COURT OF AUSTRALIA
| WHELAN & WHELAN | [2010] FamCA 530 |
| FAMILY LAW – PROPERTY – Wastage as a result of excessive gambling – adjustment based on a Kennon claim of more arduous contributions due to violence |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain and Anor v R (1984) 51 ALR 225 Kennon & Kennon (1997) FLC 92-757 Hamilton & Thomas [2008] Fam CAFC 8 Neat Holdings Pty Ltd v Karajon Holdings Pty Ltd (1992) 110 ALR 449 Spence and Spence [2008] FamCA 263 |
| APPLICANT: | Ms Whelan |
| RESPONDENT: | Mr Whelan |
| FILE NUMBER: | PAF | 1221 | of | 2006 |
| DATE DELIVERED: | 30 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 9 - 11 March 2009; 1 - 4 December 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Adrian Twigg & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Jauncey |
| SOLICITOR FOR THE RESPONDENT: | Jack Rigg Solicitors |
Orders
An order be made pursuant to s 79 Family Law Act in the terms of paragraphs 2 through to 14 below.
In respect to the property at W (“the W property”), within three (3) months of the date of these orders, the husband and the wife do all acts and things necessary to cause:
2.1.The land situate at and known as Lot 1, W and being the whole of the land contained in Folio Identifier 1/… to be transferred to the husband; and
2.2.The land situate at and known as Lot 2, W contained in Folio Identifier 2/… to be transferred to the wife.
The wife shall be declared the sole owner of the property situate at P being the whole of the land comprised in folio identifier …, and the wife be responsible for and indemnify the husband in relation to the mortgage secured on the said property.
The parties do all things and sign all necessary documents to cause Whelan Group Pty Ltd (“Whelan Group”) to transfer to the husband any right, title and interest Whelan Group has in monies owing to it by Capital Access Holdings Pty Limited.
The parties do all things and sign all necessary documents to cause Whelan Group to transfer to the husband the property situate at Y in the State of New South Wales and being all of that contained in certificate of title folio identifier … (“Y property”) subject to the existing encumbrance thereon, and:
5.1.The husband discharge the current mortgage secured over Y property within three months of the date of these orders; and
5.2.The husband be responsible for and pay any transfer costs, Division 7A tax, capital gains tax or other costs or expenses occasioned by the transfer to the husband of Y property.
The husband transfer to the wife all his shareholding and entitlements in Whelan Group.
The husband resign as a director and any other office bearer in Whelan Group.
The wife and Whelan Group indemnify the husband in relation to the husband ever having been a shareholder, director, secretary or office…
Continue reading Whelan & Whelan
Sign in free to access the full text
- AGLC
- Whelan & Whelan [2010] FamCA 530
- Case
- [2010] FamCA 530
- Decision Date
CaseChat Overview and Summary
The court considered the division of several properties, including the W property, which was to be transferred to the husband and wife in separate lots. The wife was to become the sole owner of the P property, assuming responsibility for its mortgage. The parties were also directed to arrange for Whelan Group Pty Ltd to transfer certain monies and the Y property to the husband, with the husband to discharge the mortgage on the Y property and bear associated costs.
Further orders included the husband transferring his shareholding and entitlements in Whelan Group to the wife, resigning as a director, and indemnifying the wife in relation to his past involvement with the company. The husband was also to transfer his credit and debit loan accounts with Whelan Group to the wife, who would then be solely responsible for any debit accounts. The parties were to jointly wind up W Breeding Pty Limited and share its liabilities equally. The wife was to receive sole ownership of a Jaguar motor vehicle and all garden plant and equipment and artwork at the W property. All other personalty and furnishings were to remain with the party in possession. The husband's application for interim spousal maintenance was dismissed.
Orders
Orders of the court
1.
An order be made pursuant to s 79 Family Law Act in the terms of paragraphs 2 through to 14 below.
2.
In respect to the property at W (“the W property”), within three (3) months of the date of these orders, the husband and the wife do all acts and things necessary to cause:
2.1. The land situate at and known as Lot 1, W and being the whole of the land contained in Folio Identifier 1/… to be transferred to the husband; and
2.2. The land situate at and known as Lot 2, W contained in Folio Identifier 2/… to be transferred to the wife.
3.
The wife shall be declared the sole owner of the property situate at P being the whole of the land comprised in folio identifier …, and the wife be responsible for and indemnify the husband in relation to the mortgage secured on the said property.
4.
The parties do all things and sign all necessary documents to cause Whelan Group Pty Ltd (“Whelan Group”) to transfer to the husband any right, title and interest Whelan Group has in monies owing to it by Capital Access Holdings Pty Limited.
5.
The parties do all things and sign all necessary documents to cause Whelan Group to transfer to the husband the property situate at Y in the State of New South Wales and being all of that contained in certificate of title folio identifier … (“Y property”) subject to the existing encumbrance thereon, and:
5.1. The husband discharge the current mortgage secured over Y property within three months of the date of these orders; and
5.2. The husband be responsible for and pay any transfer costs, Division 7A tax, capital gains tax or other costs or expenses occasioned by the transfer to the husband of Y property.
6.
The husband transfer to the wife all his shareholding and entitlements in Whelan Group.
7.
The husband resign as a director and any other office bearer in Whelan Group.
8.
The wife and Whelan Group indemnify the husband in relation to the husband ever having been a shareholder, director, secretary or office bearer of Whelan Group.
9.
The husband transfer to the wife any credit or debit loan accounts with Whelan Group and the wife be responsible for and indemnify the husband forever in relation to any debit loan accounts.
10.
The parties shall do all things and sign all documents necessary to wind up the company W Breeding Pty Limited and both parties shall be equally responsible for any liabilities of the said company.
11.
The wife shall be declared the sole and absolute owner at law and in equity of the Jaguar motor vehicle bearing registration number …, and to the extent necessary the parties shall do all acts and things necessary to cause the company Whelan Group Pty Limited to transfer to the wife the said motor vehicle; with the wife to be responsible for and pay any transfer costs, Division 7A tax, capital gains tax, or other costs or expenses occasioned by the transfer to the wife of the Jaguar.
12.
The wife shall be declared the sole and absolute owner at law and in equity of all garden plant and equipment at the W property.
13.
The wife shall be declared the sole and absolute owner at law and in equity of all artwork, sculptures and furnishings in the W property.
14.
The husband and the wife shall each be and hereby are declared to be the sole and absolute owners at law and in equity of all items of furniture, furnishings, personalty, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party’s possession, custody or control together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant.
15.
Liberty to be granted to either party on seven days notice to apply in relation to the implementation of these orders.
16.
In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these orders then pursuant to s 106A Family Law Act that the Registrar of the Family Court of Australia, Sydney Registry, shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
17.
The husband’s application for interim spousal maintenance be dismissed.
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.