FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yamikani & Ain (No 2) [2024] FedCFamC1F 89
File number: SYC 1342 of 2020 Judgment of: CHRISTIE J Date of judgment: 26 February 2024 Catchwords: FAMILY LAW – PROPERTY – De facto relationship – Lengthy relationship – Where the parties intermingled their financial affairs in the purchase of real property and otherwise conducted their financial affairs separately – Where the parties made contributions in a manner consistent with their ultimate legal ownership of assets –Where the parties’ contributions to real property are equal as reflected on title – Where the applicant’s financial contributions exceed those of the respondent as reflected in their ownership of property – Where post-separation the respondent diminished the assets in his name and the applicant conserved and increased the value of assets in his name – Where a s90SF adjustment is made in favour of the respondent in a dollar amount Legislation: Family Law Act 1975 (Cth) Pt VIII and Pt VIIIB, ss 4, 90SF, 90SM, 90XC, 90XD Cases cited: Jabour & Jabour (2019) FLC 93-898
Kane & Kane (2013) FLC 93-569
NHC & RCH (2004) FLC 93-204
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Wallis & Manning (2017) FLC 93-759
Williams & Williams [2007] FamCA 313
Division: Division 1 First Instance Number of paragraphs: 125 Date of hearing: 30 January–2 February 2024 Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Gordon & Barry Lawyers Pty Ltd Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Cunningham Legal ORDERS
SYC 1342 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR YAMIKANI
Applicant
AND: MR AIN
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
26 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The respondent pay to the applicant the sum of $375,000 within 60 days.
2.Simultaneously with the payment in Order 1:
(a)The applicant transfer to the respondent all of his right, title and interest in the property situated at and known as D Street, Suburb E (“the Suburb E property”); and
(b)The applicant and respondent do all acts and things and the respondent pay all sums as may be necessary to discharge the mortgage registered on title of the Suburb E property.
3.In the event the respondent does not comply with Order 1 or 2(b), within 90 days of the date of these Orders the applicant and respondent (collectively “the parties”) shall do all acts and things and sign all documents necessary to effect a sale of the Suburb E property by public auction on the following terms:
(a)The conveyancing solicitor shall be agreed by the parties and failing agreement within 7 days of the date of the Orders as nominated by the applicant (“the sale solicitor”);
(b)The applicant shall nominate 3 agents with whom the Suburb E property shall be listed and failing agreement within 21 days of the date of the Orders as nominated by the applicant (“the real…
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CaseChat Overview and Summary
The court found that the parties' financial affairs were largely separate, with each party maintaining control over their respective assets. The applicant had a higher total asset value, partly due to his contributions to property and the conservation and increase in value of his assets post-separation. The court also noted the respondent's post-separation spending of his investment account and superannuation, totaling $498,761. The court decided to make a s90SF adjustment in favour of the respondent, though it did not consider it equitable to include the applicant's post-separation expenditures in his asset total.
Ultimately, the court ordered that the respondent pay the applicant $375,000 within 60 days. Simultaneously, the applicant would transfer his interest in a property to the respondent, and both parties would cooperate to discharge the mortgage on the property. If the respondent failed to comply, the property would be sold by public auction. The court also provided for the distribution of sale proceeds, closure of joint financial accounts, and release of liabilities and claims between the parties. The court appointed the Registrar to enforce the orders if either party failed to comply.
Orders
Orders of the court
SYC 1342 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR YAMIKANI
Applicant
AND:
MR AIN
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
26 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The respondent pay to the applicant the sum of $375,000 within 60 days.
2. Simultaneously with the payment in Order 1:
(a) The applicant transfer to the respondent all of his right, title and interest in the property situated at and known as D Street, Suburb E (“the Suburb E property”); and
(b) The applicant and respondent do all acts and things and the respondent pay all sums as may be necessary to discharge the mortgage registered on title of the Suburb E property.
3. In the event the respondent does not comply with Order 1 or 2(b), within 90 days of the date of these Orders the applicant and respondent (collectively “the parties”) shall do all acts and things and sign all documents necessary to effect a sale of the Suburb E property by public auction on the following terms:
(a) The conveyancing solicitor shall be agreed by the parties and failing agreement within 7 days of the date of the Orders as nominated by the applicant (“the sale solicitor”);
(b) The applicant shall nominate 3 agents with whom the Suburb E property shall be listed and failing agreement within 21 days of the date of the Orders as nominated by the applicant (“the real estate agent”);
(c) The auctioneer shall be as agreed by the parties and, falling written agreement, shall be as nominated by the real estate agent;
(d) The auction shall be agreed and shall take place no later than 90 days from the date of these Orders;
(e) The reserve price shall be as agreed by the parties and, falling written agreement, shall be $1.5 million.
4. In the event the Suburb E property is not sold at the first auction or within 30 days of the first auction, the applicant and respondent shall do all such acts and sign all documents necessary to cause the Suburb E property to be relisted for sale by auction at 6 weekly intervals and each successive reserve price shall be as agreed by the applicant and respondent and, failing written agreement, shall be 10% lower than the reserve price.
5. For the purpose of these Orders the applicant shall be entitled to attend any open inspection of the Suburb E property and the respondent shall make the Suburb E property available for inspection at such times and dates as requested by the real estate agent and shall otherwise do all acts and things and sign all documents necessary to facilitate and cooperate in the sale of the Suburb E property.
6. Upon settlement of the sale of the Suburb E property, the proceeds of the sale shall be applied in the following manner and priority:
(a) Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b) Payment of any money due and owing to any mortgagee with respect to any loans secured on the Suburb E property;
(c) The balance paid to the trust account of Gordon and Barry; …84 (“the trust funds”).
7. The trust funds held in the trust account of Gordon and Barry pursuant to Order 6(c) shall be distributed as follows:
(a) $375,000 to the applicant or as he directs;
(b) The balance to the respondent.
8. Simultaneously with Order 2 the parties shall do all acts and things and sign all documents necessary to effect the closure of any and all joint bank or financial accounts (“the joint accounts”), and any and all funds standing in credit to the parties in the joint accounts at the time of these Orders shall be distributed equally.
9. Unless otherwise specified in these Orders, the applicant and respondent retain all other items of property in their possession or control at the date of these Orders including superannuation entitlements, funds at bank, home contents, clothing, jewellery and personal effects.
10. The applicant and respondent be solely responsible for any liabilities in their sole name and shall hereafter indemnify the other in respect of same and the respondent shall indemnify the applicant in respect of the body corporate levies and council rates in respect of the Suburb E property.
11. Both the applicant and the respondent hereby release and indemnify 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.
12. In the event that either of the parties refuses or neglects to do any act or thing necessary to give effect to these Orders, the Registrar of this Court is hereby appointed pursuant to Section 106A, Family Law Act, to do such act or thing necessary to give effect to these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The matters which are to be considered are set out in s 90SM and s 90SF of the Act.CONSIDERATION At the conclusion of the hearing the following issues remained the subject of dispute between the parties:(a)The extent to which the parties’ financial affairs were conducted jointly during the relationship and with what consequence(s);(b)The significance of amounts said to have been advanced by the applicant to the respondent during the relationship; and(c)The use of funds by each of the parties after separation. At the time of hearing the applicant’s property is, according to the Joint Balance Sheet which became Exhibit 14: The applicant had included in his list of assets monies which were advanced by him to the respondent commencing in 2010 (which he estimated at $70,000). The advances were made pursuant to an understanding between the parties and repayments were made (albeit not on any specific schedule or at any specific rate). There was no interest payable. The advances had the character of a non-commercial oral agreement. I accept that both parties, by their conduct in record keeping (applicant) and repayments (respondent), treated the funds advanced as having been lent as opposed to gifted. As time passed and the loan was not repaid (after 2016), it may well be that some or all of the monies have, by reason of the statute of limitation in NSW, lost their character as a debt able to be enforced. The applicant’s counsel sensibly conceded that this was the position. The existence of the advances and repayments remain a relevant factor in this case (even though they plainly would not constitute a debt enforceable at law) because of the manner in which they inform the discussion of the parties’ financial arrangements. However, I have not treated the loan as an asset of the applicant in the circumstances described above. In Exhibit 14 the respondent contended that it would be appropriate to include an amount of money as an “addback” in the applicant’s name being $59,928 withdrawn from the applicant’s H Finance account and it is contended not otherwise explained by paid legal fees. Senior counsel for the respondent properly conceded that it would be unusual if I included as notional property money which no was no longer in the applicant’s possession because it had been provided, for example, as Christmas or wedding gifts to family members from the applicant’s separate property after separation. This concession was made in circumstances where broadly both parties agreed that each of the parties were free to expend their own funds as they saw fit after separation. As discussed in some detail below, the respondent realised and spent his investment account and superannuation which together totalled $498,761 after separation. To include monies spent by the applicant (who was also paying rent) in those circumstances would not be just and equitable. Accordingly, the applicant’s assets are: $2,514,933. In addition, the applicant has the following superannuation entitlements: