Yardley and Yardley - [2011] FMCAfam 1172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YARDLEY & YARDLEY

[2011] FMCAfam 1172

FAMILY LAW – Property settlement – assessment of contributions – assessment of non-contribution considerations – adjustment for superannuation where no splitting order sought.

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

Hickey & Hickey; A-G for Commonwealth (Intervener) [2003] FamCA 395; (2003) FLC 93-143; (2003) 30 Fam LR 355
C & C [2005] FamCA 429, (2005) 33 Fam LR 414, (2005) FLC 93-220
Cabbell & Cabbell [2009] FamCAFC 205
Norman & Norman [2010] FamCAFC 66

Applicant:

MS YARDLEY

Respondent:

MR YARDLEY

File Number:

PAC 3851 of 2010

Judgment of:

Halligan FM

Hearing dates:

22, 23, 29 September 2011, 7 November 2011

Date of Last Submission:

29 September 2011

Delivered at:

Parramatta

Delivered on:

11 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Bolger

Solicitors for the Applicant:

Lex Fori Lawyers

Counsel for the Respondent:

Ms Druitt

Solicitors for the Respondent:

Mosca and Scott Solicitors

ORDERS

So much of the orders made on 18 May 2011 as were made in accordance with the Terms of Settlement then marked Exhibit B, providing for the sale of the parties’ properties at [P] and [R], are discharged.
The parties shall do all such things and sign all documents as may be necessary to effect the sale of the property known as

Property P, (“[P]”).
[P] shall be listed for sale with such real estate agent as the parties may agree in writing from time to time.
In the event that [P] is not the subject of exchanged contracts for sale by 4pm on the date 3 months from the date of these orders, the Respondent Husband shall make all such arrangements and do all such things and sign all such documents and pay all moneys necessary to procure a sale by public auction of [P], upon the following terms:
(a)The auctioneer shall be the real estate agent appointed under Order 3 above or such auctioneer as the said agent shall nominate.
(b)The auction shall take place 6 weeks after the period of 3 months referred to above shall have expired.
(c)The reserve price for [P] shall be as agreed between the parties and if there is no agreement the reserve price shall be as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales.
(d)The Respondent Husband shall be responsible for the auction expenses payable before [P] is auctioned and the Husband shall be entitled to a refund of such expenses at completion of the sale.
In the event that [P] is not sold by auction or private treaty within 14 days after the said auction, the Respondent Husband shall do all such acts and sign all necessary documents and pay all moneys, necessary to procure a second auction within a further period of 5 weeks from the date of the first auction, but otherwise upon the same terms and conditions as apply to the first auction except that the reserve price shall be…

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 Yardley and Yardley

Details

AGLC: Yardley and Yardley [2011] FMCAfam 1172
Case: [2011] FMCAfam 1172
Decision Date: 11 November 2011

CaseChat Overview and Summary

In the Family Court of Australia, Yardley and Yardley were the parties involved in a dispute concerning the division of their assets following the breakdown of their marriage. The primary concern was the sale of two properties, one in New South Wales and another in Queensland, and the subsequent distribution of the sale proceeds. The court was tasked with determining the terms and conditions under which the properties should be sold and the manner in which the proceeds should be divided between the parties. Additionally, the court had to address the ownership of another property and an investment account.

The legal issues before the court included the enforcement of settlement terms, the conditions under which the properties should be sold if the parties could not agree on a sale price or method, and the division of proceeds from the sale of the properties. The court also needed to confirm the ownership of a specific property and an investment account held by one of the parties. The court was required to ensure that the sale of the properties proceeded in a manner that was fair and equitable, considering the interests of both parties.

In its reasoning, the court noted that the original settlement terms had been breached, leading to the discharge of certain orders. It then set out detailed conditions for the sale of the properties, including the appointment of real estate agents, the method of sale (private treaty or auction), and the process for setting the reserve prices. The court provided a structured approach to the sale, including a cycle of auctions with decreasing reserve prices if the properties did not sell within specified timeframes. The division of the sale proceeds was also clearly outlined, with specific percentages allocated to each party. The court also resolved the ownership of the other property and the investment account, providing clarity on these matters.

The final orders of the court included the discharge of certain previous orders, detailed instructions for the sale of the properties, and a specific division of the proceeds from the sales. The court also confirmed the ownership of the other property and the investment account, providing a comprehensive resolution to the parties' disputes.

Orders

Orders of the court

So much of the orders made on 18 May 2011 as were made in accordance with the Terms of Settlement then marked Exhibit B, providing for the sale of the parties’ properties at [P] and [R], are discharged.

The parties shall do all such things and sign all documents as may be necessary to effect the sale of the property known as

Property P, (“[P]”).

[P] shall be listed for sale with such real estate agent as the parties may agree in writing from time to time.

In the event that [P] is not the subject of exchanged contracts for sale by 4pm on the date 3 months from the date of these orders, the Respondent Husband shall make all such arrangements and do all such things and sign all such documents and pay all moneys necessary to procure a sale by public auction of [P], upon the following terms:

(a) The auctioneer shall be the real estate agent appointed under Order 3 above or such auctioneer as the said agent shall nominate.

(b) The auction shall take place 6 weeks after the period of 3 months referred to above shall have expired.

(c) The reserve price for [P] shall be as agreed between the parties and if there is no agreement the reserve price shall be as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales.

(d) The Respondent Husband shall be responsible for the auction expenses payable before [P] is auctioned and the Husband shall be entitled to a refund of such expenses at completion of the sale.

In the event that [P] is not sold by auction or private treaty within 14 days after the said auction, the Respondent Husband shall do all such acts and sign all necessary documents and pay all moneys, necessary to procure a second auction within a further period of 5 weeks from the date of the first auction, but otherwise upon the same terms and conditions as apply to the first auction except that the reserve price shall be only 90% of the reserve at the immediately preceding auction. This cycle of auctions shall then re-occur until [P] is sold, with the reserve adjusting each cycle to 90% of the reserve last set.

Upon completion of the sale of [P] the proceeds of sale are to be applied as follows:

(a) To pay all costs and commissions in relation to the sale of [P] including a refund to the Husband of the auction expenses he has paid out.

(b) The Wife to receive 50% of the sale proceeds plus $100,000.

The parties shall do all such things and sign all documents as may be necessary to effect the sale of the property known as Property R (“[R]”) being the whole of the land described as Certificate of Title volume [omitted] in the State of Qld.

The listing price for [R] shall be as agreed between the parties.

[R] shall be listed for sale with a real estate agent as agreed and the parties shall instruct Queensland solicitors/conveyancers to prepare the contract for sale and have the carriage of the sale on behalf of both parties.

10.

In the event the parties can not agree on price agent or solicitor/conveyancer, then the President of the Real Estate Institute for Qld shall nominate such and the cost of such nomination shall be born equally by the parties.

11.

In the event that [R] is not the subject of exchanged contracts for sale by 4pm on the date 9 months from the date of these orders, the Respondent Husband shall make all such arrangements and do all such things and sign all such documents and pay all moneys necessary to procure a sale by public auction of [R], upon the following terms:

(a) The auctioneer shall be the real estate agent appointed under Order 9 or 10 above or such auctioneer as the said agent shall nominate.

(b) The auction shall take place 6 weeks after the period of 9 months referred to above shall have expired.

(c) The reserve price for [R] shall be as agreed between the parties and if there is no agreement the reserve price shall be as advised by a valuer nominated by the President of the Real Estate Institute of Queensland.

(d) The Respondent Husband shall be responsible for the auction expenses payable before [R] is auctioned and the Husband shall be entitled to a refund of such expenses at the completion of the sale.

12.

In the event that [R] is not sold by auction or private treaty within fourteen (14) days after the said auction, the Respondent Husband shall do all such acts and sign all necessary documents and pay all moneys, necessary to procure a second auction, within a further period of 5 weeks from the date of the first auction, but otherwise upon the same terms and conditions as apply to the first auction except that the reserve price shall be only 90% of the reserve at the immediately preceding auction. This cycle of auctions shall then re-occur until [R] is sold, with the reserve adjusting each cycle to 90% of the reserve last set.

13.

Upon completion of the sale of [R] the proceeds of sale are to be applied as follows:

(a) To pay all costs and commissions in relation to the sale of [R] including a refund to the Husband of the auction expenses he has paid out.

(b) The Wife to receive 50% of the sale proceeds.

14.

The Husband shall retain to the exclusion of the Wife all his right, title and interest in the property known as Property S, [S].

15.

As between the Husband and the Wife, the investment in the name of the Husband as trustee for [X] with [B] Investment Management Pty Ltd is declared to be the sole and beneficial property of [X] as and from this date.

16.

Except as otherwise provided in these orders, the Husband and the Wife are each entitled to be the sole legal and beneficial owners of all items of personal property including money, motor vehicles, superannuation, insurance, equities, furnishings, furniture, household effects and personal effects currently in the possession or control of each other respectively.

17.

The parties shall do all acts and things and execute all documents, instruments, authorities and writings and give all consents necessary to give effect to the Orders herein, and in the event of either party neglecting or refusing to execute such Deeds, documents etc, the Registrar is hereby empowered to execute such Deeds, documents etc pursuant to Section 106A of the Family Law Act 1975.

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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