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  • Unreported Judgment

SAP v JAD

 

[2006] QSC 178

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

SAP v JAD [2006] QSC 178

PARTIES:

SAP (applicant)
v
JAD (respondent)

FILE NO/S:

BS6508/05

DIVISION:

Trial

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

10 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2006

JUDGE:

Atkinson J

ORDER:

  1. That within 14 days of the date of these orders the interest of the respondent in the Ashmore property, described as Lot 554 on RP 138149 County of Ward, Parish of Nerang in the State of Queensland, be transferred to the applicant.
  2. That the applicant retain the real property, furniture and contents situated at the Ashmore property free of any and all claims of the respondent.
  3. The applicant has the sole right to occupy and use the Ashmore property to the exclusion of the respondent.
  4. That other than to comply with these orders, the respondent and or his servants, agents or associates be restrained and an injunction is granted restraining him and them jointly or severally from entering upon or remaining at the Ashmore property.
  5. That from the date of the hearing on 6 April 2006 of this application, the applicant retain to the exclusion of the respondent the benefit of any and all insurance policies relating to the Ashmore property.
  6. That the respondent do all acts and things and sign all documents so as to transfer to the applicant any interest or entitlement the respondent may have under any policy of insurance relating to the Ashmore property.
  7. That the applicant shall assume responsibility for and indemnify the respondent in respect of all claims by the applicant’s mother relating to the payments made by her into the mortgage on the Ashmore property, together with any interest.
  8. That the applicant retain the benefit of the assignment by the official receiver in bankruptcy of the charge created by the Order of Jarrett FM on 6 February 2006 and the respondent shall assume responsibility for any further costs incurred in respect of that charge.
  9. That the respondent shall pay, assume responsibility for and indemnify the applicant in respect of all distributions and allocations to the applicant howsoever and whensoever arising in respect of the D Family Trust.
  10. That the respondent pay, assume responsibility for and indemnify the applicant in respect of all debts, claims and liability howsoever and whensoever arising in respect of the D Family Trust.
  11. That each party shall be solely entitled to the exclusion of the other to all other property presently in his or her name or possession as at the date of these orders including furniture, chattels, bank accounts, shares, superannuation entitlements, choses in action, life insurance, personal items and jewellery.
  12. That the respondent shall do all acts and things and sign all documents or things required to give effect to these orders within the time frame ordered, failing which the registrar of the Supreme Court at Brisbane shall be given authority to execute such documents in the name of the respondent and the respondent shall pay all costs incurred by the applicant seeking to enforce this order.
  13. That other than to comply with these orders the respondent shall be restrained and an injunction granted restraining the respondent from dealing with, disposing of, transferring or encumbering in any way to the detriment of the applicant, his interest in the Ashmore property.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – where there is an application for an adjustment of the parties’ property interests under Part 19 of the Property Law Act 1974 (Qld) – where the length of the de facto relationship was 14 years – where there was one child of the relationship – where both parties made financial and non financial contributions to property – where applicant has sole care of the child of the relationship – where the relationship was marked by domestic violence – whether there was a premature distribution of property – practical distribution of property

Bankruptcy Act 1966 (Qld) s 153B

Domestic Violence (Family Protection) Act 1989 (Qld)

Family Law Act 1974 (Cth) s 75(2), s79

Property Law Act 1974 (Qld) s 260, s 261, s 286, s289, s291 s 293, s 294, s 296, s 297, s 298, s 299, s 302, s 303, s 305, s 308, s 309, s 343

In the Marriage of Milankov (2002) 28 Fam LR 514, applied

COUNSEL:

D L Kellie for the application

Respondent in person

SOLICITORS:

Price & Roobottom for the applicant

Respondent self-represented

  1. This is an application for final orders in a property adjustment application under Part 19 of the Property Law Act 1974 (“the PLA”).
  1. The applicant, SAP,[1] was born on 9 February 1968. The respondent, JAD, was born on 11 April 1968. Both are now 38 years of age and in reasonably good health.
  1. The parties began living in a de facto relationship in January 1990. There were two periods of separation during the relationship from April 1993 to August 1994; and from 21 September 1998 to April 1999.  The relationship finally ended in October 2004.
  1. There is one child of the relationship who was born 7 September 1996. The child now resides with the applicant in the former family home at Ashmore (“the Ashmore property”).
  1. These proceedings commenced by originating application filed on 9 August 2005. The originating application sought a property adjustment of 60% of the net joint and several estate of the parties in favour of the applicant.  In order to give effect to that adjustment the applicant sought an order that the Ashmore property be transferred to her and other specific orders. Those orders were predicated on the estate as it then stood.  By the time of trial, the applicant contended that the only appropriate distribution of property was to transfer the respondent’s interest in the Ashmore property to her.

Property distribution under Part 19 of the PLA

  1. The relationship is clearly one which falls within the definition of a de facto relationship as defined by s 260 and s 261 of the PLA and so falls to be determined according to the provisions of Part 19 of the PLA. Under s 286 the court may make orders adjusting property interests to ensure a just and equitable property distribution at the end of a de facto relationship. In deciding what is just and equitable the court must consider the matters set out in subdivision 3 of Division 4 of Part 19 of the PLA: contributions to property or financial resources,[2]contributions to family welfare,[3] effect on future earning capacity[4] and any other orders that are relevant.[5]
  1. In addition, s 296 of the PLA requires the court to consider the matters set out in subdivision 4 of Division 4 of Part 19 of the PLA, to the extent that they are relevant in deciding what is just and equitable. In this proceeding, those matters were:
  1. the age and state of health of each of the de facto partners;[6]
  1. the income, property and financial resources of each of the de facto partners and the physical and mental capacity of each of them for appropriate gainful employment;[7]
  1. whether either de facto partner has the care of a child of the de facto partners who is under 18 years;[8]
  1. whether either partner is eligible for certain government assistance;[9]
  1. what standard of living is reasonable for each of the de facto partners in all the circumstances;[10]
  1. the length of the de facto relationship;[11]
  1. child maintenance;[12]
  1. any fact or circumstance the court considers the justice of the case requires to be taken into account.[13]
  1. As recommended by the Queensland Law Reform Commission,[14] these matters closely reflect the matters listed in sections 75(2) and 79 of the Family Law Act 1974 (Cth).

Disclosure

  1. Section 289(2) of the PLA provides that a court may make a property adjustment order in favour of a party only if that party has, in accordance with s 289(1), disclosed the party’s financial circumstances in the way prescribed by the rules of court or a practice direction. The stated purpose of Practice Direction 33 of 1999 is to ensure compliance with s 289 of the PLA. The Practice Direction provides:

“1.The applicant for a property adjustment order must serve on the other party, within 10 days after filing the application, a signed statement fully disclosing that party’s financial circumstances and, in particular:

(i)details of all income earned in the 3 years immediately preceding the making of the application, including:

(a)the name of each employer;

(b)the period of employment with each employer;

(c)the capacity in which the party was employed by each employer;

(d)the party’s taxable income during each of the last 3 tax years;

(ii)if the party is self employed – details of that party’s net income in the 3 years immediately preceding the application.  (Financial statements establishing gross income and expenditure incurred in earning gross income must be available for immediate inspection at the other party’s request); …

2.As soon as practicable after receiving the applicant’s statement complying with this direction, and in any event within 10 days of service of that statement, the other party to the application must serve on the applicant a signed statement setting out that party’s financial circumstances as detailed in paragraph 1 above.

3.Nothing in this Practice Direction shall limit a party’s obligation to disclose in full that party’s financialcircumstances relevant to the application.”

  1. Despite being served with the originating application on 10 August 2005 and numerous requests and orders of the court for compliance, the respondent failed to disclose his financial circumstances.
  1. On 6 March 2006, Phillipides J ordered that the respondent be precluded from filing any further material without the leave of the Court. The respondent did not seek leave to file any further material and has not complied with s 289 of the PLA. The effect of this non-compliance is that the Court cannot make an order in favour of the respondent. In any event, no evidence was put forward by the respondent disputing the orders sought by the applicant at the trial.

The parties’ financial circumstances

  1. The parties made several property acquisitions over the course of their relationship. At the commencement of the relationship, the applicant was employed full time and owned a 1980 Toyota Corolla worth approximately $3,000, had savings of $5,000, and superannuation of $1,644.64 and owned personal possessions (including household goods and furniture) in the amount of $2,000. The applicant had no liabilities.
  1. At the commencement of the relationship, the respondent owned a unit at Surfers Paradise (the “Surfers Paradise unit”) worth approximately $48,000, a Ford Laser motor vehicle worth $2,000 and personal possessions and belongings worth $500. The respondent owed his parents between $20,000 and $30,000 for the purchase of the Surfers Paradise unit. This debt was repaid jointly by the applicant and the respondent during the relationship.
  1. The applicant and respondent lived in the Surfers Paradise unit for the first two years of their relationship. The applicant paid for all household expenses with the exception of rates.
  1. In early 1990 the parties started a lawn mowing business called “Broadbeach Lawn and Garden Service”. The applicant was responsible for the initial business stationery being designed and printed, organised advertising and assisted the respondent when she was not otherwise working. The respondent purchased a second-hand 18-month-old Ford utility and lawn maintenance equipment for the business. Throughout the period until April 1992, the applicant held down three jobs as a food manager at a shop in Pacific Fair, a sales assistant at a shoe shop as well as night filler at a supermarket.
  1. In 1992 the Surfers Paradise unit was sold for approximately $84,000 and a property at Broadbeach Waters (the “Broadbeach Waters property”) was purchased for $110,000. The property was purchased in the respondent’s name only. The proceeds from the sale of the Surfers Paradise unit were used to purchase the Broadbeach Waters property, as well as a $50,000 loan from ANZ bank. This $50,000 loan, taken out in both names, was also used to renovate and landscape the property. Both parties were involved in the renovations.
  1. The parties lived at the Broadbeach Waters property until 1996. During this time, the applicant continued to pay for all household expenses including groceries and clothing for both parties.
  1. In April 1993 the couple separated due to domestic violence and a domestic violence order was taken out against the respondent. During the period of separation, the applicant commenced work managing a cafeteria and also obtained a management position at an ice-cream shop. The applicant sold her Toyota Corolla for approximately $3,000 and purchased a Hyundai Excel for approximately $13,000. The applicant borrowed approximately $14,000 from the ANZ bank to fund this purchase.
  1. The parties recommenced cohabitation on or about August 1994. During each period of cohabitation the applicant continued to pay for household expenses. In September 1994 the parties borrowed an additional $35,000 to complete renovations on the Broadbeach Waters property. The applicant commenced work as a chef in a steak house.
  1. In October 1996 a discretionary trust was created, the D Family Trust, which was then used as “a vehicle for wealth creation.”
  1. The Broadbeach Waters property was sold in 1996 for $175,000, the proceeds of which were used to purchase a property at Southport which included a convenience store (“Southport general store”) for $140,000-$160,000. This property was purchased by the D Family Trust. The applicant worked at and managed the Southport general store whilst caring for the parties’ newly born son. The respondent at this time was employed by a food manufacturer. After owning the business for 6 months, the applicant sold her car for approximately $8,000 - $9,000, the proceeds of which went into the Southport general store.
  1. In 1997 the parties purchased, in the respondent’s name, a butchery and house in Southport for $180,000 (the “Southport butchery”). The funds were, jointly borrowed from the ANZ bank. In 1998, the parties jointly purchased another general store in Southport for approximately $12,000 which the applicant renamed (the “Southport mini-mart”). This purchase was financed from business trading profits of the Southport general store. The parties also purchased the residence attached to the Southport mini-mart for $165,000-168,000 (“the attached Southport premises”). The real property was held in the respondent’s name; however the mortgage was in joint names.
  1. The parties again separated for a short period on 21 September 1998. The parties recommenced cohabitation in April 1999. In 1999, the parties sold the Southport mini-mart for $64,000 and let the attached Southport premises for about 3 years. In 2001, the parties sold the Southport butchery and the Southport general store for $340,000 and with that money purchased, in the respondent’s name, a residential property at Ashmore for $150,000 (“the first Ashmore property”). The parties made various renovations to the first Ashmore property. The applicant undertook the interior design tasks such as selection of colour schemes for all the rooms, design of the kitchen and selection of tiles.
  1. In January 2002, the parties jointly purchased property at Shailer Park, Brisbane (“the Shailer Park house”) for $175,000. The respondent worked full time at a fruit market on the Gold Coast during that time. The parties lived in the Shailer Park house for approximately 5 months during which time they let the first Ashmore property. They then sold the Shailer Park house for $225,000. In July 2002 the parties bought back the Southport mini-mart and new tenants rented the attached Southport premises.
  1. In January 2003, the applicant received a workers compensation payment of about $23,000 as result of slipping at work whilst employed at the steak house.
  1. On 22 August 2003, the parties sold the first Ashmore property for $340,000 and simultaneously purchased the Ashmore property for $525,000. The Ashmore property is registered in both names as joint tenants. The applicant paid the deposit of $10,000 of which $5,000 came from her compensation payment. The balance of the money from the workers’ compensation claim went towards furnishing the Ashmore property. The balance of the purchase monies came from a loan from the ANZ bank.
  1. The parties continued to reside together in the Ashmore property until about October 2004 when the relationship finally ended. The applicant was then removed as a trustee of the D Family Trust. The respondent unilaterally arranged for the disconnection of all services and utilities to the Ashmore property on separation and ceased contributions to the private health fund.
  1. Prior to separation the applicant worked at the Southport mini-mart five days a week. The respondent worked there six days a week.

History of proceedings

  1. The applicant commenced proceedings in the Supreme Court of Queensland for a property adjustment order under Part 19 of the PLA in August 2005. The matter came before the Court on 2 September 2005 at which time the respondent disclosed that he had sold the Southport mini-mart business and the attached Southport premises. The applicant had no prior knowledge of this sale. The respondent indicated an intention to apply for bankruptcy at that time.
  1. On 12 September 2005 an order was made by McKenzie J restraining the respondent from dealing with the proceeds of the sale of the Southport mini-mart and the attached Southport premises. The respondent was ordered to account for the sale proceeds.
  1. On 28 September 2005, the order requiring the respondent to account for the proceeds of sale was extended to 4 October 2005 by Mullins J. Documents produced to the court under subpoena from the National Australia Bank and the ANZ Bank revealed that between 19 August 2005 and 25 August 2005 the respondent withdrew $235,000 in cash. On 25 August 2005 the respondent withdrew $180,000 in cash from those accounts.
  1. On 29 September 2005, the respondent lodged with the Insolvency Trustee Service Australia a debtor’s petition under the Bankruptcy Act 1966 which was accepted by the Official Receiver.  The respondent thereupon became bankrupt.
  1. On 3 October 2005, the respondent’s sole affidavit in these proceedings was filed. He deposed that he gambled away the entire proceeds from the sale of the Southport mini-mart and attached Southport premises soon after he withdrew the cash. The respondent did not seek to rely on this affidavit during the trial of this matter and therefore did not make himself available to be cross-examined on the contents of the affidavit. Accordingly there is no evidence before me which enables me to make a finding as to the disposition of the proceeds of the sale.
  1. On 10 February 2006 Federal Magistrate Jarrett made orders annulling the bankruptcy of the respondent pursuant to s 153B of the Bankruptcy Act 1966.[15] His Honour was satisfied that the respondent was solvent at the time the debtor’s petition was filed by him and “that in the circumstances in which the petition was presented in this case by reason of the pending proceedings in the Supreme Court and the apparent solvency of the respondent demonstrates that the petition is an abuse of the process provided for by the Bankruptcy Act.”[16]  Jarrett FM further ordered that the costs, charges and expenses of the Official Receiver in Bankruptcy’s Administration of the respondent’s estate in bankruptcy be agreed upon or taxed and such costs charges and expenses should be a first charge on the respondent’s interest after the secured creditor (ANZ) on the Ashmore property. His Honour further ordered that subject to the above order, the property of the respondent should vest forthwith in the applicant, as trustee for the applicant and the respondent, to hold such property pending the order of the Supreme Court of Queensland in this application.
  1. The applicant paid the costs of the Official Receiver in exchange for assignment of the charge. The applicant paid the costs, amounting to $13,708.97, on her credit card in order to avoid the costs of the Official Receiver realising its charge by the appointment of a statutory trustee for sale.[17]

Assets at separation

  1. The property pool as it stood prior to the applicant filing the originating application was the subject of valuations by agreed experts. The value of the asset pool as it existed at the date of hearing and utilising the values from the expert valuations[18] appears below:
  1. the Ashmore property$565,000
  1. furniture and chattels at the Ashmore property$15,000
  1. 1973 Holden utility$727
  1. money owed to the parties from the D Family Trust$24,951
  1. 2002 Holden Monaro Coupe$38,192

(owned by the D Family Trust)

  1. The proceeds for the sale of the Southport mini-mart and the attached Southport premises that the respondent unilaterally sold without the applicant’s knowledge or consent are not included in this list. The respondent sold this real property and business on or around 19 August 2005 and retained the proceeds of the sale comprising $323,190.23 at settlement and a further $7000 on or around 24 August 2005 (for stock not covered by bank finance). This was done notwithstanding that the respondent had provided an undertaking[19] not to dispose of these assets without the applicant’s consent or a court order on 18 January 2005.
  1. The applicant submitted that the respondent has received a premature distribution of property and that the premature distribution ought to be notionally added back to the parties’ asset pool. The authority for this in the Family Court of Australia is well settled and the authorities on this point are of some assistance here. In In the Marriage of Milankov Kay J observed:[20]

“In several circumstances, well identified by the cases, this first step often involves including in the ‘pool of assets’ items which no longer exist but which in order to do justice and equity to the parties need to be notionally considered in determining what a fair share of the existing pool of assets should be (see In the Marriage of Kowaliw (1981) 7 Fam LN 13; (1981) FLC 91–092;In the Marriage of Townsend (1995) 18 Fam LR 505; (1995) FLC 92–569; In the Marriage of Farnell (1995) 128 FLR 374; (1996) 20 Fam LR 513; (1996) FLC 92–681; Cerini v Cerini (1998) Fam CA 143 (unreported). Frequently this involves a notional consideration of assets which have been in the possession of one of the parties at some time after separation but which have been dispersed for that party’s own use…

The inclusion of these notional add-backs to the pool of assets ought not to be seen as a method of increasing the size of the pool but merely assists the Court in determining what should be a fair share of the pool that is available for distribution.”

  1. The applicant had a legitimate interest in the Southport mini-mart and the attached Southport premises. The mortgage for them was in the name of both parties and the business was purchased in joint names. I am satisfied that the respondent has received a premature distribution of property and will include the proceeds of the sale of the Southport mini-mart and the attached Southport premises to the list of property to be considered in this application. The proceeds of the sale were $330,190.23.
  1. There was some evidence given at the hearing about whether the valuation of the Ashmore property might now be out of date. During cross examination, Mr Elliott, the registered property valuer who valued the property, admitted that the property valuation was 14 months out of date and was probably outside current market value. He did however note that he had more recently reviewed the file. He stated:

“recent sales that I have seen recently wouldn’t indicate that there has been too much movement since that date in that part of the world, but once again I think that’s a matter for the court to determine to see what the relevant date is, and I can basically – not on the spot, but I am actually looking at a few more recent sales that would sort of indicate that it is still within that sort of a band that I described which was 550 to 575 as being the likely range, and as I said, I have probably looked at, you know, 7 to 10 properties that have sold in the Benowa area that would sort of suggest that things haven’t moved too far…”

  1. I am satisfied that the Ashmore property at is worth approximately $565,000.
  1. The applicant also deposes that the following are liabilities for the purposes of this application:
  1. mortgage on the Ashmore property$307,142.03
  1. agent’s selling costs (approx)$14,575
  1. solicitors costs on conveyance (approx) $1,000
  1. Official Receivers Costs$11, 625.13
  1. repayment of loan to the applicant’s mother$24,594.56
  1. Holden Monaro finance$28,715
  1. realisation costs$3,891

Contributions of the parties to property or financial resources – s. 291

  1. It is clear from the evidence provided that the nature of the relationship between the applicant and the respondent was one of partnership that lasted for 14 years. They would buy and renovate property together, and then sell the property to make a profit. With those profits they often purchased businesses and would work together in those businesses. Although I have already outlined a number of the financial and non-financial contributions made by the parties during their relationship, I will briefly refer to the major assets in some more detail.

Initial Contribution

  1. At the outset of the parties’ relationship they had a combined asset pool of approximately $27,500 (excluding superannuation). The applicant contends that she contributed approximately 37% of that initial asset base and the respondent 63%. This figure was contested by the respondent during his cross examination of the applicant and it was put to her that her contribution was somewhat less that 37%. This was rejected by the applicant, and since the respondent has provided no evidence to contrary, I am prepared to accept those figures as the initial contribution. In any event, the duration of the relationship and the partnership between the parties significantly decreased the significance of the initial contribution in this case.

The Southport mini-mart and the attached Southport property

  1. As stated above, the attached Southport property was purchased in 1998 in the name of the respondent, yet the mortgage was in both names. The parties jointly purchased the Southport mini-mart. The parties ran the mini-mart and lived together in the adjacent premises.
  1. They then sold the Southport mini-mart in 1999 and let the adjacent premises. In 2004 the parties bought back the Southport mini-mart and both parties worked for the business. I am satisfied that there was an equal contribution to this property and business.

The D Family Trust

  1. The sole trustee of that entity is now the respondent, pursuant to the removal of the applicant from that role in October 2004. There are 8 primary beneficiaries noted in the trust deed, however the annual tax returns disclose that the applicant, the respondent and their son have historically been the only beneficiaries receiving income from the trust.
  1. In 2003/2004, 6 months after separation, the respondent allocated $12,298.00 to the applicant from the D Family Trust after also removing her as a trustee. The applicant did not receive those monies.
  1. A preliminary valuation by an agreed single expert provided a draft assessment which valued the D Family Trust at ‘nil’ with both parties as beneficiaries having an account outstanding of $12, 475. 

The Ashmore property

  1. As stated above, the property is registered in both parties’ names as joint tenants. The respondent’s interest in that property is presently vested in the applicant as trustee for the respondent pursuant to the order made by Jarrett FM. It appears that the applicant paid the deposit for this property, and continues to pay the mortgage on the property with the help of her mother. The child of the relationship currently resides with the applicant at the property.

Contributions to welfare – s292

  1. It appears that the applicant was the primary caregiver during the relationship. The applicant also paid for most household expenses such as clothing, food and household bills. Since the de facto relationship ended, the child of the relationship lived with the applicant.

Effect on future earning capacity – s293

  1. The future earning capacity of either party should not be affected by the property adjustment sought by the applicant or any other alternative order.

Child support – s294

  1. The respondent has been assessed to pay $20.96 per month in child support. It appears that this is currently being paid.

Other orders – s295

  1. The explanatory notes to section 295 explain that section 295 facilitates a court’s considering an order made under the Domestic Violence (Family Protection) Act 1989.
  1. The parties’ relationship was marked with domestic violence and there have been several protection orders. In 1994, the applicant took out the first domestic violence order against the respondent. Since separation there has been ongoing abuse, intimidation and harassment of the applicant and the parties’ child. Both the applicant and the child are undergoing counselling. There is a current order in place until January 2007.

Just and Equitable Issues

  1. As stated above both parties are in reasonably good health and are both 38 years of age. The applicant does, however, suffer from back injuries sustained in a workplace accident in 2003. The applicant has almost completed a chef’s apprenticeship but finds it difficult to work as a chef given her injuries. She has previous experience in retail, but does not possess any other qualifications and, given her injuries, it may be difficult for her to undertake appropriate gainful employment. It is not known whether the respondent is currently employed.
  1. The respondent has substantially more superannuation that the applicant. The respondent’s superannuation was disclosed in a report to his creditors as being approx $20,501. The applicant’s superannuation is only $1,644.64.
  1. As stated above, the applicant has had sole care of the child of the relationship, currently aged 9, since separation. Apart from the $21 a month child support, the respondent paid a one off amount of $500. The applicant is in receipt of a single mother’s pension which gives her an income of approximately $300 per week. That pension is income tested and so must be disregarded for the purpose of this application.
  1. The applicant estimates her weekly expenses as $1,055 which includes payment of the mortgage on the Ashmore property. The respondent has made no financial contribution to the Ashmore property since January 2005.

Property Adjustment

  1. The applicant submitted at the trial that the only just and practical distribution of property was to order the transfer of the whole of the respondent’s interest in the Ashmore property to the applicant. If the property realizes the valuation of $565,000 the net proceeds after mortgage repayment, repayment to the applicant’s mother and the costs of sale will be approximately $221,624.08. In the draft order presented after trial, the applicant also sought a further payment of $160,000 from the respondent to the applicant. This was not however the subject of submissions. The respondent was unrepresented and it would be a denial of procedural fairness to make such an additional order without giving him the opportunity to be heard.
  1. In all of the circumstances I am satisfied that the distribution sought by the applicant during the trial is the most practical disposition of the property.

Orders

  1. The orders will be as follows;  
  1. That within 14 days of the date of these orders the interest of the respondent in the Ashmore property, described as Lot 554 on RP 138149 County of Ward, Parish of Nerang in the State of Queensland, be transferred to the applicant.
  1. That the applicant retain the real property, furniture and contents situated at the Ashmore property free of any and all claims of the respondent.
  1. The applicant has the sole right to occupy and use the Ashmore property to the exclusion of the respondent.
  1. That other than to comply with these orders, the respondent and or his servants, agents or associates be restrained and an injunction is granted restraining him and them jointly or severally from entering upon or remaining at the Ashmore property.
  1. That from the date of the hearing on 6 April 2006 of this application, the applicant retain to the exclusion of the respondent the benefit of any and all insurance policies relating to the Ashmore property.
  1. That the respondent does all acts and things and sign all documents so as to transfer to the applicant any interest or entitlement the respondent may have under any policy of insurance relating to the Ashmore property.
  1. That the applicant shall assume responsibility for and indemnify the respondent in respect of all claims by the applicant’s mother relating to the payments made by her into the mortgage on the Ashmore property, together with any interest.
  1. That the applicant retain the benefit of the assignment by the official receiver in bankruptcy of the charge created by the Order of Jarrett FM on 6 February 2006 and the respondent shall assume responsibility for any further costs incurred in respect of that charge.
  1. That the respondent shall pay, assume responsibility for and indemnify the applicant in respect of all distributions and allocations to the applicant howsoever and whensoever arising in respect of the D Family Trust.
  1. That the respondent pay, assume responsibility for and indemnify the applicant in respect of all debts, claims and liability howsoever and whensoever arising in respect of the D Family Trust.
  1. That each party shall be solely entitled to the exclusion of the other to all other property presently in their name or possession as at the date of these orders including furniture, chattels, bank accounts, shares, superannuation entitlements, choses in action, life insurance, personal items and jewellery.
  1. That the respondent shall do all acts and things and sign all documents or things required to give effect to these orders within the time frame ordered, failing which the registrar of the Supreme Court at Brisbane shall be given authority to execute such documents in the name of the respondent and the respondent shall pay all costs incurred by the applicant seeking to enforce this order.
  1. That other than to comply with these orders the respondent shall be restrained and an injunction granted restraining the respondent from dealing with, disposing of, transferring or encumbering in any way to the detriment of the applicant, his interest in the Ashmore property.

Footnotes

[1] Initials are used to avoid identifying the parties: PLA s 343

[2] PLA s291

[3] PLA s292

[4] PLA s293

[5] PLA s294

[6] PLA s 297

[7] PLA s 298

[8] PLA s 299

[9] PLA s 302

[10] PLA s 303

[11] PLA s 305

[12] PLA s 308

[13] PLA s 309

[14] De Facto Relationships QLRC Report No. 44, June 1993

[15] [2006] FMCA 379

[16] (supra) at [20]

[17] Copy of the acknowledgment/assignment of charge executed by the Official Trustee in Bankruptcy               is exhibited in the applicant’s affidavit filed on 5 April 2006 as “SAP10”.

[18]During the course of negotiations between the applicant and respondent, it was agreed that               valuations of real property, business and vehicles would be required and a number of expert valuers               were engaged jointly by the parties to value the assets. see the Affidavit of D A Reardon filed on 26               September 2005.

[19]A copy of that undertaking is exhibited as “SAP5” to the applicant’s affidavit filed on 22 March 2006.

[20] (2002) 28 Fam LR 514 at [113]-[114]

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Editorial Notes

  • Published Case Name:

    SAP v JAD

  • Shortened Case Name:

    SAP v JAD

  • MNC:

    [2006] QSC 178

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    10 Jul 2006

Litigation History

No Litigation History

Appeal Status

No Status