Constable v Bell [2006] NSWSC 45 | Case summary

(a) whether the goodwill of the business carried on by Mr Bell, under the name Web Greyhound Racing and Breeding Kennels, was property of his to be considered in the first stage of the exercise; (b) whether the goodwill can be valued and, if so, what value should be attributed to it; (c) the extent of Ms Constable's contribution to the care of the greyhounds and otherwise to the greyhound breeding, training and racing business; (d) how the parties' respective section 20(1)(a) and (b) contributions should be valued, and in particular how the value of the investments in real estate made by Mr Bell prior to the birth of Samantha should be assessed and allowed for; and (e) what adjusting order is just and equitable. 8 Before dealing with the matters in dispute, it is necessary to flesh out the parties' circumstances. Acquisition of Assets 9 When the relationship commenced in 1984, Ms Constable had no assets of significance. The parties lived in rental accommodation. They were both liable for the rent. For a period of about six months she obtained part-time paid employment as a packer at a warehouse in Liverpool, before she was laid off. During this period she contributed her wages to the parties' joint expenses. Otherwise, the expenses were met by Mr Bell, who, at that time, had a job as a storeman and packer. 10 Mr Bell owned a block of land at Bargo, which he had purchased in 1981 for about $5,000. He also had a car and savings of about $10,000. 11 The parties opened a joint account early in their relationship, into which they placed a few hundred dollars they had won in a lottery. From time to time, Mr Bell transferred sums into that account at random. It was used to pay some expenses and to pay for holidays. 12 In about 1986, the parties gave up the lease to save money on accommodation. For about six months, Ms Constable went back to live with her mother and Mr Bell also went home to live. They resumed living together in 1987 when they moved into a house Mr Bell purchased in his name at Gibson Avenue, Casula. Neither party suggested that their relationship, as de facto husband and wife, came to an end during the period their cohabitation was interrupted. 13 Mr Bell bought the house at Gibson Avenue, Casula, in 1987 for $66,000. The purchase price was partly funded by the proceeds of sale of the Bargo property, which had been sold in 1986 for $20,000. It was partly funded by a workers' compensation payout of about $20,000 received by him. The balance was obtained by borrowing from the St George Bank. The borrowing was made by Mr Bell alone. His income was used to meet the mortgage payments. 14 At about the time Mr Bell purchased the Gibson Avenue property, he also bought an investment property at Blayney. The price was $40,000. The majority of the price was paid with borrowings made by Mr Bell from the St George Bank. Subsequently, he bought a block of land at Callala Bay for $28,000. He paid a ten per cent deposit from his savings. The rest of the purchase price was borrowed from St George. Again, Mr Bell was the sole borrower, and he paid the loan instalments. 15 Samantha was born in December 1989. In November or December 1990, Mr Bell sold the Gibson Street property for about $120,000. The net proceeds of sale, after paying off the mortgage, were about $80,000. They were applied to the purchase of a house at Guise Avenue, Casula, for $220,000. This became the family home for the next seven years. It was purchased in Mr Bell's name. He borrowed $100,000 to assist with the purchase of Guise Avenue. 16 During the seven years the parties lived at Guise Avenue, they effected improvements to the property at a cost of $29,000. These improvements were funded by Mr Bell. 17 In 1992 Mr Bell sold the land at Callala Bay for about $50,000 and the investment property at Blayney for $81,000. The net proceeds of sale were applied towards the purchase of an investment property at Bathurst Street, Liverpool, for $195,000. The balance of the purchase price was provided by St George Bank and was borrowed by Mr Bell. According to the plaintiff, he initially bought the property with his mother and later acquired her share. 18 Up to about 1994 or 1995, Mr Bell was variously employed in the advertising industry. In 1994 or 1995, he started his own publishing business called Bellingham Publishing. He conducted this business until 2001. He also started training greyhounds, about which more later. 19 In 1996 or possibly 1997, (the evidence is inconsistent), Mr Bell sold the Bathurst Street, Liverpool, property for $275,000. The net proceeds of sale, after discharging the mortgage, were about $175,000. 20 In June 1997, Mr Bell sold the family home at Guise Avenue, Casula, for $225,000. The family moved to 145 Eighth Avenue, Austral. Mr Bell bought that property for $380,000. The purchase was partly funded by an advance of $230,000 from St George Bank. St George insisted on the loan being made to both Mr Bell and Ms Constable. She assumed liability for the repayment of the loan, but the repayments were made by Mr Bell. He was the only one of the two who earned an income, or owned property. 21 In 1992, Mr Bell purchased a greyhound bitch called Web of Silence. In 1993 or early 1994, he brought Web of Silence to the Guise Avenue property. He raced her for about eighteen months, during which period she won $3,000 to $4,000. He then organised for her to be bred. Over the ensuing years she had about seven litters. Mr Bell kept two dogs, Go Wild Teddy and Mean Bean, for racing and three brood bitches. Later he sold Go Wild Teddy and, in due course, repurchased a half-interest in that dog. Ms Constable assisted in the care of the dogs. The extent of her work increased as the number of dogs to be cared for increased and as the scale of racing activities increased. Racing necessitated Mr Bell's travelling to country and interstate race meetings, and meant that he was absent from home for varying periods. Moreover, until 2001, he worked in his publishing business. Although he worked with the dogs, or for the dogs, in the mornings before work and at night, Ms Constable looked after them during the day when he was working. The dogs needed attention every four hours. Mr Bell acknowledged that at this time, that is to say, before 2000, Ms Constable helped in the care of the dogs in the mornings and spent up to three hours each day feeding them and cleaning their kennels. She said that she helped eight hours a day, seven days a week. On some days I accept that this was true, but I do not accept that she worked those hours on all days from the mid 1990s. Nonetheless, her contribution to the care of the dogs was undoubtedly a very substantial one and was acknowledged as such by Mr Bell, as I understood his evidence. 22 The only reason identified in the evidence for the parties moving from Guise Avenue, Casula, to Eighth Avenue, Austral, was to move to a larger property for housing and exercising of the dogs. The Austral property is on land of 1.2 hectares, about ten kilometres west of Liverpool. 23 Ms Constable had grown up around greyhounds, but she was not happy about Mr Bell's hobby, which became a business. She told him more than once that she was not interested in their having dogs or breeding them. When Mr Bell purchased Web of Silence, he did so without informing her. He kept that dog for twelve months at a friend's house. When assessing the contribution made by Ms Constable in caring for Mr Bell's dogs, it is relevant that she took up a burden which she had made known to Mr Bell she was unwilling to assume. 24 The mortgage over Austral was discharged from the proceeds of sale of the Guise Avenue, Casula, and Liverpool properties. There was about $80,000 left over. 25 By July 2000, Mr Bell acknowledged that his enterprise in breeding, training and racing greyhounds had become a business enterprise. Prior to that time he kept six dogs at Austral. In June or July 2000, he registered the business name Web Greyhounds Racing and Breeding Kennels. He registered for GST purposes from 1 July 2000. He started to run the business full-time. He acquired more dogs and built more kennels, to bring the number of dogs up to twenty-three, plus their pups. 26 In the financial year ended 30 June 2001, Mr Bell must have derived substantial income from his activities as a trainer of greyhounds. Go Wild Teddy, which he trained, won the Melbourne Cup for greyhounds. Mean Bean was transferred to Ms Constable's name and won the Derby, earning prize money of $61,000. Half of this was earned by Mr Bell as trainer and half by Ms Constable. 27 In February 2001, Mr Bell purchased an investment property at 133 Wanawong Street, Belimba Park, for $320,000. $110,000 of the purchase price came from the parties' joint account. The account was in credit as a result of various moneys having been deposited into it by Mr Bell, including the $80,000 left over from the sale of the Guise Avenue and Liverpool properties, and after the discharge of the mortgage over the property at Eighth Avenue, Austral. The winnings were also paid into that account. Mr Bell borrowed $160,000 from St George to assist with the purchase. He has met the mortgage repayments on the property. 28 In 2003 Mr Bell paid $85,000 in two instalments to acquire a half share in Go Wild Teddy. Funding of Expenses 29 From 1990 until 22 October 2004, Mr Bell paid Ms Constable $600 per week to fund her living expenses and the household's every day expenses, such as food and groceries. He also paid the expenses for the house, such as water, electricity, telephone and rates. Prior to 1990, he paid her $300 per week. The allowance was increased when Samantha was born, but remained unchanged for fourteen years. At no time did Ms Constable earn an income. Nor did she receive social security payments. She remained dependent on Mr Bell until he stopped the allowance, following their separation. 30 From year 1, Samantha has attended a local private school. Mr Bell funded Samantha's school fees, which increased from about $4,000 per year in 1996 to $7,440 per year currently. 31 Although the parties separated on 8 July 2004, Ms Constable has continued to reside at Eighth Avenue, Austral. At separation, she had $10,000 in an account in her name, but that money had been spent at the time of the hearing. It was spent on general living expenses. An unidentified amount was used to pay legal costs. Both parties claim to have paid for Samantha's food and other expenses since separation. Since September 2005, Ms Constable has been employed three days a week, earning $380 per week after tax. 32 Mr Bell has agreed with Ms Constable that he will continue to pay Samantha's school fees and tutoring, and that he will pay $100 per week for her support. Surprisingly, Ms Constable accepts that this is a fair and equitable contribution to be made by him in relation to Samantha. Because of Mr Bell's declared level of income, the Australian Government Child Support Agency has decided that he is not liable to make any contribution by way of child support. 33 In any event, Ms Constable's need for child support is not of primary relevance in determining what adjusting order under s 20 is just and equitable. However, it forms part of the context in which a determination is to be made of what adjustment is just and equitable, having regard to the matters in paragraphs (a) and (b) of subsection 20(1). The needs and means of the parties have a general relevance, as subsidiary factors, to the question of what is just and equitable, having regard to the contributions of the parties. (Evans v Marmont (1997) 42 NSWLR 70 at 75 and 79-80; Chanter v Catts [2005] NSWCA 411 at para 206). Parties' Assets at the Hearing 34 It is common ground that the parties owned the following assets at the time of the hearing: Ms Constable owns a 1998 Holden Commodore valued at $10,000, and shares valued at $5,100. She also owns another Holden Commodore, having an agreed value of $10,650, which is driven by Mr Bell. She has no savings and no other property. She is the trustee of an investment for Samantha, but it was ultimately common ground that this was not property of hers to be taken into account. Her assets at the date of hearing are worth $25,750. 35 Mr Bell owns the house at 145 Eighth Avenue, Austral, which has an agreed value of $1,150,000. He also owns the investment property at 133 Wanawong Street, Belimba Park, which has an agreed value of $500,000. It is subject to a mortgage to secure an outstanding balance of $67,991. It is common ground that this property will be sold, that the costs of sale will be $11,050 and that Mr Bell will have a liability for capital gains tax of $16,518. After discharging the mortgage and Mr Bell's capital gains tax liability, and after allowing for the costs of sale, the agreed value of this property is $404,441. 36 Mr Bell owns shares worth $4,915. His half interest in the dog Go Wild Teddy is valued at $30,000. His beneficial interest in other greyhounds is valued at $15,200. He transferred the ownership of those dogs to his mother in an attempt to strip himself of assets, but acknowledges that his mother holds the dogs for him. He has a savings account with about $3,000, and a credit card debt of about $6,000. 37 Leaving aside the question whether the goodwill of Mr Bell's business is a valuable asset, his assets should be taken to have a value of $1,601,550. The parties' combined assets total $1,627,300. 38 The imbalance of the parties' assets is not itself a reason for making an adjusting order. Ms Constable says, however, that her contribution as a homemaker and as a parent, and her contribution to Mr Bell's business, is such that she should receive half of the value of the parties' combined assets, and these should include a substantial sum representing the value of the goodwill of Mr Bell's business. Mr Bell says that Ms Constable should receive thirty per cent of the combined value of the parties' assets, and that these should not include any amount for goodwill. Goodwill of the Defendant's Business 39 I will deal first with the question of the goodwill of the defendant's business. It was submitted for Mr Bell that what the plaintiff called the goodwill of his business was, in truth, no more than his capacity to earn income in the future by deploying his personal skills to the assets which have already been included in the valuation. Whilst the plaintiff's contributions to the business, which have enhanced his capacity, would fall to be taken into account as a contribution to his welfare under s 20(1)(b), there was, so it was submitted, no separate item of property to be valued as part of the first stage of the three-stage process identified in the authorities. Such goodwill as existed was entirely personal and could not be realised on sale. 40 Provided that it is recognised that Ms Constable's contribution to the care of Mr Bell's dogs has value, not only for helping Mr Bell earn income in the past but in allowing him to establish himself in the industry as a breeder and trainer, such that he is likely to continue to generate earnings, and provided proper allowance is made for that benefit derived from her contribution, I do not think it matters whether goodwill is separately identified as property to be valued under s 20(1)(a). However, in my view, such goodwill should be identified and valued, if possible, as part of the defendant's property, to the acquisition of which the plaintiff contributed. 41 It is now firmly established that goodwill is property in Federal Commissioner of Taxation v Murry (1998) 193 CLR 605. Gaudron, McHugh, Gummow and Hayne JJ said, at para 23: " From the viewpoint of the proprietors of a business and subsequent purchasers, goodwill is an asset of the business because it is the valuable right or privilege to use the other assets of the business as a business to produce income. It is the right or privilege to make use of all that constitutes "the attractive force which brings in custom." Goodwill is correctly identified as property, therefore, because it is the legal right or privilege to conduct a business in substantially the same manner and by substantially the same means that have attracted custom to it. It is a right or privilege that is inseparable from the conduct of the business." (See also para 30 and footnote 44) .

46 When pressed with this discrepancy, Mr Bell said that up to the financial year ended 30 June 2000, he received winnings from his work as a trainer. He said that up to that time he carried on that work as a hobby and that these winnings were not included in his taxable income. For subsequent years, he explained the difference between his expenditure and reported income on the basis of successful gambling. There were no records of the bets. He did not have an account with a bookmaker. Although Ms Constable confirmed that there were some successful bets, I do not accept his evidence that he made "probably $150,000" from betting on dogs and horses between 1999 and 2004. 47 At least part of the explanation for the discrepancy between Mr Bell's expenditure and his reported taxable income is that Mr Bell transferred dogs into Ms Constable's name in anticipation that she would take the dog's winnings and put the winnings back into his account, but not declare them as income. Ms Constable never lodged a tax return. There was one clear example of this. The dog Mean Bean was transferred into her name shortly before "the Derby" in the 2000/2001 financial year. Notwithstanding the transfer, Mr Bell regarded the dog as his. The dog won the derby and won prize money of $61,000 or $61,990. Mr Bell said that only half of the winnings were accounted for as revenue of his, being the share due to a trainer. Nonetheless, all of the money went into his account. Ms Constable did not declare her share of the winnings as income. It was her evidence that dogs were transferred into her name so that Mr Bell would not have to pay a lot of tax. 48 For these reasons, I consider that the reported earnings of Mr Bell's business are understated. I cannot say to what extent they are understated. It is not possible to hazard a guess at the value of his business over and above the value of the tangible assets employed in it. They have already been included in the valuation of his assets referred to above. 49 I propose to take account of Ms Constable's contribution to the goodwill of the business in a global way when assessing the value of the parties' contributions under s 20(1)(a) and (b), without adopting a specific value for that goodwill. Ms Constable was a party to the understatement of earnings. Neither party can complain if an adjusting order in respect of the remaining identified property makes either too great or too little allowance for the extent to which her efforts have contributed to the defendant's goodwill. Parties' Section 20(1)(a) and (b) Contributions 50 I turn to the parties' contributions. The plaintiff's counsel identified four areas of contribution. First, Ms Constable was primarily responsible for domestic duties during the whole period of the relationship. She did the cooking, cleaning, washing and other duties associated with the care of the home. 51 Secondly, from 1989, she was the primary caregiver to their daughter, Samantha. These are very important contributions. They are not to be given token significance. They are to be given "full and proper" value, but not a value measured by reference to an external index, such as the cost of obtaining corresponding services from a domestic employee or an external provider (Evans v Marmont at 74). 52 Thirdly, the plaintiff's counsel referred to Ms Constable's contributions in assisting Mr Bell in the care of the greyhounds. As I have said, Mr Bell trained, raced and bred greyhounds from the mid 1990s, and the scale of his activities increased in about July 2000, from six dogs to twenty-two or twenty-three dogs and their litters. He had six dogs when the parties moved to Austral in 1997. Ms Constable helped feed, care for and exercise the dogs, and clean their kennels and exercise areas. She also did some of the paperwork for the business, such as preparing invoices. When, as not infrequently happened, Mr Bell was away at country or interstate race meetings, she had the entire care of the operation. 53 I have already said that I do not accept her evidence that she spent approximately eight hours a day, seven days a week for the whole of the period. Nonetheless, there were times when she worked at least that long, particularly when Mr Bell was away, which he was, quite frequently. I do not think it necessary to express an opinion on the average length of time worked by Ms Constable per day with Mr Bell's dogs. 54 There is no doubt that her assistance was valuable and time-consuming. I accept, however, that Mr Bell made the strategic decisions as to which dog and bitch should be put together for breeding purposes, and that he made the strategic decisions in connection with the dogs' training and racing. 55 Ms Constable's counsel also referred to her contributions towards making lease payments and household expenses when she was employed for about six months in 1985. I consider this to be of minimal significance. 56 Also relevant when considering her contributions is the fact that, although Mr Bell financed the purchase of properties, and he alone dealt with the real estate agents, the bank and the solicitors, Ms Constable participated in selecting the properties for purchase. There was no discussion about whether some or all of the properties should be put in the parties' joint names. She regarded at least the family home as jointly owned property, but this was not because of any discussion with Mr Bell. 57 I have mentioned that the parties had a joint bank account during their relationship; that Mr Bell paid money into the account at random; and that money was paid out of the account, also apparently at random, for example towards the purchase of Belimba Park, but not apparently Eighth Avenue, Austral. This suggests that the parties did not turn their minds to how property was legally held, or whether the legal ownership of property had any significance for them. 58 It is relevant, but of minor significance, that a substantial part of the purchase price of Belimba Park was funded from the joint account, and that both parties borrowed money from St George to fund the purchase of Eighth Avenue, Austral. These matters are of minor significance, because Mr Bell provided the funds which went into the joint account, and he paid the instalments on the St George loan. I do not consider the fact that some of the winnings paid into the joint account were from dogs transferred into Ms Constable's name, to be relevant, having regard to the circumstances in which that was done to which I have referred above. 59 Mr Bell's contributions did not consist only of the financial contributions to which I have referred. Although Ms Constable was primarily responsible for domestic duties during the period of the relationship, and primarily responsible for parental duties, Mr Bell did work about the house. He mowed lawns, maintained the gardens, cleaned gutters, and did general handyman work outside the house. He also helped in the care of Samantha in ways which appeared to be typical of a father looking after his daughter. For example, taking her to school, watching her play sport, and generally spending time with her. 60 Counsel for the defendant also referred to Mr Bell's contribution after the parties had separated, in allowing Ms Constable to continue to live in the house. Counsel submitted that a reasonable occupation fee would be an appropriate measure of that contribution. It was common ground that the house could be let for between $350 and $450 per week from 2004 to the present. I accept that Mr Bell's providing a residence after separation is a matter to be taken into account, but it is not to be valued so high. The house is the family home and, although Mr Bell and Ms Constable have separated, Samantha still lives there, and Ms Constable has had her continuing care. It could not be submitted that someone would pay $350 to $450 per week to share the house with Mr Bell and Samantha, and to have her care. 61 Counsel for Mr Bell also said that the value of Ms Constable's contributions should be reduced by her consumption of the $10,000 in savings, which she had at separation. Had she taken up employment immediately, it was submitted, that sum would have been preserved and would have formed part of the combined pool of assets. I do not accept that. There is no evidence that Ms Constable could have secured employment earlier than she did. She also spent some of the money in providing for their child. 62 I agree with counsel for the defendant that the respective values of the parties' contributions should be assessed separately before and after 1989, when Samantha was born. Considering the work Ms Constable did from 1989 to date, not just to the date of separation, as homemaker and as parent with primary responsibility for the care of Samantha, and considering also her contributions during the 1990s and up to 2004 in assisting in the care, feeding and exercising of the greyhounds and otherwise in connection with the greyhound business, I consider that what she did was of equal value to the contributions made by Mr Bell during this period, in providing an income for the family, in servicing the borrowings, in making investments which yielded capital growth, and in acting as homemaker and parent. I do not apply any presumption of equality of contribution, but consider, as a matter of fact, their contributions during this period should be valued equally. In making this assessment, I also take into account Ms Constable's contribution to the goodwill of the business, which has continuing benefit for Mr Bell. 63 It follows, in my view, that the increase in value of the combined assets of the parties from 1989 should be shared equally. On the other hand, there was no equality in the parties' initial contributions; that is to say, the contributions which they each brought to the relationship in 1984. Nor was there equality in their contributions up to 1989. Apart from six months' part-time employment, Ms Constable did not work. She was supported by Mr Bell, who worked, at times, in two jobs, to earn income to support them both, and to service the borrowings, which enabled him to benefit from the increases in property prices. 64 Up to 1989 Ms Constable's contributions as homemaker were more than fully compensated for by the financial support which Mr Bell gave her, including in paying rent, the household expenses, and, through the joint account, funding the costs of an overseas holiday. 65 Counsel for Mr Bell submitted that, whereas Ms Constable's contributions between 1989 and 2004 should be assessed at only a little less than those of Mr Bell, when their respective contributions over the entirety of the period of their relationship were considered, including the initial imbalance and the imbalance up to 1989, the value of her contributions should be assessed as substantially less than fifty per cent. Counsel submitted that thirty per cent was the appropriate figure, when the imbalance in initial or early contributions was taken into account, together with what he submitted was an imbalance in post-separation contributions. 66 The methodology of this approach is a possible one. However, I think it would tend to operate unfairly to the plaintiff. The most significant factor leading to Mr Bell's current asset position is the increase in the value of the Austral property from $387,000 in 1997 to $1,150,000 today. Reducing the percentage value to be attributed to Ms Constable's contributions by reason of an imbalance in the parties' contributions up to 1989 would deprive her of her share in the increase in the value of that property, which her efforts during the period Mr Bell has held the property, warranted. 67 In the circumstances of this case, I think the appropriate course is to put a dollar figure on the extent to which Mr Bell's contributions up to 1989 exceeded hers and this should be assessed primarily having regard to his property holdings in 1989. That figure should be deducted from the combined pool of assets before the value of the pool is divided equally. A similar approach to recognition of an imbalance of parties' initial contributions was taken by the Court of Appeal in Howlett v Neilson (2005) 33 Fam LR 402. The resulting percentage of Ms Constable's share of the identified pool of assets and the resulting dollar figure of an adjusting order should then be considered as a check on the justice and equity of the adjustment. In valuing Mr Bell's contributions in this way, I take into account that he contributed not just money, but investments. 68 By 1989, Mr Bell had put himself in a position to buy the houses at Guise Avenue, Casula, the following year, for $220,000, with a $100,000 mortgage. He had two properties at Blayney and Callala Bay, which had been bought, principally, with mortgage finance, for a combined cost of $68,000. When these were sold in 1992, they yielded $131,000. He had serviced the borrowings. He had also financed the parties' overseas holiday in 1987. 69 Although the exercise is necessarily imprecise, I consider that the imbalance in the parties' initial contributions and in their contributions up to 1989 should be valued at a sum of between $200,000 and $250,000 in Mr Bell's favour. 70 The combined assets of the parties total $1,627,300, not including goodwill, but I have allowed for the goodwill in my assessment of the percentage value of contributions from 1989 as being equal. 71 In my view, an appropriate adjusting order is to be arrived at by deducting $227,300 from the combined assets of the parties, and making an adjusting order on the basis that Ms Constable should have assets equal in value to half the difference; that is, half of $1,400,000. That approach indicates that she should have assets of $700,000, following an adjusting order. 72 This is about forty-three per cent of the value of the identified combined assets of the parties. This percentage figure may seem a bit high, but it is to be remembered that the figure of $1,627,300 includes no component for the value of goodwill and any such value would reduce the percentage. 73 As Ms Constable has assets of $25,270, the making of an adjusting order which would leave her with half of $1,400,000, that is $700,000, would require an adjusting order by way of payment of a lump sum of $674,730. In my view, that is an appropriate dollar figure to recognise the contributions each of the parties made during the course of their relationship. It is a sufficiently large sum that no separate consideration needs be given to the current needs of Ms Constable, or the likely burden she will bear in providing for Samantha. 74 The exercise called for by s 20 is necessarily imprecise. As Bryson JA said in Chanter v Catts at para [72], the section requires a discretionary decision, which is not susceptible of complete exposition. This is because the section requires the measurement and reduction into money of things, some of which can never be exactly identified, and, in any event, have no relationship with money. It requires the measurement and comparison of things which have no common measure or standard of comparison. 75 Mr Bell sought an order that Ms Constable transfer to him the Commodore motor vehicle which he drives. No separate submissions were made about that. As he drives the car, and as Ms Constable has another car, it is appropriate to make the order. The result will be that the lump sum to be paid by Mr Bell should be increased by $10,650 to $685,380. Ms Constable is the registered owner of a number of dogs, or shares in dogs, which have been bred, trained or raced by Mr Bell. She is willing to transfer her interest to Mr Bell. No separate adjustment to the monetary payment to be made by Mr Bell is called for to reflect the transfer of dogs from her name to his. In making the monetary adjusting order, I have taken into account that such a transfer will be made. 76 I direct the plaintiff's counsel to bring in short minutes of order in accordance with these reasons. The short minutes should provide for the transfer of the car and the dogs from Ms Constable to Mr Bell, and the payment of $685,380 by him to her. Mr Bell can only make this payment by selling Belimba Park and by raising finance on the security of Austral, or by also selling Austral. This will take some time. Interest at the prescribed rate should only run on so much of the sum as is unpaid after three months from today. 77 I understand that the plaintiff is happy to allow Mr Bell to effect the sale or sales, and she does not seek an order appointing trustees for sale. A charging order should be made in relation to Belimba Park. I will hear counsel further, if there is no agreement on the matter, on whether a charging order should be made on Austral. It may be that making a charging order could adversely affect the prospects of Mr Bell's raising finance on mortgage over that property, but I will hear further argument on that, if necessary. 78 Mr Bell's counsel indicated that Mr Bell proposed to sell Belimba Park and raise any balance of an adjusting order by borrowings secured over Austral. If, before the matter comes back before me to make final orders, Mr Bell decides that it will be necessary to sell both properties, I will consider any argument that either party might wish to advance that Ms Constable should be entitled to a percentage share of the proceeds of sale of both properties, calculated by the proportion which $685,380 bears to the agreed values of those properties, rather than a single lump sum. Such an alternative approach would only be workable if both properties are sold, but it would mean that the risk of favourable or adverse movements in the property market would be borne by both parties. 79 I stand the matter over to 9.30am on Tuesday, 14 February 2006, or such other time as is suitable to both counsel which they may arrange this week with my Associate, for the purpose of counsel bringing in short minutes of order. I will deal then with any dispute about the form of orders to be made, and I will hear argument on costs.

Constable v Bell

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Judgment (16 paragraphs)

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Legislation Cited (1)

Cases Cited (5)

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