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A House Divided

Case in Point: Ross & Ross - A House Divided

Thursday 14th of January 2016
By: Gary Yan

Thank you for all the help and support.  It is a relief and my family can move on now to better things in life.

Sadly, after 27 years of marriage and two children, a husband and wife ended up in court to contest the settlement of their property.

The case, Ross & Ross [2015] FCCA 2057, was considered by Judge Henderson and there’s a lesson here about greed and patience.


The issues

When this case first came to court, the main sticking point was the family home located in what was described as a “highly prized area” and in a market that was “exceedingly volatile and in an upward trajectory”. The wife wanted to retain the home and dug her heels in. Indeed, the Judge described her desire as “obsessed”. Meanwhile, the husband wanted to sell the house at auction, to maximise the price in a rising market. At this stage, the home was valued at $1.2 million.

Six months later, as the case wore on, the house was valued again, this time at $1.6 million. By the time of the final hearing, a further 13 months later, the house was said to be worth $1.8 million. The husband asserted the home would continue to rise and a registered valuer gave evidence that clearance rates in the market at the time were 100%, properties were selling highly in excess of the reserves, and real estate agents were “astonished” by the prices being achieved. That said, he did concede the valuation could vary by 10% (in this case, representing almost $200,000).

So: should the wife be allowed to buy out the husband’s interest in the home based on the current valuation of $1.8 million or accept the husband’s position that an auction was fairer to him?


The judgment

Given the strong market and continuous change of valuation, the judge decided that the property should be sold at auction. This should enable them to achieve the best price reasonably obtainable (which would ultimately do justice and deliver equity to both parties). Given it was their only significant liquid asset, the judge believed that if she’d retained the home, the wife would have “reaped the benefit” of the strong property market. He did, however, make an order allowing the wife to bid at the auction and buy out the husband’s interest in the home, if successful. (This order would have alleviated any stamp duty issues for her.)

If you have a family home or investment property and you need advice about how to deal with your assets as part of a property settlement, please contact our office to arrange a confidential consultation with one of our expert family lawyers.


As a service to our clients, we will keep you abreast of any significant cases of family law. Please note that these cases do not involve our clients and the outcomes reported offer no guarantee of future replication.

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