Angus and Petrino - [2013] FamCA 817

FAMILY COURT OF AUSTRALIA

ANGUS & PETRINO

[2013] FamCA 817

FAMILY LAW – PROPERTY SETTLEMENT – Valuation of various entities opposed on basis that husband has no control and has received no benefit – Wife should be permitted to pursue valuation even if her view is tentative.

Corporations Act (2001) (Cth)
Family Law Act 1975 (Cth)

Costopoulos and Costopoulos [2011] FCWA 89
Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271
In the Marriage of Duff (1977) 15 ALR 476
Jones v Skinner (1835) 5 LJ Ch 87
Kennon v Spry (2008) FLC 93-388

APPLICANT:

Ms Angus (formerly Petrino)

RESPONDENT:

Mr Petrino

FILE NUMBER:

MLC

9331

2011

DATE DELIVERED:

18 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14, 23, 30 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld QC with Ms Stoikovska

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr Geddes QC with Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

That the husband forthwith provide:
1.1All documents and information as are in his power, possession or control, as is requested by F Accountants or make requests of third parties for such documents and information he asserts are not in his power, possession or control as requested by F Accountants in respect of but not limited to:
1.1.1MX Pty Ltd;
1.1.2MX Family Trust;
1.1.3M Investments Pty Ltd;
1.1.4RX Family Trust;
and any associated entities as may be requested by F Accountants;
1.2all documents including but not limited to any file notes, memoranda and correspondence in respect of the loans made by FP Investments Pty Ltd to M Investments Pty Ltd that are within his power or control;
1.3all files and documents including instructions, notes, memoranda, advice and correspondence in respect of the setting up of the MX Family Trust and the RX Family Trust that are within his power or control;
1.4all documents including notes, memoranda, instructions and correspondence in respect of the decision in 2010 to effect a distribution from MX Pty Ltd to M Investments Pty Ltd that are within his power or control
That any dispute as to costs be determined by submission or be reserved as indicated in the reasons published this day.
That all parties have leave to seek further interlocutory orders arising out of the reasons published this day.
That the interim applications are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Angus & Petrino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9331 of 2011

Ms Angus

Applicant

And

Mr Petrino

Respondent

REASONS FOR JUDGMENT

Where the husband is a beneficiary of a family trust yet, on the face of the trust deed has no control over…

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 Angus and Petrino

Details

AGLC: Angus and Petrino [2013] FamCA 817
Case: [2013] FamCA 817
Decision Date

CaseChat Overview and Summary

This case, heard in the Family Court of Australia, concerned property settlement proceedings between Ms Angus (formerly Petrino) and Mr Petrino. The central dispute revolved around the valuation of various entities, including the MX Family Trust and M Investments Pty Ltd, which the wife sought to include in the property pool. The husband opposed the valuation, asserting he had no control over these entities and had never benefited from them.

The primary legal issue before the court was whether the wife should be permitted to pursue the valuation of these intricate entities, despite the husband's claims of lack of control and benefit, particularly in circumstances where the husband was a beneficiary of a family trust but appeared to have no direct control over the trustee. This also involved determining the extent of disclosure and discovery obligations concerning documents related to these entities.

The court reasoned that the wife should be permitted to pursue the valuation. Applying principles from cases such as *Kennon v Spry* and *In the Marriage of Duff*, the court affirmed that the definition of "property" under the *Family Law Act 1975* (Cth) should be interpreted broadly to encompass all possible interests a party may have. Even if the husband's entitlement was unclear or contingent, or if he only possessed a right to due administration of the trust, this did not preclude discovery and valuation for the purposes of property settlement. The court noted that the husband's potential contribution argument, even if his direct beneficial interest was disputed, warranted further investigation through valuation.

The court ordered that the husband forthwith provide all documents and information in his possession or control, or make requests for such documents from third parties, as requested by the appointed accountants, in respect of the MX Family Trust, M Investments Pty Ltd, RX Family Trust, and any associated entities. This included documents relating to loans and the establishment and operation of the trusts. The court also ordered that any dispute as to costs be determined by submission or reserved, and that parties have leave to seek further interlocutory orders. The interim applications were otherwise dismissed.

Orders