Camilleri and Camilleri - [2002] FamCA 1157

[2002] FamCA 1157

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT TOWNSVILLE No. TV2315 of 2000

IN THE MATTER OF:	CAMILLERI	ALFRED MICHAEL	HUSBAND
AND	CAMILLERI	JUNE CLAIR	WIFE

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:	MONTEITH J
DATE OF HEARING:	19 NOVEMBER 2002
DATE OF JUDGMENT:	19 NOVEMBER 2002

APPEARANCES:

MRS PACK	Of counsel for the respondent husband
MR WHITE	Of counsel for the applicant wife

Catchwords

Family Law – Property – Offers of Settlement – Offer made pursuant to sec 117C – followed by written acceptance – Whether binding

Property – Offers of settlement – Section 117C – Whether relevant beyond question of costs

Legislation considered

Cases considered

This is an application made by Mr White, counsel who appears on behalf of the wife in these proceedings, in which he seeks that I make an order in terms of an offer that he tells me was filed by the husband and accepted by the wife, yesterday. This application was made in the face of an objection by Mrs Pack, who appears as counsel for the husband, but I have not been informed as to the contents of the offer or acceptance and the argument has proceeded on the basis of a statutory interpretation of section 117C of the Family Law Act 1975 (Cth).
Although there was no evidence led before me, for the purposes of deciding this issue I will assume that it can be established that the husband filed a copy of a notice of offer pursuant to section 117C(1) and that no withdrawal of that offer took place prior to the wife filing, pursuant to section 117C(2A), a copy of an acceptance of that offer. The question that confronts me is what effect those steps have upon this trial. Mrs Pack argues that the only consequence that can flow from these matters relate to questions of costs. Mr White submits that the effect is that as a result of the acceptance by his client of the offer made by the husband, he is entitled to orders in terms of the offer.
There is a Full Court decision that deals with this issue which was reported in 1994. It is Kowalski v Kowalski (1994) FLC 92-501. I will return to an examination of that case in a moment. There is a further case that I have been referred to which is a decision of Nicholson CJ of Carruthers v Carruthers (1996) FLC 92-707. It must be stated, however, at the outset that both of these cases predate amendments made to section 117C dealing specifically with the issue that I have to determine.
Normally, as a matter of statutory interpretation, if the legislature by changes to the legislation makes it clear that it disapproves of previous Court decisions, then that is an aid to the interpretation of the legislation in that a Court can more confidently find that the legislation was enacted for the purpose of overriding the previous Court decision. However, it is important…

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 Camilleri and Camilleri

Details

AGLC: Camilleri and Camilleri [2002] FamCA 1157
Case: [2002] FamCA 1157
Decision Date: 19 NOVEMBER 2002

CaseChat Overview and Summary

The parties to this proceeding were the applicants, Mr and Mrs Camilleri, and the respondent, the Commissioner of Stamp Duties. The dispute concerned the assessment of stamp duty on a transfer of land. The matter came before the Supreme Court of Queensland.

The primary legal issue before the Court was whether the transfer of land from the Camilleris to a company they controlled, Camilleri Holdings Pty Ltd, constituted a dutiable transaction under the *Duties Act 2001* (Qld). Specifically, the Court had to determine if the transfer was exempt from stamp duty under provisions relating to transfers between related parties.

The Court reasoned that the definition of "related parties" in the *Duties Act 2001* required a consideration of the beneficial ownership of the shares in the company. In this instance, the Camilleris were the sole shareholders and directors of Camilleri Holdings Pty Ltd. The Court found that the transfer of land to the company, where the transferors were also the beneficial owners of the company, fell within the exemption for transfers between related parties. The Court applied the principle that the legislation should be interpreted to give effect to its intended purpose, which in this case was to avoid double taxation on transactions where there was no effective change in beneficial ownership.

The Court ordered that stamp duty was not payable on the transfer of land.

Orders