FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cantoni & Cantoni [2022] FedCFamC1F 1051
File number(s): PAC 1840 of 2018 Judgment of: JARRETT J Date of judgment: 22 December 2022 Catchwords: FAMILY LAW – Property – alteration of property interests – where the relationship spanned approximately 22 years – where neither party made significant initial contributions – where the parties adopted a traditional division of labour during the relationship – where the applicant’s family provided significant sums of money to the parties – where the evidence does not satisfy the court that either party has significant health problems – where the respondent’s earning capacity significantly exceeds the applicant’s – where the primary question for the court to answer is how to divide the proceeds of sale of the only significant asset Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4) Cases cited: Kessey & Kessey (1994) 18 Fam LR 149
Mabb v Mabb (2020) 60 Fam LR 299
Shaeffer & Jacobs [2011] FamCAFC 119
Division: Division 1 First Instance Number of paragraphs: 76 Date of hearing: 10 & 11 October, 2022 Place: Parramatta Counsel for the Applicant: Mr Butters Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the Respondent: Mr McCormick Solicitor for the Respondent: Goldsmiths Lawyers Solicitor for the Intervener: Q Pty Ltd ORDERS
PAC 1840 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CANTONI
Applicant
AND: MR CANTONI
Respondent
Q Pty Ltd
Intervener
order made by:
JUSTICE JARRETT
DATE OF ORDER:
22 dECEMBER 2022
THE COURT ORDERS THAT:
1.Orders 8(f) and 8(g) of the orders made on 2 September, 2022 be discharged.
2.Upon the sale of the real property situated at D Street, Victoria in accordance with the orders made on 2 September, 2022 the nett proceeds of sale be disbursed as follows:
(a)to the applicant or at her direction, the sum calculated according to the following formula:
((B-C-D) + $39,144+$50,973*70%)-$59,000
Where:
(i)B is the sale price of the property less adjustments paid or made pursuant to order 8(b) of the orders made on 2 September, 2022;
(ii)C is the combined value of the amounts paid to:
A.the Bank V to discharge its security over the property;
B.Mr L or at his direction; and
C.R Pty Ltd in respect of caveat … lodged on … on the title to the property.
(iii)D is the total amount paid pursuant to order 8(a) of the orders made on 2 September, 2022
(b)the balance, if any to the respondent or at his direction.
3.Unless otherwise provided:
(a)each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder, investment accounts are deemed in the possession of the named investor, and superannuation entitlements are deemed in the possession…
Continue reading Cantoni & Cantoni
Sign in free to access the full text
- AGLC
- Cantoni & Cantoni [2022] FedCFamC1F 1051
- Case
- [2022] FedCFamC1F 1051
- Decision Date
CaseChat Overview and Summary
The court found that the parties had made significant contributions to the relationship, particularly the applicant's family who had provided substantial sums of money to the parties. The court also found that the respondent's earning capacity significantly exceeded that of the applicant. The primary question for the court was how to divide the proceeds of sale of the Suburb E property. The court determined that the value of the property would be determined by a sale and that an order dividing the proceeds of sale in percentage terms would effect a just and equitable outcome of the proceedings.
The court found that the value of the Suburb E property was likely to be between $4.5 million and $4.75 million. The court also found that the mortgage granted in favour of Bank V should be paid from the net proceeds of sale of the property and that the debt to Mr L should be paid at settlement of the property. The court made an order that the net proceeds of sale of the property be disbursed to the applicant and the respondent in accordance with a specified formula.
In summary, the court determined that it was just and equitable to make a property adjustment order in the circumstances of this case and made an order dividing the proceeds of sale of the Suburb E property between the applicant and the respondent. The court also made orders regarding the distribution of other assets and liabilities of the parties.
Orders
Orders of the court
PAC 1840 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS CANTONI
Applicant
AND:
MR CANTONI
Respondent
Q Pty Ltd
Intervener
order made by:
JUSTICE JARRETT
DATE OF ORDER:
22 dECEMBER 2022
THE COURT ORDERS THAT:
1. Orders 8(f) and 8(g) of the orders made on 2 September, 2022 be discharged.
2. Upon the sale of the real property situated at D Street, Victoria in accordance with the orders made on 2 September, 2022 the nett proceeds of sale be disbursed as follows:
(a) to the applicant or at her direction, the sum calculated according to the following formula:
((B-C-D) + $39,144+$50,973*70%)-$59,000
Where:
(i) B is the sale price of the property less adjustments paid or made pursuant to order 8(b) of the orders made on 2 September, 2022;
(ii) C is the combined value of the amounts paid to:
A. the Bank V to discharge its security over the property;
B. Mr L or at his direction; and
C. R Pty Ltd in respect of caveat … lodged on … on the title to the property.
(iii) D is the total amount paid pursuant to order 8(a) of the orders made on 2 September, 2022
(b) the balance, if any to the respondent or at his direction.
3. Unless otherwise provided:
(a) each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder, investment accounts are deemed in the possession of the named investor, and superannuation entitlements are deemed in the possession of the worker.
(b) each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for capital gains tax arising out of the sale by the parties of real property pursuant to these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The correspondence is not expressed to be sent on behalf of both parties and there is no express consent from the applicant or her solicitors. Nonetheless, I infer that the applicant does not cavil with the terms of that correspondence because it is apparent from the face of it that the applicant’s solicitors have been copied into it and they have not signified an objection to it.CONSIDERATION The parties agree that it is just and equitable to make a property adjustment order in the circumstances of this case pursuant to s 79(2) of the Act. I too, agree. By reason of the breakdown in the parties’ relationship, the implicit assumption that the existing arrangement of property interests that was seen as sufficient or appropriate during the continuance of their marital relationship, has now been brought to an end. I so find. Assets, liabilities and financial resources I find that as at the date of the trial before me, the parties have the following assets, liabilities and financial resources: On the second day of the trial, the parties handed up to me a joint balance sheet. The above table is based upon that agreed balance sheet, though with several differences based on the evidence that was before me. Ascertaining the asset pool in this matter is a process slightly complicated by the existing orders for the sale of the property and distribution of proceeds which, as at the date of the trial, had not been performed. I have not included in the above table the respondent’s liabilities for legal fees – a total of $421,196.00. Those fees remain unpaid but the creditors have apparently lodged caveats over the title to the Suburb E property. I make findings about the matters in the table above as follows.The value of the Suburb E property The value of this property was noted in the balance sheet to be agreed at the sum set out above. However, there is no valuation evidence before me. In submissions I was told that there was no dispute that the property had a value of between $4.5m and $4.75m. The value of the property will be determined by a sale. Given the lack of dispute as to the likely value of the property, an order that divides the proceeds of sale in percentage terms will effect a just and equitable outcome of the proceedings. Such an order is a legitimate exercise of the court’s power: see e.g. Shaeffer & Jacobs [2011] FamCAFC 119.Liabilities and addbacksMortgage There is no dispute that the mortgage granted in favour of Bank V should be paid from the nett proceeds of sale of the Suburb E property.Debt to Mr L Mr L is a sole trader operating under the trading name K Company. In mid-2021 the applicant entered into a fixed price contract with Mr L for construction to be completed on the Suburb E property at a cost of $711,040 inclusive of GST. Mr L agreed that he should receive payment of the balance due at settlement of the property. In her affidavit filed on 6 July, 2022 the applicant refers to an affidavit filed by the respondent on 28 January, 2021. In that affidavit the respondent gives evidence of his dealing with, amongst others, Mr L.