Cantoni & Cantoni

Case [2022] FedCFamC1F 1051


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

Trevi v Trevi [2018] FamCAFC 173

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…

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Cantoni & Cantoni [2022] FedCFamC1F 1051
Case
[2022] FedCFamC1F 1051
Decision Date

CaseChat Overview and Summary

The case of Cantoni & Cantoni involved a property dispute between the applicant and the respondent following the breakdown of their 22-year relationship. The main issue for the court was to determine how to divide the proceeds from the sale of the only significant asset, the Suburb E property. The court had to consider the contributions made by each party during the relationship, including initial contributions and post-separation contributions. The court also needed to address how to treat various liabilities of the parties and determine the appropriate quantum of adjustment in favour of the applicant.

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

Having regard to the parties’ evidence and submissions, the issues for me to determine so as to derive a just and equitable outcome in the proceedings are:(a)the weight to be attributed to the parties’ contributions paying particular attention to the initial and post-separation contributions contended for by the applicant; (b)how I should treat various liabilities of the parties which were contended to be “addbacks”; and(c)the quantum of adjustment I should make in the applicant’s favour having regard to the factors set out in s 75(2) of the Family Law Act 1975 (Cth). BACKGROUND The parties met in 1996 in Melbourne and commenced their relationship. At the commencement of the relationship, the applicant was employed in the beauty industry and the respondent as a salesman. Neither party had any assets of note. The respondent quickly moved in with the applicant at the apartment she rented. This apartment was furnished by the applicant’s parents and they assisted her with rent. The respondent did not contribute to those costs. In 1998, the parties purchased their own business with assistance from the applicant’s father. The parties married in 2002. They had two children, a daughter born in 2003 and a son born in 2007. Initially these proceedings also dealt with parenting issues but those issues have now been finalised by consent orders. By those orders, the parties’ youngest child lives with the applicant and spends time with the respondent as he requests. There are no orders with respect to the parties’ daughter who is now an adult. Following the birth of their first child, the applicant was the primary carer for her and the respondent the primary income earner for the family. The parties applied themselves for the betterment of their family’s position. The applicant’s parents, through the company P Pty Ltd, purchased the Suburb E property in mid-2006. The parties moved into the property in a short time later, in 2006 and were paying rent to P Pty Ltd. The amount of that rent is unclear. The parties had intended for the Suburb E property to be redeveloped. In early 2014 they moved into a rental unit to allow the necessary building works to commence. In late 2015 the Suburb E property was transferred from P Pty Ltd to the parties jointly. The mortgage had been paid down significantly by P Pty Ltd. The applicant’s evidence is that they did not pay any stamp duty on the transfer. The construction works on the property were plagued with problems. The first builder did not finish the works. The second builder engaged to complete the works went into liquidation prior to finishing the project. The property was vandalised as a result of being left vacant while construction was incomplete. The works were not completed by the time the parties separated on 23 March, 2018. The issue of what to do with the property was litigated thoroughly in this court. On 2 July, 2021 another judge of this court made orders that the property be sold as it then was, with the works incomplete. The applicant successfully appealed that decision and those orders were set aside.

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.