Cantoni & Cantoni (No 2) - [2023] FedCFamC1F 887

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cantoni & Cantoni (No 2) [2023] FedCFamC1F 887

File number(s): SYC 4456 of 2023

Judgment of: JARRETT J

Date of judgment: 19 October 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –Where dispute arose relating to interpretation of final orders – Where the literal interpretation of the orders supported by the first and fourth respondents prioritised the interests of caveators over the applicant – Where the reasons for judgment stated the first respondent should be solely responsible for the liabilities subject of caveats – Orders made did not reflect the intention of the Court – Variation of orders pursuant to r 10.13(e)

Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 10.13(1)(e), 10.13(1)(g)

Cases cited:
Cantoni & Cantoni [2022] FedCFamC1F 1051

Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425

Wright v Gibbons (1949) 78 CLR 313

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 12 September 2023

Place: Brisbane

Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd

Counsel for the First Respondent: Mr McCormick

Solicitors for the First Respondent: Goldsmiths Lawyers

Solicitors for the Second Respondent: Q Pty Ltd

Counsel for the Third Respondent: Mr Black

Solicitors for the Third Respondent: Wisewould Mahony Lawyers

Counsel for the Fourth Respondent: Mr McCormick

Solicitors for the Fourth Respondent: Goldsmiths Lawyers

Solicitors for the Fifth Respondent: Keogh & Co.

ORDERS

SYC 4456 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CANTONI

Applicant

AND:
MR CANTONI

First Respondent

Q PTY LTD

Second Respondent

R PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

19 OCTOBER 2023

THE COURT ORDERS THAT:
1.Pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the orders of 22 December, 2022 be amended as follows:
(a)paragraph 1: Orders 8(d), 8(f) and 8(g) of the orders made on 2 September, 2022 be discharged;
(b)paragraph 2: Upon the sale of the real property situated at D Street, Suburb E, Victoria in accordance with the orders made on 2 September, 2022 the ~~nett~~ proceeds of sale be disbursed as follows:;
(c)paragraph 2(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
(d)insertion of a new paragraph 2(b): in payment of any amounts required to discharge any remaining liabilities notified by caveats that had been lodged against the title to the property, in order of their priority; and
(e)renumbering of old paragraph 2(b) to 2(c): the balance, if any to the respondent or at his direction.

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…

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 Cantoni & Cantoni (No 2)

Details

AGLC: Cantoni & Cantoni (No 2) [2023] FedCFamC1F 887
Case: [2023] FedCFamC1F 887
Decision Date: 19 October 2023

CaseChat Overview and Summary

This case involved a dispute between Ms Cantoni and Mr Cantoni, with Q Pty Ltd and R Pty Ltd also named as respondents. The dispute centred around the interpretation of final orders relating to the sale of a property located at D Street, Suburb E, Victoria. The case was heard in Division 1 of the Federal Circuit and Family Court of Australia. The court had to determine whether the literal interpretation of the orders, which appeared to prioritise the interests of the caveators over the applicant, accurately reflected the court's intended outcome. Specifically, the court had to address whether the first respondent was charged with the payment of debts for which he was solely responsible, and whether the orders correctly reflected the court's intention that the first respondent should be solely responsible for the liabilities subject of the caveats.

The court found that the literal interpretation of the orders did not align with the court's intention, as expressed in the reasons for judgment. The court rejected the argument that the first respondent charged the applicant’s interest in the Suburb E property with payment of the debts for which only he is responsible. The court held that, in the absence of any authority to act on the applicant's behalf, the first respondent could only charge his aliquot share of that property. Consequently, the court exercised its power under rule 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to vary the orders of 22 December 2022. The variation was made to accurately reflect the court's intention that the first respondent should be solely responsible for the liabilities subject of the caveats. The court made specific amendments to the orders, including the insertion of new provisions and the renumbering of existing provisions, to ensure that the orders properly reflected the court's intention.

In light of the above, the court made several amendments to the orders. Firstly, orders 8(d), 8(f) and 8(g) of the orders made on 2 September 2022 were discharged. Secondly, upon the sale of the property, the nett proceeds were to be disbursed in a specific manner, with a particular formula applied to determine the amount to be paid to the applicant. Thirdly, a new provision was inserted to ensure that any remaining liabilities notified by caveats were paid in order of their priority. Finally, the existing order 2(b) was renumbered to 2(c), ensuring clarity and consistency in the orders. The court emphasised that the form of the order was subject to entry in the Court’s records and that this copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors.

Orders

Orders of the court

SYC 4456 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CANTONI

Applicant

AND:

MR CANTONI

First Respondent

Q PTY LTD

Second Respondent

R PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

19 OCTOBER 2023

THE COURT ORDERS THAT:

1. Pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the orders of 22 December, 2022 be amended as follows:

(a) paragraph 1: Orders 8(d), 8(f) and 8(g) of the orders made on 2 September, 2022 be discharged;

(b) paragraph 2: Upon the sale of the real property situated at D Street, Suburb E, Victoria in accordance with the orders made on 2 September, 2022 the nett proceeds of sale be disbursed as follows:;

((B-C-D) + $39,144+$50,973) *70%)-$59,000

(d) insertion of a new paragraph 2(b): in payment of any amounts required to discharge any remaining liabilities notified by caveats that had been lodged against the title to the property, in order of their priority; and

(e) renumbering of old paragraph 2(b) to 2(c): the balance, if any to the respondent or at his direction.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I reject the first and fourth respondent’s argument that the first respondent charged the applicant’s interest in the Suburb E property with payment of the debts for which only he is responsible. In the absence of any authority to act on the applicant’s behalf, there is no basis upon which he could charge anything but his aliquot share of that property.CONCLUSION I am satisfied that it is entirely appropriate to exercise the power provided in rule 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to vary the order I made on 22 December, 2022 to properly reflect my intention is expressed in the reasons for judgement delivered on that day. To properly reflect that intention, it is necessary to:(a)in order 1, insert “8(d),” immediately after the word “Orders” and immediately before”8(f)”;(b)in order 2, delete the word “nett” where it first appears;(c)Insert a new order 2(b) in these terms, “In payment of any amounts required to discharge any remaining liabilities notified by caveats that had been lodged against the title to the property, in order of their priority; and”; and(d)Renumber the existing order 2(b) as order 2(c). There will be orders accordingly.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 4456 of 2023
Judgment of:	JARRETT J
Date of judgment:	19 October 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE –Where dispute arose relating to interpretation of final orders – Where the literal interpretation of the orders supported by the first and fourth respondents prioritised the interests of caveators over the applicant – Where the reasons for judgment stated the first respondent should be solely responsible for the liabilities subject of caveats – Orders made did not reflect the intention of the Court – Variation of orders pursuant to r 10.13(e)
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 10.13(1)(e), 10.13(1)(g)
Cases cited:	Cantoni & Cantoni [2022] FedCFamC1F 1051 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425 Wright v Gibbons (1949) 78 CLR 313
Division:	Division 1 First Instance
Number of paragraphs:	27
Date of hearing:	12 September 2023
Place:	Brisbane
Solicitor for the Applicant:	Khalil Family Lawyers Pty Ltd
Counsel for the First Respondent:	Mr McCormick
Solicitors for the First Respondent:	Goldsmiths Lawyers
Solicitors for the Second Respondent:	Q Pty Ltd
Counsel for the Third Respondent:	Mr Black
Solicitors for the Third Respondent:	Wisewould Mahony Lawyers
Counsel for the Fourth Respondent:	Mr McCormick
Solicitors for the Fourth Respondent:	Goldsmiths Lawyers
Solicitors for the Fifth Respondent:	Keogh & Co.

SYC 4456 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CANTONI Applicant
AND:	MR CANTONI First Respondent Q PTY LTD Second Respondent R PTY LTD (and others named in the Schedule) Third Respondent

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	19 OCTOBER 2023