Cartwright and Manzetto - [2013] FamCA 1015

FAMILY COURT OF AUSTRALIA

CARTWRIGHT & MANZETTO

[2013] FamCA 1015

FAMILY LAW – PROPERTY – Interim distribution – Where the parties each seek orders for interim property settlement – Litigation funding – Just and equitable – Where an order had been previously made for the sale of an interest of the parties.

Family Law Act 1975 (Cth) ss 90SM, 90SS(1)(h), 117(2),
Family Law Rules 2004 (Cth) rr 13.01, 13.04, 13.07.

Marchant & Marchant (2012) 49 Fam LR 1.
Strahan & Strahan (2009) 42 Fam LR 203.
Weir & Wier (1992) 16 Fam LR 154.

APPLICANT:

Ms Cartwright

RESPONDENT:

Mr Manzetto

FILE NUMBER:

BRC

9426

2011

DATE DELIVERED:

20 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Justice Hogan

HEARING DATE:

30 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Southwood

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Mr Reardon

INDEPENDENT CHILDREN’S LAWYER:

Ms Chan

Orders

IT IS ORDERED BY WAY OF INTERIM ORDER

That any proceeds received by the Applicant in her capacity as trustee for the sale of the interests of the Respondent, B Pty Ltd ACN … as trustee for Manzetto Family Superannuation Fund and Mr Manzetto as trustee for Manzetto Family Trust in C Group be paid into the trust account of her solicitors, Wiltshire Lawyers, to be held and invested on behalf of the parties until further order or agreement of the parties.
That from the proceeds referred to above, the Applicant do all things and sign all documents to ensure that the following payments are made:
(a)payment of the current debt outstanding to D Accountants;
(b) payment to the Applicant of the sum of $300,000.00;
(c)payment to the Respondent of the sum of $50,000.00 by way of deposit of such amount into the Trust account of his solicitor.
That the question of the categorisation of any payments made pursuant to this Order shall be a matter for determination by the trial Judge.
That each party comply, on an ongoing basis, with the duty of disclosure imposed by Rules 13.01, 13.04, 13.07 of the Family Law Rules 2004.
That the Respondent be permitted to request the single expert witness, Mr E from D Accountants, to value the interests of the Respondent, B Pty Ltd ACN … as trustee for Manzetto Family Superannuation Fund (if applicable) and Mr Manzetto as trustee for Manzetto Family Trust (if applicable) in C Group as at 27 November 2002.
In order to quarantine the costs of the work referred to in subparagraph (5) above, the parties are hereby directed forthwith to require the single expert to prepare a separate account of the costs associated with the valuation of the interests of the Respondent, B Pty Ltd ACN … as trustee for Manzetto Family Superannuation Fund (if applicable) and Mr Manzetto as trustee for Manzetto Family Trust (if applicable) in C Group as at 27 November 2002.
That, save as is otherwise provided for, the Amended Application in a Case filed 17 September 2013 and the Further…

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 Cartwright and Manzetto

Details

AGLC: Cartwright and Manzetto [2013] FamCA 1015
Case: [2013] FamCA 1015
Decision Date: 20 December 2013

CaseChat Overview and Summary

In the matter of *Cartwright and Manzetto*, Justice Hogan of the Family Court of Australia made interim orders concerning the proceeds from the sale of interests in C Group. The applicant, acting as trustee, was to receive these proceeds into her solicitors' trust account. The dispute involved the distribution of these funds and the valuation of certain trust interests.

The court was required to determine how the proceeds from the sale of interests in C Group should be handled, including the payment of outstanding debts and specific sums to the applicant and respondent. Further issues included the categorisation of these payments, the ongoing duty of disclosure between the parties, and the valuation of the respondent's interests in C Group by a single expert. The court also had to consider the dismissal of certain filed applications.

Justice Hogan ordered that the proceeds from the sale be paid into the applicant's solicitors' trust account. From these proceeds, the applicant was directed to pay the debt owed to D Accountants, pay herself $300,000, and pay $50,000 to the respondent's solicitor's trust account. The categorisation of these payments was reserved for the trial judge. The parties were ordered to comply with disclosure obligations under the Family Law Rules 2004. The respondent was permitted to request a valuation of his trust interests in C Group as at 27 November 2002, with the costs of this valuation to be separately accounted for. The Amended Application in a Case filed 17 September 2013 and the Further Amended Response to an Application in a Case filed 14 October 2013 were dismissed, save as otherwise provided.

Orders

Orders of the court

IT IS ORDERED BY WAY OF INTERIM ORDER

That any proceeds received by the Applicant in her capacity as trustee for the sale of the interests of the Respondent, B Pty Ltd ACN … as trustee for Manzetto Family Superannuation Fund and Mr Manzetto as trustee for Manzetto Family Trust in C Group be paid into the trust account of her solicitors, Wiltshire Lawyers, to be held and invested on behalf of the parties until further order or agreement of the parties.

That from the proceeds referred to above, the Applicant do all things and sign all documents to ensure that the following payments are made:

(a) payment of the current debt outstanding to D Accountants;

(b) payment to the Applicant of the sum of $300,000.00;

(c) payment to the Respondent of the sum of $50,000.00 by way of deposit of such amount into the Trust account of his solicitor.

That the question of the categorisation of any payments made pursuant to this Order shall be a matter for determination by the trial Judge.

That each party comply, on an ongoing basis, with the duty of disclosure imposed by Rules 13.01, 13.04, 13.07 of the Family Law Rules 2004.

That the Respondent be permitted to request the single expert witness, Mr E from D Accountants, to value the interests of the Respondent, B Pty Ltd ACN … as trustee for Manzetto Family Superannuation Fund (if applicable) and Mr Manzetto as trustee for Manzetto Family Trust (if applicable) in C Group as at 27 November 2002.

In order to quarantine the costs of the work referred to in subparagraph (5) above, the parties are hereby directed forthwith to require the single expert to prepare a separate account of the costs associated with the valuation of the interests of the Respondent, B Pty Ltd ACN … as trustee for Manzetto Family Superannuation Fund (if applicable) and Mr Manzetto as trustee for Manzetto Family Trust (if applicable) in C Group as at 27 November 2002.

That, save as is otherwise provided for, the Amended Application in a Case filed 17 September 2013 and the Further Amended Response to an Application in a Case filed 14 October 2013 are dismissed.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.