Crafter and Crafter & Ors

Case [2011] FamCA 122


FAMILY COURT OF AUSTRALIA

CRAFTER & CRAFTER AND ORS [2011] FamCA 122
FAMILY LAW – PROPERTY – s 78 Declarations – Constructive Trust – Equitable Interests ‑ where husband and wife made contributions to family business and property throughout their marriage – where parties seek various declarations in relation to shareholding and ownership of property – where third to fifth respondents seek declaration that any interest held by the wife and husband in the business/s and/or property is held on trust for the benefit of the other parties – where third to fifth respondents claim there was a joint venture between the parties – whether there was a joint venture – consideration of the property of the husband and wife – settlement of property – whether the proposed split of 52/48 percent in favour of the wife is just and equitable
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
ASIC v Karl Suleman Enterprises Pty Ltd (in Liq.) [2003] NSWSC 163
Bathurst City Council v PWC Properties [1998] 195 CLR 566
Baumgartner v Baumgartner (1987) 164 CLR 137
Carson v Wood (1994) 34 NSWLR 9
Coghlan v Coghlan [2005] FLC 93-220
Giumelli v Giumelli (1999) 196 CLR 101
Harris v Caladine [1991] HCA 9; [1991] FLC 92-217
Hayton & Bendle (2010) 43 FamLR 602
Henderson v Miles (No.2) [2005] NSWSC 867
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervenor) [2003] FLC 93-143
In the Marriage of Clauson [1995] FLC 92-595
In the Marriage of Ferraro [1993] FLC 92-335
In the Marriage of Lee Steere [1985] FLC 91-626
JEL & DDF [2001] FLC 93-075
Muir & Royston [2010] FamCA 374
Muschinski v Dodds (1985) 160 CLR 583
Riches v Hogben [1986] 1 QD R 315
Russell v Russell [1999] FLC 92-877
Shepherd v Doolan and Ors [2005] NSWSC 42
Turner v Dunne [1996] QCA 272
Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102
Voda v Voda [1997] FLC 92-75
Warby v Warby [2002] FLC 93-091
Waterhouse v Power [2003] QCA 155
West v Mead [2003] NSWSC 161
APPLICANT: Ms P Crafter
1ST RESPONDENT: Mr B Crafter
2ND RESPONDENT: M Crafter
3RD RESPONDENT: W Crafter
4TH RESPONDENT: D Pty Ltd
5TH RESPONDENT: P Crafter
6TH RESPONDENT: N Pty Ltd
FILE NUMBER: ADC 142 of 2007
DATE DELIVERED: 3 March 2011
PLACE DELIVERED: Melbourne
PLACE HEARD: Adelaide
JUDGMENT OF: Murphy J
HEARING DATE: 4, 5, 6, 9, 10, 11 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tredrea
SOLICITOR FOR THE APPLICANT: Jo-Anne Milen & Associates
COUNSEL FOR THE 1ST RESPONDENT: Mr McGinn
SOLICITOR FOR THE 1ST RESPONDENT: Lindleys Solicitors

COUNSEL FOR THE

2ND, 3RD, 4TH, 5TH RESPONDENTS:

Mr Stevens
SOLICITOR FOR THE
2ND, 3RD, 4TH, 5TH RESPONDENTS:
Stokes Legal

Orders

  1. The application of the wife seeking a declaration in respect of the shareholding in D Pty…

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Crafter and Crafter & Ors [2011] FamCA 122
Case
[2011] FamCA 122
Decision Date

CaseChat Overview and Summary

This case involved applications by a husband and wife, and by third to fifth respondents, seeking various declarations concerning shareholdings in two companies, D Pty Ltd and N Pty Ltd, and ownership of several parcels of land. The third to fifth respondents also sought declarations that any interests held by the husband and wife in the business or property were held on trust for their benefit, asserting the existence of a joint venture. The court was required to determine whether a joint venture existed and to consider the property of the husband and wife for the purpose of settlement.

Murphy J considered the evidence presented by the parties regarding their contributions to the family business and property throughout the marriage. The court was tasked with determining the nature of the parties' equitable interests in the various assets and whether the claims of the third to fifth respondents for a beneficial interest held on trust were made out. Ultimately, the court had to decide on a just and equitable property settlement between the husband and wife, considering a proposed 52/48 percent split in favour of the wife.

The court dismissed the applications by the wife for a declaration regarding her shareholding in D Pty Ltd, and also dismissed the applications by the second to fifth respondents concerning shareholdings in N Pty Ltd and the title to two blocks of land at G. Similarly, the applications by the husband and wife for declarations regarding land owned by the third and fifth respondents were dismissed. The court declared that the husband and wife held legal title to the two blocks of land at G and their respective shareholdings in N Pty Ltd to the exclusion of any claim by the second to fifth respondents. As a settlement of property, the court ordered a division of the husband and wife's property and superannuation interests in the proportion of 52% to the wife and 48% to the husband, with detailed provisions for the transfer of property, payment of sums, and assumption of liabilities to give effect to this division.

Orders

Orders of the court

1.

The application of the wife seeking a declaration in respect of the shareholding in D Pty Ltd is dismissed.

2.

The applications by each and all of the Second, Third, Fourth and Fifth Respondents seeking a declaration in respect of:

(a) the shareholding of the husband and wife in N Pty Ltd;

(b) the title of the husband and wife in and to two blocks of land (“Property 1 at G”) and (“Property 2 at G”);

are each dismissed.

3.

The applications of each of the husband and wife seeking declarations in respect of the two blocks of land (“Block 1 of land at B”) and (“Block 2 of land at B”) owned respectively by the Third Respondent and Fifth Respondent are each dismissed.

4.

Pursuant to s 78 of the Family Law Act 1975 (Cth) as amended (“the Act”) it is declared that:

(a) The husband and wife hold the legal title to two blocks of land situated at G and respectively described as Property 1 at G and Property 2 at G to the exclusion of any right, title, claim or interest in or to the said properties by any or all of the Second to Fifth Respondents; and

(b) The husband and wife hold the legal title to their respective shareholding in N Pty Ltd to the exclusion of any right, title, claim or interest in or to the said properties by any or all of the Second to Fifth Respondents

5.

As and by way of settlement of property pursuant to s 79 of the Act, the property of the husband and wife or either of them within the meaning of the said section together with their respective superannuation interests be divided in the proportion 52% to the wife and 48% to the husband in accordance with the succeeding paragraphs of these orders.

6.

In order to give effect to paragraph 5 of these orders, and save as the parties might otherwise agree in writing and file by way of Amended Order by Consent within 21 days of the date of these Orders, the husband shall, by not later than 28 days from the date of these Orders:

(a) Do all such things and sign all such documents as shall be necessary as to transfer to the wife any right, title claim or interest he has or may have in respect of the following real and personal property:

(i) The two pieces of real property described at paragraph 4(a) of these orders;

(ii) The real property situated at Property 2 at V;

(iii) The personal property agreed to between the parties listed at paragraph 20 of the Reasons for Judgment delivered contemporaneously herewith;

(b) Forthwith abandon any right, title, claim or interest he has or may have in respect of all such property;

(c) Do all such things, sign all such documents and pay all such fees as shall be necessary so at to assume sole responsibility for, and indemnify and hold indemnified the wife, in respect of, the mortgages secured on each of the properties at Property 1 at V, Property 2 at V and Property 3 at V.

7.

In order to give effect to paragraph 5 of these orders, and save as the parties might otherwise agree in writing and file by way of Amended Order by Consent within 21 days of the date of these Orders, the wife shall, by not later than 28 days from the date of these Orders:

(a) Raise the sum of $100,000 so as to pay that sum to the husband contemporaneously with the transfers of real property contemplated by paragraph 6(a) of these Orders;

(b) Do all such things, sign all such documents and pay all such fees as shall be necessary, to transfer to the husband her shareholding in N Pty Ltd and to resign as a director or other officeholder thereof in exchange for which the husband shall indemnify and keep indemnified the wife in respect of all liabilities of the said corporation;

(c) Transfer to the husband any right, title claim or interest she has or may have in respect of the personal property being items 4 to 6, 8, 9, 11 and 12 and 16 listed at paragraph 19 of the Reasons for Judgment delivered contemporaneously herewith.

8.

Each of the husband and wife shall retain, to the exclusion of any present or future right, title claim or interest of the other, their respective superannuation interests.

9.

Save as specifically provided for in these Orders, each of the parties shall retain, to the exclusion of any present or future right, title claim or interest of the other, any property of whatever type or description currently in their respective possession.

10.

In default of the wife raising the sum specified in paragraph 7(a) of these Orders (or in the event that, prior to the time there specified, the wife advises the husband in writing of her inability to do so), then, save as the parties might otherwise agree in writing and file by way of Amended Order by Consent within 21 days of the date of these Orders:

(a) The parties shall do all such things and sign all such documents as may be necessary to list for sale by auction the two properties at G described at paragraph 4(a) of these Orders;

(b) After payment of all reasonable costs of sale and the setting aside of such amount as is agreed or assessed by an appropriately qualified accountant as representing an approximation of any capital gains tax payable in respect of the properties, the net proceeds shall be divided between the parties so as to achieve the division referred to at paragraph 5 of these Orders, using the values or amounts of property and superannuation interests respectively referred to in the Reasons for Judgment delivered contemporaneously herewith;

(c) After payment of any capital gains tax payable in respect of the properties, the balance of the fund set aside pursuant to the previous sub-paragraph of these Orders be divided between the parties so as to achieve a division referred to at paragraph 5 of these Orders, using the values or amounts of property and superannuation interests respectively referred to in the Reasons for Judgment delivered contemporaneously herewith.

11.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered the same.

12.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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