FAMILY COURT OF AUSTRALIA
| DAYMOND AND ANOR & DAYMOND AND ORS | [2013] FamCA 215 |
| FAMILY LAW – PROPERTY SETTLEMENT – where the first and second applicants seek property settlement orders against their respective former spouses, who are brothers – where a significant portion of the “legal and equitable interests” of the parties to each marriage is the shareholding of each brother in a company – where that shareholding was subject to a claim by the first applicant’s son that his father and uncle held their shares on trust for him – where that trust claim was ultimately unsuccessful – whether the existing legal and equitable interests of the parties should be altered – where it is just and equitable to make orders altering the parties’ existing legal and equitable interests. FAMILY LAW – EQUITY – where the third party son of the first applicant and first respondent filed a claim based on constructive trust in the Supreme Court – where that claim was transferred to this Court to be heard with his parents’ and uncle and aunt’s property settlement proceedings – where the third party claims that his father and uncle hold their shares in a company on trust for him – where the third party alleges that his father and uncle made representations to him that he would have control of or be the majority shareholder in the company at an indeterminate point in time – whether a constructive trust arises – where the representations alleged are ambiguous – where, in any event, there is nothing to indicate that the father and uncle have resiled from the alleged representations – where no constructive trust arises – third party’s claim dismissed. |
| Family Law Act 1975 (Cth) |
| 1st APPLICANT: | Ms M Daymond |
| 2nd APPLICANT: | Ms R Daymond |
| 1st RESPONDENT: | Mr D Daymond |
| 2 |
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- Case
- [2013] FamCA 215
- Decision Date
CaseChat Overview and Summary
The court was required to determine two primary legal issues. Firstly, whether the existing legal and equitable interests of the parties in the property should be altered to effect a just and equitable division under section 79 of the *Family Law Act 1975* (Cth). Secondly, the court had to consider whether a constructive trust arose in favour of the third party, Mr A Daymond, concerning the company shares held by his father and uncle, based on alleged representations that he would have control of or be the majority shareholder in the company at some future point.
Regarding the constructive trust claim, Murphy J found that the alleged representations were ambiguous and, importantly, that there was no evidence that the brothers had resiled from these representations. Consequently, the court concluded that no constructive trust arose, and Mr A Daymond’s claim was dismissed. In relation to the property settlements, the court found it just and equitable to alter the existing legal and equitable interests of the parties. For the marriage of Mr D Daymond and Ms M Daymond, the court ordered a division of property interests whereby Mr D Daymond would receive 55 per cent and Ms M Daymond would receive 45 per cent. For the marriage of Mr I Daymond and Ms R Daymond, the court ordered that Mr I Daymond receive 47.5 per cent and Ms R Daymond receive 52.5 per cent of the property interests. The parties were directed to provide agreed minutes of order to give effect to these divisions within 21 days, with provisions for further hearing should agreement not be reached.
Orders
Orders of the court
1.
That the Claim and Statement of Claim filed by Mr A Daymond in the Supreme Court of Queensland on 23 March 2012 and transferred to this Court on 30 May 2012 be dismissed.
A. IN THE MARRIAGE OF MR D DAYMOND and MS M DAYMOND
2.
THAT as and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), the existing legal and equitable interests in the property of the parties as set forth in the Reasons for Judgment herewith be altered so as to effect a division of those interests whereby MR D DAYMOND receives property equivalent to 55 per cent of the value thereof and MS M DAYMOND receives property equivalent to 45 per cent of the value thereof.
3.
THAT so as to give effect to paragraph (2) of these Orders, the parties shall, within 21 days of the date of these Orders, provide via joint e-mail communication to the Associate to Murphy J an agreed minute of order.
4.
THAT in the event that the parties are unable or unwilling to arrive at the orders contemplated by paragraph (3) hereof, the matter be listed for hearing before Murphy J on a date and at a time to be advised and, in that event, the parties shall, not later than 5 days before such date, file and serve all such material as might be necessary so as to make submissions in respect of any order for costs of and incidental to the failure to provide a minute of order as paragraph (3) contemplates.
B. IN THE MARRIAGE OF MR I DAYMOND and MS R DAYMOND
5.
THAT as and by way of settlement of property pursuant to s 79 of the Act, the existing legal and equitable interests in property of the parties as set forth in the Reasons for Judgment herewith be altered so as to effect a division of those interests whereby Mr I Daymond receives property equivalent to 47.5 per cent of the value thereof and MS R DAYMOND receives property equivalent to 52.5 per cent of the value thereof.
6.
THAT so as to give effect to paragraph (5) of these Orders, the parties shall, within 21 days of the date of these Orders, provide via joint e-mail communication to THE Associate to Murphy J an agreed minute of Order.
7.
THAT in the event that the parties are unable or unwilling to arrive at the orders contemplated by paragraph (6) hereof, the matter be listed for hearing before Murphy J on a date and at a time to be advised and, in that event, the parties shall, not later than 5 days before such date, file and serve all such material as might be necessary so as to make submissions in respect of any order for costs of and incidental to the failure to provide a minute of order as paragraph (6) contemplates.
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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