Daymond & Anor & Daymond & Ors

This matter concerned property settlement applications brought by two former wives, Ms M Daymond and Ms R Daymond, against their respective former husbands, Mr D Daymond and Mr I Daymond, who were brothers. A central issue in both marriage dissolutions was the shareholding of each brother in a company. A third party, Mr A Daymond, the son of the first applicant and first respondent, also filed a claim alleging that his father and uncle held their company shares on trust for him. This claim, initially filed in the Supreme Court of Queensland, was transferred to the Family Court of Australia to be heard alongside the property settlement proceedings.

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.