Garibaldi and Garibaldi and Anor - [2013] FamCA 230

FAMILY COURT OF AUSTRALIA

GARIBALDI & GARIBALDI & ANOR

[2013] FamCA 230

FAMILY LAW – EQUITY – Whether the husband holds a share in a company beneficially thereby forming part of the matrimonial pool – Whether the husband holds the share on resulting trust for his father thereby not forming part of the matrimonial pool – Whether the presumption of advancement is rebutted – What the donor’s intention was at the time of allocating the share to the husband and relevant surrounding events – Where the Court found that the presumption of advancement had been rebutted – Where the husband was found to hold his share in the company upon resulting trust for his father.

FAMILY LAW – COSTS – As between the wife and the Second Respondent where wife joined the Second Respondent to the proceedings and was wholly unsuccessful in respect of the threshold issue – As between the husband and the wife where costs reserved before the trial Judge at final hearing

Companies Act 1961 (NSW)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Buffrey v Buffrey & Anor [2006] NSWSC 1349
Briginshaw v Briginshaw (1938) 60 CLR 336
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Cummins v Cummins (2006) 227 CLR 278
Damberg v Damberg (2001) 56 NSWLR 492
Kawada & Kawada [2012] FamCA 273
Penfold v Penfold (1980) 144 CLR 311
Z & Z (2006) 34 Fam LR 296; [2005] FamCA 996

APPLICANT:

Mr A Garibaldi

1st RESPONDENT:

Ms B Garibaldi

2nd RESPONDENT:

Mr C Garibaldi

FILE NUMBER:

PAC

924

2012

DATE DELIVERED:

12 April 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

25 and 26 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Stenhouse

SOLICITOR FOR THE APPLICANT:

Ms Munk
Matthews Folbigg Pty Ltd

COUNSEL FOR THE 1ST RESPONDENT:

Mr Byrne

SOLICITOR FOR THE 1ST RESPONDENT:

Ms O'Reilly
McCabe Partners Lawyers

SENIOR COUNSEL FOR THE 2ND

RESPONDENT:

Ms Rees S.C.

JUNIOR COUNSEL FOR THE 2ND

RESPONDENT:

Mr Edwards

SOLICITOR FOR THE 2ND RESPONDENT:

Mr Jedrezjczyk

Levy Partners

Orders

That I declare that the Applicant husband holds his one share in the company G Pty Ltd upon trust for his father, the Second Respondent.
That Order 4 made on 5 November 2012 be and is hereby discharged.
That the Applicant, First Respondent and Second Respondent do all things and sign all documents necessary to authorise Mr D, Ms E and Ms F to close and obtain payment of term deposit … and to pay the amount thereby received, being the sum of $400,000, in addition to any interest accrued thereon, to the Second Respondent.
That I dismiss the First Respondent’s application purporting to join the Second Respondent to these proceedings as sought in her Amended Response filed 6 September 2012.
That the First Respondent pay to the Second Respondent his costs of and incidental to the application for relief against him from the date of filing her Amended Response purporting to join…

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.

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Details

Case: [2013] FamCA 230
Decision Date: 12 April 2013

CaseChat Overview and Summary

In *Garibaldi and Garibaldi*, Collier J of the Family Court of Australia considered a dispute concerning whether a share held by the husband in a company, G Pty Ltd, formed part of the matrimonial pool. The wife sought to include this share in the property settlement, while the husband contended that he held the share on a resulting trust for his father, the Second Respondent, thereby excluding it from the matrimonial assets.

The central legal issues before the court were whether the husband beneficially held the share in G Pty Ltd, and consequently, whether it formed part of the matrimonial pool. This involved determining if the presumption of advancement applied and, if so, whether it had been rebutted by evidence of the donor's intention at the time the share was allocated to the husband, considering relevant surrounding events. The court was also required to determine the appropriate costs orders, particularly as between the wife and the Second Respondent, given the wife's unsuccessful application to join the Second Respondent to the proceedings.

Collier J found that the presumption of advancement was rebutted. The court concluded that the husband held his one share in G Pty Ltd upon a resulting trust for his father, the Second Respondent. Consequently, the share was not considered part of the matrimonial pool. The court also ordered that a term deposit of $400,000, plus accrued interest, be paid to the Second Respondent. The wife's application to join the Second Respondent to the proceedings was dismissed, and the wife was ordered to pay the Second Respondent's costs of and incidental to that application on a solicitor and client basis, with costs certified for senior and junior counsel. Costs as between the applicant husband and the first respondent wife concerning the proceedings involving the Second Respondent were reserved for the trial judge at the final hearing.

Orders

Orders of the court

That I declare that the Applicant husband holds his one share in the company G Pty Ltd upon trust for his father, the Second Respondent.

That Order 4 made on 5 November 2012 be and is hereby discharged.

That the Applicant, First Respondent and Second Respondent do all things and sign all documents necessary to authorise Mr D, Ms E and Ms F to close and obtain payment of term deposit … and to pay the amount thereby received, being the sum of $400,000, in addition to any interest accrued thereon, to the Second Respondent.

That I dismiss the First Respondent’s application purporting to join the Second Respondent to these proceedings as sought in her Amended Response filed 6 September 2012.

That the First Respondent pay to the Second Respondent his costs of and incidental to the application for relief against him from the date of filing her Amended Response purporting to join him until the conclusion of this threshold hearing.

That I certify for both Senior and Junior Counsel for the Second Respondent in respect of these Orders pursuant to rule 19.50 of the Family Law Rules 2004 (Cth).

That such costs shall be as agreed or assessed on a solicitor and client basis.

That the sum agreed upon or assessed, as the case may be, shall be paid within a time agreed between the Second Respondent and the First Respondent, or failing agreement, within nine (9) months of the date of agreement or the date of issue of an assessment of costs pursuant to these Orders.

That I reserve the costs as between the Applicant and the First Respondent to the trial Judge at the final hearing in respect of the proceedings involving the Second Respondent arising from the First Respondent’s Amended Response filed 6 September 2012.

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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