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) |
| APPLICANT: | Mr A Garibaldi |
| 1st RESPONDENT: | Ms B Garibaldi |
| 2nd RESPONDENT: | Mr C Garibaldi |
| FILE NUMBER: | PAC | 924 | of | 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 |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Byrne |
| SOLICITOR FOR THE 1ST RESPONDENT: | Ms O'Reilly |
| 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…
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- Case
- [2013] FamCA 230
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
That Order 4 made on 5 November 2012 be and is hereby discharged.
3.
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.
4.
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.
5.
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.
6.
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).
7.
That such costs shall be as agreed or assessed on a solicitor and client basis.
8.
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.
9.
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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