FAMILY COURT OF AUSTRALIA
| GEORGIADES & GEORGIADES AND ORS | [2014] FamCA 856 |
| FAMILY LAW – PROPERTY – Final Orders – Constructive Trust – former matrimonial home constructed on land owned by husband’s parents – wife sought a declaration that the third parties hold their entire interests in the former matrimonial home upon trust for the husband and the wife – wife alleges constructive trust or equitable estoppel – wife submits house was constructed using husband’s funds – wife submits husband’s parents gifted the property to husband and wife during a dinner party – where husband maintains no such representations were made – consideration of elements of constructive trust and equitable estoppel – where wife has failed to establish representation was made – where wife was failed to establish detrimental reliance. FAMILY LAW – PROPERTY – Final Orders – Add backs – where wife submits large cash withdrawals made by the husband should be included in the asset pool – where husband and husband’s parents have failed to adequately disclose the financial circumstances of the family business – evidence of husband and husband’s parents unreliable – monies may still be available to the husband – consideration of notional property following Stanford v Stanford (2012) 247 CLR 108 – appropriate to add back aggregate cash withdrawals. FAMILY LAW – PROPERTY – Final orders – where wife seeks a distribution of property 55/45 in her favour – wife’s proposed orders included the former matrimonial home in asset pool – where husband seeks an equal division of property – wife has made significant homemaker contribution while husband provided financial contribution with the assistance of his parents – where husband likely to have the ongoing financial support of his family – wife is primary caregiver for their two young children – consideration of just and equitable – orders made for final adjustment of property in terms of 62.5/37.5 in favour of the wife. |
| Family Law Act 1975 (Cth) s 79(2), 79(4), 75(2) |
| Bell & Bell [2000] FamCA 1301 |
| APPLICANT: | Ms Georgiades |
| RESPONDENT: | Mr Georgiades |
| SECOND AND THIRD RESPONDENTS: | Mr Georgiades Snr and Mrs Georgiades Snr |
| FILE NUMBER: | MLC | 11134 | of | 2011 |
| DATE DELIVERED: | 8 September 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
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- Case
- [2014] FamCA 856
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether a constructive trust or equitable estoppel had arisen in relation to the former matrimonial home, and whether the husband's parents held any interest in it on behalf of the parties. Additionally, the court had to consider whether the husband's cash withdrawals should be "added back" to the asset pool, and how the parties' respective contributions and future needs should be weighed in determining a just and equitable property division. The court also had to assess the reliability of financial disclosures made by the husband and his parents.
Berman J found that the wife had failed to establish the necessary elements for either a constructive trust or equitable estoppel, specifically noting the absence of a proven representation by the husband's parents and the lack of detrimental reliance by the wife. Regarding the cash withdrawals, the court found the evidence unreliable and, applying principles from *Stanford v Stanford*, determined it was appropriate to add back the aggregate cash withdrawals to the asset pool due to the potential availability of these funds to the husband and the inadequate disclosure by the husband and his parents. In considering the property division, the court acknowledged the wife's significant homemaker contributions and her role as primary caregiver for the parties' two children, while recognising the husband's financial contributions, supported by his parents, and his likely ongoing financial support from his family.
Ultimately, the court ordered that the wife's application for a declaration of trust over the former matrimonial home be dismissed. In full and final settlement, the husband was ordered to pay the wife $269,717 within sixty days. The husband was restrained from dealing with certain assets pending this payment, and provisions were made for the sale of these assets in default of payment. The husband was to indemnify the wife against any liability to his parents, and each party was to indemnify the other against liabilities associated with retained property. The husband retained specific assets, including his shareholding in G Pty Ltd and his interest in P Street, Suburb C, while the wife retained her interest in J Street, Suburb Y. The final property adjustment was made in favour of the wife at 62.5% to 37.5%.
Orders
Orders of the court
1.
That the application of the wife seeking a declaration that the second and third respondents hold the property situate at and known as N Street, Suburb O upon trust for the husband and the wife be dismissed.
2.
In full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of or alteration of their separate interests in property pursuant to s 79 of the Family Law Act 1975 (Cth):-
(a) That within sixty (60) days the husband do pay or caused to be paid to the trust account of MCK Legal for and on behalf of the wife the sum of TWO HUNDRED AND SIXTY NINE THOUSAND SEVEN HUNDRED AND SEVENTEEN DOLLARS ($269,717;
(b) That pending payment of the said settlement sum other than as may be necessary to comply with paragraph 2 (a) hereof, the husband be restrained and an injunction is granted restraining him from encumbering, selling, disposing of or otherwise dealing with the following:-
(i) His title and interest in P Street, Suburb C;
(ii) His shareholding and interest in G Pty Ltd;
(iii) His motor cycle;
(iv) The jet ski;
(v) The boat.
(c) That in default of payment of the said settlement sum, the husband shall forthwith place on the market for sale his one quarter share in P Street, Suburb C, his motor cycle, the jet ski, the boat and his shareholding in G Pty Ltd by public auction or private treaty and upon such terms and conditions as the parties may agree and in default of agreement as may be ordered by this Honourable Court, with the net proceeds of sale to be applied as follows:-
(i) In payment of all costs, commission and expenses of the default sale;
(ii) In payment of the settlement sum or so much thereof as may be outstanding together with default interest from the due date until the date of payment at the rate prescribed pursuant to the Family Law Rules 2004 (Cth) from time to time;
(iii) The balance if any to the husband.
(d) That the husband indemnify the wife and keep her so indemnified against any and all liability of the husband to Mr and Mrs Georgiades Snr;
(e) That each party be liable for and indemnify and keep indemnified the other against any liabilities of each of them associated with or attached to any item of property retained by them;
(f) Subject to the payment of the settlement sum, the husband shall retain to the exclusion of the wife:-
(i) His interest in G Pty Ltd;
(ii) His interest in P Street, Suburb C;
(iii) Funds standing to his credit in bank accounts;
(iv) All motor vehicles in his possession;
(v) His collectibles, household contents and personal effects;
(vi) His superannuation entitlements.
(g) Subject to these orders the wife shall retain to the exclusion of the husband the following:-
(i) Her interest in the property at J Street, Suburb Y;
(ii) Funds standing to her credit in bank accounts;
(iii) All motor vehicles in her possession;
(iv) Her collectables, household contents and personal effects;
(v) Her superannuation entitlement.
3.
That each party will do all such things and sign all such documents that may be required to give effect to this order PROVIDED that if the parties or either of them shall refuse or neglect to execute any transfer or other documentation pursuant to the terms of these orders within seven days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose THEN and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his/her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as may be necessary to give full force and effect thereto.
4.
That the proceedings be certified as fit for counsel and senior counsel.
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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