Giacobetti & Giacobetti

Case [2025] FedCFamC1F 319

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Giacobetti & Giacobetti [2025] FedCFamC1F 319

File number: SYC 6643 of 2024
Judgment of: BOYLE J
Date of judgment: 19 May 2025
Catchwords: FAMILY LAW – PROPERTY – Application pursuant to s 79A(1)(b) and (c) of the Family Law Act 1975 (Cth) to set aside final orders – Grounds not made out – Where principles of estoppel apply – Application dismissed
Legislation: Family Law Act 1975 (Cth) ss 79, 79A, 81
Cases cited:

Cawthorn & Cawthorn (1998) 23 Fam LR 86

CDK & Ors v AMA [2009] QSC 190

Clayton v Bant [2020] HCA 44; 272 CLR 1

Giacobetti & Giacobetti (No 4) [2024] FedCFamC1F 43

Giacobetti & Giacobetti (No 5) [2024] FedCFamC1F 379

La Rocca & La Rocca (1991) FLC 92-222

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Division: Division 1 First Instance
Number of paragraphs: 44
Date of hearing: 12 May 2025
Place: Sydney
Counsel for the Applicant: Mr Dura SC with Ms Reid
Solicitor for the Applicant: Thurlows Family Lawyers
Counsel for the First and Second Respondents: Mr Othen SC
Solicitor for the First and Second Respondents: Newnhams Solicitors
Counsel for the Third Respondent: Mr Young
Solicitor for the Third Respondent: Hegarty Legal

ORDERS

SYC 6643 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS GIACOBETTI

Applicant
AND:

MR GIACOBETTI

First Respondent

GIACOBETTI INVESTMENTS PTY LTD

Second Respondent

L HOLDINGS PTY LTD

Third Respondent

ORDER MADE BY:

BOYLE J

DATE OF ORDER:

19 MAY 2025

THE COURT ORDERS THAT:

1.The Wife’s Initiating Application filed 27 August 2024 is dismissed.

2.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

3.Any application for costs shall be made within 14 days of today’s date along with brief written submissions in support, and any Response shall be filed within 7 days thereafter.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BOYLE J:

  1. The wife applies under section 79A(1)(b) and (c) of the Family Law Act 1975 (Cth) (“the Act”) to set aside…

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AGLC
Giacobetti & Giacobetti [2025] FedCFamC1F 319
Case
[2025] FedCFamC1F 319
Decision Date

CaseChat Overview and Summary

In the matter of Giacobetti & Giacobetti, the Federal Circuit and Family Court of Australia was presented with an application to set aside final orders made in relation to the property settlement of a married couple. The wife sought to set aside the orders on the grounds that they were not just and equitable, and that the husband had acted in bad faith by transferring shares held by Giacobetti Investments Pty Ltd in B Pty Ltd to himself. The husband had executed a Specific Security Deed in relation to the shares, securing a debt owed by Giacobetti Investments to L Holdings Pty Ltd. The wife claimed that she was unaware of the Specific Security Deed at the time the orders were made, and that the husband had acted in bad faith by transferring the shares to himself after the orders were made. The court was required to determine whether the wife had established the necessary grounds to set aside the final orders, and whether principles of estoppel applied. The court found that the wife had not established the necessary grounds to set aside the final orders. The court held that the wife had not shown that the orders were not just and equitable, or that the husband had acted in bad faith. The court also found that principles of estoppel applied, and that the wife was estopped from seeking to set aside the final orders. The court held that the wife had been aware of the Specific Security Deed prior to the final hearing, and that she had not taken any steps to challenge the deed or the transfer of the shares. The court held that the wife was therefore estopped from seeking to set aside the final orders. The court dismissed the wife's application to set aside the final orders, and ordered that all outstanding applications be dismissed and the proceedings be removed from the list of matters awaiting finalisation. The court also ordered that any application for costs be made within 14 days of the date of the order, along with brief written submissions in support, and that any response be filed within 7 days thereafter. The form of the order is subject to the entry in the Court’s records.

Orders

Orders of the court

SYC 6643 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GIACOBETTI

Applicant

AND:

MR GIACOBETTI

First Respondent

GIACOBETTI INVESTMENTS PTY LTD

Second Respondent

L HOLDINGS PTY LTD

Third Respondent

ORDER MADE BY:

BOYLE J

DATE OF ORDER:

19 MAY 2025

THE COURT ORDERS THAT:

1. The Wife’s Initiating Application filed 27 August 2024 is dismissed.

2. All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

3. Any application for costs shall be made within 14 days of today’s date along with brief written submissions in support, and any Response shall be filed within 7 days thereafter.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

By agreement the matter was conducted on the basis of submissions.BACKGROUND The parties married in 1995. Separation occurred in April/May 2021. In 2004, B Pty Ltd was incorporated. It is an unlisted public company. B Pty Ltd is a research company, and the husband is one of six directors. Giacobetti Investments Pty Ltd ATF the Giacobetti Family Trust (“Giacobetti Investments”) acquired 24.72 per cent of the issued shares in B Pty Ltd. The shares in B Pty Ltd are subject to a Specific Security Deed entered into by the husband on 24 July 2021, which was varied by deed on 29 September 2021. The Deed secures $461,667 against the whole of the Trust’s shareholding on behalf of L Holdings Pty Ltd (“L Holdings”). The wife was not aware of the Specific Security Deed nor the Deed of Acknowledgement of Debt, nor the Deed of Variation being executed at the dates of execution. She was aware of those documents prior to the final hearing. L Holdings was not a party to the prior proceedings, nor was Giacobetti Investments. At the time of the first hearing the Expert appointed as valuer of the B Pty Ltd shares referred to the difficulties in ascribing a value to the shares. At that time the shares held numbered 12,070,379, which it was agreed represent a 22.7 per cent interest in the company. She considered the value of B Pty Ltd on the basis of its net assets at 30 June 2023 as $235,349. She then considered a second scenario on an implied price per share based on a listing of share transfers on 4 December 2023. The difference between the two valuations was over $10 million. Ultimately Her Honour took a two-pool approach where the first pool comprised the 12,070,379 shares with a value ranging between nil and $10,258,822. The pool also contained a liability of up to $461,667. The other assets and liabilities of the parties were dealt with in pool two. Her Honour determined it was a just and equitable outcome for the wife to retain an interest in the shares of B Pty Ltd in circumstances where the parties made many and varied contributions during the course of the relationship. Her Honour noted, “if it comes to nought, they share in the loss and if as hoped it becomes a valuable asset, developed over many years during the marriage, then they share in the success of the endeavour” (Giacobetti & Giacobetti (No 4) [2024] FedCFamC1F 43 at [186]). Orders were made that the husband transfer 40 per cent of the shares held in B Pty Ltd, and the husband do all acts and things within his power to cause the share transfer to be registered. The transfer was ordered to occur within 14 days. The wife signed a share transfer and forwarded it to the husband on 13 February 2024. The husband signed the transfer on 19 February 2024. On 19 February 2024, L Holdings transferred to itself the parcel of 12,070,379 shares held by Giacobetti Investments in B Pty Ltd. The Third Respondent did so pursuant to a power of attorney under clause 16.1 of the Specific Security Deed on the basis that Giacobetti Investments had committed an event of default under the Deed.SUBPOENA TO B PTY LTD

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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