Giles & Giles & Anor

Case [2018] FCCA 194

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILES & GILES & ANOR [2018] FCCA 194

Catchwords:
FAMILY LAW – Property – final hearing – whether one half of a property held in the husband’s sole name is held on trust for the husband’s father by way of an express trust – whether a resulting trust exists – whether the presumption of advancement is applied or rebutted.

FAMILY LAW – Property – final hearing – long marriage – characterisation of debt owing to the husband’s father – contributions – future needs.

Legislation:

Family Law Act 1975, ss.75, 79, 80, 81

Conveyancing Act 1919 (NSW) s.23C

Cases cited:    

Bevan & Bevan (No.2) [2014] FamCAFC 19; (2014) FLC 93-572
Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Bloch v Bloch (1981) 180 CLR 390
Calverly v Green (1984) 155 CLR 242
Cierpiatka (1999) FLC 92-864; [1999] FamCA 1286
Hickey v Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; (2003) FLC 93-143
In the Marriage of Crapp and Crapp (No 2) (1979) 5 Fam LR 47; (1979) FLC 90-615
Kawada & Kawada [2012] FamCA 273
Kowaliw and Kowaliw (1981) FLC 91-092
Norbis & Norbis (1986) 161 CLR 513; (1986) 10 Fam LR 819; [1986] FLC 91-712
Norbis & Norbis (1986) 161 CLR 513; (1986) 10 Fam LR 819; [1986] FLC 91-712
Rockman & Rockman [2014] FCCA 1966
Stanford v Stanford [2012] HCA 52
Applicant: MS GILES
First Respondent: MR GILES
Second Respondent: MR [A] GILES
File Number: SYC 6853 of 2014
Judgment of: Judge Monahan
Hearing dates:

14, 15, 16 and 22 August 2017 and

18 October 2017
Date of Last Submission: 4 May 2018
Delivered at: Sydney
Delivered on: 21 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Hodgson
Solicitors for the Applicant: Heslop Lawyers
Counsel for the First Respondent: Mr Stapleton
Solicitors for the First Respondent: Robertson Saxton Primrose Dunn
Counsel for the Second Respondent: Mr Stewart
Solicitors for the Second Respondent: Rebekah Dorter Family Lawyer

ORDERS

THE COURT ORDERS ON A FINAL BASIS THAT:

  1. Within 7 days of these Orders the parties cause the net proceeds of sale from the Property A property be divided as follows:

    (a)$1,063,199.40 to the Second Respondent;

    (b)$62,463.24 to the Applicant wife; and

    (c)$99,964.88 to the Respondent husband; and

    (d)the balance (including any accrued interest) to the parties as follows:

    (i)50% to the Second Respondent;

    (ii)30% to the Applicant wife; and

    (iii)20% to the Respondent husband.

  2. Subject to paragraph 1 herein, the Applicant wife and the Respondent Husband each keep all assets in their respective names including any superannuation entitlements, and otherwise indemnify each other against any liabilities in their name.

  3. In the event that any party seeks to press their application for costs in these proceedings, they are to make, file and serve an Application in a Case within 28 days.

  4. Subject to paragraph 4 herein, all extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Giles & Giles &…

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Giles & Giles & Anor [2018] FCCA 194
Case
[2018] FCCA 194
Decision Date

CaseChat Overview and Summary

In *Giles & Giles & Anor*, heard by Judge Monahan, the dispute concerned the division of property following a long marriage. The central issues were whether a property held in the husband's sole name was held on trust for his father, and the characterisation of a debt owed to the husband's father. The court was required to determine the existence of an express or resulting trust, and whether the presumption of advancement applied or was rebutted. Further, the court had to consider the parties' contributions and future needs in the property settlement.

The court's reasoning involved an analysis of the evidence presented regarding the property and the debt. It considered the principles of express and resulting trusts, and the presumption of advancement in the context of family law property proceedings. The court also assessed the contributions made by each party throughout the marriage and their respective future needs.

The final orders provided for the division of the net proceeds of sale from a specific property. The Second Respondent was to receive a fixed amount and 50% of the balance, the Applicant wife was to receive a fixed amount and 30% of the balance, and the Respondent husband was to receive a fixed amount and 20% of the balance. Each party was to retain assets in their own name, and indemnify each other against liabilities. Any applications for costs were to be made within 28 days, and all other extant applications were dismissed.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS THAT:

1.

Within 7 days of these Orders the parties cause the net proceeds of sale from the Property A property be divided as follows:

(a) $1,063,199.40 to the Second Respondent;

(b) $62,463.24 to the Applicant wife; and

(c) $99,964.88 to the Respondent husband; and

(d) the balance (including any accrued interest) to the parties as follows:

(i) 50% to the Second Respondent;

(ii) 30% to the Applicant wife; and

(iii) 20% to the Respondent husband.

2.

Subject to paragraph 1 herein, the Applicant wife and the Respondent Husband each keep all assets in their respective names including any superannuation entitlements, and otherwise indemnify each other against any liabilities in their name.

3.

In the event that any party seeks to press their application for costs in these proceedings, they are to make, file and serve an Application in a Case within 28 days.

4.

Subject to paragraph 4 herein, all extant applications be otherwise dismissed.

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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