FAMILY COURT OF AUSTRALIA
| KAWADA & KAWADA AND ORS | [2012] FamCA 273 |
| FAMILY LAW – PROPERTY – Whether real property, a cash sum and a motor vehicle are property of the husband and the wife or either of them by way of presumption of advancement or belong to the husband’s father/parents by way of resulting trust – Whether presumption of advancement rebutted in relation to those items – Held on the evidence resulting trust applies to each item and presumption of advancement rebutted for each item – Net negative pool – Relevance of question whether husband's and wife's property and assets including their superannuation interests should be regarded as one pool or whether their superannuation interests should be regarded as a separate pool – Contribution during the course of the relationship and marriage including in relation to superannuation interests agreed to be treated as equal – Section 75(2) factors favour adjustment to wife - Just and equitable to make order under s 79 FAMILY LAW – PROPERTY – Superannuation interests - Splitting order not sought at trial but sought after trial and before judgment – No notice to trustee – Court asked to make a splitting order before procedural fairness accorded to trustee and predicated upon subsequent procedural fairness such that trustee within a reasonable time could apply to set aside splitting order – That approach refused as inconsistent with s 90MZD – Matter stood over to allow s 90MZD compliance |
| Evidence Act 1995 (Cth) s 138, s 140 Family Law Act 1975 (Cth) s 79, s 75(2), s 81, s 90AE, s 90MC(1), s 90MZD Marriage Act 1961 (Cth) Property Law Act 1974 (Qld) s 11 |
Australian Securities & Investments Commission v Rich (2003) FLC 93-171
Baumgartner v Baumgartner (1987) 164 CLR 137
Biltoft and Biltoft (1995) FLC 92-614
Bloch v Bloch (1981) 180 CLR 390
Briginshaw v Briginshaw (1938) 60 CLR 336
Buffrey v Buffrey [2006] NSWSC 1349
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Coghlan & Coghlan (2005) FLC 93-220
Damberg v Damberg (2001) 52 NSWLR 492
Farmer and Bramley (2000) FLC 93-060
Figgins and Figgins (2002) FLC 93-122
Jones v Dunkel (1959) 101 CLR 298
Kessey and Kessey (1994) FLC 92-495
Marshal v Crutwell (1875) LR 20 Eq 328
Muschinski v Dodds (1985) 160 CLR 583
Napier v Public Trustee (Western Australia) 32 ALR 153
Norbis & Norbis (1986) 161 CLR 513
Pierce and Pierce (1999) FLC 92-844
Potter & Potter [2003] 3 NZLR 145
Robson & Robson (2003) FLC 93-145
Russell v Scott (1936) 55 CLR 440
Shephard v Cartwright (1955) AC 431
Trustee of the Property of G Lemnos, a Bankrupt & Lemnos & Anor (2009) FLC 93-394
Zyk & Zyk (1995) FLC 92-644
HAJ Ford and WA Lee, Thomson Reuters, The Law of Trusts, vol 2, (at update 80)
| APPLICANT: | Ms Kawada |
| FIRST RESPONDENT: | Mr Kawada |
| SECOND RESPONDENTS: | T Kawada and M Kawada |
| FILE NUMBER: | BRC | 9952 | of | 2009 |
| DATE DELIVERED: | 1 May 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: |
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- AGLC
- Kawada & Kawada [2012] FamCA 273
- Case
- [2012] FamCA 273
- Decision Date
CaseChat Overview and Summary
The court was required to determine the beneficial ownership of the real property, the cash sum, and the motor vehicle. Specifically, it needed to ascertain whether these assets belonged to the matrimonial pool or were held by the husband on a resulting trust for his parents, thereby rebutting the presumption of advancement. The court also considered the relevance of pooling superannuation interests and the application of section 75(2) factors of the *Family Law Act 1975* (Cth) for any adjustment to the wife.
O’Reilly J applied established legal principles regarding resulting trusts and the presumption of advancement. The court referred to *Russell v Scott* and *Charles Marshall Pty Ltd v Grimsley*, which affirmed that while a purchase in a child's or wife's name is presumed to be an advancement, this presumption can be rebutted by surrounding circumstances indicating a trust was intended. The court found, on the evidence presented, that a resulting trust applied to each of the disputed items, and the presumption of advancement was rebutted. The court also noted that a splitting order for superannuation was sought after trial without notice to the trustee, which was inconsistent with section 90MZD of the Act, and therefore stood the matter over to allow for procedural fairness to the trustee.
The court declared that the real property, the AUD190,000 cash sum, and the motor vehicle were held by the husband by way of a resulting trust beneficially for T Kawada and M Kawada. The wife was ordered to remove a caveat lodged against the property, with a Registrar appointed to effect removal if necessary. The applications for a section 79 order were stood over pending the wife's solicitors providing procedural fairness to the husband's superannuation trustee and filing evidence of the trustee's response. The matter was relisted for a section 79 order to be made in accordance with the judgment.
Orders
Orders of the court
IT IS DECLARED
1.
The property at D Court, P Queensland … registered in the name Mr Kawada (the P property) is held by him by way of a resulting trust beneficially for T Kawada and M Kawada.
2.
The amount of AUD190,000 remitted by Mr Kawada to T Kawada in or about August 2009 belongs to T Kawada and M Kawada beneficially.
3.
The Ford Falcon motor vehicle registered in the name Mr Kawada registered no … is held by him by way of a resulting trust beneficially for T Kawada and M Kawada.
AND IT IS ORDERED
4.
The wife do all things and sign all documents necessary to remove caveat no … lodged against the title to the P property.
5.
Pursuant to s 106A(1) of the Family Law Act 1975 (Cth) (the Act) a Registrar is appointed to do all acts and sign all documents necessary in the name of the wife to effect removal of the caveat.
AND IT IS FURTHER ORDERED
6.
The applications by Ms Kawada and Mr Kawada for an order under s 79 of the Act be stood over pending the wife’s solicitors according procedural fairness to the trustee of the husband’s superannuation interest with Suncorp Easy Super and filing evidence of such including any response from the trustee.
7.
The matter be further listed at 9.30 am on Tuesday 22 May 2012 for the making of a s 79 order in accordance with the reasons for judgment.
NOTATION:
1.
The proposed s 79 order is attached and marked Annexure A subject to submissions on the form of the order.
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
In Russell v Scott (1936) 55 CLR 440 Dixon and Evatt JJ at 452-3 referred with approval to Sir George Jessel MR in Marshal v Crutwell (1875) LR 20 Eq 328:He says: - “…As I understand it, the law is this: The mere circumstance that the name of a child or a wife is inserted on the occasion of a purchase of stock is not sufficient to rebut a resulting a trust in favour of the purchaser if the surrounding circumstances lead to the conclusion that a trust was intended. Although a purchase in the name of a wife or a child, if altogether unexplained, will be deemed a gift, yet you may take surrounding circumstances into consideration, so as to say that it is a trust, not a gift. So in the case of a stranger, you may take surrounding circumstances into consideration, so as to say that a purchase in his name is a gift, not a trust.” (emphasis added; footnote omitted) Later, in Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ said at 363-4:…We are in the presence of the familiar problem that arises whenever a person purchases and pays for property, real or personal, whatever its description may be, the legal title to which is transferred by his direction into the name of another person. If that person is a stranger, the presumption of a resulting trust arises and he holds the property on trust for the purchaser. But if the purchaser is the father of or a person in loco parentis to the legal owner, the presumption arises from the relationship of the parties that the father intended to purchase the property to advance his child and to make the child not only the legal but also the beneficial owner of the property. These presumptions were described as landmarks in the law by Eyre C.B. as far back as 1788 in the leading case of Dyer v. Dyer (1). In Sidmouth v Sidmouth (2), decided in 1840, Lord Langdale M.R. said: “The law applicable to cases of this nature is subject to so little doubt that it has not been questioned in the argument of this case. Where property is purchased by a parent in the name of his child, the purchase is prima facie to be deemed an advancement; the resulting or implied trust which arises in favour of the person who pays the purchase-money, and takes a conveyance or transfer in the name of a stranger, does not arise in the case of a purchase by a parent in the name of a child; but still the relation of parent and child is only evidence of the intention of the parent to advance the child, and that evidence may be rebutted by other evidence, manifesting an intention that the child shall take as a trustee; and in this case, as in most others of the like kind, the only question is, whether there is such other evidence. That cotemporaneous acts and even cotemporaneous declarations of the parent may amount to such evidence, has often been decided. Subsequent acts and declarations of the parent are not evidence to support the trust, although subsequent acts and declarations of the child may be so; but, generally speaking, we are to look at what was said and done at the time”. (emphasis added; footnote omitted).