MARCONE & MARCONE

The parties to this proceeding were Marcone & Marcone. The dispute concerned the division of matrimonial assets following a separation approximately ten years prior. The parties had agreed to an equal division of their net asset pool, but sought court orders regarding specific assets, including a declaration of a Trust, the allocation of various properties, and a contingent liability concerning capital gains tax (CGT) on the sale of the wife's principal residence. The matter came before Johns J in the Family Court of Australia.

The court was required to determine several legal issues. These included whether to declare the existence of the Marcone Family Trust and the beneficial ownership of certain real property interests held by F Pty Ltd. The court also needed to address the parties' competing claims regarding the indemnification for potential CGT liabilities arising from the sale of the wife's principal residence, specifically the duration and extent of such an indemnity. Finally, the court was asked to formalise the division of the parties' various assets and liabilities, including properties and company interests, in accordance with their agreed 50/50 split.

Johns J made a declaration that F Pty Ltd held certain real property interests on trust for the Marcone Family Trust. By consent, the court then made detailed orders for the division of assets. The husband was to retain specific properties and the proceeds of sale from his interests in certain companies. The wife was to retain other specified real properties and her shares in F Pty Ltd and interest in the Marcone Family Trust. Orders were made for the division of proceeds from the sale of a property held by the wife's solicitors and for the application of proceeds from the sale of the "G Street Properties". Crucially, the court ordered that the husband would indemnify the wife for 50% of any CGT payable on the sale of the X Street property, up to a maximum of $142,000, provided the sale was completed within two years of the orders. The husband was also required to charge his AA Street property with this indemnity. Upon the second anniversary of the orders, the husband's indemnity obligation would cease. The court also made orders regarding the transfer of shares in F Pty Ltd and interests in the Marcone Family Trust, and addressed the parties' respective liabilities for expenses and taxes. All extant applications were otherwise dismissed.