Rigby & Kingston (No. 4)

Case [2021] FamCA 501

FAMILY COURT OF AUSTRALIA

Rigby & Kingston (No. 4) [2021] FamCA 501

File number(s): BRC 12882 of 2016
Judgment of: CAREW J
Date of judgment: 9 July 2021
Catchwords: FAMILY LAW – PROPERTY – Whether it is just and equitable to make an order under s 79(1) of the Family Law Act 1975 (Cth) – Where the husband contends that it is not just and equitable to make an order where the entirety of the property pool has not been valued – Whether the wife’s rights as a discretionary beneficiary in various trusts and as a residuary beneficiary in a trust are property for the purposes of s 4(1) of the Family Law Act 1975 (Cth) – whether the wife’s rights as a shareholder in various companies are property for the purposes of s 4(1) of the Act – Whether the wife’s rights have any practical value – Whether an Umbrella Deed affects the nature of the legal and equitable interests of the wife in property
Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited:

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337

Bevan & Bevan (2013) FLC 93-545

Briese & Briese (1986) FLC 91-713

Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12

Emu Brewery Mezzanine Ltd (in Liq) v Australian Securities and Investment Commission (2006) 32 WAR 204

Fordyce v Ryan [2017] 2 Qd R 240

Gartside v Inland Revenue Commissioners [1968] A.C. 553

Hall v Hall (2016) 257 CLR 490

Harris & Dewell (2018) FLC 93-839

In the Marriage ofBest & Best (1993) FLC 92-418

In the Marriage of Crapp & Crapp (1979) FLC 90-615

In the Marriage of Duff and Duff (1977) FLC 90-217

In the Marriage of Evans (1991) FLC 92-223

In the Marriage of Goodwin and Goodwin Alpe (1991) FLC 92-192

In the Marriage of Hauff (1986) FLC 91-747

In the Marriage of W & W (1980) FLC 90-872

JEL and DDF (2001) FLC 93-075

Karllson & Karllson [2014] FamCA 571

Kennon & Spry (2008) 238 CLR 366

Lewis v Condon (2013) 85 NSWLR 99

Livingston v Commissioner of Stamp Duties (Q.) (1960) 107 CLR 411

Loxton v Moir (1914) 18 CLR 360

Marchant & Marchant (2012) FLC 93-520

Mullane v Mullane (1983) 158 CLR 436

Norman v Federal Commissioner of Taxation (1963) 109 CLR 9

Omacini & Omacini (2005) FLC 93-218

Pittman & Pittman (2010) FLC 93-430

Rigby & Kingston and Ors (No. 2) [2020] FamCA 695

Re Webster (1975) 132 CLR 270

Re Weir's Settlement Trusts [1971] Ch. 145

Sainsbury v Commissioners of Inland Revenue [1970] Ch. 712

Sand & Sand (2012) FLC 93-519

Simmons v Simmons (2008) 40 Fam LR 520

Stanford v Stanford (2012) 247 CLR 108

Waterman & Waterman (2017) FLC 93,762

Watson & Ling (2013) FLC 93-527

Hon Justice Brereton in The High Court and family law: Two recent excursions (2013) 3 Fam L Rev 63    
Number of paragraphs: 159
Date of hearing: 13–15 April 2021
Place: Brisbane

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Details
AGLC
Rigby & Kingston (No. 4) [2021] FamCA 501
Case
[2021] FamCA 501
Decision Date

CaseChat Overview and Summary

In the matter of *Rigby & Kingston (No. 4)*, Carew J of the Family Court of Australia considered a dispute between Mr Rigby (applicant) and Ms Kingston (respondent), with other respondents also involved. The core of the dispute revolved around property settlement following the parties' separation after a long marriage. A key point of contention was the husband's assertion that it was not just and equitable to make property orders until the entirety of the property pool, including the wife's interests in various trusts and companies within the Kingston Group, had been fully valued.

The court was required to determine several legal issues. These included identifying the wife's existing legal and equitable interests in property, particularly within the Kingston Group entities, and assessing the impact of an Umbrella Deed on these interests. Furthermore, the court needed to ascertain whether the wife's rights as a discretionary beneficiary in various trusts and as a shareholder in companies constituted property for the purposes of the *Family Law Act 1975* (Cth), and if so, whether these rights held any practical value. Finally, the court had to decide if it was just and equitable to make an order under section 79(1) of the Act, considering the husband's argument that such a determination was premature without complete valuations.

Carew J's reasoning focused on the nature and valuation of the wife's interests. The court examined whether the wife's rights as a beneficiary and shareholder were indeed property under the Act and whether they possessed any realisable value. The court also considered the effect of the Umbrella Deed on these interests. The husband's contention that the proceedings were premature due to incomplete valuations was weighed against the need to determine the just and equitable distribution of property.

The court directed that the matter be listed for the pronouncement of orders on a date to be advised, and also listed the husband's application for spouse maintenance for a future hearing. The parties were requested to confer and jointly inform the associate of the court regarding a convenient date for the pronouncement of orders.

Orders

Orders of the court

BRC12882 of 2016

BETWEEN:

MR RIGBY

Applicant

MS KINGSTON

Respondent

AND:

MR F KINGSTON & ORS

Other Respondents

ORDER MADE BY:

CAREW J

DATE OF ORDER:

9 JULY 2021

THE COURT DIRECTS THAT:

1. The matter be listed for the pronouncement of orders on a date to be advised.

2. The husband’s application for spouse maintenance be listed for hearing on a date to be advised.

3. The parties are requested to confer about a convenient date/s for the pronouncement of orders and jointly inform the associate for the Honourable Justice Carew by email within 7 days.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The four issues to be considered in this series of trial dates are, as agreed between the parties, as follows:1)What are the wife’s existing legal and equitable interests in any property including in any companies and trusts comprising the Kingston Group as identified in Sch 1 to the Umbrella Deed dated 13 February 2014?2)What is the effect, if any, of the Umbrella Deed on any existing legal and equitable interests of the wife?3)Does the wife have a source of financial support, other than any property in which she has an existing legal or equitable interest, which she can reasonably expect will be available to her to supply a financial need or deficiency?4)Is it just and equitable to make an order under s 79(1) of the Act? The husband contends the determination of this question is premature and can only be determined after valuations have been obtained for all property including the wife’s interests in the Kingston Group.BACKGROUND Although the Reasons provided at the conclusion of the earlier series of trial dates[2] provide some background, it will be convenient to restate and update the background while also incorporating the earlier factual findings. [2] Rigby & Kingston (No. 2) (n 1). The husband and wife married in 1991 and separated on 26 October 2015. The husband contends that prior to marriage, the parties lived in a de facto relationship from in or about 1986. The wife disputes the existence of a de facto relationship prior to marriage but nothing really turns on that dispute. It was a long relationship on any view. The husband and wife were both born in 1965 and there is no suggestion that they are other than healthy. There are two adult children born to the marriage in 1994 and 2001 respectively. Prior to joining the Kingston Group in 1990, the wife worked as a professional. The Kingston Group was established by the wife’s father in 1939 and he was active in the Kingston Group until shortly prior to his death in 2008. The wife describes herself as a company director employed by Q Pty Ltd (an entity within the Kingston Group) with a weekly salary of $3,461 before tax. In addition, the wife deposes to other income and benefits of $76 per week. The husband is a finance professional but is currently employed on a three month contract as a management consultant due to expire on 16 July 2021. The remuneration under the contract is a daily rate of $625 (plus GST) payable to the husband’s business, Rigby Consulting. A spousal maintenance order was made in the husband’s favour on 13 November 2020 requiring the wife to pay $962 per week until 16 April 2021. The Kingston Group, or rather, various entities within the Kingston Group, own multiple properties and operate multiple businesses across a range of areas including storage, retail, land, residential, commercial, building and accommodation. Prior to the marriage, the wife’s father was determined to ensure that the husband did not benefit from the wealth that he had created and, in those circumstances, insisted that the husband sign a prenuptial agreement, which he did on 11 October 1991. There is no suggestion that the prenuptial agreement ousts the jurisdiction of this Court to make a property settlement order if it is just and equitable to do so. It is not a financial agreement that is binding on the husband and wife pursuant to Pt VIIIA of the Act.

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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