Sangster & Sangster

Case [2024] FedCFamC2F 923


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sangster & Sangster [2024] FedCFamC2F 923

File number(s): ADC 5349 of 2021
Judgment of: JUDGE DICKSON
Date of judgment: 23 July 2024
Catchwords: FAMILY LAW – PROPERTY – Final hearing – Where the parties’ two adult daughters have joined as the Second and Third respondents – Marriage of 27 years – Where the First Respondent husband’s case is ad idem with the Second and Third Respondent daughters – Where the parties had various family business ventures and arrangements in which the wife was not a named partner or director – Comingling of familial finances – Equitable interests – Where the wife asserts that she has a beneficial interest in the real properties – Limitations as to the evidence made available at Trial – Consideration of the existence of equitable interests – Consideration of add backs – Assessment of contributions and future needs – Where it is not just and equitable to include the real properties owned by the Second and Third Respondent daughters in the net asset pool – Orders for the sale of property – 55 per centum division in favour of the wife subject to the add back of the wife’s superannuation amount – Justice and equity. 
Legislation:

Evidence Act 1995 s 140.

Family Law Act 1975 (Cth) ss 75, 79, 106A.

Cases cited:

Babette & Falconer [2015] FamCAFC 124

Bevan & Bevan (2013) FLC 93–545

Bolger & Headon [2014] FamCAFC 27

Carr v Baker [1936] 36 SR (NSW) 301

Crapp & Crapp [1979] FamCA 17

Dickons& Dickons (2012) 50 Fam LR 244

Dovgan & Dovgan [2021] FamCA 306

Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128

Fields & Smith [2015] FamCAFC 57

Fox v Percy (2003) 214 CLR 118

Gissing v Gissing [1971] A.C. 886

Green & Green (1989) 17 NSWLR 343

Hampton Court Ltd v Crooks [1957] HCA 28

Hickey & Attorney-General (Intervener) (2003) FLC 93-143

Ho v Powell (2001) 51 NSWLR 572

Housing Commission of New South Wales v Pastoral Company Pty Ltd [1983] 3 NSWLR 378

Jabour & Jabour [2019] FamCAFC 78

JEL & DDF [2000] FamCA 1353

Mallet v Mallet (1984) 156 CLR 605

Muschinski v Dodds (1985) 160 CLR 583

Norbis v Norbis (1986) FLC 91-712

Perrin & Perrin (No 2) [2018] FamCAFC 122

Peterson & Davis (No 3) [2022] FedCFamC1F 650

Rainford & Rainford [2020] FamCA 945

Rodgers & Rodgers (2016) FLC 93-703

Rosati & Rosati (1998) FLC 92-804

Selkirk & Selkirk [2019] FamCAFC 63

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Silvia (Trustee) v Williams [2018] FCAFC 194

Stanford & Stanford [2012] HCA 52

Steinbrenner& Steinbrenner [2008] FamCAFC 193

Strong v Woolworths [2012] HCA 5

Summitt & Summitt and Ors [2009] FamCA 371

Taffner & Taffner (2021) FLC  94-022

Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950

Wei & Xia (No 5) [2023] FedCFamC1F 679

Division: Division 2 Family Law
Number of paragraphs: 374
Date of last submission/s: 21 May…

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AGLC
Sangster & Sangster [2024] FedCFamC2F 923
Case
[2024] FedCFamC2F 923
Decision Date

CaseChat Overview and Summary

In the matter of Ms Sangster v Mr Sangster, the Federal Circuit and Family Court of Australia was tasked with resolving property disputes arising from the 27-year marriage of the parties. The two adult daughters of the parties, Ms B Sangster and Ms C Sangster, were also involved in the proceedings as the Second and Third respondents. The wife sought a beneficial interest in the real properties held by the daughters, which were not named in the family business ventures or arrangements as partners or directors. The court considered the comingling of family finances and the equitable interests claimed by the wife. The legal issues before the court included the existence of equitable interests, the assessment of contributions and future needs, and the determination of a just and equitable division of the assets.

The court deliberated on the evidence presented and the limitations thereof, focusing on the equitable interests claimed by the wife. It examined the contributions made by both parties and the needs of each for the future. Notably, the court decided that it was not just and equitable to include the real properties owned by the daughters in the net asset pool. Consequently, the court ordered the sale of the specified property, with the net proceeds to be disbursed according to the detailed provisions in the judgment. The wife was awarded a 55% division of the net assets, subject to the addition of her superannuation amount. The court's decision was based on a comprehensive assessment of the parties' financial situations and the principles of justice and equity.

The court issued specific orders for the sale of the property and the disbursement of the net proceeds, ensuring that all parties complied with the terms. The wife was granted certain personal belongings and assets, while the husband retained specific interests in family partnerships and companies, along with his savings and superannuation. The daughters were required to hold their interests in the property on trust for the wife and the husband. The court also mandated the closure of the Sangster Family Superannuation Fund and the execution of necessary documents to effectuate the orders.

The final orders included declarations regarding the trust held by the daughters, directives for the sale of the property, and detailed provisions for the disbursement of the net proceeds. The court dismissed all remaining applications as finalised and authorised the execution of documents on behalf of any defaulting party. The form of the order was subject to entry in the court’s records, with provisions for potential review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

ADC 5349 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS SANGSTER

Applicant

AND:

MR SANGSTER

First Respondent

MS B SANGSTER

Second Respondent

MS C SANGSTER

Third Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

23 JULY 2024

THE COURT ORDERS THAT:

1. There be a declaration that the Second Respondent, Ms B Sangster, and the Third Respondent, Ms C Sangster, hold their interests in the land situate at D Street, Suburb E in the State of South Australia being the whole of the land comprised and described in Certificate of Title … Folio … on trust as to half of the beneficial interest in the property for the Applicant Wife and the First Respondent Husband.

2. In full and final settlement of all claims for alteration of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (as amended):

(a) Within sixty (60) days of the date hereof the Applicant Wife and the First Respondent Husband shall do all such things so as to place the property at D Street, Suburb E in the State of South Australia being the whole of the land comprised and described in Certificate of Title … Folio … (‘the Suburb E property’) on the market for sale on such terms and conditions as they agree in writing and with such selling agent as they agree in writing (or failing agreement by such selling agent as nominated by the Secretary of the Real Estate Institute of South Australia).

(a) The Applicant Wife and the First Respondent Husband shall follow all advice provided by the said selling agent including the mode of sale, the terms of sale and any offers to purchase the said Suburb E property.

(b) Upon sale of the Suburb E property, the net proceeds shall be disbursed in the following manner:

(i) To pay all sales costs and commissions;

(ii) To the Applicant Wife the sum of $64,333 (SIXTY-FOUR THOUSAND THREE HUNDRED AND THIRTY-THREE DOLLARS AND ZERO CENTS);

(iii) Such sum as shall be calculated by F Company for the payment of Capital Gains Tax (if any) on behalf of the First Respondent Husband arising from the sale of the Suburb E property;

(iv) The payment of any liabilities arising in relation to the Sangster Family Pty Ltd self-managed superannuation fund including but not limited to accounting fees and any penalties imposed by the Australian Taxation Office;

(v) The payment of a liability to the Australian Taxation Office for Sangster Pty Ltd in the sum of $4,728;

(vi) A sum representing 55% to the Applicant Wife;

(vii) A sum representing 45% to the First Respondent Husband;

WHERE:

A. = the assets retained by the Applicant Wife – ($39,500);

B. = the assets retained by the First Respondent Husband – ($490,800);

C. = the net proceeds of the sale of the Suburb E property;

D. = AND WHERE A+B+C = I;

E. The Applicant Wife shall receive a sum equal to (I x 55%) – A; and

F. The First Respondent Husband shall receive a sum equal to (I x 45%) – B.

(b) The Applicant Wife do retain as her sole property:

(i) Motor Vehicle 1 ;

(ii) The furniture and effects situate in the Suburb E property subject to paragraph 2(d) herein;

(iii) Artwork;

(iv) All sewing equipment, fabrics and associate items;

(v) The gardening equipment and mower;

(vi) Her savings and investments;

(vii) The sale proceeds of her H shares and her personal possessions.

(c) The First Respondent Husband do retain as his sole property:

(i) His one-third interest in the assets owned by the partnership ‘Sangster’;

(ii) His one-third interest in the assets owned by Sangster Pty Ltd;

(iii) His savings and investments; and

(iv) His superannuation balance in the Sangster Family Superannuation Fund in the sum of $63,332.

(d) Within twenty-eight (28) days of the date hereof (or on such other date as the parties agree in writing) the Respondents shall attend and collect from the Suburb E property the following:

(i) All Manchester and linen;

(ii) King Size Mattress (in original plastic);

(iii) All tools and equipment belonging to the Respondent Husband;

(iv) All personal belongings and paperwork which belong to each of the Respondents;

(v) All assets owned by Sangster Pty Ltd including but not limited to:

A. Motor Vehicle 2;

B. Motor Vehicle 3;

C. Motor Vehicle 4;

D. Motor Vehicle 5;

E. Motor Vehicle 6;

F. All sports equipment;

G. Shipping container and all contents within it; and

(vi) All paperwork relating to the partnership and company.

(e) The Applicant Wife shall do all such things to ensure that the said items referred to in paragraph 2(d) herein are made available for collection by the First, Second and Third Respondents including permitting unhindered access to all outbuildings and storage containers situate at the Suburb E property.

(f) In relation to the Sangster Family Superannuation Fund the parties shall:

(i) Comply with all requests made by Mr J of F Company to sign any documents in relation to the said Fund including but not limited to the 2021 financials and tax returns for the Sangster Family Pty Ltd and the Sangster Family Superannuation Fund;

(ii) Do all such things as required to ensure that all the documents are lodged with the Australian Taxation Office and the Sangster Family Superannuation Fund is closed; and

(iii) Resign their directorship or transfer their shares as requested by the said Mr J.

(g) All parties shall do all acts and things reasonably required including the signing or execution of all necessary documents to give effect to the terms of this order within fourteen (14) days of being requested to do so.

(h) Within twenty-eight (28) days of the date hereof, the parties do discharge at their sole expense any caveat or encumbrance registered by them over any asset the subject of these proceedings.

(i) Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event that any party should fail, refuse or neglect to execute any document necessary to implement the terms of these orders, then upon proof of such failure, refusal or neglect by affidavit, a Judicial Registrar or Deputy Registrar of this Honourable Court is hereby authorised to execute any such document on behalf of the defaulting party.

3. All extant applications are dismissed as finalised.

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

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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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