Stamatou & Stamatou

Case [2022] FedCFamC1F 241

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Stamatou & Stamatou [2022] FedCFamC1F 241

File number(s): MLC11322 of 2018
Judgment of: MCEVOY J
Date of judgment: 13 April 2022
Catchwords:

FAMILY LAW – PROPERTY SETTLEMENT – Where it is just and equitable for property interests to be adjusted – Where the wife asserts that the husband’s elderly parents hold their title in a property on trust for her and the husband – Where the wife asserts that the husband’s parents represented to her and the husband that the property was theirs and that they acted on those representations to their detriment – Where the husband’s parents discharged the mortgage and the wife asserts that this was effectively a gift to her and the husband – Where the wife asserts the property should be included in the matrimonial asset pool for division between the husband and wife – Where the husband and his parents deny that any relevant representations were made to the husband and the wife and deny that the husband and the wife have suffered detriment – Where principles of proprietary estoppel by representation and by acquiescence are considered – Where it is found that a proprietary estoppel by representation has arisen in favour of the husband and the wife – Where a declaration is made that the husband’s parents hold their title in the property on trust for the husband and wife – Where contributions of the husband and the wife are considered – Where the wife seeks a Kennon & Kennon (1997) FLC 92-757 adjustment by reason of family violence perpetrated by the husband – Where it is accepted that the wife’s contributions were rendered more arduous by family violence inflicted upon her by the husband and an adjustment made in her favour – Where the husband failed to make proper disclosure and is found to have a significant financial resource in his partner – Where an adjustment on the basis of s 75(2) factors are made in favour of the wife – Where the property is to be sold and the proceeds divided – Where motor vehicles, chattels and superannuation are to be retained by the parties – Where the asset pool is to be divided 60/40 in favour of the wife

FAMILY LAW – COSTS – Where orders made for the parties to file material on the question of costs

Legislation:

Evidence Act 1995 (Cth) section 140

Family Law Act 1975 (Cth) ss 75, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 6.01

Administration and Probate Act 1958 (Vic) section 70ZG

GE Dal Pont, Equity and Trusts in Australia (Thomson Reuters, 7th ed, 2019)

Cases cited:

Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

Carter v Brine [2015] SASC 204

Chorn & Hopkins (2004) FLC 93-204; [2004]…

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Stamatou & Stamatou [2022] FedCFamC1F 241
Case
[2022] FedCFamC1F 241
Decision Date

CaseChat Overview and Summary

The case of Stamatou & Stamatou involved a dispute over the division of property between a husband and wife. The wife claimed that the husband's elderly parents held title to a property on trust for her and the husband. She also claimed that the husband's parents represented to them that the property was theirs, and they acted on those representations to their detriment. The wife sought to include the property in the matrimonial asset pool for division between the husband and wife. The husband and his parents denied the relevant representations were made and that the husband and wife had suffered detriment. The court found that a proprietary estoppel by representation had arisen in favour of the husband and wife and that the husband's parents held their title in the property on trust for the husband and wife. The court also made an adjustment in favour of the wife on the basis of family violence perpetrated by the husband and the husband's failure to make proper disclosure. The court ordered that the property be sold and the proceeds divided, with the wife receiving 60% of the asset pool.
The legal issues considered by the court were whether a proprietary estoppel by representation or by acquiescence had arisen in favour of the husband and wife, whether an adjustment by reason of family violence or s 75(2) factors should be made, and how the property and other assets should be divided between the parties. The court found that a proprietary estoppel by representation had arisen, an adjustment in favour of the wife should be made, and the property and other assets should be divided on a 60/40 basis in favour of the wife. The court also made orders regarding the sale of the property, retention of motor vehicles, chattels and superannuation by the parties, and costs.

Orders

Orders of the court

MLC 11322 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR STAMATOU

Applicant

AND:

MS STAMATOU

First Respondent

MR B

Second Respondent

MS C

Third Respondent

AA LAWYERS PTY LTD

Intervenors

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

13 APRIL 2022

IT IS DECLARED THAT:

The second and third respondents hold their title in Z Street, Suburb D VIC being the whole of the land comprised in Certificate of Title Volume … Folio … (“the Suburb D property”) on trust for the husband and the wife.

IT IS ORDERED THAT:

1. All previous property orders be discharged.

Motor Vehicles, Chattels and Superannuation

2. The wife shall retain, for her sole and exclusive use, enjoyment and benefit, all items of property, both real and personal, and including choses-in-action and financial resources, in her name, possession and/or control including, but not limited to:

(a) the Motor Vehicle 1 (unregistered);

(b) the Motor Vehicle 2 (registered …);

(c) the Motor Vehicle 3 (unregistered);

(d) the Motor Vehicle 4 (registered …);

(e) the proceeds of sale of the Motor Vehicle 5;

(f) any bank account in her name; and

(g) any superannuation in her name.

3. The husband shall retain, for his sole and exclusive use, enjoyment and benefit, all items of property, both real and personal, and including choses-in-action and financial resources, in his name, possession and/or control including, but not limited to:

(a) the workshop, tools and equipment as defined at page 30 of Mr E’s valuation report dated 21 June 2021 which is inclusive of:

(i) the miller welder;

(ii) the antique welder;

(iii) the sand blaster;

(iv) the tool chest;

(v) the contents of assorted tools;

(vi) the lathe, milling machine and drill press;

(vii) the belt sander x 2;

(viii) the custom frame jig;

(ix) the pipe bender x 2;

(x) the raw materials under house;

(xi) the assortment of tyres and wheels;

(xii) the retractable hose reels x 2;

(xiii) the tools and equipment;

(xiv) the assorted motorcycle parts;

(b) the Motor Vehicle 9 (unregistered);

(c) the Motor Vehicle 6 (unregistered);

(d) the Motor Vehicle 7 (registered …);

(e) the Motor Vehicle 8 (registered …); and

(f) any superannuation in his name.

4. For the purposes of paragraphs 2 and 3 herein, the husband and the wife forthwith do all acts and things and sign all documents as may be required to transfer ownership of any such property to either of them and/or remove any encumbrance on such property.

The Suburb D Property

5. The parties do all acts and things, and sign all necessary documentation, to cause the Suburb D property, to be sold within three months (“the sale”) on such terms and conditions as may be agreed between the parties in writing, and if they cannot reach agreement:

(a) the parties will engage and instruct a selling agent by the following method:

(i) the wife will, in writing, nominate three proposed selling agents to the husband and the second and third respondents;

(ii) the husband and second and third respondents will, within 28 days thereafter, select one of the selling agents proposed by the wife;

(iii) in the event the husband and second and third respondents do not select a selling agent within those 28 days, then the selling agent will be chosen by the wife;

(b) the method of sale will be at the direction of the selling agent;

(c) the reserve price will be at the direction of the selling agent;

(d) the settlement period will be at the direction of the selling agent but no later than 90 days; and

(e) the parties will engage and instruct a conveyancer by the following method:

(i) the wife will, in writing, nominate three proposed conveyancers to the husband and the second and third respondents;

(ii) the husband and second and third respondents will, within 28 days thereafter, select one of the conveyancers proposed by the wife;

(iii) in the event the husband and second and third respondents do not select a conveyancer within those 28 days, then the conveyancer will be chosen by the wife.

6. Pending the sale of the Suburb D property:

(a) the wife will have the sole use, occupation, enjoyment and benefit of the Suburb D property;

(b) all parties will cooperate and take all necessary steps and sign all necessary documentation to reasonably facilitate any inspections of the Suburb D property by the selling agent and by prospective buyers;

(c) the wife will maintain the Suburb D property and keep the property in a tidy and presentable condition for the sale; and

(d) neither the husband nor the second or third respondents shall encumber the Suburb D property without the written consent of the wife or Court order first obtained.

7. The proceeds of the sale of the Suburb D property be distributed as follows:

(a) first, to pay all costs, commissions and expenses of the sale including but not limited to the selling agent’s fees/commission, the advertising fees and the conveyancer’s fees;

(b) secondly, to discharge any encumbrance affecting the Suburb D property;

(c) thirdly, payable to the wife the dollar equivalent to X in the following formula:

X = (60 % (A+B)) – C

Where:

A = the net proceeds of the sale of the Suburb D property, after payment of expenses pursuant to paragraphs 7(a) and (b) of the orders herein;

B = the total value of all motor vehicles, chattels and superannuation retained by the husband and the wife, comprising of:

(a) motor vehicles and chattels, being $256,470; and

(b) superannuation balances, being $96,773

C = the value of the items that the wife is to retain pursuant to paragraph 2 of the orders herein, comprising of:

(a) motor vehicles and bank accounts in her name, to the value of $152,000; and

(b) any superannuation in her name, to the value of $44,000

The dollar equivalent to X in the above formula is payable to the wife as follows:

(i) first, to AA Lawyers Pty Ltd (“AA Lawyers”) Trust Account, to discharge any and all outstanding costs and disbursements owing by the wife to AA Lawyers and in accordance with order 2 of the orders of 21 December 2021;

(ii) secondly, and in accordance with order 1 of the orders made 19 December 2019, to the husband, the wife’s half share of the parties’ attendance upon Family Report writer Ms F;

(iii) the remaining balance to her lawyers, James Harris Lawyers Trust Account: Bank: Commonwealth Bank of Australia Account Name: James Harris Lawyers Practice Trust Account BSB: … Account No: …51;

(d) finally, the balance to the husband and/or at his direction.

Other

8. The wife be solely liable for, and indemnify the husband, and forever hereafter keep him indemnified, against all or any liability in her name, or attaching to any item of property that she is to retain pursuant to these orders, save and except as provided for in paragraph 3 herein.

9. The husband be solely liable for, and indemnify the wife, and forever hereafter keep her indemnified, against all or any liability in his name, or attaching to any item of property that he is to retain pursuant to these orders, save and except as provided for in paragraph 2 herein.

10. The husband and wife shall otherwise retain for their sole and exclusive use, enjoyment and benefit, all items of property, both real and personal, and including choses-in-action and financial resources, in their sole name, possession and/or control.

11. Unless specified in these orders, and save for the purposes of enforcing their terms:

(a) insurance policies remain the sole property of the owner named thereon;

(b) each party forgoes any claim they may have to any superannuation benefit, other employment related benefits and/or interest in any trust or deceased estate that is payable or belonging to or owned by the other;

(c) any monies standing to the credit of the parties in any joint banking account are to be equally divided between the parties within seven days, and closed within a further seven days; and

(d) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

12. In default of the parties doing all acts and things and executing all such documents as are necessary to give effect to these orders, a Registrar of the Federal Circuit and Family Court of Australia at Melbourne be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.

13. All extant applications be otherwise dismissed.

Costs

14. Within 14 days of the date of these orders the wife file any application for her costs of the property proceedings with any supporting material and written submissions on the question of costs, with such written submissions to be of no more than four pages in length.

15. Within 14 days of the wife filing any application pursuant to paragraph 14 herein, the husband and the second and third respondents file any material in opposition and written submissions, with such written submissions to be of no more than four pages in length.

16. Pursuant to rule 1.06, item 2(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and the Court’s inherent discretion, any unresolved questions of costs or the implementation of the above orders will be referred to the Honourable Justice Strum to heard and determined on the papers or as otherwise ordered by the Court.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

All things considered I have assessed the contributions of the husband and the wife on a 45/55 per cent basis in favour of the husband. Insofar as any adjustment pursuant to s 79(4)(e) and s 75(2) of the Act is concerned, I have formed the view that an adjustment of 15 per cent in favour of the wife would be appropriate. Amongst several other relevant matters, she will have the care of two young children until their adulthood, apparently with little if any assistance from the husband. In all the circumstances a division of the parties’ assets including superannuation on a 60 per cent basis in favour of the wife would be appropriate for the purposes of s 79(1) of the Act. I am satisfied that such a division would be just and equitable and orders will be made to give effect to this, endeavouring to accommodate the desire of the husband and the wife to retain certain of their chattels. BACKGROUND The husband was born in Australia on in 1967 and is 55 years of age. He says that he is unemployed and lives in Melbourne with his current partner in her home. The husband’s current partner operates her own business. He says that he assists her with this business, but rather unusually that he does not receive any wages for doing so. It would seem, however, that the husband’s current partner is extremely beneficent. She pays all his living expenses, and has funded much of his costs of these proceedings in an amount in excess of $64,200, and perhaps considerably in excess of that figure. The husband also has an adult child with another woman, who was born in 1994. He says he has not spent time with this child since she was 16 or 17 years old. The husband is otherwise in good health. The wife was born in Australia in 1978 and is 43 years of age. She worked full time until the birth of the parties’ second child, and is now unemployed. The wife lives with the children in the Suburb D property. She has been diagnosed with post-traumatic stress disorder as a result of family violence which she says was inflicted upon her by the husband. The husband and the wife met in 1998 at a business where the wife worked. She was 19 years of age at the time, and the husband 31 years of age. They commenced cohabitation in 1998 or 1999, and married in 2012. As has been mentioned, the children were born in 2013 and 2016. The parties dispute the date of separation. The husband asserts that they separated under the same roof in August 2016; the wife says it was 2017. They agree that physical separation occurred when the wife left the Suburb D property on 20 August 2018. Shortly thereafter, on 31 August 2018, the wife obtained an interim intervention order (“IVO”) in the Magistrates’ Court against the husband, with the children listed as affected family members. A final IVO was made against the husband on 24 January 2019 for a period of two years. This was extended on 16 March 2021 until 15 March 2022. The parties are not yet divorced. The husband’s father was born in 1942 and is now 80 years of age. He is in poor health. He has had a stroke and five heart bypass operations, he has a pacemaker, and he requires a walking frame. The husband’s mother was born in 1938 and is 84 years of age. She is also in poor health. She too requires a walking frame, and she was said to have had surgery on her legs in 2021. The husband’s parents both utilised an interpreter to give their evidence, although it was apparent that the husband’s father, at least, had a reasonable command of the English language. HISTORY OF PROCEEDINGS

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Nonetheless, as the High Court noted in Sidhu, proprietary estoppel vindicates the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created: Sidhu at 527, citing Donis v Donis (2007) 19 VR 577 at 582–583, [18]-[20] (Nettle JA, Maxwell ACJ and Ashley JA agreeing) (“Donis”). These paragraphs in Donis to which the High Court referred in Sidhu are instructive in the present context. Nettle JA (as his Honour then was) said as follows:[18] Each of the appellants’ arguments is to some extent premised on the idea that equitable estoppel “permits a court to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more”. That idea finds support in some of the judgments in Waltons Stores (Interstate) Ltd v Maher [(1988) 164 CLR 387] and Commonwealth v Verwayen [(1990) 170 CLR 394] and in particular in the observations of Mason CJ in Verwayen that: [at 412 (emphasis added)]… equitable estoppel will permit a court to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more. [19]As the more recent decision in Giumelli v Giumelli [(1999) 196 CLR 101] shows, however, there is no such restriction in cases where the expectation which is encouraged is the acquisition of an interest in property. In such cases the remedy relates to the understanding of the parties and the expectation that has been encouraged. Prima facie the estopped party can only fulfil his or her equitable obligation by making good the expectation which he or she has encouraged. The estopped party, having promised to confer a proprietary interest on the party entitled to the benefit of the estoppel, and the latter having acted upon the promise to his or her detriment, is bound in conscience to make good the expectation. [Olsson v Dyson (1969) 120 CLR 365 at 378–9; Meagher, Heydon, Leeming, Meagher, Gummow & Lehane’s Equity, Doctrines & Remedies at [17–085]; see also Pascoe v Turner [1979] 2 All ER 945 at 949; [1979] 1 WLR 431 at 436]. It follows that the detrimental reliance that supports the estoppel need not constitute in any sense a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it. [Sullivan v Sullivan (2006) 13 BPR 24,755 at 24,758, [20]; (2007) ANZ ConvR 54, per Handley JA, who dissented in the result but whose judgment contains a thorough and, with respect, persuasive analysis of the relevant authorities. See also Handley, “The three High Court decisions on estoppel 1988–1990”, (2006) 80 ALJ 724.][20]The prima facie position will yield to individual circumstances. Principle and authority compel the view that where a plaintiff’s expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the claimant’s equity may be better satisfied in another and possibly more limited way. [Jennings v Rice [2003] 1 P & CR 8 at [50] per Robert Walker LJ] Thus, as was also said in Giumelli v Giumelli, [at 125, [49]] before granting relief the court is required to consider all of the circumstances of the case, including the possible effects on third parties, and to avoid going beyond what is required for conscientious conduct or would do injustice to others. But that does not mean that the court is required to be “constitutionally parsimonious” [Jennings v Rice, ibid; Sullivan v Sullivan at 24,758, [23]] or that it is necessary for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. [Plimmer v Mayor, Councillors and Citizens of the City of Wellington (1884) 9 App Cas 699 at 714; Pascoe v Turner [1979] 2 All ER 945 at 949; [1979] 1 WLR 431 at 436] The object of the exercise is to do equity and for that purpose “detriment” is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances. [Flinn v Flinn at 744, [96]; Gillett v Holt [2001] Ch 210 at 232](Emphasis added)

Ratio Decidendi

Legal Principle Established

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