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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- AGLC
- Stamatou & Stamatou [2022] FedCFamC1F 241
- Case
- [2022] FedCFamC1F 241
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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