Stoney & Stoney (no. 3) - [2012] FamCA 237

FAMILY COURT OF AUSTRALIA

STONEY & STONEY (no. 3)

[2012] FamCA 237

FAMILY LAW – PROPERTY SETTLEMENT – Property and financial defended hearing – Both parties sought ownership and possession of the matrimonial home – Issues to be evaluated as to ownership of home – Assessment of contribution and s 75(2) factors – Family business had failed – Where it was asserted that the reckless economic conduct of one party had primarily led to the failure of that family business – Alleged excessive financial drawings and lifestyle benefits – Initial contributions – Extended family financial assistance – Unemployment of one party and efforts to obtain gainful employment – Contested travel and other expenses of a personal nature incurred during marriage and immediately after separation – Superannuation splitting orders sought but not granted – De facto relationship with non-Australian resident – Tourist visa issues – Sale of personal assets and liquidation of plant and equipment – Corporate valuations – Just and equitable orders

Family Law Act 1975 (Cth) – ss 75(2), 79(2), 79(4)

Davut & Raif (1994) FLC 92-503,
In the Marriage of Clauson (1995) FLC 92-595,
Mallet v Mallet (1984) 156 CLF 605,
Hickey & Hickey (2003) FLC 93-143,
In the Marriage of Waters & Jurek (1995) FLC 92-635
Norbis v Norbis (1986) 161 CLR 513
Bulleen v Bullen (2010) 43 Fam LR 489
JEL v DDF (2001) FLC 93-075
SL & EHL [2005] FamCA 132
Pierce v Pierce (1999) FLC 92-844
Kennon v Kennon (1997) FLC 92-757
Hunt & Zuryn (2005) FLC 93-226
Clives & Clives (2008) FLC 93-385
Garrett & Garrett (1984) FLC 91-539
Kowaliw v Kowaliw (1981) FLC 91-092
Russell v Russell (1999) FLC 92-877
Phillips and Phillips (2002) FLC 93-104
Myerthall and Myerthall (1977) FLC 93-273
Noetel v Quealey (2005) FLC 93-230

APPLICANT:

Ms Stoney

RESPONDENT:

Mr Stoney

FILE NUMBER:

MLC

7569

2010

DATE DELIVERED:

18 April 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

5, 6, 7, 8, 26 and 27 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

Clancy & TRiado

COUNSEL FOR THE RESPONDENT:

Ms Stoikovska

SOLICITOR FOR THE RESPONDENT:

Adrian Abrahams Family Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stoney & Stoney (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INDEX

ISSUE
ORDERS SOUGHT
WIFE’S SUBMISSIONS
SUMMARY OF ORDERS SOUGHT
PERCENTAGE DIVISION SOUGHT

AFFIDAVITS
STRIKE OUT APPLICATION

ANNEXURES
BACKGROUND FACTS
PREVIOUS COURT ORDERS

ASSETS

LIABILITIES

SUPERANNUATION
SECTION 75(2) FACTORS
MATHEMATICAL APPROACH
OBSERVATION OF WITNESSES
STANDARD OF PROOF
VALUE OF REAL ESTATE
WIFE’S EVIDENCE

HUSBAND
CONTRIBUTIONS IN EARLY YEARS OF MARRIAGE
THE FORMER MATRIMONIAL HOME
CHATTELS AT THE FORMER MATRIMONIAL HOME
THE THREE E UNITS
HUSBAND’S PARTNER, MS L
TRAVEL EXPENSES OF HUSBAND
ADD BACK OF $12,000
SELF-MANAGED SUPERANNUATION FUND
X GROUP
A PAST BUSINESS VALUE WASTED?
MR W – COMPANY VALUATION
PARTIES CONTRIBUTION TO BUSINESS
SN PTY LTD
MITSUBISHI…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stoney & Stoney (no. 3)

Details

AGLC: Stoney & Stoney (no. 3) [2012] FamCA 237
Case: [2012] FamCA 237
Decision Date: 18 April 2012

CaseChat Overview and Summary

In *Stoney & Stoney (no. 3)*, Young J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a will. The applicants, the executors of the estate of the late Mr. Stoney, sought directions from the court regarding the distribution of certain assets, specifically a parcel of land. The primary issue revolved around whether the beneficiaries of the residue of the estate were entitled to the land, or if it was to be held on trust for specific purposes outlined in the will.

The court was required to determine the true construction of the relevant clauses within Mr. Stoney's will. Specifically, it needed to ascertain the testator's intention regarding the disposition of the land, considering the potentially conflicting provisions concerning the residue and the purported trust. This involved an analysis of the language used in the will and the application of established principles of testamentary construction.

Young J applied the principle that the court must endeavour to give effect to the testator's intention as expressed in the will as a whole. His Honour examined the provisions relating to the residue and the purported trust in conjunction, concluding that the language used to create the trust was not sufficiently clear or certain to establish a valid express trust over the land. Consequently, the land was to be treated as part of the residue of the estate and distributed accordingly. The court ordered that the executors were at liberty to distribute the land as part of the residue of the estate.

Orders