Summitt & Summitt and Ors

Case [2009] FamCA 371


FAMILY COURT OF AUSTRALIA

SUMMITT & SUMMITT AND ORS [2009] FamCA 371

FAMILY LAW – PROPERTY – Value of Property
FAMILY LAW – PROPERTY SETTLEMENT – Family Partnership - Determination of Partnership Assets – Determination of Partnership Entitlements
FAMILY LAW – PROPERTY SETTLEMENT – Constructive Trust – Whether intra-familial contributions to a property result in constructive trust – Whether partnership contributions to a property result in constructive trust.
FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Contributions by Third Party
FAMILY LAW – PROPERTY SETTLEMENT – Just and Equitable Distribution

Family Law Act1975 (Cth)
Partnership Act 1891 (Qld)

Aleksovski v Aleksovski (1996) FLC 92-705
A and A [2006] FamCA 1190
Bathurst City Council v PWC Properties(1998) 195 CLR 566 at 585
Baumgartner v Baumgartner (1987) 164 CLR 137
C v C (1998) FamCA 143
Chorn and Hopkins (2004) FLC 93-204
Coghlan v Coghlan (2005) FLC 93-220
Coshott v Linen (2007) NSWCA 153
Davidson and Davidson (1991) FLC 92-127
Elias v Elias (1977) FLC 90-267
G and G (1984) FLC 91-582
G and G (2001) FamCA 1453
Gosper (1987) FLC 91-818
Hall v Hall & Ors (1995) TASSC 39
Harvey v Harvey (1970) 120 CLR 529
Henderson v Miles (No.2) (2005) NSWSC 867
In the Marriage of Brandt (1997) 22 Fam LR 97
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Dawes (1989) 13 Fam LR 599
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Jordan (1996) 21 Fam LR 382
In the Marriage of Lee Steere (1985) FLC 91-626
IRBH and HRBH (2006) FamCA 379
IRBH and HRBH  (2007) Fam CA 582
Kelly v Kelly (1990) 64 ALJR 234
Kessey (1994) 18 Fam LR 149
Kowaliw (1981) FLC 91-092
M v M (1998) FamCA 42
Milankov and Milankov (2002) FLC 93-095
Muschinski v Dodds (1985) 160 CLR 583
Norbis v Norbis (1983) 9 Fam LR 385
Norbis v Norbis (1986) 161 CLR 513
O’Brien v Komersaroff (1982)150 CLR 310
Omacini v Omacini (2005) FLC 93-218
Paton v Rieck (1999) QCA 517
Paton v Rieck (2000) Qd 619

Pedler v Rumble and Renton (unreported, Supreme Court of Victoria, 5 November 1993)

Pellegrino (1997) 22 Fam LR 474
Pierce and Pierce (1999) FLC 92 – 844
R v Ross-Jones ex parte Beaumont (1979) 4 FamLR 598 at 602
Rees v Duncan (1900) 25 VLR 520
Rosati (1998) FLC 92-804
Williams and Williams [2007] FamCA 313

Halsburys Laws of Australia – Lexis Nexis Australia
Principles of the Law of Trusts – Ford and Lee
The Law of Partnership in Australia – Fletcher 9th ed

APPLICANT: Mr Summitt
1st RESPONDENT: Ms Summitt
2nd RESPONDENTS: Mr and Mrs Summit (Snr)
FILE NUMBER: BRF 709 of 2006
DATE DELIVERED: 13 May 2009
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy J
HEARING DATES: 10 – 14  November 2008; 28 April, 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk SC
SOLICITOR FOR THE APPLICANT: Hopgood Ganim Lawyers
COUNSEL FOR THE 1ST

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AGLC
Summitt & Summitt and Ors [2009] FamCA 371
Case
[2009] FamCA 371
Decision Date

CaseChat Overview and Summary

In the matter of *Summitt & Summitt and Ors*, Murphy J of the Family Court of Australia considered an application for property settlement under section 79 of the *Family Law Act 1975* (Cth). The dispute involved the husband and wife, and second respondents who sought declarations regarding certain properties and partnership capital.

The primary legal issues before the court were whether certain properties, collectively known as "[N property]", should be declared the property of the partnership "[Summitt and Co]" for the purposes of property settlement, and whether a constructive trust should be imposed on a property known as "[P property]" in favour of the second respondents. The court also had to determine the extent of capital expended by the partnership on "[P property]" and capital contributed to the partnership by the second respondents.

Murphy J reasoned that for the purposes of section 79 of the *Family Law Act 1975*, the properties known as "[N property]" were to be declared the property of the partnership "[Summitt and Co]". The court dismissed the applications by the second respondents for the imposition of a constructive trust over "[P property]" and for declarations concerning capital expended by the partnership on "[P property]" and capital contributed by the second respondents to the partnership. The court ordered that the property of the parties or either of them, within the meaning of section 79, be distributed in the proportion of 57.5% to the husband and 42.5% to the wife. The parties were further ordered to file agreed minutes of order within 42 days to give effect to these orders and the reasons for judgment.

Orders

Orders of the court

That as and by way of settlement of property pursuant to Section 79 of the Family Law Act 1975 IT IS ORDERED THAT:

1.

For the purposes of ascertaining “the property of the parties or either of them” within the meaning of the said section, the properties described as Lots 1 and 2 on RP …, County of …, Parish of …, respectively title reference Nos. … and … and Lot 4 on RP …, County of …, Parish of …, title reference No. …, collectively known as “[N property]” be declared to be the property of the partnership known as “[Summitt and Co]”.

2.

The application by the Second Respondents for the imposition of a constructive trust in respect of the property owned by the husband and wife and known as “[P property]” is dismissed.

3.

The applications by the Second Respondents seeking declarations in respect of capital expended by the partnership known as Summitt and Co upon the property known as “[P property]” and capital contributed to the Summitt and Co partnership by the Second Respondents are each dismissed.

4.

The property of the parties or either of them within the meaning of s 79 of the Family Law Act 1975 be distributed in the proportion 57.5% to the husband and 42.5% to the wife.

IT IS FURTHER ORDERED THAT:

5.

Within 42 days of the date of this Order, the parties shall file by forwarding by joint e-mail addressed to Murphy J’s associate, agreed minutes of Order incorporating these orders and otherwise giving effect to these Orders and the Reasons for judgment published today.

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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