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Tindall & Vendric

Tindall & Vendric

Case [2022] FedCFamC2F 1504 10 November 2022

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Tindall & Vendric [2022] FedCFamC2F 1504

File number(s): PAC3787 of 2019

Judgment of: JUDGE OBRADOVIC

Date of judgment: 10 November 2022

Catchwords: FAMILY LAW – Property – whether an equitable interest in property exists – whether property is held on constructive trust – adjustment of property interests –assessment of contributions – just and equitable.

Legislation: Family Law Act 1975 (Cth) ss.75, 78, 79

Cases cited:
Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23

Australian Workers' Union v Leighton Contractors Pty Limited [2013] FCAFC 4

1 Awad v Awad NSWSC 385

Bevan & Bevan [2013] FamCAFC 116

Chapman & Chapman [2014] FamCAFC 91

Crabtree-Vickers Pty. Ltd. v Australian Direct Mail Advertising & Addressing Co. Pty. Ltd. [1975] HCA 49

Daniel Terry Behman v Tarek Behman (also known as Terry Behman) [2015] NSWSC 1787

Dare v Pulham [1982] HCA 70

Gilchrist & Gilchrist & Anor[2009] FamCAFC 199

Gissing v Gissing [1970] UKHL 3

Guimelli v Guimelli [199] HCA 10

Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188

Hickey & Hickey & Anor [2003] FamCA 395

Hohol v Hohol (1980) FLC 90-824

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch [1992] FCA 856

Khalif & Khalif [2021] FamCAFC 123

Muschinski v Dodds [1985] HCA 78

Rasmussen v Rasmussen [1995] 1 VR 613

Russell & Russell [1999] FamCA 1875

Scott & Danton [2014] FamCAFC 203

Shepherd v Doolan & Ors; Shepherd v Doolan & Anor; Estate of Doolan [2005] NSWSC 42

Silvia (Trustee) v Williams [2018] FCAFC 194

Stanford & Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 12

Trower & Kirwan [2022] FedCFamC2F 1230

Watson v Foxman (1995) 49 NSWLR 315

Zubcic & Zubcic [2018] FamCA 129

Division: Division 2 Family Law

Number of paragraphs: 202

Date of last submission/s: 7 December 2021

Date of hearing: 11, 12 and 19 October 2021

Place: Parramatta

Counsel for the Applicant: Mr Breeze

Solicitors for the Applicant: Prime Lawyers

Appearing for the First Respondent: In person

Appearing for the Second Respondent: In person

Appearing for the Third Respondent: In person
ORDERS

PAC 3787 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TINDALL

Applicant

AND:
MS VENDRIC

First Respondent

MR VENDRIC

Second Respondent

MS B VENDRIC

Third Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

10 November 2022

THE COURT ORDERS THAT:

Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splittable payment becomes payable in respect of the Applicant Husband's interest in the Super Fund C, D Pty Ltd, the trustee of the Super Fund C ("the Trustee"), shall pay to the First Respondent Wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) using a base amount of $13,382 of the Husband's entitlement as a member of the Super Fund C as at the…

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.

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Details

AGLC: Tindall & Vendric [2022] FedCFamC2F 1504
Case: [2022] FedCFamC2F 1504
Decision Date

CaseChat Overview and Summary

This case involves an application for property adjustment orders by the husband, Mr Tindall, against his former wife, Ms Vendric, and her parents, Mr and Ms B Vendric. The husband sought to establish an equitable interest in a property located at E Street, Suburb F (the E Street, Suburb F Property) through a constructive trust. The court was required to determine whether a constructive trust existed, and if so, the extent of the equitable interest held by the husband and wife in the property. The court also had to assess the contributions of the parties and determine a just and equitable distribution of the property pool.

The court found that the husband had not established the existence of a constructive trust over the E Street, Suburb F Property. The court rejected the husband's claims of four sets of representations made by the wife and her parents, and found that the circumstances of the case did not warrant the imposition of a constructive trust. The court found that the husband had not suffered any detriment as a result of the alleged representations and conduct of the wife and her parents. The court held that the E Street, Suburb F Property was an investment property purchased by the wife's parents for their retirement, with the intention of having the spouses live in the property as tenants. The spouses did not have an equitable interest in the property.

The court determined the pool of assets to include superannuation, motor vehicles, savings, and household contents. The court assessed the contributions of the parties, finding the wife's contributions to be slightly greater than the husband's, primarily due to her post-separation contributions towards the care of their child. The court made an overall adjustment in favour of the wife of 60%, resulting in the husband receiving $101,323 and the wife receiving $142,384.

In conclusion, the court found that the proposed adjustment and consequential orders were just and equitable in all the circumstances. The court ordered that the trustee of the husband's superannuation fund pay a specified amount to the wife, and that the wife and husband indemnify each other against certain liabilities. The court also ordered the wife's parents to transfer $16,000 to the wife. Unless the parties object, the issue of costs will be dealt with on the papers.

Orders