FAMILY COURT OF AUSTRALIA
| TOSCANI & TOSCANI | [2020] FamCA 5 |
| FAMILY LAW – PROPERTY SETTLEMENT – proceedings to alter property interests – long marriage of approximately 38 years – where the marriage is ongoing and the parties continue to reside together – where the husband is represented by a case guardian – assessment of contributions – where husband made a significant contribution at the commencement of the marriage – where husband made a contribution to the wife’s daughter – where there is a dispute relating to the treatment of loans incurred pursuant to Div 7A of the Income Tax Assessment Act 1936 (Cth) – where an indemnity in respect of a guarantee is sought – where the Court considers the husband has made a contribution of 52 per cent to the parties’ property – where there is no adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth) – where there is a limited maintenance order. |
| Administration and Probate Act 1958 (Vic) Pt IV Duties Act 2000 (Vic) s 44 Evidence Act 1995 (Cth) ss 13, 63(2)(b), 67, Sch s 3 Pt 2 Income Tax Assessment Act 1936 (Cth) Div 7A Income Tax Assessment Act 1997 (Cth) s 102-5 Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 80, 80(1)(k), 81, 114 Family Law Rules 2004 (Cth) r 6.10 Trustee Act 1958 (Vic) s 28(2) |
| Grace Buncle Pty Ltd v Ralph Lauren No 57 Pty Ltd [2018] QSC 24 Stanford v Stanford (2012) FLC 93-518 |
| Young JA, Croft and Smith, On Equity (Lawbook Co, 2009) |
| APPLICANT: | Ms Toscani |
| RESPONDENT: | Mr Toscani |
| FILE NUMBER: | MLC | 10120 | of | 2016 |
| DATE DELIVERED: | 15 May 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATE: | 9-12 December 2019 |
| FURTHER WRITTEN SUBMISSIONS OF THE HUSBAND | 18 December 2019 |
| FURTHER WRITTEN SUBMISSIONS OF THE WIFE | 24 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dickson QC and Ms Byrnes |
| SOLICITOR FOR THE APPLICANT: | Clancy & Triado |
| COUNSEL FOR THE RESPONDENT: | Mr North SC and Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Lander & Rogers |
Orders
Within 90 days hereof, the husband and the wife do all such acts and things necessary to transfer to the wife at the expense of the wife the unencumbered matrimonial home situated at and known as L Street Suburb K in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume ... (‘the Suburb K property’).
Within 90 days hereof, the husband and the wife do all such acts and things necessary to transfer to the wife the property situated at and known as N Street Suburb M in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume ... Folio ... (‘the Suburb M property’). The wife…
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- Case
- [2020] FamCA 5
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate orders for the transfer of property, the payment of a significant sum of money, the security for that payment, the allocation of specific assets and liabilities, and the provision of spousal maintenance. Further issues included the responsibility for taxation liabilities arising from the settlement, the ongoing expenses associated with certain properties, and the division of household contents. The court also needed to address the authority of the husband's attorneys to act on his behalf and ensure the orders were binding on the parties' estates.
Hartnett J made detailed orders concerning the matrimonial home and another property, requiring their transfer to the wife with specific conditions regarding stamp duty, capital gains tax, and legal costs. The husband was permitted to occupy these properties under certain conditions. A substantial payment was ordered from the husband to the wife, to be secured by a charge over a company. The parties were to retain certain assets and relinquish claims against others, with specific provisions for company shares, trust entitlements, and personal belongings. The husband was ordered to pay spousal maintenance and to cover property expenses while occupying the residences. The division of household contents was also addressed, with provisions for agreement or equal division.
The court ordered that the parties do all necessary acts to give effect to these orders, which were to be binding on their respective heirs and legal representatives. The husband's attorneys were authorised to act on his behalf in implementing the orders. All extant applications were dismissed.
Orders
Orders of the court
1.
Within 90 days hereof, the husband and the wife do all such acts and things necessary to transfer to the wife at the expense of the wife the unencumbered matrimonial home situated at and known as L Street Suburb K in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume ... (‘the Suburb K property’).
2.
Within 90 days hereof, the husband and the wife do all such acts and things necessary to transfer to the wife the property situated at and known as N Street Suburb M in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume ... Folio ... (‘the Suburb M property’). The wife pay the stamp duty assessed on the transfer and indemnify the husband in respect thereto and the husband pay and indemnify the wife in respect of any capital gains tax payable by him on the transfer of his share to the wife. The legal costs and conveyancing costs, including disbursements, be paid by the wife.
3.
The husband be permitted to occupy the Suburb K property and the Suburb M property (together with the wife), with such rights of occupancy to terminate, at the wife’s election, upon the wife providing the husband 60 days’ notice in writing to vacate.
4.
Within 180 days of the date of these orders (‘due date’), the husband pay or cause to be paid to the wife the sum of $ 1,861,337 (‘the payment’) and in default, interest be paid on the payment or so much of the payment outstanding calculated monthly at the rate prescribed by the Family Law Rules 2004 (Cth) from the due date until the whole of the payment is made.
5.
The wife’s payment pursuant to order 4 herein be secured by way of a fixed and floating charge in favour of the wife over P Pty Ltd.
6.
The wife hereby retain free of claim from the husband and the husband relinquish any claim against:-
(a) her interest in Q Pty Ltd;
(b) her loan to Q Pty Ltd;
(c) her Motor Vehicle 1;
(d) her jewellery and her personal effects;
(e) her bank accounts; and
(f) her loans to her daughter Ms J.
7.
The husband hereby retain free of claim from the wife and the wife relinquish any claim against:-
(a) his shares in:-
(i) R Pty Ltd;
(ii) P Pty Ltd;
(iii) T Pty Ltd;
(iv) S Pty Ltd;
(v) GG Limited; and
(vi) JJ Holdings Limited;
(b) his unpaid present entitlements in the R Trust;
(c) his loan to R Trust;
(d) his study desk and personal effects; and
(e) his bank accounts.
8.
The husband pay and indemnify the wife and keep the wife effectively indemnified with respect to all taxation liabilities incurred by her on all payments made to her by the husband or any of the trusts and entities controlled by him pursuant to these orders.
9.
The husband pay all expenses associated with the Suburb K Property and the Suburb M property or all or any property acquired by the wife in substitution for same, including but not limited to rates, water rates, insurances, land tax, utilities, pool cleaners, gardeners and property maintenance expenses for so long as he shall remain in occupation of either the Suburb K property and/or the Suburb M property or all or any property acquired by the wife in substitution for same or for a period of 180 days from the date of this order or for such further period as may occur before the husband’s compliance with order 4 herein, whichever is the last in time.
10.
Whilst living in the Suburb K property and/or the Suburb M property or for a period of 180 days from the date of this order or for such further period as may occur before the husband’s compliance with order 4 herein, whichever is the last in time, the husband pay or cause to be paid to the wife by way of maintenance for the wife the sum of $24,000 per calendar month with the said sum to increase on 1 July each year from 2020 onwards in line with the CPI index and the said sum to be deposited directly into a bank account to be nominated by the wife.
11.
The husband and the wife together retain the household contents of the Suburb K property and the Suburb M property and divide by agreement such contents should they so desire and in what proportion they desire. Failing agreement such contents shall be divided equally between them with the husband to retain his study desk and his personal effects. In the event of one of the parties predeceasing the other, the surviving party shall retain ownership of all the household contents not otherwise provided for in these orders.
12.
The parties do all such acts and things and sign all such documents as and when required to give effect to these orders.
13.
The husband’s attorneys, Mr A, Mr B and Mr E are hereby authorised to:-
(a) do any acts and things to be done by the husband;
(b) sign any documents to be signed by the husband; and
(c) exercise all rights conferred upon the husband pursuant to these orders.
14.
These orders be binding on the parties’ respective heirs, legal personal representatives (including but not limited to attorneys), executors, administrators and assigns.
15.
Otherwise, all extant applications be dismissed.
Note: The form of the Order is subject to the entry of the Order in the Court’s records.
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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