Kennon v Spry [2008] HCA 56

Kennon v Spry [2008] HCA 56

The assets of the discretionary trust—given Dr Spry's powers as settlor and trustee prior to certain dispositions, his ability to appoint to his wife, the origins of the assets, and the lack of other vested interests—formed 'property' of the parties for the purposes of s 79 Family Law Act; transactions intended to defeat an anticipated property order were properly set aside under s 106B; where divorce preceded the property proceedings, the court could proceed as if the change in status had not yet occurred. Thus, the Family Court was empowered to make the property orders it did, including the lump sum to Mrs Spry derived from trust assets; the appeals were correctly dismissed, and the...

Parties
Appellants: Edwin Philip Kennon and Ian Charles Fowell Spry (in their capacity as the trustees of the Catharine Spry Trust, the Caroline Spry Trust and the Penelope Spry Trust) & Ors; Respondents: Helen Marie Spry & Ors; Appellant (m26/2008): Ian Charles Fowell Spry; Respondents (m26/2008): Edwin Philip Kennon and Ian Charles Fowell Spry (in their capacity as trustees of the Catharine Spry Trust, the Caroline Spry Trust and the Penelope Spry Trust) & Ors; Respondent: Elizabeth Spry (by advocate); Respondent: Second respondent (by advocate); Respondents: Third to sixth respondents (by advocate)
Jurisdiction
Australia
Judgment Date
03 December 2008
Procedural Posture
Appeal / High Court Appeal From Full Court of the Family Court Decision
Outcome
Appeal dismissed. Application for special leave to cross-appeal dismissed with no order as to costs.
Legal Topics
Property Settlement, Discretionary Trusts, Definition of 'property' in Matrimonial Proceedings, Jurisdiction Over Trust Assets, Post Nuptial Settlements, Section 79 and 85 a Family Law Act 1975 (cth), Setting Aside Transactions to Defeat Property Orders
Family Law Trusts and Equity Property Settlement Discretionary Trusts Definition of 'property' in Matrimonial Proceedings Jurisdiction Over Trust Assets Post Nuptial Settlements Section 79 and 85 a Family Law Act 1975 (cth) +1 more

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Parties

Edwin Philip Kennon and Ian Charles Fowell Spry (in their capacity as the trustees of the Catharine Spry Trust, the Caroline Spry Trust and the Penelope Spry Trust) & Ors

Appellants

Helen Marie Spry & Ors

Respondents

Ian Charles Fowell Spry

Appellant (m26/2008)

Edwin Philip Kennon and Ian Charles Fowell Spry (in their capacity as trustees of the Catharine Spry Trust, the Caroline Spry Trust and the Penelope Spry Trust) & Ors

Respondents (m26/2008)

Elizabeth Spry (by advocate)

Respondent

Second respondent (by advocate)

Respondent

Third to sixth respondents (by advocate)

Respondents

Procedural Posture

Appeal / High Court Appeal From Full Court of the Family Court Decision

Legal Issues

  1. 1 Whether assets of a discretionary trust may be treated as property of the parties to a marriage under s 79 of the Family Law Act
  2. 2 Whether dispositions made to defeat an anticipated property order may be set aside under s 106B
  3. 3 Whether contributions to a trust constitute post-nuptial settlements under s 85A

Ratio Decidendi

The assets of the discretionary trust—given Dr Spry's powers as settlor and trustee prior to certain dispositions, his ability to appoint to his wife, the origins of the assets, and the lack of other vested interests—formed 'property' of the parties for the purposes of s 79 Family Law Act; transactions intended to defeat an anticipated property order were properly set aside under s 106B; where divorce preceded the property proceedings, the court could proceed as if the change in status had not yet occurred. Thus, the Family Court was empowered to make the property orders it did, including the lump sum to Mrs Spry derived from trust assets; the appeals were correctly dismissed, and the...

Court Disposition

Appeal dismissed. Application for special leave to cross-appeal dismissed with no order as to costs.

Orders

  • Appeal in Matter No M25/2008 dismissed; appellants to pay first respondent's costs.
  • Application by first respondent for special leave to cross-appeal dismissed with no order as to costs (M25/2008).