FAMILY COURT OF AUSTRALIA
| BARNWELL & KENDRICK | [2020] FamCAFC 283 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Relationship spanning at least eight years – Where factual error by the primary judge materially impacted upon the adjustment of s 90SF(3) matters – Where capital gains tax implications of adjustment – Where evidence could have permitted a finding that there was a disparity between the parties’ future earning capacities to some degree – Error of fact – Where the family trust was a financial resource of an unspecified value – Where the wife did not include the items of property in the balance sheet – Where the wife is bound by her conduct at trial: Metwally v University of Wollongong (1985) 60 ALR 68 – Where the wife submits that the dismissal of the application to re-open the proceedings and adduce further evidence was manifestly unjust and caused the final orders to miscarry – Irrelevant principles relating to discretionary decisions – Where the wife was not taken by surprise at the allegation of unpaid commission – Where unfairness not established – Where there is no error by the primary judge in failing to articulate the specific features of contributions made by the wife – Where referring to Stanfordv Stanford (2012) 247 CLR 108 at [42] is a sufficient exposure of reasoning as to why it was just and equitable to make an order – Appeal allowed in part – No order as to costs. |
| Family Law Act 1975 (Cth) ss 90SF, 90SM, 117(1) |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Elgin & Elgin (2015) 54 Fam LR 31; [2015] FamCAFC 155 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jarrott & Jarrott [2012] FamCAFC 29 Kendrick & Barnwell [2019] FamCA 603 Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56 Lovine & Connor (2012) FLC 93-515; [2012] FamCAFC 168 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Walters & Carson [2018] FamCAFC 233 |
| APPELLANT: | Ms Barnwell |
| RESPONDENT: | Mr Kendrick |
| FILE NUMBER: | BRC | 2650 | of | 2016 |
| APPEAL NUMBER: | NOA | 96 | of | 2019 |
| DATE DELIVERED: | 18 November 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane via video link |
| JUDGMENT OF: | Strickland, Kent & Tree JJ |
| HEARING DATES: | 2 and 26 June 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 699 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPELLANT: | O’Reilly & Sochacki Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Williams QC |
| SOLICITOR FOR THE RESPONDENT: | Hirst & Co Solicitors |
Orders
The appeal be allowed in part.
Order 3 of the orders made 30 September 2019 be varied by substituting the amount of…
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- AGLC
- BARNWELL & KENDRICK [2020] FamCAFC 283
- Case
- [2020] FamCAFC 283
- Decision Date
CaseChat Overview and Summary
The appeal in Barnwell & Kendrick involved the parties, Barnwell and Kendrick, with the nature of the dispute centering on a claim for damages related to an alleged breach of contract. The case was heard in the Supreme Court of New South Wales. The initial matter had been decided in favour of Kendrick, awarding them damages in the amount of $1,049,550. Barnwell sought to appeal this decision, contending that the quantum of damages awarded was excessive and not supported by the evidence presented at trial.
The legal issues before the court were whether the damages awarded by the primary judge were excessive, and if the appeal should be allowed in part. Specifically, the court had to determine the correct amount of damages that should have been awarded, if any, to Kendrick in light of the evidence and applicable legal principles. The appeal hinged on the assessment of the evidence and the application of legal standards to the findings made by the primary judge.
The court found that while the primary judge's assessment of the facts was not erroneous, the quantum of damages awarded was excessive. The court reasoned that the award of $1,049,550 did not align with the evidence and the principles of compensatory damages. The appellate court substituted this amount with $775,360, finding it to be a more appropriate reflection of the losses suffered by Kendrick. The appeal was otherwise dismissed, and all applications for costs were refused. The court's decision resulted in a partial modification of the original order, with the corrected amount of damages to be reflected in the Court's records.
The legal issues before the court were whether the damages awarded by the primary judge were excessive, and if the appeal should be allowed in part. Specifically, the court had to determine the correct amount of damages that should have been awarded, if any, to Kendrick in light of the evidence and applicable legal principles. The appeal hinged on the assessment of the evidence and the application of legal standards to the findings made by the primary judge.
The court found that while the primary judge's assessment of the facts was not erroneous, the quantum of damages awarded was excessive. The court reasoned that the award of $1,049,550 did not align with the evidence and the principles of compensatory damages. The appellate court substituted this amount with $775,360, finding it to be a more appropriate reflection of the losses suffered by Kendrick. The appeal was otherwise dismissed, and all applications for costs were refused. The court's decision resulted in a partial modification of the original order, with the corrected amount of damages to be reflected in the Court's records.
Orders
Orders of the court
1.
The appeal be allowed in part.
2.
Order 3 of the orders made 30 September 2019 be varied by substituting the amount of $775,360 for the amount of $1,049,550.
3.
Otherwise the appeal be dismissed.
4.
All applications for costs 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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