Beroni & Corelli

Case [2021] FamCAFC 9

FAMILY COURT OF AUSTRALIA

BERONI & CORELLI [2021] FamCAFC 9

FAMILY LAW – APPEAL – BINDING FINANCIAL AGREEMENT – Undue influence – Unconscionability – Free will – Wife’s proficiency in English – Adequacy of legal advice – Circumstances amounting to undue influence – Onus of proof – Special disadvantage – Terms of the binding financial agreement a factor in demonstrating vitiating factors – Failure to call solicitor – Rule in Jones v Dunkel – No merit in any of the grounds of appeal – Appeal dismissed. 

FAMILY LAW – APPEAL – COSTS – Where the husband wholly unsuccessful in the appeal – Where substantial disparity between the financial circumstances of the parties, favouring the husband – Costs ordered in favour of the wife in the amount sought.
Family Law Act 1975 (Cth) ss 90G, 90UJ, 90UM, 90UN, 117
AMP Services Ltd v Manning [2006] FCA 256
Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81
Claremont Petroleum NL v Cummings (1992) 110 ALR 239; [1992] FCA 446
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
Hoult v Hoult (2013) FLC 93-546; [2013] FamCAFC 109
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11
Manly Council v Byrne [2004] NSWCA 123
Payne v Parker [1976] 1 NSWLR 191
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
APPELLANT: Mr Beroni
RESPONDENT: Ms Corelli
FILE NUMBER: ADC 1771 of 2016
APPEAL NUMBER: SOA 77 of 2019
DATE DELIVERED: 10 February 2021
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: Strickland, Aldridge & Kent JJ
HEARING DATE: 21 August 2020
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 2 December 2019
LOWER COURT MNC: [2019] FamCA 911

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Gleeson SC with Mr Roche
SOLICITOR FOR THE APPELLANT: Marsdens Law Group
COUNSEL FOR THE RESPONDENT: Mr Whitington QC with Mr McGinn
SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy

Orders

  1. The appeal be dismissed.

  2. The appellant husband pay the costs of the respondent wife of and incidental to the appeal fixed in the amount of $82,275.36.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beroni & Corelli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 77 of 2019
File Number: ADC 1771 of 2016

Mr Beroni

Appellant

And

Ms Corelli

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This…

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AGLC
Beroni & Corelli [2021] FamCAFC 9
Case
[2021] FamCAFC 9
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Beroni & Corelli was a case where the wife, Corelli, sought to have a binding financial agreement (BFMA) set aside on the grounds of undue influence and unconscionability. The wife argued that she had entered into the BFMA under undue influence and that the terms of the agreement were unconscionable due to her lack of proficiency in English and the inadequacy of legal advice she received. The husband, Beroni, appealed against the primary judge’s decision to set aside the BFMA, arguing that the wife had not met her onus of proving undue influence and that the terms of the agreement were not unconscionable.

The court was required to determine whether the wife had discharged the onus of proving that the BFMA was obtained through undue influence or was unconscionable. This involved examining the circumstances surrounding the execution of the BFMA, including the wife's proficiency in English, the adequacy of legal advice she received, and whether the terms of the agreement were a factor in demonstrating vitiating factors. The court also needed to assess whether the husband had failed to call his solicitor, who could have provided evidence to counter the wife's claims, and if this amounted to a failure to discharge the onus of proof. Furthermore, the court needed to consider the application of the rule in Jones v Dunkel to determine whether the wife’s failure to call the solicitor affected her ability to meet her onus of proof.

The court found that the wife had not established any of the grounds of appeal on which she relied. The primary judge had correctly assessed the evidence and applied the relevant legal principles in concluding that the BFMA was not obtained through undue influence or was unconscionable. The court noted that the husband had not demonstrated any special disadvantage or pressure exerted on the wife, nor had he shown that the terms of the agreement were a factor in demonstrating vitiating factors. The court also found that the husband's failure to call his solicitor did not amount to a failure to discharge the onus of proof. Consequently, the appeal was dismissed in its entirety. Given that the husband was wholly unsuccessful in his appeal and considering the substantial disparity in the financial circumstances of the parties, the court ordered the husband to pay the wife's costs of the appeal in the amount of $82,275.36.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant husband pay the costs of the respondent wife of and incidental to the appeal fixed in the amount of $82,275.36.

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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