Beroni & Corelli - [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

2016

APPEAL NUMBER:

SOA

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

The appeal be dismissed.
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

This is an appeal by Mr Beroni (“the husband”) from an order made by a judge of the Family Court of Australia, setting aside a Binding Financial Agreement (“BFA”) between the husband and Ms Corelli (“the wife”).
At trial, the wife successfully impugned the validity of the BFA by reason of undue influence and unconscionability on the part of the husband at the time of the wife entering into the BFA dated 7 April 2011.
The wife opposes the appeal.

Background

The husband was born in Country K in February 1932 and is 88 years of age. The wife was born in Country G in April 1967 and is 53 years of age. Both parties have adult children to prior relationships.
The husband migrated to Australia when he was 20 years of age. The wife came to Australia in 2009 on a student guardian visa in order to allow one of her sons to study here. The wife was assisted by an immigration agent, Mr B, who was a Country G national living in Australia.
In December 2009, the wife was introduced to the husband through Mr B. The parties shortly thereafter formed a de facto relationship. Although the parties could not agree as to the commencement date of their relationship, the primary judge found that by at least May 2010, they had commenced living together in the husband’s house at Suburb L (at [15]).
At least initially in the relationship, the parties had difficulty with communication; the husband was not able to speak Country G’s language, and the wife had limited English. However, the wife knew some of Country K’s language and this allowed the parties to have some communication.
It was not contentious that from early in the relationship, the husband told the wife that he wanted her to sign a BFA, although the parties were not agreed as to the words the husband used to describe the agreement to the wife (at [18]).
Thereafter, a BFA was drawn up and each party retained a solicitor in relation to it. The wife signed the BFA on 31 March 2011 in the presence of her solicitor, and the husband signed it on 7 April 2011. As the primary judge found; the BFA was in English, it was not translated in either Country G’s language or Country K’s language to the wife, and any explanation of its terms to her was in English (at [19]).
In essence, the BFA provided that if the relationship between the husband and the wife came to an end, the wife would not be entitled to make any claim on the assets which the husband brought into the relationship (or vice versa), no matter for how long the relationship between them continued, or what contributions either of them made during it – but assets built up during the relationship would remain capable of division in accordance with their respective contributions.
In May 2011, the wife was divorced in Australia from her Country G first husband.
On 8 July 2011, via Mr B, the wife applied for a spouse visa, which visa issued later that month.
In mid-2013, the parties began to discuss a new BFA. The wife says this was because the husband told her the existing BFA was unenforceable, whereas the husband says it was because the parties were contemplating marriage (at [22]). However, no subsequent BFA ensued.
The parties initially separated in June/July 2014, but then reconciled in August 2014, and thereafter agreed to marry.
On 6 November 2014, the husband executed a will providing for the wife to have the use of the house at Suburb L for 12 months after his death, and a payment of $3 million.
The relationship finally ended in May 2016, however the wife did not move out of the Suburb L property until December 2016.
On 16 May 2016, the wife commenced these proceedings seeking a declaration of the existence of a de facto relationship, orders setting aside the BFA, and for property settlement, spouse maintenance and costs.
The trial before the primary judge was concerned with the validity of the BFA. The wife claimed a variety of relief to impugn the BFA, including non est factum, duress, unconscionability, undue influence, misrepresentation, unilateral mistake, estoppel, repudiation/renunciation and statutory claims under s 90UM and s 90UJ of the Family Law Act 1975 (Cth) (“the Act”).
Before addressing the grounds of appeal, it is relevant to record the circumstances and the primary judge’s findings surrounding the wife entering into the BFA.

The primary judge’s findings – Executing the BFA

A critical issue for the primary judge’s findings of undue influence and unconscionability was the wife’s proficiency in English at the time she signed the BFA on 31 March 2011. His Honour found that upon the wife coming to Australia in 2009, she could not converse in English (at [139]). By the time she entered into the BFA on 31 March 2011, his Honour was satisfied that the wife was still not proficient in English (at [168]). No challenge is made to these findings of fact.
In the period leading up to signing the BFA, the wife engaged her solicitor, Mr E. The wife, along with the husband, attended upon Mr E on 17 March 2011, following the husband’s solicitor sending him the BFA. No interpreter accompanied the wife to that meeting, despite Mr E’s request that the wife bring one. His Honour said this as a result:
183.There is a dispute between the husband and wife as to whether the husband suggested that Mr [B] undertake the translation, which was refused by the wife, and she refused translation generally. Upon balance I am not persuaded that the wife refused to have an interpreter, but rather it was the husband who refused. There is no logical reason, given my finding that the wife was not able to read English, why she would not want the BFA interpreted, particularly given that the husband had interpreted the divorce application only a few months earlier. That said, I am satisfied that the wife intended to sign the BFA without having read it, as I am satisfied the husband was insisting that she do.
On 17 March 2011, the wife’s solicitor, on his own initiative and without instructions from the wife (as the primary judge found at [185]) wrote to the husband’s solicitor expressing his concerns about the terms of the BFA and suggesting amendments to it. The major concern was that the agreement provided that no matter how long the parties’ relationship continued for, the wife had no financial recourse if it came to an end. The wife’s solicitor put a counter proposal, which would allow payments to be made to the wife on a varying scale, depending on the length of the cohabitation, but the husband rejected this. As the primary judge found, “[i]t is not controversial that [the wife’s solicitor’s] letter caused the husband to become annoyed” (at [187]).
At [190] the primary judge found that the husband told the wife very early on in the relationship that she would need to sign the BFA, and that he would not have contemplated the wife living with him for more than three years had she refused to sign it (at [189]).
As to how the husband described the BFA to the wife, his Honour was satisfied that he downplayed the significance of the document to her, and “likely gave the impression that it was simply a piece of paper”. He emphasised to the wife though that it was “practically compulsory” for her to sign the agreement (at [191]).
His Honour was satisfied that the husband knew that the wife was dependent upon him in order to obtain permanent residence in Australia, and that the wife was aware that she could potentially be deported because she was not living with her son as per the student guardian visa requirements (at [192]).
On 31 March 2011, the wife again attended upon Mr E and she signed the BFA. Accepted into evidence before the primary judge was Mr E’s file note of the attendance which is as follows (at [193]):
DM attending you re Agreement. You now want to sign. I explain my problems with this. I go through my correspondence with [U Company] and the reason for it. I do not think the Agreement is fair. I go through the Agreement with you. I explain that it does not matter how long you and [the husband] live together, you will get nothing at the end of the relationship. You are completely at his financial mercy. You understand but still want to sign.
I suspect you do this because [the husband] is unhappy and thinks you don’t trust him. You tell me as much. However, we sign the Agreement.
You tell me the divorce has been served. I have not heard from Z Company [the courier service] yet. I will do what I can to bring the date forward but there are rules about how much time he has to respond.
(30 minutes)
The wife’s evidence deposed to in her affidavits was that no explanation of the BFA was given by Mr E to her, or even if there was, she did not understand it (at [194]). However, his Honour did not accept the wife’s affidavit evidence in that regard and preferred her evidence given in cross-examination (at [195]). His Honour concluded:
196.I am persuaded, on the basis of both [Mr E]’s file note of 31 March, his execution of the certificate to the BFA, and the wife’s evidence under cross-examination I have just recited, that some very rudimentary explanation of the BFA was given to her in English, some of which she probably understood. However it is inconceivable, that within the 30 minutes duration of that consultation, there was anything approaching fulsome advice given, or even a proper explanation of the BFA itself. In that regard the BFA runs to 14 pages, and has some aspects of complexity to it, which would make it very difficult for it to be even basically – much less comprehensively – explained in a language in which the client is not fluent. I am satisfied that, cognisant of the husband’s opposition to any amendment, and the wife’s determination to sign the BFA in its then form, there was some limited explanation given, perhaps with an expectation that the document would be found to be unenforceable in any event.

The Appeal

The husband agitates seven grounds of appeal in his Further Amended Notice of Appeal filed on 13 May 2020. The grounds of appeal assert alleged errors in the various findings made by the primary judge in relation to undue influence and unconscionability.

Ground 1 – The primary judge erred in accepting the claim by the [wife] for undue influence in circumstances where the wife was advised as to the essential nature of the financial agreement, understood it, and chose to reject her solicitor’s advice not to sign it.

The key findings as to undue influence made by the primary judge appear at [214]–[217] and are reproduced as follows:
214.On the other hand I am satisfied that there was actual undue influence, by virtue of the following matters:
(a)The general position of dominance which the husband had in relation to the wife;
(b)His insistence, over a considerable period of time, that the BFA be signed, and his later insistence it be signed without amendment;
(c)The wife’s fear that he may inform immigration authorities that she was in breach of her visa conditions;
(d)The husband and wife’s knowledge that, in order to obtain an [sic] permanent visa, the relationship needed to continue, but it could only continue if the BFA was signed; and
(e)The wife’s dependence upon the husband for accommodation and income in Australia.
215.I am not persuaded that the execution of the agreement by the wife was the product of her free will. Particularly, the stark improvidence of the transaction is unlikely to be the product of her free will, in the face of advice not to enter it.
216.I should, at this point, specifically deal with the husband’s assertion that signing the BFA was just a part of the wife’s scheme to get permanent residency in Australia, and in signing it, she knowingly took a chance that things would go well for her. The husband claimed that, in reality, it was he who was the victim of the wife’s plot.
217.I reject that claim. It is fanciful to claim that the husband was emotionally vulnerable to the wife’s manipulation. If that were so, why insist on the BFA at all? Why become angry at the suggested changes? Why reject them and insist on it being signed unaltered? The answer to all those questions, I am well satisfied, is that the husband uses his money to manipulate and control others, and if it were at any risk, he would have terminated the relationship prior to three years.
As was discussed by the plurality in the High Court decision of Thorne v Kennedy (2017) 263 CLR 85 (“Thorne v Kennedy”) at [31], the basis for a claim of undue influence is the absence of a person’s free will. In considering the test, their Honours said this:
32.The question whether a person’s act is “free” requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party. It is not necessary for a conclusion that a person’s free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a “mere channel through which the will of the defendant operated”. Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be “markedly sub-standard” as a result of the effect upon the person’s mind of the will of another.
(Footnotes omitted)
It is the husband’s contention that, having had explained to her the essential nature of the BFA, in circumstances where the wife’s solicitor advised her against signing the BFA but she rejected that advice, the wife acted on her own free will. The husband asserts that where independent advice has been given, and understood, as to the advantages and disadvantages of a transaction, a claim for actual undue influence should fail (the husband’s Summary of Argument filed 13 May 2020, paragraph 7).
Further, the husband contends that in rejecting the wife’s affidavit evidence in relation to the attendance upon Mr E on 31 March 2011 (at [194]–[195]), the primary judge could not have been satisfied that the wife’s case for undue influence was made out.
Finally as to this ground, it was contended by the husband that whatever the wife’s level of proficiency in English was, the primary judge found that it was sufficient for her to understand the essence of the BFA and to exercise her free will in respect of entering the agreement (the husband’s Summary of Argument filed 13 May 2020, paragraph 10).
In addressing this ground it is necessary to also refer to what the primary judge said in relation to the wife’s claim for unconscionability as those findings relate to the claim for undue influence. They are as follows:
205.The wife says that she was in a position of special disadvantage in dealing with the husband because:
(a)She could not speak, read or understand English well, and was dependent upon the husband to assist her to do so:
(b)She had no understanding of the law of property division upon the breakdown of a de facto relationship, whereas the husband did;
(c)She could not read the BFA, whereas the husband could;
(d)She was dependent upon the husband not informing immigration authorities of her breach of her guardian visa terms;
(e)She was dependent upon the husband for her financial security in Australia, in that as at 31 March 2011, she was unable to work in the country, and her only form of income was an allowance in the sum of $2,000.00 per month which the husband was paying her;
(f)She was dependent upon the husband for her accommodation, and she had no residence of her own in Australia, or the means to acquire one, albeit perhaps she could have rented;
(g)She likely did not know that the BFA was manifestly unfair until she was told that by Mr E on 31 March, by which time she had already determined to sign it;
(h)The only way that the wife could acquire permanent residence in Australia was by remaining in a relationship with the husband and obtaining a permanent visa, however the wife knew that if she did not sign the BFA, the relationship would not continue, at least past three years; and
(i)The wife was fearful of returning to Country G because of her ex-husband, which the husband was aware of (transcript page 728).
206.I am satisfied all of those matters are established on the evidence. In addition to them, I am further satisfied that the husband was generally controlling of the wife, and that she was somewhat fearful of him.
207.All of these, to my mind, combine to establish that the wife was indeed in a position of special disadvantage, vis-à-vis the husband, at the time she signed the BFA.
208.I am not satisfied that the advice which Mr E gave, or at least tried to impart to the wife on 21 [sic] March 2011, was sufficient to remedy that special disadvantage. Leaving aside the inevitable language difficulties, which necessitated an interpreter, there is the further fact that I am well satisfied the wife was never given a copy of the BFA – as it would have been pointless, because she could not read it, much less understand it – and I am not persuaded that the wife had any real understanding as a result of her discussion of 30 minutes with Mr E on 31 March, as to the sort of value of claim which she would be giving up. The advice must have been, necessarily, given the language barrier and the 30 minute duration of the conference, wholly inadequate to remedy the position of special disadvantage.
209.The question then is whether the husband unconscientiously victimised, exploited, or otherwise conducted himself towards the wife by, firstly, insisting that she sign the BFA, and secondly insisting via her solicitors that it be in the proffered form, without variation. In my view he did. The husband must have known, even without Mr E’s letter, that the terms of the BFA were simply outrageous. In my view the husband’s insistence that it be signed, and signed in an unamended form, given his knowledge of the wife’s circumstances of special disadvantage, means that his conduct in having the agreement signed, and insisting upon it being complied with, are unconscionable. It is a form of exploitation of the wife. It is, both legally and morally, inequitable.
(Emphasis added) (As per the original)

The wife contends that these findings overcome the husband’s argument that the wife understood the essential nature and the advantages and disadvantages of entering into the BFA. Although the primary judge was not satisfied the wife was unaware of the essential nature of the BFA (at [199]), his Honour found at [208] that the wife did not “have any real understanding … as to the sort of value of claim which she would be giving up”. Indeed, nowhere in the evidence, whether in the wife’s solicitors’ file note or otherwise, was there evidence of an explanation of the advantages and disadvantages of entering into the BFA provided to the wife by her solicitor. Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA.
As the wife submits, and as was found by the primary judge at [215], the fact that the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as was held to be the case by the plurality in Thorne v Kennedy at [56]. We agree with this submission.
The wife also made the argument under this ground that the onus in relation to undue influence shifted to the husband as the dominant party to show that the transaction was the product of the wife’s free will and was unaffected by undue influence, and the husband was unable to do that. This issue is the subject of Ground 3, and more will be said about it there.
Given the primary judge’s findings discussed above, it was open to his Honour on the evidence to find that there had been actual undue influence. Thus, this ground fails.

Ground 2 – The primary judge erred in finding that there was actual undue influence by virtue of the matters identified at [214] of the reasons (whether separately or collectively).

The husband submits that the matters relied upon at [214] (see [29] above) cannot overcome the effect of the wife’s solicitor’s advice being given, understood and acted upon by the wife. He contends that whilst the factors at [214] might suggest a disparity in bargaining power between the parties, much more is required to establish a finding of actual undue influence. Exactly what more was required is not identified by the husband in his Summary of Argument.
As correctly submitted by the wife, the husband solely focussed upon the findings at [214] to displace the finding of undue influence, without having regard to the foundational evidence and findings as a whole at [205]–[206].
As to the husband’s submission that the factors at [214] cannot overcome the effect of the wife’s solicitor’s advice being given, understood, and acted upon, the wife contends that this is misconceived in at least three aspects, namely:
a)The finding at [196] was that “some very rudimentary explanation of the BFA was given to her in English”, not that proper and sufficient advice was either given or understood;
b)The advice given by the solicitor for the wife was not acted upon, but was acted against; and
c)Reliance by the husband on the “advice” overlooks the proposition in Thorne v Kennedy at [56] that the wife’s insistence to sign the BFA against the advice can be an indicium of undue influence.
We agree with that contention.
The husband seeks to distinguish the circumstances of the wife in this case from the circumstances experienced by the wife in Thorne v Kennedy. It is submitted that the wife in that case had “far more acute pressure” on her by receiving the BFA to sign only 10 days prior to her wedding, and that if the agreement was not signed, the relationship was at an end (the husband’s Summary of Argument filed 13 May 2020, paragraphs 17–18). The husband says that no such ultimatum was made in this case, and the wife knew of the agreement for some time prior to signing it. However, this argument is rejected, given the primary judge’s finding at [205(g)] that the wife likely did not know the BFA was manifestly unfair until she was told by her solicitor on 31 March 2011, thereby having less than 30 minutes to absorb the advice.
The husband also contends that the factors identified in [214] “overstate the precariousness of the wife’s position” (the husband’s Summary of Argument filed 13 May 2020, paragraph 13), namely:
a)As to [214(c)], the primary judge rejected the wife’s evidence that the husband had threatened to report her to immigration authorities (at [192]) and the husband was not aware of the wife’s visa condition until November 2011;
b)As to [214(d)], the correct position was that the husband would not allow the relationship to continue past three years if the wife refused to sign the BFA. It was not the case that the wife’s refusal to sign it threatened to bring the relationship to an immediate or near end; and
c)As to [214(e)], while it is correct that the wife was dependant on the husband for accommodation and income, if the relationship ended, the wife could have sought alternative rental accommodation (as accepted by the primary judge at [205(f)]).
In response, the wife submits that:
a)Factors [214(a) and (b)] are clearly not challenged and they thrust the onus of proving that the BFA was not affected by undue influence onto the husband;
b)With [214(c)], the finding related to the wife’s fear of being reported to authorities and not what the husband had in fact done. Secondly, the wife says that there was ample evidence to find that the husband was aware of the terms of the wife’s visa and that the divorce, BFA and visa went together (Transcript 23 October 2018, p.656; Transcript 24 October 2018, p.685–687 and 699);
c)As to the criticism of [214(d)], as found by the primary judge, the parties were under the misapprehension that the wife’s student guardian visa was to expire in November 2011 (at [181]), and the only way it could continue was to apply for a spouse visa, but that could only occur if the BFA was signed; and
d)As to the challenge to [214(e)], the primary judge’s finding at [205(f)] that the wife could have rented does not detract from the fact that the wife had nil assets and was reliant upon the husband for her income and accommodation which was of a very high standard.
We agree with the submissions of the wife that the challenges to the primary judge’s findings at [214] fail. Those findings were available and open to his Honour.
Ultimately, it is wrong to concentrate on the primary judge’s conclusory finding at [215] without having regard to the findings at [205]–[206] and the further primary findings underlying those findings, namely at [183], [188], [189], [191], [196] and [209]. This ground also fails.

Ground 3 – By accepting the wife’s claim for undue influence on the basis that [the primary judge] was not satisfied that the execution of the [BFA] was the product of [the wife’s] free will (at [215]), the primary judge failed to correctly apply the burden of proof to the wife’s claim for undue influence.

The primary contention here is that the conclusion reached by the primary judge at [215] was insufficient to set aside the BFA on the basis of undue influence (or unconscionability) because it was for the wife to prove the existence of undue influence, not for the husband to demonstrate that the transaction was the product of her free will.
As the plurality held in Thorne v Kennedy, there are different methods of establishing undue influence, as follows:
34.There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction. That was the approach relied upon by the primary judge in this case. Another way in which undue influence can be proved is by presumption. This presumption was relied upon by Ms Thorne in this Court as an alternative. A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person’s free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a “substantial benefit” to another, which cannot be explained by “ordinary motives”, or “is not readily explicable by the relationship of the parties”. Although the classes are not closed, in Johnson v Buttress Latham CJ described the relationships that could give rise to the presumption as including parent and child, guardian and ward, trustee and beneficiary, solicitor and client, physician and patient, and cases of religious influence. Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party’s free will.
(Footnotes omitted) (Emphasis added)
The husband contends that, given the primary judge rejected that this was a case of presumed undue influence (at [213]), it fell into the first category described at [34] of Thorne v Kennedy, and thus the onus of proving undue influence rested with the wife.
However, the wife submits that the husband has misconceived the issue of onus, both in respect of undue influence and unconscionable conduct. She contends that there is no challenge to the primary judge’s findings that the relationship between the husband and wife was one of ascendency and dependence and that the BFA transaction was highly improvident for the wife (at [214]–[215]), and thus the particular relationship fell into the recognised category of presumed undue influence as discussed in Thorne v Kennedy at [34].
When that was put to counsel for the husband at the hearing of the appeal, it was suggested that the primary judge’s use of the words “actual undue influence” in making the finding excluded it from falling within the presumption categories.
We do not accept that submission. The findings of his Honour at [214] and [215] established the presence of a particular relationship between the husband and wife where the husband had a position of ascendancy and the wife was in a position of dependency. We fail to see why those findings would not fall into the third category recognised by the plurality in Thorne v Kennedy, and which then requires the dominant party to demonstrate that the transaction was the product of the weaker party’s free will.
This is also the case for unconscionable conduct. In the High Court decision of Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 (“Amadio”) at 474, Deane J held that “an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable”.
There is no merit in this ground.

Ground 4 – The primary judge erred in finding that the wife was at a special disadvantage (at [205]–[207]), and that [the husband] had unconscientiously taken advantage of this special [dis]advantage (at [209]).

The principles relevant to a finding of unconscionability were summarised by the plurality in Thorne v Kennedy at [38]–[40] and quoted by the primary judge (at [204]) as follows:
38.A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage “which seriously affects the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests”.The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring “victimisation”, “unconscientious conduct”, or “exploitation”. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.
39.In Commercial Bank of Australia Ltd v Amadio, Deane J said that the equitable principles concerning relief against unconscionable conduct are closely related to those concerned with undue influence. The same circumstances can result in the conclusion that the person seeking relief (i) has been subject to undue influence, and (ii) is in a position of special disadvantage for the purposes of the doctrine concerned with unconscionable conduct. For instance, in Diprose v Louth (No 1), the trial judge, King CJ, observed that both doctrines were satisfied where the defendant “was in a position of emotional dominance which gave her an influence over the [plaintiff] which she exercised unconscientiously to procure the gift of the house”. Before the High Court in that case, Mr Diprose relied only upon the ground of unconscionable conduct.
40.Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Commercial Bank of Australia Ltd v Amadio, Mason J emphasised the difference between unconscionable conduct and undue influence as follows:
“In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.”
(Footnotes omitted)
First, the husband submits that his Honour’s findings at [205]–[207] stop short of the finding required for unconscionability, such that the special disadvantage needs to “seriously [affect] the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests”. The husband contends that his Honour did not make that latter finding.
Secondly, the husband submits that not even the factors outlined at [205] supported the finding that the wife was at a special disadvantage, let alone one which seriously affected her ability to make a judgment as to her own best interests. He contends that the factors at [205(a)–(c)] go to the wife’s asserted difficulties in understanding the precise terms of the BFA, but these did not prevent her from understanding the essential nature of what she was signing as found by the primary judge at [199] in rejecting the wife’s claim for non est factum. The remaining factors are said to go to the wife’s dependence on the husband.
Thirdly, the husband submits that because the primary judge rejected the wife’s more serious allegations at [194]–[195], there was no basis for a finding of special disadvantage by reason of the findings at [205].
Fourthly, the husband also challenges the factual correctness of the finding at [205(g)] that the wife did not know that the BFA was manifestly unfair until she was told by her solicitor on 31 March 2011. The husband says that this finding is inconsistent with paragraph 39 of the wife’s affidavit filed 16 May 2016, where the wife deposes that she “was aware that [the BFA] was heavily weighted in favour of the de facto husband in respect of financial matters”. It is also said that the finding is inconsistent with the wife’ solicitor’s letter sent on 17 March 2011 complaining about the BFA’s one-sided nature. Although the primary judge found at [185]–[186] that the wife’s solicitor sent that letter without the wife’s instructions, the husband contends that an inference to the contrary should have been made in light of the wife failing to call her solicitor (which is the subject of Ground 7).
Finally, the husband submits that even if the wife was subject to a special disadvantage, there was no basis for the finding that the husband had unconscientiously taken advantage of that disadvantage. The husband says that what his Honour finds at [209] cannot constitute victimisation and exploitation of the wife. Again, the husband seeks to distinguish these circumstances from the circumstances in Thorne v Kennedy and submits that the husband in this case did not give an ultimatum to the wife, as the husband did in that case.
As to the husband’s first submission, the wife says that it is purely “semantic” and that the findings at [205] and [206] “implicitly and necessarily included a finding that the wife’s ability to make a judgement as to her own best interests was seriously impaired” (the wife’s Summary of Argument filed 5 June 2020, paragraphs 21–22). The husband’s submission overlooks the primary judge’s findings at [208] where his Honour was “not persuaded that the wife had any real understanding … as to the sort of value of claim which she would be giving up” and that the advice was “wholly inadequate to remedy the position of special disadvantage”, together with the findings at [209] of “exploitative insistence” that the wife sign the agreement unamended (the wife’s Summary of Argument filed 5 June 2020, paragraph 23).
As the plurality noted in Thorne v Kennedy at [39], the same circumstances can result in the conclusion that the wife has been subject to undue influence as well as being in a position of special disadvantage for the purposes of the doctrine concerned with unconscionable conduct. Thus, the findings of undue influence at [214] (which self-evidently arise from the findings at [205]) bolster the conclusion that “the special disadvantage of the wife entailed that it seriously affected her ability to make a judgement about her own interests” (the wife’s Summary of Argument filed 5 June 2020, paragraph 24). We agree with that submission.
As to the criticism of the factors in [205(a)–(c)] and [205(g)], counsel for the wife correctly asserts that it is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect (for the purposes of rejecting the claim for non est factum), but it is a very different thing for a person to have sufficient knowledge and understanding adequately to protect their own interests (Blomley v Ryan (1956) 99 CLR 362 at 415; Amadio at 462).
In relation to the argument that the primary judge rejected the wife’s serious allegations and thus the remaining findings at [205] were no basis for establishing special disadvantage, the wife submits (the wife’s Summary of Argument filed 5 June 2020, paragraph 26), and we are persuaded, that this represents an unjustified “elision” from evidence not accepted to claims found, and that the unchallenged findings at [205(d)-(i)] do justifiably inform the conclusion of special disadvantage.
The husband’s challenge to the factual correctness of [205(g)] should also be rejected because it is based upon a misrepresentation of the evidence. The fact that the husband attended with the wife upon her solicitor on 17 March 2011 corroborates the fact that the BFA would not have been discussed in any detail on that occasion, and thus the finding that the wife was unaware of its unfair nature before 31 March 2011 is made out.
As to the husband’s submission about the “ultimatum” that was relevant in Thorne v Kennedy, it is said that that was a matter of fact and evidence, and not a prerequisite to a finding of special disadvantage as the husband is endeavouring to make out. In any event, the wife here was under a practical ultimatum, in circumstances where the husband was insistent upon her signing the BFA, and the parties were proceeding on the basis that the wife’s current visa expired in November 2011, and the divorce, the BFA and the spouse visa all went together. This, coupled with the primary and intermediate findings of fact, demonstrates that the husband took unconscientious advantage of the wife’s special disadvantage.

Again, this ground has no merit.

Ground 5 – By setting aside the [BFA] on a basis that gave decisive weight to its asserted one-sided nature, the primary judge misconceived of [sic] the Court’s jurisdiction to set aside a financial agreement: at [209] and [215].

The husband’s first contention here relates to the scope of the legislative policy behind allowing financial agreements between parties to have binding force under the Act, namely s 90G and s 90UJ. That is, a financial agreement will be binding under the Act where the requirements in s 90G or s 90UJ are met, and that allows for personal autonomy between the parties about their financial affairs (Hoult v Hoult (2013) FLC 93-546 at [310]). However, that does not mean that their choice is insulated from vitiating conduct (for example, see s 90UM and s 90UN of the Act).
Secondly, it is contended that the primary judge’s expressed conclusions as to undue influence and unconscionability, such as “manifestly unfair” (at [205]), “simply outrageous” (at [209]) and “stark improvidence” (at [215]), demonstrate that his view of the terms of the BFA was the decisive factor in his Honour’s decision to set aside the BFA. It is submitted that this reasoning misconceives the nature of the Court’s jurisdiction to set aside a BFA.
Curiously though, the husband concedes that the terms of an impugned BFA will be relevant where the BFA is sought to be impugned by vitiating factors such as duress, undue influence and unconscionability (the husband’s Summary of Argument filed 13 May 2020, paragraph 33). And so much was held in Thorne v Kennedy at [56] where the plurality said that unfair and unreasonable terms of a BFA will be a relevant consideration in a primary judge’s decision as to whether the agreement is vitiated, and can be an “indicium” of undue influence.
Nevertheless, the husband submits that the terms of the BFA could not amount to an indicium of undue influence or unconscionability, given the clear warning provided by the solicitor to the wife about its terms.
We consider that the primary judge did not misconceive the nature of the court’s jurisdiction to set aside the BFA, given his recitation of the relevant principles and his discussion at [204]–[218] and [228]–[232].
The findings and characterisations of the primary judge at [209] and [215] were entirely appropriate, and by no means were they the entire basis for his Honour’s decision to set aside the BFA. As put by the wife, an unfair, disadvantageous or improvident transaction can be a necessary, albeit not sufficient, element of a transaction liable to be set aside due to vitiating factors.
The primary judge’s comments at [209] and [215] were a summary of the relevant findings, and the degree of the perceived unfairness of the BFA’s terms was only one factor amongst the many factors taken into account.
This ground of appeal is without merit.

Ground 6 – In light of the wife’s failure to call her solicitor, it was not open to the primary judge to find:

(a) That the wife had suffered undue influence;

(b) That the wife was under a special disadvantage;

(c) That the solicitor’s explanation of the [BFA] was very rudimentary, and that the wife probably understood only some of it (at [196]);

(d) The solicitor’s explanation was limited, perhaps with an expectation on the part of the solicitor that the document would be found unenforceable (at [196]).

Grounds 6 and 7 relate to the wife failing to call her former solicitor, Mr E. As can be seen, here the husband asserts that the findings made by his Honour were not open on the evidence without calling Mr E.
As to undue influence, it is submitted that absent evidence from the wife’s solicitor which disavowed what was in his certificate and file note, the evidence did not support that the wife’s will was overborne in signing the agreement. Further, the husband contends that absent the solicitor’s evidence, there was no basis for the primary judge’s findings at [196] about the solicitor’s “rudimentary” explanation, and that the wife probably only understood some of it. The husband similarly makes the same argument in respect to unconscionability, namely, that the wife’s solicitor could not have completed the certificate and file note in good conscience if this had presented to him as a case where the wife was in a position of special disadvantage.
As a result, the husband contends that in the absence of a finding that the wife’s solicitor failed in his duties, and that the certificate he signed as to the advice he gave was false, it was not open for the primary judge to make the findings he did.
However, the wife contends that despite the wife’s solicitor not giving evidence as to the circumstances of the execution of the BFA, there was ample evidence to support the findings his Honour made, namely:
a)The BFA was a significant legal document of some length and written in legal language;
b)At the time of signing, the wife could not read English (at [166], [168], [183] and [208]);
c)The wife could only converse on simple matters and in broken English (at [142], [146], [205], [206] and [208]); and
d)The wife’s solicitor assessed that the wife required an interpreter (at [150]–[151]), however no interpreter attended at the time the wife signed the BFA.
It was plainly open to his Honour to accept, as he did, the evidence of the wife given in cross-examination as to the circumstances in which she executed the BFA, and the absence of evidence from the solicitor could not prevent that outcome.
Further, the wife says that if this ground of appeal is suggesting that the primary judge should not have made those findings without hearing from the wife’s solicitor, it is the case that a party is not obliged to call a particular witness (Kuhl v Zurich Financial Services (2011) 243 CLR 361 at [63]), and further, the wife’s solicitor could have been called by the husband. The wife expressly waived privilege in her communications with the solicitor, and invited the husband to call him instead. However, if this ground is about making the findings adverse to the wife’s solicitor without him being called upon to answer, the point is plainly wrong. There is no authority which says that a court cannot make adverse findings about the conduct of a solicitor, when that solicitor fails to give evidence. In any event, it cannot be overlooked that the solicitor here refused to cooperate with the wife. The wife issued a subpoena to the solicitor to give evidence, but he refused to cooperate. He must clearly have been on notice of the nature of the issue to which his evidence was relevant, yet he declined the opportunity to be heard before adverse findings were made.
Finally, it cannot be held against the wife that she failed to call a witness in circumstances where she could not proof them, or know their evidence (Payne v Parker [1976] 1 NSWLR 191 at 197 (“Payne v Parker”)). A party is not obliged to call a witness who will not cooperate.
This ground has no merit.

Ground 7 - The primary judge erred in finding that the rule in Jones v Dunkel did not apply to the wife’s failure to call her solicitor. Applying that rule, the primary judge should have inferred that:

(a) The solicitor’s evidence would not have assisted her case;

(b) The wife was aware of the one-sided nature of the agreement prior to her meeting with her solicitor on 31 March 2011;

(c) Prior to the wife signing the [BFA] on 31 March 2011, the solicitor had advised the wife about the effects of the agreement on her rights, and about the advantages and disadvantages of the agreement;

(d) The wife understood the solicitor’s advice;

(e) The wife understood that it was the opinion of her solicitor, whose job it was to consider her interests, rather than her husband’s, was that the financial agreement was not “fair” as between husband and wife;

(f) Despite receiving and understanding the solicitor’s advice, the wife wished to sign the agreement.

The primary judge introduced this issue in the reasons as follows:
104.Mr E was the only other person present when the wife signed the BFA. He was, on other occasions, the only person present for periods during earlier conferences, and one of three people present for others. For these reasons, he must have been able to give evidence relevant to the events which transpired on those occasions, the wife’s proficiency in English, and her apparent understanding of the substance of the BFA.
105.No affidavit of Mr E was filed by the wife, nor was the subpoena she served on him called upon. However she expressly waived privilege in her communications with him, and invited the husband to call Mr E instead.
106.The husband says an inference should be drawn that Mr E’s evidence would not have assisted her case; the wife denies such an inference should be drawn.
His Honour then set out the relevant legal principles which applied citing Glass JA in Payne v Parker at 200–202. His Honour continued:
109.Turning firstly to the conditions for the potential operation of the rule, the first is whether or not the absent witness would have been expected to be called by one party rather than the other. Mr E was the wife’s solicitor, and ordinarily subject to the restraints of legal professional privilege, which could only be waived by his client, one would expect her to call him. However here the wife has waived legal professional privilege, and indeed expressly invited the husband to call him instead.
110.Mr E’s professional competence is plainly raised by these proceedings. Moreover, there may be an interesting argument as to whether in advising the wife, he owed a duty of care not only to her, but also to the husband. Therefore not only do his interests not necessarily align with those of the wife in the circumstances, but indeed, might not align with those of the husband.
111.He has refused to cooperate with the wife in these proceedings. That confirms my suspicion that he is, or perceives that he is, at litigious risk in relation to his conduct. It would not be appropriate in those circumstances for the wife simply to call Mr E blind, even with the prospect of being able to have him declared hostile, and hence cross-examine him.
112.In these unique circumstances, I am not persuaded that he would be expected to be called by the wife, rather than the husband.
113.Turning then to the second matter, it is inconceivable that Mr E’s evidence would not elucidate a critical matter, namely the wife’s proficiency in English as at 31 March 2011, and also the extent to which he gave her advice as he later certified. His evidence must necessarily have been highly illuminative of both of those matters, and probably others as well.
114.The final matter is whether his absence is unexplained. In large part, it is explained. He has not been prepared to cooperate with the wife. That in itself is an explanation, and I am of the view it is, at least, satisfactory.
115.I decline to draw an adverse inference against the wife from her failure to call Mr E.
116.However that is not the end of the matter. That is because, in a sense, Mr E nonetheless did give evidence. The entirety of his file was tendered. It contains not merely his file notes, but also file copy and original correspondence, and other primary documents. There is no reason to think that his file notes are not substantially accurate, or that his file is otherwise incomplete. Much of his evidence in that form is unhelpful to the wife, for instance, his certificate of advice on the BFA, and his file notes which record him having given her certain advice. Therefore even if I had been prepared to draw an adverse inference against the wife, I am far from persuaded that it would have been of a kind significantly more adverse to her than his evidence in the form of his file.
This ground of appeal challenges the primary judge’s findings above, namely that the conditions required for an adverse inference established in Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) were not made out, and in particular the first and third conditions referred to by his Honour.
The husband asserts that clearly the first condition was satisfied, and it was beside the point whether the wife’s solicitor was cooperative with the subpoena or not. He says it was open to the wife to call on the subpoena she issued to her solicitor to attend to give evidence.
Similarly, the husband asserts that the third condition was also met, namely that the wife’s solicitor’s absence was not explained. As is evident from [114], his Honour found that the wife’s solicitor’s absence from Court was explained, and that was due to him being uncooperative with the wife in relation to the subpoena issued to him, and that was sufficient for the primary judge in not drawing a Jones v Dunkel inference. However, the husband argues that this was an error of law on the part of the primary judge in finding that the inference was not available, and the evidence should have led his Honour to draw a number of specific inferences as outlined in the sub-paragraphs of this ground.
The husband further submits that an adverse inference should have been drawn against the wife notwithstanding the rule in Jones v Dunkel. The primary judge held at [65] when evaluating the credibility of the wife that her evidence was prone to exaggeration and that “where there are issues of credibility… [his Honour] will be vigilant to see if the wife’s claims are supported by either a credible witness, or alternatively, by contemporaneous documentation”. The husband says that if this approach was followed by his Honour in evaluating the wife’s claims, he would have rejected them on the basis that they were not corroborated by a credible witness and were directly contrary to the BFA advice certificate and the wife’s solicitor’s file note.
The wife asserts that the husband’s submissions misapply the rule in Jones v Dunkel. She submits that the ultimate question on appeal is not whether the rule is able to be applied, but whether the relevant findings were open to the Court. The rule merely allows, but does not compel, the drawing of inferences when a witness is not called (Manly Council v Byrne [2004] NSWCA 123 at [51]). Further, the rule does not allow an inference to be created; it must be available independently of the application of the rule.
The wife emphasises the finding of the primary judge that the wife’s failure to call her solicitor was explained by his lack of cooperation with her. Moreover, the wife contends that because the wife’s solicitor was equally available to both parties, no Jones v Dunkel inference is available (Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 259), or alternatively, an inference is available against both parties but the particular strength of the inference against either depends on the circumstances (AMP Services Ltd v Manning [2006] FCA 256 at [49]). Bearing in mind that legal professional privilege had been waived, the husband had the wife’s solicitor’s file, the husband had the onus of displacing the claims of undue influence and unconscionability, and that the husband was asserting that sufficient advice had been given by the solicitor to allow the wife to exercise her free will, the wife contends that the Court could have drawn an inference that the husband’s unexplained failure to call Mr E would not have assisted his case.
As to the claimed inferences the husband suggests should have been drawn, the wife submits that these are merely speculation or conjecture (Jones v Dunkel at 304).
Ultimately, the wife asserts that this ground does not go anywhere. Even if it were established that the wife’s solicitor’s advice was to not sign the agreement, yet she still did so, that could only confirm, and not deny, the existence of undue influence (as held in Thorne v Kennedy at [56]).
It is readily apparent that his Honour had regard to the objective and found facts in arriving at his findings as to the circumstances in which the wife executed the BFA, and, as the wife submits, his Honour “appropriately tested the evidence against his assessment of the wife’s reliability and satisfied himself of the conclusion he came to at [208]–[209]” (the wife’s Summary of Argument filed 5 June 2020, paragraph 48).
There is no merit in this ground of appeal.

Conclusion

Having found no merit in any of the grounds of appeal, the appeal must be dismissed.

Costs

In the event the appeal was dismissed, the wife seeks her costs of the appeal at the scale amount of $82,275.36. An order to that effect would be justified not only as a result of the husband being wholly unsuccessful (s 117 (2A)(e) of the Act), but there is also a substantial disparity between the financial circumstances of the parties, favouring the husband (s 117(2A)(a) of the Act).
Counsel for the husband opposed any order for costs against his client, but did not provide any submissions in support of that opposition or in relation to the quantum of costs sought by the wife if an order was made. In that regard we note that if the appeal had been successful, the amount of costs sought by the husband was $82,275.36.
In these circumstances, there will be an order for costs in favour of the wife in the amount sought.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 10 February 2021

Associate:

Date: 10 February 2021