Brooks v Burns Philp Trustee Co Ltd - [1969] HCA 4

HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies,Windeyer and Owen JJ.

BROOKS v. BURNS PHILP TRUSTEE CO. LTD.

(1969) 121 CLR 432

5 March 1969

Matrimonial Causes—Contract

Matrimonial Causes—Alimony and maintenance—Deed of settlement between husband and wife—Covenant by wife to accept terms of deed in settlement of all claims—Void as against public policy—Covenant by husband to make weekly payments to wife—Whether severable—Approval of deed by court making decree of divorce—Covenant by husband not thereby rendered enforceable. Contract—Public policy—Covenant to oust jurisdiction of court—Validity—Severability of other covenants—Estoppel by conduct.

Decisions

1969, March 5.
The following written judgments were delivered: -
KITTO J. By a deed made between a husband and his wife on the eve of the hearing of a petition by the wife for dissolution of the marriage the husband made certain provisions for the wife in the form of (a) a covenant to pay her specified weekly amounts until the granting of the decree absolute or the dismissal of the petition, (b) a covenant to pay her similar amounts during her life as from the granting of the decree absolute, (c) a covenant to assign to her certain policies of assurance on his life, (d) an immediate assignment of certain furniture and effects, (e) a covenant to pay her a small lump sum on the signing of the deed, and (f) a covenant to pay her solicitors their costs of the deed. These provisions were made by cl. 1. Clause 2 contained a covenant by the wife that she would accept the terms provided by the deed "in full settlement of all claims against the husband for alimony and maintenance of any description". Finally, cl. 3 contained a covenant by the husband, in order to secure to the wife the weekly amounts abovementioned, to consent, whenever required by the wife to do so, to an order for permanent alimony being made for the weekly payments, and not at any time to apply for a reduction or suspension of such payments. (at p437)

2. There was a recital in the deed that the wife had indicated her intention to apply to the Court for an order for alimony pendente lite and, in the event of obtaining a decree absolute, to apply for permanent alimony. The petition was heard the next day. The deed was produced to the Court, and the Court made no order as to alimony or maintenance but expressly approved of the deed. I do not think it is correct to infer that the only purpose which the parties had in view with respect to the production of the deed to the Court was that of fulfilling the requirement of candour and obviating any suspicion of collusion. In view of the recital it seems to me that they intended the Court to exercise its jurisdiction as to alimony and maintenance, and contemplated that it would either make an order for the agreed payments (limited, necessarily, to the joint lives of the parties) or decide that the terms of the deed made proper provision for the wife and therefore made no order. The judge's approval of the deed implied, I think, a decision to make no order as to alimony or maintenance. (at p437)

3. If the wife had not bound herself by such an obligation as cl. 2 imposed upon her it might have been possible, in view of the imminence of her intended application to the Court for alimony pendente lite and permanent alimony, to infer that the deed was delivered by the husband in escrow, so as to have no operation unless and until the Court should have approved of it in the sense of making an order in accordance with clause 1 (a) and (b) or deciding to make no order as to alimony or maintenance at all ; for in order to decide whether such an inference should be drawn "you are to look at all the facts attending the execution - to all that took place at the time, and to the result of the transaction" : per Parke B. in Bowker v. Burdekin (1843) 11 M &W 128, at p 147; (152 ER 744, at p 751) . But cl. 2 was obviously intended to operate immediately and unconditionally, and according to its plain meaning it bound the wife not to ask the Court for more than the terms of the deed provided and not to take more by virtue of any order that the Court might see fit to make. Thus its operation, if it was valid, was to nullify as between the parties the Court's discretion as to alimony and maintenance by substituting the agreement of the parties for the opinion of the judge as the determinant of the amount the wife should be entitled to receive. It is true, as cl. 3 shows, that the wife remained at liberty to ask the Court to exercise its jurisdiction to the extent of ordering payment of the agreed weekly amounts as permanent alimony, and cl. 2 therefore cannot be described as purporting to oust the jurisdiction completely; but it did purport to oust the jurisdiction to award more than the agreed amounts. As Hyman v. Hyman (1929) AC 601 and Bennett v. Bennett (1952) 1 KB 249 demonstrate, the Divorce Court wuld refuse to treat such a covenant as binding, and any other court would refuse on the ground of public policy to enforce it. (at p438)

4. Clause 2 was therefore devoid of legal effect, and the question arises whether the covenant in cl. 1 (b) for payment of the weekly amount during the life of the wife (which is the covenant in question in these proceedings) stands as if cl. 2 were simply struck out of the deed, or is inoperative because of the invalidity of cl. 2. This is a question of the true meaning of par. (b) of cl. 1 considered in the context which cl. 2 provides. I do not think it is possible to read the document as a whole without perceiving that the intention was to substitute a limited liability in covenant for every other liability of the husband in respect of alimony or maintenance. This means that the husband's covenants in pars. (a) and (b) of cl. 1 and the wife's covenant in cl. 2 were intended to be the obverse and reverse of the one coin, to operate reciprocally or not at all. Questions of severability are often difficult, and tests that have been formulated as useful in particular classes of cases are not always satisfactory for cases of other kinds ; but in some cases - and I think this is one - the intended reciprocity of obligation between promises is sufficiently clear to necessitate an inference that the legal validity of each promise is a condition of the operation of the other. Accordingly I am of opinion that cl. 1 (b) failed to take effect as a source of legally enforceable obligation. (at p438)

5. The case comes before us as an appeal from a decretal order by which Street J. in the Supreme Court of New South Wales declared that the wife is not entitled as against the estate of the husband (now deceased) to be paid as from his death a weekly amount for her life in accordance with cl. 1 (b) of the deed. In my opinion his Honour's decision was right and the appeal should be dismissed. (at p438)

TAYLOR J. By deed dated 11th December 1950 it was recited that the appellant, then the wife of John Henry James Brooks, had issued out of the Supreme Court of New South Wales in its matrimonial causes jurisdiction a petition for judicial separation from her husband, that such petition had been duly served, that an appearance had been entered, that the petition had been amended by substituting a prayer for dissolution of the marriage in place of the prayer for judicial separation, that the petition had been reserved, that no appearance or answer had been filed following the reconstitution of the suit and that the appellant had indicated her intention to apply to the Court for an order for alimony pendente lite and, in the event of obtaining a decree absolute, to apply for permanent alimony. Thereafter the deed witnessed that the husband "for himself his executors administrators and assigns" covenanted (a) that he would pay to his wife the sum of 13pounds .7s. Od. per week until the granting of the decree absolute or until dismissal of the petition ; (b) that as from the granting of the decree absolute he would during the life of his wife pay to her the sum of 13pounds .7s. Od. per week, such payments to be in advance on the last day of each month ; (c) that he would assign to his wife two specified policies of assurances and all moneys assured by or recoverable under the said policies whereupon the weekly rate of payment should be reduced to 12pounds .10s. Od. ; (d) that he would give and make over to his wife all and singular the furniture and household effects and all other movable effects in their former home with the exception of certain specified articles ; (e) that he would pay to his wife on the signing of the deed the sum of 235pounds .16s.7d.; and (f) that he would pay to the wife's solicitors their costs of and incidental to the deed. On her part the wife covenanted that she would accept the terms provided by the deed in full settlement of all claims against her husband for alimony and maintenance of any description. Finally by cl. 3 the husband, in order to secure to the wife the weekly payments therein provided for, undertook whenever required so to do by the wife to consent to an order for permanent alimony being made in the same proceedings for the said weekly payments and that he would not at any time make any application for a reduction or suspension of such weekly payments. (at p439)

2. No order for permanent alimony was ever sought or made and, the husband having died on 27th October 1964, his executors instituted a suit to have determined the question whether the appellant is entitled to monthly payments pursuant to cl. 1 (b) of the deed. The learned judge of first instance, upon the authority of Bennett v. Bennett (1952) 1 KB 249 ; Shaw v. Shaw (1965) 66 SR (NSW) 30 ; and Duncan v. Somlai (1962) NZLR 849 , held that she was not and this appeal is brought from the order disposing of the suit. (at p439)

3. The problem in the case arises because of the presence in the deed of the appellant's covenant (2) "that she will accept the terms provided by this Deed in full settlement of all claims against the husband for alimony and maintenance of any description". Prima facie, at least, such a covenant purported to oust the jurisdiction of the Court to make an order or orders with respect to alimony in the cause then pending and is, therefore, unenforcealbe ; it is against public policy to permit such a covenant to operate and, though in this sense unlawful, its unlawfulness is not of a quality which brings down the whole instrument. Accordingly, covenants which are severable from such unenforceable covenants will survive. (at p440)

4. However, it is the appellant's contention that her covenant is not contrary to public policy and this, as I understand the argument, rests upon the ground that, in effect, the deed was subject to the approval of the Court and that when the decree nisi was made on the day following the execution of the deed the Court purported to approve of the deed. This, it is said, is shown by a recital in the decree nisi to the effect that "the Deed of Settlement" had been approved. (at p440)

5. I find myself quite unable to assent to the proposition that the deed was subject to the approval of the Court. There is not the slightest doubt that it was intended to operate from the time of its execution and delivery and to continue to operate thereafter whether or not its existence and terms had been disclosed to the Court. Probably, when one bears in mind the fact that it was executed on the day before the decree nisi was made and regard is had to what was the usual practice in the matrimonial causes jurisdiction, the parties intended to disclose the deed to the Court at the hearing but this is far from saying that it was subject to the approval of the Court or that its operation was conditional upon such approval being obtained. (at p440)

6. Again it is a matter of some difficulty to see how the validity of the appellant's covenant could have been saved, either by a clause suspending the operation of the deed until it was approved by the Court, or, by the approval which according to the decree nisi was in fact given to it. At that time the Court had no power to sanction or approve agreements of the character under consideration so as to clothe them with a validity which they did not otherwise possess. The statement is made by Denning L.J. (as he then was) in Bennett v. Bennett (1952) 1 KB, at p 262 that :

"If the parties do not oust the jurisdiction of the Divorce Court, but preserve it by making their agreement subject to the sanction of the court, then, once it is sanctioned, it is valid."

But from his suggestion as to the method by which the sanction of the Court might be obtained to an agreement to pay maintenance it clearly enough appears that what his Lordship had in mind in such a case was, not a procedure by which the validity and effectiveness of an agreement might be preserved or reinstated, but one by which obligations under an order of the Court might be substituted for contractual obligations. (at p441)

7. However observations in Shaw v. Shaw (1965) 66 SR (NSW) 30 make it clear that the practice of placing agreements of the kind now in question before the Court grew out of a proper desire to make a frank disclosure of all relevant dealings between the parties in matrimonial causes and to allay or dispel any suggestion of collusion. There is no reason to suppose that the deed in this case was placed before the Court for any other purpose and the approval which the decree nisi evidenced must be understood in this context. That is to say, it is impossible to regard the approval of the Court as purporting to render effective a covenant which was otherwise unenforceable. Particularly is this so when it is borne in mind that it was trite law that the Court had no such power. (at p441)

8. Finally we mention the argument that the deed did not purport to oust the jurisdiction of the Court because cl. 3 thereof specifically contemplates that the wife shall be free to make an application for alimony. No doubt this is so but cl. 3 further contemplates that if she does make an application she shall not be at liberty to obtain an order for any greater sum than that specified in the deed and that any such order shall be immutable. (at p441)

9. We are, therefore, left with the question of whether a simple covenant by a wife who has lodged a petition for dissolution of marriage that she will accept the terms provided by the deed in full settlement of all claims against her husband for alimony and policy and, secondly, whether, if it is, the husband's antecedent covenant to pay a stipulated sum to his wife during her life is also unenforceable. For an affirmative answer to the first proposition it is unnecessary to go beyond the decision in Hyman v. Hyman (1929) AC 601 and Bennett v. Bennett (1952) 1 KB 249 . But it is contended that these two decisions are in conflict concerning the second proposition. It is true that in Hyman v. Hyman (1929) AC 601 the House of Lords, whilst holding void a covenant by a wife not to take proceedings against her husband to compel him to allow her alimony or maintenance beyond the provision made for her by a deed of separation, seems to have accepted that the husband's covenant to make weekly payments was valid and enforceable whilst in Bennett v. Bennett (1952) 1 KB 249 it was thought that the fact that the wife's covenant to consent to a dismissal of her application for maintenance and not to present any further petition for maintenance was void also resulted in the invalidation of her husband's covenant to pay a stipulated annuity. But quite apart from the fact that the second proposition was not in question in Hyman v. Hyman (1929) AC 601 there were fundamental differences between the two cases. In the earlier case what was in question was the validity of a wife's covenant in a deed of separation whilst, in the later case, the covenants which were in question were contained in a deed executed after the institution by the wife of a suit for dissolution of marriage. The particular problem was, of course, the effect upon the husband's covenant to pay an annuity to his wife of the conclusion that a reciprocal covenant on the part of the wife to accept the provision made by the deed "in full satisfaction of all rights and claims" of the wife and her children in respect of alimony, maintenance or secured provision was void. (at p442)

10. It was suggested in argument that the effect which a void promise expressed in a contractual instrument will have on the rest of the contract will vary according to whether it is contained in a deed or in a simple contract. But the problem of severability is the same in either case ; fundamentally the question is one of intention to be gathered from the instrument itself : Fitzgerald v. Masters (1956) 95 CLR 420 and Whitlock v. Brew (1968) 118 CLR 445 . There can, of course, be no doubt that if the parties to either a deed or simple contract were expressly to declare their intentions as to what consequences should follow upon the invalidation of a particular term effect would be given to the intention expressed provided, of course, the invalidation of the term meant merely that it was void. It may be that in the case of a simple contract the necessity for consideration may introduce an additional element to be taken into account (cf. McFarlane v. Daniell (1938) 38 SR (NSW) 337 ) but, as will appear, this is a theoretical rather than a practical possibility and, speaking generally, the problems of what intentions should be imputed to the parties and how these should be resolved are common to both forms of instruments. (at p442)

11. In Bennett v. Bennett (1952) 1 KB 249 counsel for the appellant conceded that his client's - the wife's - covenant was unenforceable and the ground upon which the Court of Appeal held the husband's covenant to be unenforceable was that the wife's covenant constituted the sole consideration for it and that the covenants were not independent or severable (see per Lord Somervell (1952) 1 KB, at pp 254, 258 and per Lord Denning (1952) 1 KB, at pp 260, 261 ). Hyman v. Hyman (1929) AC 601 , on the other hand, was, as I have already pointed out, concerned with a deed of separation where the consideration for the husband's covenant consisted of several promises on the part of the wife only one of which was void. That promise clearly was divisible from her other covenants which it might well be thought constituted the "substantial" or "main" consideration for the husband's covenant. As a consequence her husband remained bound by his covenant. The Court of Appeal did not fail to observe this point of distinction between the two cases and it was the subject of discussion in that case (see also Goodinson v. Goodinson (1954) 2 QB 118 ; Williams v. Williams (1957) 1 All ER 305 ; O'Loughlin v. O'Loughlin (1958) VR 649 and Duncan v. Somlai (1962) NZLR 849 ). (at p443)

12. These observations I believe make it clear that there is no conflict between the decisions in Bennett v. Bennett (1952) 1 KB 249 and Hyman v. Hyman (1929) AC 601 and also serve to indicate that the husband's covenant in the present case cannot stand. In Bennett v. Bennett (1952) 1 KB 249 the Court of Appeal took the view that where the entire consideration for one person's covenant is a covenant by the other party which is held to be void there can be no severance. This, it seems to me, is entirely reasonable for each in relation to the other is a quid pro quo and upon the failure of one of the covenants the other cannot be allowed to stand. This seems to be entirely consistent with the fourth rule appearing in the notes to Pordage v. Cole (1607) 1 Wms Saund 319: (85 ER 449) and see also Oxford v. Provand (1868) LR 2 PC 135, at p 156 though there the problem under consideration was not entirely the same. Here, of course, the appellant's promise was the sole consideration for the husband's covenant and although the terms of the deed did not preclude her obtaining an order they did, in fact, purport to fix the amount of alimony which she might have obtained at an agreed and immutable figure. Accordingly the husband's covenant could not be enforced against him in his lifetime. Nor, notwithstanding that the appellant's promise is now spent since an application for alimony is not now competent, is it enforceable against his executors. (at p443)

13. Finally I mention that counsel for the appellant sought by invoking the principles of estoppel to overcome the difficulty with which he was faced. I must confess that I have some difficulty in grasping the point which counsel wished to make but in the end it emerged that the contention was that the fact that the husband during his life paid amounts pursuant to his covenant was tantamount to a representation that the approval given to the deed by the Divorce Court was effective to invest it with complete validity and that his personal representative should not now be permitted to allege the contrary. But in the circumstances of the case it is not possible to attribute any such representation to the husband. Nor, in my view, would it matter if it were for I do not see it as a representation founding an estoppel or, indeed, any evidence that it was because of any such circumstance that the appellant refrained from obtaining an order of the Court. Further I am unable to see how the application of the principles of estoppel inter partes can operate to preclude a Court from declaring void a covenant which is, in fact, contrary to public policy. (at p444)

14. I would dismiss the appeal. (at p444)

MENZIES J. On 11th December 1950 a deed was executed by the appellant, H. M. Brooks, and her husband, J.H.J. Brooks, now deceased, in which it was recited that there was pending in the Supreme Court of New South Wales a petition by the wife against the husband for dissolution of marriage and that "the wife has indicated her intention to apply to the Court for an order for alimony pendente lite and in the event of obtaining a decree absolute to apply for permanent alimony". By the deed the husband for himself and his executors covenanted by cl.1 of the deed:

"(a) That he will pay to the wife the sum of Thirteen pounds seven shillings (13pounds.7.0) per week until the granting of the Decree Absolute or until dismissal of the said petition ;

(b) That as from the granting of the Decree Absolute he will during the life of the wife pay to her the sum of Thirteen pounds seven shillings (13pounds.7.0) per week."

Provision was made for the adjustment of this amount in certain contingencies and it is common ground, that, if payment is now to be made, the sum is $25.00 per week. (at p444)

2. The wife by cl. 2 of the deed covenanted as follows:

". . . that she will accept the terms provided by this Deed in full settlement of all claims against the husband for alimony and maintenance of any description."

Clause 3 of the deed was as follows:

"In order to secure to the wife the weekly payments herein provided for the husband whenever required so to do by the wife will consent to an order for permanent alimony being made in the said proceedings for the said weekly payments AND will not at any time make any application for a reduction or suspension of such weekly payments." (at p445)

3. By the deed the husband also assigned to the wife two policies of insurance on his life and gave to the wife the furniture and household effects in a particular flat except specified articles as to which it was provided that "shall remain the absolute property of the husband". The husband also promised to pay the wife 235pounds .16s. 7d. and to pay the costs of the deed. (at p445)

4. There is no doubt that the deed came into operation upon its execution. The day after its execution the petition was heard and an order nisi for the dissolution of the marriage was granted. This order contained, inter alia, this recital, viz., his Honour "having approved the deed of settlement". This, it is common ground, was a reference to the deed between the parties dated 11th December 1950. The deed with which we are concerned was therefore approved by the judge of the Divorce Court. (at p445)

5. During his life the husband paid to the wife the covenanted weekly payment and no application was made by the wife under cl. 3. Upon the death of the husband his executors, the present respondents, commenced proceedings in the Supreme Court of New South Wales to have determined the question whether the appellant - the widow of the deceased - is entitled, until her death, to the weekly sums covenanted to be paid to her. Street J. answered the question "No". His Honour decided that (1) the covenant by the wife to accept the terms of the deed "in full settlement of all claims against the husband for alimony and maintenance of any description" was void as tending to preclude resort to the jurisdiction of the Divorce Court; (2) that the covenant by the husband to pay the weekly sum, being inseverable from the void covenant, was itself unenforceable. In so deciding the learned judge followed Bennett v. Bennett (1952) 1 KB 249 ; Shaw v. Shaw (1965) 66 SR (NSW) 30 ; Whittle v. Whittle (1965) 66 SR (NSW) 141 and Duncan v. Somlai (1962) NZLR 849 . (at p445)

6. It is well established that a covenant by a wife not to invoke the jurisdiction of the Court to obtain alimony or maintenance in divorce proceedings is contrary to public policy and void. The first question to be resolved here, therefore, is whether the wife's covenant under cl. 2 of the deed is of that description. Had cl. 2 stood alone there would have been no escape from the conclusion that it is. It would have constituted a covenant by the wife to accept, upon the making of a decree nisi or decree absolute, the terms of the deed instead of seeking an order for alimony from the Divorce Court. Clause 2 must, however, be read with cl.3 and so read I cannot regard cl. 2 as simply ousting the jurisdiction of the Court. By cl. 3 provision is made for the husband consenting to an order of the Divorce Court for alimony. It, of necessity, contemplates an application by the wife to the Court for alimony. It seems to me that if the wife had made such an application the Court would not have treated cll. 2 and 3 as void; it would, according to the discretion conferred upon it by statute and after consideration of all the circumstances including the provisions of the deed, have made or refused to make an order, and had it decided to make an order it would have done so either upon the terms of the deed or upon some other terms. Furthermore, any order made by the Court would have been subject to the Court's statutory power of variation. The Court would not have regarded itself as fettered by cll. 2 and 3 in dealing with an application made to it by the wife, but that is an altogether different matter from treating the clauses as entirely void. Moreover, an application by the wife for alimony under cl. 3 would not have been in breach of her covenant in cl. 2. Clause 3 assumes the making of such an application. In short cl. 3 denies that cl. 2 has an operation which would bind the wife to accept the husband's covenant in lieu of a court order for alimony. (at p446)

7. It must, I think, be recognized that to regard cll. 2 and 3 in the way in which I have indicated is to depart from observations made by Denning L.J. in Bennett v. Bennett (1952) 1 KB 249 . Accordingly it is necessary to examine closely what was said and to do so in the light of what was said in Hyman v. Hyman (1929) AC 601 . (at p446)

8. In Hyman v. Hyman (1929) AC 601 the effectiveness of a covenant by a husband to pay maintenance or alimony, notwithstanding the presence in the deed of a covenant by the wife not to resort to the Court for maintenance or alimony, was, I think, clearly recognized by four members of the House whose language indicated that in their Lordships' opinion the rights of a wife under such a covenant by a husband would be taken into account in determining what alimony the Divorce Court would award the wife upon an application made by her in disregard of her covenant to accept the husband's covenant in lieu of alimony. Lord Atkin, for instance, said (1929) AC, at p 629 :

"In my view no agreement between the spouses can prevent the Court from considering the question whether in the circumstances of the particular case it shall think fit to order the husband to make some reasonable payment to the wife, 'having regard to her fortune, if any, to the ability of her husband and to the conduct of the parties'. The wife's right to future maintenance is a matter of public concern, which she cannot barter away. This is not to say that in any particular case the Court must make an order; still less that in this case it must do so. I could well understand the Court coming to the conclusion that the parties' pre-estimate of the wife's reasonable needs was judicious, and that the allowance, continuing as it does after the husband's decease, and being independent of any fluctuations in the amount of his fortune, needed no supplement. But the present objection of the husband to the Court considering the matter at all in my opinion cannot prevail."

See too Lord Hailsham L.C. (1929) AC, at p 609 , Lord Buckmaster (1929) AC, at p 625 and Viscount Dunedin's agreement with the opinion of Lord Buckmaster. In Hyman v. Hyman (1929) AC 601 the decision of the House was that the wife's covenant in a separation deed made ten years before a divorce did not preclude her from petitioning the court for permanent maintenance, but the House did clearly recognize that, in that case, the husband's covenant still stood. (at p447)

9. In Bennett v. Bennett (1952) 1 KB 249 what was said in Hyman v. Hyman (1929) AC 601 was distinguished and it was pointed out by Somervell L.J. (1952) 1 KB, at p 251 that,

"The House did not have before it the question whether the existence of this covenant voided the whole deed, so that the husband could, as he seeks to do here, have repudiated liability on his covenants."

Nevertheless, as Somervell L.J. recognized (1952) 1 KB, at p 259 , both Lord Hailsham L.C. and Lord Atkin had used words which suggest "that the husband would remain bound and that any future application by the wife could only be for an additional sum". His Lordship added:

"The passages referred to above indicate what I have accepted, namely, that in this area the unenforceability or 'illegality' is not of the kind which, however small a part of the consideration it may be, necessarily voids the whole agreement. I do not think it would be right to regard these observations as a final authority on a point which was not before the House. The doctrine of severability being applicable might well have prevented the whole agreement from being regarded as void. The main subject of the agreement was the separation. The possibility of divorce was remote and seemed to depend on a change in the law. It might well, in these circumstances, be held to be subsidiary and 'severable'."

Denning L.J. went much further and said (1952) 1 KB, at p 262 :

"Any private agreement of the parties which purports to make maintenance a debt enforceable at law must of necessity impliedly oust the jurisdiction of the Divorce Court to fix it, vary it or discharge it, and it is, by reason of that implication, invalid, for the ouster goes to the whole consideration. There is no consideration moving from the wife except an implied promise to accept the named figure and not to ask for more, and that is invalid, because it impliedly takes away the jurisdiction of the court to give her more. If her promise does not bind her, then his should not bind him : Gaisberg v. Storr (1950) 1 KB 107 ; Combe v. Combe (1951) 2 KB 215 . Sometimes there may be an implied promise by her to prosecute the divorce proceedings, but that would be worse, for it would be collusion. In the present case, however, the ouster is not merely by implication. It is expressed in cl. 10 of the deed. That clause is invalid. It forms the whole, or substantially the whole, consideration for the husband's promise to pay the annuities. His promise is therefore invalid." (at p448)

10. There are, I think with great respect, difficulties in accepting this formulation of the law by Denning L.J., particularly when regard is had to what was said in Hyman v. Hyman (1929) AC 601 . Thus to accept his Lordship's statement that "Any private agreement of the parties which purports to make maintenance a debt enforceable at law must of necessity impliedly oust the jurisdiction of the Divorce Court to fix it, vary it or discharge it, and it is, by reason of that implication, invalid" would involve the rejection of what was said by the members of the House of Lords in Hyman v. Hyman (1929) AC 601 to the effect that the covenant to pay maintenance stood. It would also involve the rejection of the observations of Somervell L.J. already quoted to the effect that the problem is one of severability. If the law is correctly expressed in the absolute language of Denning L.J. then even in a separation agreement supported by various considerations a covenant to pay maintenance or alimony would be void because, if valid, it would create a debt enforceable at law. The actual decision in Bennett v. Bennett (1952) 1 KB 249 I accept; the true rationale of the decision, which Denning L.J. himself stated, I also accept, viz. that if a covenant by a husband to pay a wife maintenance or alimony is dependent upon a void covenant by the wife not to resort to the jurisdiction of the Court the husband's covenant is itself unenforceable. What I cannot accept is the more fundamental proposition enunciated by Denning L.J. which makes the proposition actually adopted and applied quite unnecessary. It is one thing to say that the husband's covenant falls because it is inseverably linked with the wife's void covenant ; it is, however, another thing to say that any covenant by the husband to pay alimony is void because, of itself and without more, it ousts the jurisdiction of the Court by creating a debt. The two propositions, indeed, cannot stand together for if the second is correct the husband's covenant does not fall because of its dependence upon the wife's void covenant. (at p449)

11. Having regard to the foregoing and to the terms of this deed, I have reached the conclusion that cl. 1 is not invalid either because it would create an enforceable debt or because it is linked with a void covenant made by the wife not to resort to the jurisdiction of the Court. It is, in truth, linked with the wife's covenant but that covenant is not, in the particular circumstances, void. It does not provide that the wife will accept the weekly payments in lieu of alimony ; it does provide that the wife will, in full settlement of all claims for alimony, accept "the terms provided by this Deed" including cl. 3 which requires the husband to consent to an order for alimony "in order to secure to his wife the weekly payments herein provided for" thus recognizing that the wife may, consistently with the deed, apply to the Court for an order for alimony. (at p449)

12. Had I reached the conclusion that cl. 2 is void I would have had to consider the other important questions that were argued. Taking the view which I do of cll. 2 and 3 it is, however, not necessary to go further. I would hold that the covenant in cl. 1 is valid and enforceable and would, therefore, allow the appeal. (at p449)

WINDEYER J. In my opinion this appeal should be allowed. Counsel for the respondents said that the position which he defended had been firmly entrenched by law. He conceded that it was, as he expressed it, "not ideal from the point of view of fairness". And clearly it is not. At one time the appellant could have applied to the Supreme Court in its matrimonial causes jurisdiction for an order for maintenance consequential upon divorce. She did not do so, being content with her husband's promise which he faithfully kept during his lifetime. (I shall throughout this judgment refer to him as the "husband", although of course that description is not accurate after the divorce.) It is now said that, because in the past she might have asked the Court to order him to pay her more than he had promised, she is not now to have what he promised. And this result it is said flows from the law's regard for public policy. This proposition recalls Lord Mansfield's remark in Holman v. Johnson (1775) 1 Cowp 341, at p 343 (98 ER 1120, at p 1121) . The result is "founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say". However, although a refusal by the husband to perform his promise on the ground that it was not binding would, using Lord Mansfield's phrase, have sounded very ill in his mouth, his executors, the respondents, are not to be reproached for the attitude they take. They wish to know where their duty lies. They are not to admit unfounded claims upon the estate they have to administer. (at p450)

2. The question is therefore where in this case does justice lie according to law? The resolution of that question depends, I think, on considerations which are fundamental in one's ideas of the very nature of the common law and of the force of precedents. A foray deep into the territory of jurisprudence is not necessary, but the case does seem to be one of the many in which pragmatism, in a philosophical sense, should enter into what it has become the fashion to call legal conceptual thinking. Consequences and context can determine the meaning and denotation of particular words used to express concepts embodied in a legal precept or principle, and in that way determine the scope and application of the precept or principle in a particular case. We should avoid what Cardozo J. in the New York Court of Appeals once described as "the extension of a maxim or a definition, with relentless disregard of consequences, 'to a dryly logical extreme'" : Hynes v. New York Central Railroad Co. (1921) 17 ALR 803, at p 806; 231 NY 229, at p236 . That is my justification for quoting a remark of Professor Lord Lloyd in his recent work The Idea of Law, at pp. 294, 295:

"Legal concepts like other symbols of man's creativity are apt to possess a vitality of their own which may end by leading their authors instead of being led by them."

That applies to doctrines professedly founded and formulated on considerations of public policy, especially to the striking down of contracts as contrary to public policy. When this is done, not because there was a promise to do something the doing of which would be illegal or immoral, but because for some other reason it is a promise which the law will not enforce, then there is a conflict of policy. On one hand the economic doctrine, predominant in the nineteenth century, that bargains should be kept: on the other an exception that the particular agreement is one to which the law will not lend its aid, although the parties may keep it if they wish.

Public policy. (at p451)

3. Contravention of public policy as an invalidating factor in contract law has become a much discussed subject - in judgments and in writings by painstaking and learned authors, especially since Sir Percy Winfield's article "Public Policy in the English Common Law", Harvard Law Review, vol. 42 (1929), p. 76. Discussion has suffered, and become enlarged, by what Lord Radcliffe, in his extra-judicial contribution to this subject, has called its "unfortunate nomenclature": The Law and Its Compass, p. 57. I do not intend to go at length into the topic here. But, in explanation of the view I take of this case, it is necessary to state on which side in some aspects of a still-continuing controversy I take my stand. (at p451)

4. Every student of the law of contracts knows that "public policy is a very unruly horse, and when once you get astride it you never know where it will carry you". And since 1938 he has known too that the rider may find that his mount has foundered on "slippery ground" or in "treacherous ground". (at p451)

5. In In re Hope Johnstone (1904) 1 Ch 470, at p 474 , Kekewich J. said: "The phrase most frequently used in argument was 'public policy', but, following the example of many eminent judges, I prefer 'the policy of the law'." Half a century later Lord Merrivale said in the case then before him:

"We need not talk about public policy. I sympathize with the view which has been expressed by many learned judges as to the mischief veiling a legal procedure which cannot be justified by direct authority upon the assumption that it is required by the public interest. What is law, and what is not law, are the real tests of public interest": L. v. L.

(1931) P 63, at p 73 . (at p451)

6. The House of Lords has said that it is not for courts to create new heads of public policy. This warning was expounded by Isaacs J. in this Court in Wilkinson v. Osborne (1915) 21 CLR 89 . The proposition continues to excite controversy among those who doubt whether the fertility of courts in the nineteenth century has now given way to sterility, resulting from senility, in the common law. But the distinction between creating a new head of public policy and defining the scope of heads already formulated by judicial decision is perhaps verbal rather than real. Sir Carleton Allen trenchantly remarked in his Law in the Making, (7th ed. (1964), p. 303, n. 2) that "the notion of 'heads' or categories, settled once for all, in a matter like this, is quite artificial and, it is submitted, unprofitable, except for convenience of arrangement and exposition". Nevertheless the influence of categories continues. They provide "pigeon holes", it is said, into one of which an agreement must fit if it is to be held invalid on the ground of public policy: Monkland v. Jack Barclay Ltd. (1951) 2 KB 252, at p 265 . The pigeon hole for this case is said to be labelled "contracts void as tending to oust the jurisdiction of the Court". This is a convenient phrase, but to my mind it can be misleading. It is misleading first to ask does the phrase describe a particular contract, and if it does, then to condemn the contract. The correct approach is, I think, to look at what result would actually flow from the performance of the contractual promise in question to see whether that would be a mischief from the point of view of public policy. I adopt as applicable to this case the considerations and the distinction expressed by Lord Haldane in Rodriguez v. Speyer Bros. (1919) AC 59, at p 77 , and what Lord Watson said in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. (1894) AC 535, at p 553 . These passages are too well known to need quotation. (at p452)

7. As far as I have discovered, the first appearance of the phrase "ousting the jurisdiction of the court" was in 1746 in Kill v. Hollister (1746) 1 Wils KB 129 (95 ER 532) . It was there used in relation to a provision in an insurance policy that all disputes should be referred to arbitration. With the important limitation recognized in Scott v. Avery (1856) 5 HLC 811 (10 ER 1121) , it is still true that the parties to a contract cannot remove disputes as to their contractual rights from the cognizance of the courts. That is because, as this Court has said:

"It is not possible for a contract to create rights and at the same time to deny to the other party in whom they vest the right to invoke the jurisdiction of the courts to enforce them" : Dobbs v. National Bank of A/asia Ltd.

(1935) 53 CLR 643, at p 652 . For the same reason the members of a voluntary association cannot effectually commit the determination of their legal rights as members to a domestic tribunal so as to abrogate completely the authority of the courts to decide questions of law arising from their contract of association. That again is said to be an ousting of the jurisdiction of the courts. But in this there is some conflict in recent English cases, as was recently well brought out by Street J. in the Supreme Court of New South Wales in his judgment in Harbottle Brown &Co. Pty. Ltd. v. Halstead (1968) 88 WN (Pt 1) (NSW) 421 . I mention it only as another illustration of the continuing conflict between the general rule of the law that private agreements are to be kept and the unreadiness of courts to surrender to other tribunals the task of interpreting contracts and defining contractual rights. It is not suggested that in this case the parties tried to put their deed outside the cognizance of the courts. That is not the mischief against which public policy is said here to stand guard. Indeed this case arises because the Supreme Court of New South Wales was asked to exercise its jurisdiction to determine the effect of the deed. The label of ousting the jurisdiction must then be read here in another sense. What is said is that the deed was ineffectual as it involved the appellant relinquishing statutory rights which because of considerations of public policy she could not effectively relinquish. This distinction between, on the one hand, public policy limiting the capacity of parties to place their contracts outside the adjudication of the courts; and, on the other hand, public policy invoked to determine the extent of statutory rights and their susceptibility to contractual modification is discernible in the reasoning of the noteworthy judgments in In re Jacob Morris (deceased) (1943) 43 SR(NSW) 352 , in the Supreme Court, and affirmed sub nom. Lieberman v. Morris (1944) 69 CLR 69 in this Court.

The decision in Hyman v. Hyman. (at p453)

8. It has been accepted throughout this case that the conclusion in the judgment appealed from depends upon the decision in Bennett v. Bennett (1952) 1 KB 249 , and upon treating that decision as a logical corollary of the decision in Hyman v. Hyman (1929) AC 601 ; and that that decision was founded on the principle that a contract to oust the jurisdiction of the courts is against public policy. (at p453)

9. A great many cases from Australian and English courts were cited to us in argument. I have read these, and others which seemed apposite. Having done my best to find my way through a forest of decisions with their tangled undergrowth of dicta, I confess I have been left remembering Gibbon's description of the lawyers in the age of the Antonines who "adopted from every system the most probable doctrines; but their writings would have been less voluminous had their choice been more unanimous. The conscience of the judge was perplexed by the number and weight of discordant testimonies". I shall not here go through all the cases. It is, I think, unnecessary to go further back than Hyman v. Hyman (1929) P 1; (1929) AC 601 , although there is much to be learnt from some of the earlier cases which were there cited. (at p454)

10. Hyman v. Hyman (1929) P 1 was a case which had the attention of six judges of the Court of Appeal (Lord Hanworth M.R., Scrutton, Lawrence, Greer, Sankey and Russell L.JJ.). In the House of Lords the decision of the majority of the Court of Appeal was upheld against the dissenting opinions of Lawrence L.J. and Russell L.J. The members of the House who heard the case were Lord Hailsham L.C., Lord Dunedin, Lord Shaw, Lord Buckmaster and Lord Atkin. The facts of the case were very different from the facts of this case. The judgments must be read with those facts in mind. A husband and wife separated in 1919. A deed of separation was executed. By this the husband covenanted, for himself and his executors and administrators, that he would pay immediately two lump sums to his wife, and that in addition he would pay her 20 pounds a week for her maintenance during her life: and she covenanted not to molest or disturb him or seek an order for restitution of conjugal rights or seek to compel him to allow her any alimony or maintenance further than the weekly sum of 20 pounds and the two lump sums already mentioned. The deed was thus a common form of a separation agreement; and, despite the hostility at one time of the Ecclesiastical Courts, such agreements, since the second half of the nineteenth century, had been recognized and treated as valid and enforceable. The question in the case was not whether the wife's covenant was valid as a clause in an agreement by which a husband and wife were to live separately, but what was its bearing upon her rights when their marriage was dissolved. When the deed was executed the husband was living in adultery with another woman ; and he continued to do so after the date of the deed. At that time a wife could not in England obtain a divorce on the ground of her husband's adultery. Only when a husband's adultery was aggravated by other misconduct was it a ground for divorce. This rule was not changed in England until 1923. Then by statute a husband's adultery without more was made a ground for divorce. In 1926 Mrs. Hyman, taking advantage of the changed state of the law, commenced proceedings for a divorce because of her husband's adultery. In January 1927 a decree nisi was pronounced, and within a month she filed a petition for permanent maintenance. In answer to this the husband set up the deed of separation. He did not contest that he and his executors and administrators were bound by his covenant to pay her the sum of 20 pounds a week. He contended only that she was bound by her covenant not to seek more than this by way of alimony or maintenance. The case turned on an issue of law thus raised. (at p455)

11. The majority of the judges in the Court of Appeal held that the wife's covenant in the deed of separation did not prevent her applying in the proceedings for an order for maintenance. Their Lordships gave differing reasons for arriving at this conclusion. In the argument for the wife three main reasons had been advanced for saying that her covenant did not stand in the way of her application in the divorce jurisdiction. They overlap but can be separately stated. In both the Court of Appeal and the House of Lords each found some judicial favour and support, and some also some quite distinct disfavour among those who nevertheless were agreed as to the ultimate result. Analysis and tabulation of the judgments might be an illuminating exercise for those who expect easily to find in every case one uncomplicated ratio decidendi. I think it would be unprofitable here. Nevertheless it is important to notice the three main propositions which were put for the wife. (at p455)

12. The first was that the separation agreement was to have effect only while the parties to it remained married : divorce terminated it, for it was something quite outside the contemplation of the parties when the deed was executed, divorce on the ground of a husband's adultery being then impossible. The doctrine of frustration of contracts by supervening events was referred to in support of this. (at p455)

13. The second argument was that, if upon its true construction, the deed was intended to be operative after a divorce, it was against public policy and void. (at p455)

14. Thirdly it was said that the wife's covenant could not deprive her of her statutory right to apply for maintenance. (at p455)

15. The first proposition depended on the peculiar facts of that case, which were quite different from those of this case. Here the deed was executed in contemplation of divorce. If the decision of the House of Lords had been entirely founded on the terms of the deed in that case and on its circumstances, that decision would not govern this case. But, although the argument based on these matters found some favour with some of the members of the House of Lords, it was not the main ground of their Lordships' decision that Mrs. Hyman was not precluded by her covenant from petitioning the Divorce Court for an order for maintenance. That conclusion stands on a broad foundation, and it is directly in point in the present case. In the second and third of the propositions which were put for the wife in Hyman v. Hyman (1929) AC 601 the words "public policy" were used. When invoked in relation to one of these propositions, public policy was a rule of the common law which, it was urged, would of its own force invalidate the wife's covenant in the deed. However, in relation to what was, as I read their Lordships' judgments, the main and decisive consideration, the public interest was simply an element in the determination of the nature of statutory rights. The decision that Mrs. Hyman could, notwithstanding her covenant, approach the Court was founded on rights given her by statute. (at p456)

16. When a statute creates and confers rights and imposes corresponding duties, persons for whose benefit this was done may by contract waive or renounce their rights, unless to do so would be contrary to the statute. It may be seen that it would be so, because of an express prohibition against "contracting out", or because the provisions of the statute, read as a whole, are inconsistent with a power to forgo its benefits: or the policy and purpose of the statute may shew that the rights which it confers on individuals are given not for their benefit alone, but also in the public interest, and are therefore not capable of being renounced. This has been long recognized : see Graham v. Ingleby (1848) 1 Ex 651, at p 656 (154 ER 277, at p 279) . In Davies v. Davies (1919) 26 CLR 348, at p 362 , Higgins J. expressed the general rule when he said:

"Anyone is at liberty to renounce a right conferred by law for his own sole benefit ; but he cannot renounce a right conferred for the benefit of society."

That was the doctrine on which the final decision in Hyman v. Hyman (1929) AC 601 stands. Lord Hailsham said (1929) AC, at p 614 that

". . . the power of the Court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and . . . the wife cannot by her own covenant preclude herself from invoking the jurisdiction of the Court or preclude the Court from the exercise of that jurisdiction".

Lord Shaw, and Lord Buckmaster with whom Lord Dunedin agreed took much the same view. So did Lord Atkin: "The wife's right to future maintenance is a matter of public concern, which she cannot barter away." (at p457)

17. I have no doubt that these considerations apply to the provisions for maintenance in the Matrimonial Causes Act, 1899-1943, of New South Wales, the statute pursuant to which the divorce decree was pronounced in the present case and also to Pt VIII of the Matrimonial Causes Act 1959-1965 (Cth) and to other Australian statutes: Fishwick v. Fishwick (1950) VLR 30 . Their provisions must be read in the light shed by the maxim privatorum conventio juri publico non derogat. This phrase, derived from the Digest and quoted by Isaacs J. in Davies v. Davies (1919) 26 CLR, at p 355 , and by Lord Atkin in Hyman v. Hyman (1929) AC 601 , has been said by Asprey J., and in my view rightly, to be "the principle of the decisions in the line of authority exemplified by Hyman v. Hyman": Shaw v. Shaw (1965) 66 SR (NSW) 30, at p43 . Those who look for the law in Latin sentences may like to be reminded also of Coke's version: pacta privata juri publico derogare non possunt. (at p457)

18. Public policy, it is said, changes with the times. When considerations of public policy are a determinant of the scope of common law rights courts can, and, perhaps slowly, do, keep abreast of the times. But when considerations of the public interest are invoked for determining whether a right given by Parliament can be renounced, the case is different. That is because the nature and effect of rights created by statute are, speaking generally, to be determined at the date when the statute comes into force. They are not to be thereafter diminished or enlarged by changing views of what the public interest may be thought by judges to require. That is for Parliament to consider. It is for it, not the courts, to keep the law it has made abreast of the times. I appreciate the remarks Selby J. made in his judgment in Whittle v. Whittle (1964) 82 WN (Pt 1) (NSW) 31 , about a changed attitude to the proprietary rights and interests of spouses now reflected in the Matrimonial Causes Act 1959 (Cth), although for reasons I shall give later, I agree with the decision of the Full Court which reversed his Honour's decision in that case: see Whittle v. Whittle (1965) 66 SR (NSW) 141 . I shall assume that Alderdice v. Alderdice (1963) 64 SR (NSW) 467 , correctly states the effect of the Commonwealth Act. I have no reason to think that it does not. It then follows, in this case, that if any proceedings could have been taken, and had been taken, by either spouse in respect of the wife's maintenance, they would, after 1st February 1961, have been governed by the Commonwealth Act. But no such proceedings were taken; and, the husband being dead, no such proceedings can now be taken : see the remarks of Kitto J. in Johnston v. Krakowski (1965) 113 CLR 552, at p 562 . Moreover the Commonwealth Act did not diminish the right of a wife to seek an order for maintenance: nor did it alter the effect of the deed the appellant and her husband had executed. (at p458)

19. I leave aside for the moment the consequences, whatever they may be, of the Divorce Court's approval of the deed, to consider simply what, without this, was its effect. On that basis, the appellant's covenant in cl. 2 that she would accept the terms of the deed in full settlement of all claims against her husband for alimony and maintenance would not have stood in the way of her applying to the Divorce Court for an order that her husband pay more by way of maintenance than he had promised by the deed. He could not have had the aid of the law to coerce her into keeping her covenant. She could not have been restrained by injunction from breaking it. Any court in which he had sought to enforce it must have said that it was invalid.

"Void", "Invalid", "Unenforceable". (at p458)

20. I have in this judgment used the words "invalid", "unenforceable" or "ineffectual", as, in similar cases, other judges have done. Other words and phrases can be used. For example, in the judgment under appeal the appellant's covenant is called "illegal and void". A similar promise was called by Asquith L.J. "void and unenforceable" : Gaisberg v. Storr (1950) 1 KB 107, at p 115 . The words used do not matter if the actual legal result they are used to express be not in doubt or debate. But it has always seemed to me likely to lead to error, in matters such as this, to adopt first one of the familiar legal adjectives - "illegal", "void", "unenforceable", "ineffectual", "nugatory" - and then having given an act a label, to deduce from that its results in law. That is to invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights. That need not happen if words be used, as Hobbes said that by wise men they should be, only as counters to reckon with; but reckoning becomes difficult if the values of counters are not constant. There may be no difficulty for adherents to Humpty Dumpty's principle as expounded by him to Alice. But his latitude and his command of his words as his servants are not generally allowed to lawyers. They are called upon to interpret other men's words. (at p458)

21. The word "void" has never been an easy word, as is pointed out in the second Australian edition of Cheshire and Fifoot's Law of Contract, p. 440. It is commonly said that when it describes a juristic act it means that it was always devoid of legal consequences. But this in itself is ambiguous, as witness the difference (which I have emphasized by italics) between the first edition of Sir George Paton's Text Book of Jurisprudence (1946) and the second edition (1951). In the first it was said (at p. 241) that "if the defects (of a juristic act) are such that the act has no legal effect at all, then the act is said to be void". The relevant passage in the latter edition (at p. 250) states - more accurately perhaps, and influenced probably by Professor Cohn's remarks in Law Quarterly Review, vol. 64 (1948), at pp. 325, 326 -

"A defect may make a juristic act either void or voidable. If the defect is such that the act is devoid of the legal results contemplated then the act is said to be void. A void act is sometimes said to be a nullity in law, but this is not strictly so, as an act void in its primary intent may nevertheless have an effect in another way." (at p459)

Conclusions. (at p475)

55. Accepting then for present purposes what I take to be the doctrine of Bennett v. Bennett (1952) 1 KB 249 and taking the expressed approval of the deed in this case as satisfying the requirements of that doctrine, what then is the final result? I think that it is that if the appellant's husband had repudiated his undertaking, or failed to make the promised payments as they fell due, the appellant could have sued him on his covenant. She could not have been told, as Mrs. Bennett was, that her proper remedy was by an application in the Divorce Court. (at p475)

56. Whether the Court's approval made the provisions of the deed immutable is another question. The Court's approval of the deed, being before the Matrimonial Causes Act 1959 (Cth) came into operation, cannot be related to its provisions. The agreement between the parties was thus not sanctioned pursuant to s. 87 (1) (k) of that Act. Therefore, in this case, no question arises such as was considered in Shaw v. Shaw (1965) 113 CLR 545, at p 549 , and Sherwood v. Sherwood (1966) 85 WN (Pt 1) (NSW) 483 . Whatever was the position while both parties were alive, the Divorce Court has no longer any jurisdiction over them. Yet the deed stands and its covenants are I consider enforceable by the appellant by action at law against the respondents as he late husband's executors. (at p476)

57. As what I have written is discursive, opinionated, perhaps turgid, certainly lengthy, I summarize my conclusions as follows:

(1) The appellant was not precluded by her covenant in cl. 2 of the deed from applying to the Supreme Court in its matrimonial causes jurisdiction for an order for maintenance, while and for so long as she was by law entitled to make such an application. (2) It was not unlawful for the appellant to perform her covenant. It was merely unenforceable by law. (3) An unenforceable promise is not a valuable consideration which will support an executory contract not under seal. (4) A covenant by deed which is not enforceable, but which is not to do an act that is unlawful, does not render related or dependent covenants unenforceable. In such a case the condition resulting from dependency of mutual covenants which is ordinarily implied is that each covenantor should perform, or be ready to perform, his covenant, not that it must be enforceable against him at law. (5) If and so far as anything said in the judgments in Bennett v. Bennett (3) is to be read as contradicting the above propositions, it should not be followed. (6) Bennett v. Bennett (1952) 1 KB 249 is in any event distinguishable from this case because: (a) in the events which have happened it is not now possible for the appellant to seek an order for maintenance; and (b) this deed was approved by the Divorce Court. Either (a) or (b) above suffices to make the decision in Bennett v. Bennett (3) not applicable in this case. (7) The appellant is entitled to be paid until her death the sum of twenty-five dollars per week from the estate of her husband pursuant to his covenant, the obligations of which bind the respondents in their capacity as executors. I would answer the question in the originating summons accordingly, and allow the appeal. (at p477)

OWEN J. The question which arises in this appeal is whether the respondents, the executors of the will of one J. H. J. Brooks deceased, are liable to make certain periodic payments to the appellant under the terms of a deed entered into on 11th December 1950 between the appellant and the deceased who was then the appellant's husband. Street J., before whom the question arose, decided it in favour of the respondents and from his decision this appeal is brought. (at p477)

2. It is common ground that, as the deed recites, it was executed at a time when proceedings for dissolution of marriage had been instituted by the appellant in the Supreme Court of New South Wales in its matrimonial causes jurisdiction and she had indicated to the deceased her intention, in the event of a decree absolute being made, to apply to the Court for an order for permanent alimony. By cl. 1 (b) of the deed the deceased covenanted that "as from the granting of the Decree Absolute" he would "during the life of the wife pay to her the sum of Thirteen pounds seven shillings (13pounds.7.0) per week; such payments to be paid in advance on the last day of each month for the succeeding month . . ." subject to certain provisos which are not material for present purposes. Clause 2 of the deed was as follows:

"2. The wife covenants with the husband that she will accept the terms provided by this Deed in full settlement of all claims against the husband for alimony and maintenance of any description."

And by cl. 3 the deceased covenanted that, if required to do so by the appellant, he would consent to an order being made by the Court for the payment of the weekly sums covenanted to be paid by him "in order to secure" to the appellant those weekly payments. The effect of cll. 2 and 3 was that, while the appellant might seek an order of the Court to secure the payments agreed to be made, she had covenanted to accept those payments in full settlement of all her claims for alimony or maintenance. (at p477)

3. On 12th December 1950 the day following that on which the deed was executed, the appellant obtained a decree nisi for dissolution of marriage and that decree, after reciting that the Court had "approved the deed of settlement" went on to order that the marriage be dissolved within six months from the date of the decree. The "deed of settlement" to which the decree referred is admittedly the deed of 11th December 1950. The decree nisi was made absolute on 12th July 1951, and neither then nor at any other time was the Court asked by the appellant to make an order for alimony or maintenance or "to secure" to her the "weekly payments" for which the deed provided. (at p478)

4. At all relevant times the New South Wales Matrimonial Causes Act of 1889 was in force. It empowered the Court, by s. 39, on a decree for dissolution of marriage, to order the husband to secure to the wife for any term not exceeding her life such gross or annual sum of money as it deemed reasonable. By s. 40 (1) the Court, instead of ordering the husband to secure to the wife a gross or annual sum, might order him to pay to the wife during their joint lives such monthly or weekly sums for her maintenance or support as the Court should think reasonable and, by s. 40 (2), it might discharge or modify its order or temporarily suspend it if the husband should become unable to make the payments ordered. It is to be noticed that the deed here in question provided that the payments covenanted to be made by the husband were to be made not during their joint lives but during the life of the appellant, and further that the amounts covenanted to be paid were neither a "gross" nor an "annual sum". It follows that the Court would have had no jurisdiction to make an order in terms of cl. 1 (b) of the deed and in fact it did not purport to do so unless, from the recital in the decree nisi that the Court had approved of "the deed of settlement", it can be said that the Court had, by implication, made an order which it had no power to make - a proposition which cannot be maintained. No doubt the deed was produced to the Court when the application for a decree nisi was heard, not in support of or in answer to an application by the appellant for an order for alimony or maintenance or to secure the payments covenanted to be made by the deceased, for no such application was made, but to meet any suggestion that the divorce proceedings were collusive. (at p478)

5. Street J. considered that cl. 2 of the deed was void as being a provision which purported to oust the jurisdiction of the Court and that the deceased's covenant in cl. 1 (b) to pay to the appellant the weekly sum of 13pounds. 7s. and the appellant's covenant to accept those payments in full settlement of all claims for alimony and maintenance were so dependent, the one upon the other, that they were incapable of severance so that if the appellant's covenant was void, the deceased's covenant failed with it. (at p478)

6. I am of opinion that his Honour's decision on both points was correct. There is no doubt that an agreement which purports to oust the jurisdiction of the courts is void as being against public policy and, applying that general principle, a promise by a wife that, in the event of the dissolution of their marriage, she will accept an amount agreed upon between herself and her husband in full settlement of all claims for alimony or maintenance, is void and unenforceable. Clause 2 contains such a promise and, while it is true that cl. 3 contemplated that the appellant might make an application to the Court for an order to secure the payments for which cl. 1 (b) provided, the fact remains that cl. 2 purported to preclude the appellant from seeking any order for payments other than those set out in cl. 1 (b). If therefore cl. 2 is void and it appears - as I think it does - that on the true construction of the deed the covenant by the husband in cl. 1 (b) is dependent upon the covenant by the wife in cl. 2, the two clauses are incapable of severance and each is void. (at p479)

7. We were referred to a number of cases which bear upon these questions. In Hyman v. Hyman (1929) AC 601 , the question - and the only question - that arose before the House of Lords was whether a wife who had covenanted, in a deed of separation, not to molest or disturb the husband or by any means compel him to cohabit with her or enforce any restitution of conjugal rights or compel him to allow her any alimony or maintenance over and above the amount which he had covenanted to pay her was thereby precluded from obtaining an order for alimony in proceedings which she had later taken for dissolution of the marriage. It was held that the wife's covenant did not debar the Court from making an order for alimony in her favour although, as was pointed out by Lord Hailsham (1929) AC, at p 609 :

". . . this by no means implies that, when the application is made, the existence of the deed or its terms are not most relevant factors for consideration by the Court in reaching a decision."

With this, with respect, I agree. When the court is considering an application for alimony the fact that the parties have reached agreement on the amount to be paid will afford evidence - and in most cases weighty evidence - that the agreed figure is one which makes adequate provision for the wife's maintenance and support. (at p479)

8. My brother Menzies has pointed out, however, that passages are to be found in the speeches of their Lordships in Hyman's Case (1929) AC 601 which appear to recognize that, notwithstanding that the wife's covenant in that case was invalid and did not, therefore, debar her from obtaining an order for alimony, the husband's covenant to pay could be enforced. As to this I would make these observations. In the first place, that question did not arise for decision. Further, the deed was a deed of separation. At the time it was executed the husband was living in adultery with another woman and the law did not, at that time, enable a wife to obtain a divorce solely on the ground of her husband's adultery. In these circumstances the view was open - as was pointed out in a later case of Bennett v. Bennett (1951) 2 KB 572 and, on appeal (1952) 1 KB 249 - that the substantial consideration for the husband's promise was the wife's promise that she would take no steps to compel him to cohabit with her. (at p480)

9. In Bennett v. Bennett (1951) 2 KB 572; (1952) 1 KB 249 a wife had petitioned for dissolution of marriage. Before the making of the decree her husband had covenanted to make financial provision for her and a child of the marriage and she had covenanted to accept that provision in full satisfaction of all her claims and those of the child for alimony or maintenance. A decree for dissolution of the marriage was made and for a period the husband made the payments specified in the deed. Later the payments fell into arrears and the wife brought an action in which she sought to recover the amounts unpaid. Devlin J., as he then was, who tried the action dismissed it on the ground that the wife's covenant was void as being connot be enforced. In the course of his judgment his Lordship, in dealing with the question of severability, referred to Hyman v. Hyman (1929) AC 601 and said of it (1951) 2 KB, at pp 575, 576 , that

". . . it may well be that the objectionable clause in the deed would have been severable from the husband's promise; this may explain, if any explanation be needed other than the fact that the point was not under consideration, why some of their Lordships, particularly Lord Atkin, referred to the husband's promise in that case as being still alive."

In the Court of Appeal Somervell L.J. made the same points. He pointed out (1952) 1 KB, at p 251 , and again (1952) 1 KB, at p 251 , that the question whether the wife's covenant "voided the whole deed" had not arisen for consideration and added that "the doctrine of severability being applicable might well have prevented the whole agreement from being regarded as void. The main subject of the agreement was the separation. The possibility of divorce was remote and seemed to depend on a change in the law. It might well, in these circumstances, be held to be subsidiary and 'severable'". Denning L.J. (1952) 1 KB, at p 261 , drew attention to the fact that the deed was a deed of separation and pointed out that in such case the substantial consideration for the promise by the husband might well be the agreement to live apart and that in these circumstances the husband's promise would be severable. That, his Lordship thought, was "implicit" in the speeches in Hyman's Case (1929) AC 601 . He went on to say (1952) 1 KB, at pp 262, 263 , that in the case of an agreement for the payment of alimony upon the dissolution of a marriage different considerations arose since if a promise by the wife to accept agreed payments in settlement of any claims she might have for alimony was void, that promise might well form the whole or substantially the whole of the consideration for the husband's promise to make the agreed payments and, in such case, "if her promise does not bind her, then his should not bind him". He went on (1952) 1 KB, at pp 262, 263 :

"If the parties do not oust the jurisdiction of the Divorce Court, but preserve it by making their agreement subject to the sanction of the Court, then, once it is sanctioned, it is valid. The Court, however, cannot and will not give its sanction before decree nisi. It has itself no jurisdiction before decree nisi to deal with permanent maintenance. Its jurisdiction only arises 'on' the decree. Its sanction should, I think, be obtained in this way: if the parties agree on a figure for maintenance, the Court should be asked to make an order for that figure; if they agree on a secured provision, the Court should be asked to approve the deed which contains the provision."

Counsel for the appellant placed some reliance upon this passage in support of a submission made by him that, assuming cll. 1 (b) and 2 to have been invalid when the deed was executed, the recital in the decree nisi that the deed had been approved had in some way had the effect of validating covenants which up to that time had been invalid. But what his Lordship said in the passage last quoted is not, in my opinion, to be read as meaning that the mere approval by the Court of an agreement for alimony made between husband and wife validates that which the law regards as invalid. I think that what his Lordship meant was that if an agreement for alimony was made by the parties subject to the approval of the Court, the Court, assuming that it had jurisdiction to do so, could, if it thought fit, make an order in terms of the agreement in which case it would be the order of the Court and not the terms of the agreement that would be binding and enforceable. This was the view of his Lordship's remarks which commended itself to the Full Supreme Court of New South Wales in Shaw v. Shaw (1965) 66 SR (NSW) 30 and Whittle v. Whittle (1965) 66 SR (NSW) 141 in which questions arose as to the effect of the Court "sanctioning" or "approving" an agreement for alimony or maintenance made between husband and wife which was void as purporting to oust the jurisdiction of the Court and I agree with their Honours. (at p482)

10. For the reasons I have stated I am of opinion that cl. 2 of the deed in the present case was void; that cl. 1 (b) shared the same fate because dependent upon the operation of cl. 2; and that if cl. 1 (b) could not have been enforced against the deceased, it cannot now be enforced against his executors. I am also of opinion that the "approval" of the Court recited in the decree nisi did not operate to validate those clauses. The decree did not purport to substitute an order of the court for the deceased's covenant in cl. 1 (b). (at p482)

11. One further matter remains for consideration. Counsel for the appellant put forward an argument that the respondent executors are in some way estopped from setting up the invalidity of cll. 1 (b) and 2. If I understood the submission correctly, it was that they are estopped from contending that the "approval" of the Court recited in the decree nisi did not validate the relevant covenants in the deed. Alternatively it was said that, by making the agreed payments to the appellant during his lifetime the deceased was estopped - and his executors are now estopped - from contending that those covenants are invalid. (at p482)

12. Neither of these submissions can be upheld. It is impossible, in my opinion, to find in the present case the elements necessary to create an estoppel. And, apart from any other consideration, I do not think that the doctrine of estoppel can be invoked so as to prevent a court from considering whether a contractual provision is invalid as being contrary to public policy. (at p482)

13. I would dismiss the appeal. (at p482)

Orders

Appeal dismissed with costs.