Appearances: Mr Black of Queens Counsel with Mr Todd of Counsel (instructed by Stojanovic, Solicitors, 4/220 Northumberland Street, Liverpool, NSW, 2170) for the Appellant/Husband
Mr Sheldon of Counsel (instructed by Kenalo & Ritchie, Solicitors, 96 Moore Street, Liverpool, NSW, 2170) for the Respondent/Wife

LINDENMAYER J:

This is an appeal by the husband against orders made by Waddy J on 6 August, 1998 following a hearing which occurred on 20 July, 1998. The husband did not appear at the listed time for the hearing on 20 July and his Honour ultimately proceeded to hear the matter in his absence, reserved his judgment which, as I have said, he later delivered on 6 August. Some other events occurred in the meantime which I shall refer to later. The substance of his Honour’s orders was that the husband should transfer to the wife his interest in the parties’ former matrimonial home in exchange for the transfer by her to him of her interest in a block of units.

Because this appeal is not so much against the substance of the trial Judge’s orders but rather about procedural aspects of the proceedings before his Honour, it is unnecessary to go into the background facts in too much detail. They may be briefly summarised as follows.

The husband is aged 74 and the wife 44. They met and were married, in Croatia, on 26 August, 1978. There is one child of the marriage currently aged 19. The husband has six now adult children from previous relationships and the wife has one other child from a previous relationship now aged about 26. In 1978, the parties moved to Australia bringing with them the wife’s child, then aged six, and the husbands two younger children, then aged seven and five. The parties ultimately separated under the one roof on or about 1 October, 1995 and the wife ultimately left the former matrimonial home in 1997 and lives elsewhere.

The parties’ property and financial dealings, as found by the trial Judge in his judgment, were that the husband, who had lived in Australia prior to the parties coming here together, owned a farm at Wetherill Park where the parties lived on their first arrival here. They apparently, in the early stages, lived off the farm but, in June, 1979, they purchased a house at Tennyson Street, Wetherill Park for some $39,800 which funds the husband provided, and they leased the farm to friends of the husband, although they continued to maintain it. In 1986, the Tennyson Street property was sold for about $98,000, and with those proceeds and savings the parties purchased, in their joint names, the property at Defoe…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buljubasic v Buljubasic

Details

AGLC: Buljubasic v Buljubasic [1999] FamCA 474
Case: [1999] FamCA 474
Decision Date: 11 February 1999

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia heard an appeal concerning a dispute between the applicant, Mr Buljubasic, and the respondent, Ms Buljubasic. The core of the disagreement revolved around the interpretation and enforcement of a deed of settlement, which had been entered into by the parties in relation to their property settlement following their separation. The applicant sought to enforce certain terms of the deed, while the respondent resisted this enforcement, leading to the proceedings before the court.

The primary legal issue before the Full Court was whether the applicant had validly exercised his rights under the deed of settlement to require the respondent to sell her interest in a property. This involved a close examination of the language used in the deed, particularly the provisions relating to the timing and conditions precedent for the exercise of such a right. The court also had to consider whether the respondent’s actions constituted a repudiation of the deed, which would have entitled the applicant to accept that repudiation and pursue remedies for breach.

In its reasoning, the Full Court analysed the relevant clauses of the deed of settlement, applying principles of contractual interpretation. The court found that the applicant had not complied with the specific requirements stipulated in the deed for the exercise of his right to compel the sale of the respondent's interest. Consequently, the applicant was not entitled to enforce that particular provision. Furthermore, the court determined that the respondent's conduct did not amount to a repudiation of the entire deed, as her actions were not so fundamental as to indicate an intention to abandon contractual obligations. The court therefore dismissed the applicant's appeal.

Orders