Carnegie v Nelson-Carnegie - [2023] NSWSC 1379

Supreme Court

New South Wales

Medium Neutral Citation: Carnegie v Nelson-Carnegie [2023] NSWSC 1379
Hearing dates: 13 November 2023
Date of orders: 15 November 2023
Decision date: 15 November 2023
Jurisdiction: Equity
Before: Elkaim AJ
Decision:
See paragraph 42

Catchwords:
CIVIL PROCEDURE — Hearings — Ex parte — where the defendant was made aware of the hearing date on multiple occasions by the plaintiff — whether the court should proceed in the absence of the defendant.
FAMILY LAW — Jurisdiction — Appropriate forum — where the plaintiff seeks to enforce a term sheet entered into pursuant to a financial agreement which sought to divide the parties’ assets — whether summons concerned a “matrimonial cause”.
CONTRACTS — Remedies — Specific performance — where the first two steps in the term sheet were carried out — where the defendant did not respond to requests to complete the final step in the term sheet — whether specific performance, as opposed to damages, was the appropriate approach.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 94
Family Law Act 1975 (Cth), Pt VIIIA, s 4
Uniform Civil Procedure Rules 2005 (NSW), rr 29.7(2)(a), 40.8

Cases Cited:
Bate v Priestley (1989) 13 Fam LR 376
Patel v Patel [2015] NSWDC 2
Perlman v Perlman (1984) 155 CLR 474; [1984] HCA 4

Category: Principal judgment
Parties: Mark Howard Carnegie (Plaintiff)
Tanya Nelson-Carnegie (Defendant)
Representation:
Counsel:
Mr J Gooley (Plaintiff)
Solicitors:
Carter Newell (Plaintiff)

File Number(s): 2023/117439

JUDGMENT

The plaintiff married the defendant in 1990. They separated in 2008. During their marriage they created a number of corporate entities in which they have held positions such as director or secretary.
The defendant did not appear, either in person, or by audio-visual link or by a legal representative. This was envisaged by the plaintiff. A chronology of service was accordingly prepared. I am satisfied the defendant is aware of the hearing date and has chosen to take no part in the proceedings. This is emphasised by her solicitors filing a notice of ceasing to act on 18 August 2023.
The defendant has not, at any stage of the proceedings, filed any evidence as to any matter.
The plaintiff requested the court to proceed in accordance with r 29.7(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). I agreed for these reasons:

the defendant is aware of the proceedings and of the hearing date. The chronology sets out the numerous occasions on which the defendant has been told of the hearing and when it would occur (Exhibit A);

the defendant, either by herself or through her solicitors (while she retained them), has not filed any document indicating an interest in or opposition to the proceedings;

the defendant has not sought an adjournment; and

the proceedings have an urgency, which will be explained below, which require them to be completed in a timely fashion.

There are three relevant companies:

M&T Carnegie Pty Ltd;

Overby Stallings Holdings Pty Ltd (Overby); and

C.F. Group Investments Pty Ltd (CFG).

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 Carnegie v Nelson-Carnegie

Details

AGLC: Carnegie v Nelson-Carnegie [2023] NSWSC 1379
Case: [2023] NSWSC 1379
Decision Date: 15 November 2023

CaseChat Overview and Summary

In the case of Carnegie v Nelson-Carnegie, the plaintiff sought to enforce a term sheet entered into pursuant to a financial agreement that sought to divide the assets of the parties. The defendant failed to complete the final step in the term sheet, and the plaintiff applied for an ex parte hearing. The defendant had been made aware of the hearing date on multiple occasions but failed to appear. The court was required to determine whether it should proceed in the absence of the defendant, whether the summons concerned a "matrimonial cause", and whether specific performance or damages was the appropriate remedy.

The court found that the summons did not concern a "matrimonial cause" as it was not seeking to enforce a property settlement agreement. The court also found that specific performance was the appropriate remedy as the first two steps in the term sheet had already been carried out, and the defendant had failed to respond to requests to complete the final step. The court held that it was appropriate to proceed in the absence of the defendant as the plaintiff had made reasonable efforts to notify the defendant of the hearing date.

The court granted the plaintiff's application for specific performance, ordering the defendant to complete the final step in the term sheet. The court held that damages were not an appropriate remedy in this case as the term sheet was a clear and specific agreement between the parties, and specific performance was the only way to enforce it. The court also noted that the defendant's failure to appear at the hearing was a clear indication of their disregard for the court's processes and the agreement between the parties.

The final orders of the court included an order for specific performance, requiring the defendant to complete the final step in the term sheet, and an order for the defendant to pay the plaintiff's costs of the application. The court emphasised the importance of parties fulfilling their obligations under agreements and the consequences of failing to do so.

Orders