Chatterjee and Woodby-Chatterjee & Anor

FAMILY COURT OF AUSTRALIA

CHATTERJEE & WOODBY-CHATTERJEE AND ANOR

[2018] FamCA 930

FAMILY LAW – PROPERTY – Binding Financial Agreement – where the wife seeks that a financial agreement be set aside – where the wife alleges non-disclosure of material finance matters – where the wife was unable to prove non-disclosure - where the wife alleges fraudulent misrepresentation as to income levels – where the wife sought independent legal advice – where the wife failed to establish that she was the subject of special disadvantage – where the wife was able to make a judgment in her own best interests.

FAMILY LAW – PROPERTY – Spousal Maintenance – where the wife seeks spousal maintenance – where that maintenance would cease when the youngest child commenced high school – where the wife was able to support herself adequately – where the husband was not in a position to pay financial support – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Chatterjee

RESPONDENT:

Ms Woodby-Chatterjee

INTERVENOR:

Mr Chatterjee Snr

FILE NUMBER:

SYC

3822

2013

DATE DELIVERED:

15 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

3, 4, 5, 6, 9, 10, 11, 12, 13 and 19 April 2018 and 9 and 10 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridger

SOLICITOR FOR THE APPLICANT:

Bricknell Legal

THE RESPONDENT:

Ms Woodby-Chatterjee on 9 and 10 July 2018

COUNSEL FOR THE RESPONDENT:

Ms Obrart on 3, 4, 5, 6, 9, 10, 11, 12, 13 and 19 April 2018

SOLICITOR FOR THE RESPONDENT:

G & D Lawyers on 3, 4, 5, 6, 9, 10, 11, 12, 13 and 19 April 2018

SOLICITOR FOR THE INTERVENOR:

Mr Rodgers

SOLICITOR FOR THE INTERVENOR:

Orders

Paragraphs 11 to 50 inclusive of the Second Further Amended Response filed by the wife on 8 August 2016 are dismissed.
The Application in a Case of the wife filed on 3 April 2018 is dismissed.
The interim order for spouse maintenance made on 9 March 2015 is discharged.
The application of the wife for spousal maintenance contained in paragraph 54 of the Second Further Amended Response filed by the wife on 8 August 2016 is dismissed.
Paragraphs 55-57 inclusive of the Second Further Amended response filed by the wife on 8 August 2016 are dismissed.
Pursuant to section 90KA of the Family Law Act 1975, clause 33 of the Financial Agreement between the husband and the wife dated 28 January 2003 is enforceable as an order of the court.

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 Chatterjee & Woodby- Chatterjee and Anor 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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3822 of 2013

Mr Chatterjee

Applicant

And

Ms Woodby-Chatterjee

Respondent

And

Mr Chatterjee Snr

Intervener

REASONS FOR JUDGMENT

The proceedings

Ms Woodby-Chatterjee (“the wife”) and Mr Chatterjee (“the husband”) have been locked in litigation concerning financial and parenting issues since 2013. On 9 July 2013 the husband commenced proceedings in the Federal Circuit Court, by way of an application for parenting orders. On 31 October 2013 the husband filed an Amended Initiating Application by which he also sought orders for enforcement of a Financial Agreement into which the parties entered on 15 November 2003. On 31 December 2013 the wife filed an Amended Response by which she sought orders to set aside the Financial Agreement. The proceedings were transferred to the Family Court of Australia on 2 June 2014.
The wife's application for orders to set aside the Financial Agreement was listed for hearing before Le Poer Trench J for three days commencing on 18 August 2015. The parties devoted this time to unsuccessful negotiations for settlement and the application was then listed for hearing on 25, 26, 27 and 28 July 2016. The hearing was uncompleted on these dates and further time was allocated in October 2016.
On 28 July 2016 the wife applied for leave to amend her pleadings and in particular to add new grounds upon which she sought to set aside the Financial Agreement. On 28 July 2016 Le Poer Trench J ordered that the wife not file any amended pleadings without the leave of the court. Nonetheless, the wife filed Second Further Amended Response on 8 August 2016 ("the Response"). The wife purported to add additional grounds of fraudulent misrepresentation, sham transaction and undue influence on the part of the husband.
On 26 October 2016 Le Poer Trench J made an interim order which restrained the wife from further pursuing a claim of undue influence as a ground for setting aside the Financial Agreement. On 26 October 2016 Le Poer Trench J recused himself from the proceedings on the application of the husband.
On 15 March 2018 the husband filed an Amended Initiating Application, by which he sought the following orders inter alia:
1.An order that the application of the Wife to set aside the Financial Agreement dated 28 January 2003 be dismissed.
2.An order pursuant to Section 90KA of the Family Law Act 1975 that Clause 33 of the Financial Agreement dated 28 January 2003 between [Mr Chatterjee] ("the husband") and [Ms Woodby-Chatterjee] ("the wife") be enforced as if it were an order of the Court."
The parenting and property proceedings finally were listed for trial before me in April 2018. On 6 April 2018 the wife made an application that I recuse myself from the proceedings in relation to the Financial Agreement for reasons of apprehended bias. I refused this application on 6 April 2018 and the trial continued until 11 April 2018 when I recused myself from the parenting proceedings. The trial in respect of the application for orders to set aside the Financial Agreement resumed on 9 July 2018, after the wife's solicitor had filed a Notice of Ceasing to Act. The wife appeared unrepresented on 9 and 10 July 2018.
The wife filed an Application in a Case dated 28 February 2018, by which she sought an order that she receive a sum of $70,000 from a controlled monies account operated by O, Solicitors, who act for the husband's father Mr Chatterjee Snr. On 27 July 2017 I made the following Orders:
"(3)3.1 Within 28 days the husband and the wife will do all things and execute all documents necessary to procure payment to the wife's solicitor Mr N, from the controlled monies account operated by O solicitors, of a sum of $70,000 pursuant to section 117(2) of the Family Law Act.
3.2The funds of $70,000 will be controlled by the wife's solicitor and expended for the purpose of preparation of her case for hearing and conduct of the trial."
The funds held in the controlled monies account constitute the net proceeds of sale of a property at D Street, Suburb B which was the former matrimonial home of the husband and the wife. This property was sold pursuant to consent orders made on 16 June 2016. These orders provided that the wife receive a sum of $50,000 and the balance of the sale proceeds be lodged in a controlled monies account.
When the parties acquired the former matrimonial home in November 2004, the husband's father contributed a sum of $1,200,356 to the purchase price. Mr Chatterjee Snr commenced proceedings against the husband and the wife in the Supreme Court of New South Wales in relation to the funds which he had contributed to the purchase of the Suburb B property. The husband filed a submitting appearance and the wife defended the proceedings. In 2016 the Supreme Court of New South Wales determined at first instance that this advance was a gift by Mr Chatterjee Snr to the husband alone.
The wife appealed unsuccessfully against these orders. In 2017 the Court of Appeal ordered that Mr Chatterjee Snr receive a sum of $1,674,969, plus interest at the rate of $59.17 per day from the controlled monies account. The Court of Appeal ordered further that the wife pay the costs of Mr Chatterjee Snr. According to an affidavit sworn on 10 April 2018 by the solicitor for Mr Chatterjee Snr, his costs amounted to $300,889 as at April 2018.
At the beginning of the trial, counsel for the husband sought orders for summary dismissal of various paragraphs of the wife's Second Further Amended Response filed on 8 August 2016 ("the wife's Response"). Counsel for the wife indicated that she did not press paragraphs 12(b), 19, 21 and 22 of the Response. Counsel for the wife objected to the application by the husband, on the basis that any such application for summary dismissal should be made only after cross-examination. I disagreed and considered that the wife's case would be presented at its highest prior to the testing of evidence.
I made rulings in relation to the various applications for summary dismissal by counsel for the husband and struck out parts of the wife's Response. Counsel for the wife did not press some paragraphs of the Response. Ultimately the Response read as follows:
Property
11.That the Financial Agreement, made pursuant to Section 90B of the Family Law Act 1975 as amended, and dated 28 January 2003 be found to not constitute an agreement between the parties due to:
a)the equitable consideration of unconscionable conduct due to the wife' (sic) suffering from ~~depression and low self esteem~~, her lack of understanding of financial matters, ~~her sister-in-law's physical health~~, her job prospects and dependence upon the husband and/or the pressure that the husband was putting on the wife to sign the Financial Agreement;
b)the equitable consideration of undue influence due to ~~the wife's vulnerable psychological state~~ and the illegitimate pressure from the husband which was a contributing factor which influenced the wife in her decision to enter into the Agreement; and/or
c)equitable duress.
12.In the alternative to Order 11 above that the Financial Agreement, made pursuant to Section 90B of the Family Law Act 1975 as amended, and dated 28 January 2003 be set aside pursuant to:
a)        Section 90K(1)(a) due to
i)the non-disclosure of material financial matters on the part of the husband at the time the wife signed the Financial Agreement; in that:
a.he did not disclose he had a mortgage on his [Suburb L] property
~~b.he incorrectly claimed he had a 50% shareholding when in fact he was a director not shareholder in [Chatterjee Pty Ltd]~~
c.he did not disclose that he was a director of and had one share in HH Pty Ltd
d.he did not disclose that he was the auditor of and had one share in [GG Pty Ltd] and/or
ii)the undue influence of the husband upon the wife so that the wife did not enter into the Financial Agreement of her own free will, and/or
b)        Section 90K(1)(b) due to
i)        the non-disclosure of the husband in that
a.he did not disclose he had a mortgage on his [Suburb L] property
b.he incorrectly claimed he had a 50% shareholding when in fact he was a director not shareholder in [Chatterjee Pty Ltd]
c.he did not disclose that he was a director of and had one share in [HH Pty Ltd] and/or
d.He did not disclose that he was the auditor of and had one share in [GG Pty Ltd] and/or
ii)the undue-influence upon the wife by the husband at the time the wife signed the Financial Agreement due to ~~the wife's suffering from depression and low self esteem~~, her lack of understanding of financial matters, ~~her sister-in-law's physical health~~, her job prospects and dependence upon the husband and/or the pressure that the husband was putting on her to sign the Financial Agreement the wife, and/or
iii)the Agreement being void, voidable or unenforceable for uncertainty.
c)Section 90K(1)(e) the undue influence of the husband upon the wife so that the wife did not enter into the Financial Agreement of her own free will due to ~~the wife's suffering from depression and low self-esteem~~, her lack of understanding of financial matters, ~~her sister-in-law's physical health,~~ her job prospects and/or her dependence upon the husband and the pressure that the husband was putting on the wife to sign the Financial Agreement. And/or
~~d)Section 90 K (1)(c): and / or~~
~~e)Section 90 K (1) (d)~~
Further Grounds added to the response filed on 16 April 2015
Section 90K(1)(a),(b) – fraudulent misrepresentation as to reason for financial agreement and as to true ownership of [Suburb L] property
13.The Financial Agreement was obtained by the fraudulent misrepresentation of the husband in that he represented to the wife that:
(i)       The [Suburb L] Property was in fact his father's asset, and;
(ii)The reason for wanting a Financial Agreement was to exclude his fathers assets which included the [Suburb L] Property and his inheritance from any settlement with the Wife;
('Pre-Contractual Representations')
14.The Pre-Contractual Representations are set out in paragraphs 29, 33 and paragraph 26 of the Husband's affidavit dated 21 July 2015.
15.The Pre-Contractual Representations were false.
Particulars
The Financial Agreement states that the [Suburb L] Property is owned by the Husband
The [Suburb L] Property was owned by the husband at all material times
16.The Husband at all times knew the Pre-Contractual Representations were false.
Particulars
The Financial Agreement states that the [Suburb L] Property is owned by the Husband
The [Suburb L] Property was owned by the husband at all material times
17.The Financial Agreement was thereby obtained by fraud, being fraudulent misrepresentation.
18.By reason of being obtained by fraud, the Financial Agreement is:
(i)       liable to be set aside pursuant to Section 90K(1)(a); and/or
(ii)voidable at at (sic) law and thereby liable to be set aside pursuant to Section 90K(1)(b)
Section 90(K)(i)(a),(b) Sham transaction
19.Further or alternatively, the Pre-Contractual Representations which state that the [Suburb L] Property is owned by the Husband's father are inconsistent with the terms of Schedule 1 to the Financial Agreement which states that the [Suburb L] Property is owned by the Husband.
20.In the premises of the terms of the Pre-Contractual Representations concerning the [Suburb L] Property and Schedule 1 concerning the [Suburb L] Property, the Financial Agreement was entered into by the Husband for the ulterior purpose of keeping his most valuable asset, namely the [Suburb L] Property, out of the reach of the wife in the event of a separation or divorce.
~~21.In the circumstances, the Financial Agreement is a sham transaction.~~
~~22.In the circumstances that the Financial Agreement is a sham transaction it is:~~
~~(i)       liable to be set aside pursuant to Section 90(K)(1)(a)~~
~~(iii)voidable at law and thereby liable to be set aside pursuant to section 90K(1)(b).~~
Section 90K(1)(e) Unconscionability
23.Further the Pre-Contractual Representation and the terms of Schedule 1 concerning the [Suburb L] Property form a further element of:
(a)      the wife's position of disadvantage and/or
(b)      the Husband's conduct in procuring the Financial Agreement
rendering the Financial Agreement unconscionable within the meaning of Section 90K(1)(e).
24.By reason of the unconscionable conduct of the Husband, the Financial Agreement is:
(i)       Liable to be set aside pursuant to Section 90K(1)(a); and/or
(ii)Voidable at law pursuant to Section 90K(1)(b) and liable to be set aside; and/or
(iii)     Liable to be set aside pursuant to Section 90K(1)(e).
Fraudulent Misrepresentation as to income levels
25.At all times throughout the relationship the husband was a chartered accountant and tax agent.
26.At all times throughout the relationship the husband prepared his own tax returns and kept those at his office.
27.At all times throughout the relationship the husband prepared the wife's tax returns and kept those at his office.
28.The Husband at the time of preparation of and entry into the financial agreement had knowledge of the amount of the husband's annual income.
29.The Husband at the time of preparation of and entry into the Financial Agreement had knowledge of the amount of the wife's annual income.
Recital 16 husband's income
30.Recital 16 in the Financial Agreement was prepared and inserted into the Financial Agreement by the Husband through his lawyers.
31.In Recital 16 of the Financial Agreement, the Husband's income from all sources is stated to be $50 000.00.
32.The husband's income for the 2000/2001 financial year was $70 445.00 as disclosed by the husband's tax return for that year.
33.The husband's income for the 2001/2002 year was $92 135.00 as disclosed by the husband's tax return for that year.
34.The husband's income for the 2002/2003 year was $96 418.00 as disclosed by the husband's tax return for that year.
35.In the circumstances the statement as to the husband's income in Recital 16 was false and known to be false by the husband at the time the Financial Agreement was sent to the wife and at the time the Financial Agreement was signed by the husband.
36.The statement as to the husband's income is a material matter to the Financial Agreement.
Recital 17 Wife's Income
37.Recital 17 of the Financial Agreement was prepared and inserted into the Financial Agreement by the Husband through his lawyers.
38.In Recital 17 of the Financial Agreement, it is stated that the wife receives income as a recruitment consultant of $32 000.00.
39.The wife's income for the 2002/2003 financial year was $25 723.00 as disclosed by her tax return.
40.Of the wife's taxable income for 2002/2003, $24 000 was constituted by a payment from [HH Pty Ltd] which was a company owned and operated by the husband.
41.In the circumstances the statement as to the wife's income in Recital 17 was false and known to be false by the husband at the time the Financial Agreement was sent to the wife and at the time the Financial Agreement was signed by the husband.
42.The statement as to the wife's income is a material matter to the Financial Agreement.
43.The Financial Agreement was thereby obtained by a fraudulent misrepresentation as to the husband's and/or wife's income or fraudulent non-disclosure of the husbands and or wife's true income in Recital 16 and or 17.
44.The Financial Agreement is thereby:
(i)liable to be set aside for fraud pursuant to Section 90K(1)(a); and/or
(ii)voidable at law and thereby liable to be set aside pursuant to Section 90K(1)(b).
Presumed Undue Influence
Presumed relationship of influence
~~45.From about June 2002 the husband and wife were engaged.~~
~~46.By reason of their engagement from 2002 the wife and husband were in a relationship of presumed influence.~~
47.By reason of the matters outlined in the wife's further amended response and the particulars as annexed to her affidavit, the Financial Agreement was entered into by the wife as a result of the undue influence of the Husband and not by reason of her free and independent will.
Actual relationship of Influence
48.Further or alternatively, the relationship between the husband and the wife was in fact a relationship of influence by reason of the matters set out in the Wife's particulars being Annexure 'N' to the Wife's affidavit.
49.By reason of the matters outlined in the wife's further amended response and the particulars annexed to her affidavit, the Financial Agreement was entered into by the wife as a result of the undue influence of the Husband and not by reason of her free and independent will.
~~50.The undue influence of the husband renders the Financial Agreement:~~
~~(i)voidable pursuant to Section 90K(1)(b) and liable to be set aside; and/or~~
~~(ii)unconscionable in all the circumstances pursuant to Section 90K(1)(e) and liable to be set aside~~
51.That upon the making of Order 11 and or 12, the Court make an adjustment of the parties' assets under section 79 providing the wife 70% of the net pool of assets.
52.That the husband indemnify the wife with respect to the mortgage and alleged loan of [Mr Chatterjee Snr]
53.That the wife have leave to amend her response upon full and frank disclosure by the husband."

I indicated my rulings and the basis thereof during exchanges with counsel in relation to the wife's Statement of Claim. I see no utility in going through that exercise for a second time in these reasons.

Background

The husband and the wife, who are aged 47 and 49 respectively, met in 1997 and began to cohabit in 1999. They lived in an apartment at Suburb II owned by the husband's father, for which they paid rent. The wife worked in administration and the husband was employed in a business owned by his father.
In July 1988 a property at K Street, Suburb L was purchased in the name of the husband, who was then a 17 year old high school student. The husband deposed that he made no contribution to the purchase price and paid no mortgage instalments, rates or taxes in relation to this property. The husband deposed further that he received no rental income nor any funds from the sale proceeds of this property.
In 1999 the parties purchased an apartment in Suburb JJ as tenants in common as to 70 per cent to the husband and 30 per cent to the wife. The husband paid the deposit of $27,000 and the parties borrowed a total of $216,000 from a bank. The husband deposed that this sum consisted of two separate loan accounts of $132,000 and $84,000 in the names of himself and the wife respectively. The husband maintained that each of the parties paid the mortgage instalments in respect of the loan accounts in their names. The wife alleged that the husband paid all mortgage instalments and that she purchased groceries for the parties. This issue is immaterial for present purposes.
On 20 June 2000 the parties entered into a Cohabitation Agreement. This agreement recorded, inter alia:
·the husband and the wife would repay the mortgage in relation to the Suburb JJ property in the portions of 70 per cent and 30 per cent respectively
·the husband owned the property K Street, Suburb L, 50 per cent of issued shares in Chatterjee Pty Ltd and Motor vehicle 1
·the wife owned 800 Telstra shares and Motor vehicle 2
·the wife had received advice from a solicitor Mr KK in relation to the agreement
·the husband had received advice in relation to the agreement from a solicitor Mr LL.
The husband deposed that he said to the wife at the time of the execution of the Cohabitation Agreement words to the effect of:
220.... My father has the property at [Suburb L] in my name. It is not mine. I don't want to jeopardise it if we break up. It is not mine to lose. I need to exclude it from any settlement we might have if we break up."
In cross-examination the wife said words to the effect "I don't recall [the husband] saying he wanted the Cohabitation Agreement because there was a property at [Suburb L] in his name and that he wanted to protect it if we broke up." The wife said also "at that point, the terms of the agreement sounded fair to me".
The parties became engaged in mid-2002 and the husband consulted a solicitor in relation to the effect of a marriage on the Cohabitation Agreement. The husband deposed that he said to the wife, following this consultation, words to the effect of:
224.... The Cohabitation Agreement will not operate if we marry. We will need a Binding Financial Agreement under the Family Law Act".
I also said to her: "My reasons for wanting a new agreement are the same as they were for the agreement we already have. [Suburb L] is in my name but it really belongs to my father. I don't want to jeopardise his assets or my inheritance if we break up. It is not mine to lose. I need to exclude it from any settlement we might have if we break up."'
The wife deposed that the husband said to her, following the parties' engagement:
505.After the proposal [Mr Chatterjee] said to me "If we get married we will need to sign a new financial agreement as the old agreement won't be valid."
The wife deposed further:
511.[Mr Chatterjee] continued to speak to me about signing an agreement daily. A typical conversation would go as follows:
Me:"If we love each other there has to be trust, why can't you trust me?"
[Mr Chatterjee]: "It's not about trust, I want to protect my father's assets"
Me: "That's the same thing as saying you don't trust me."'

The husband instructed Ms MM of M Lawyers to prepare a Financial Agreement. The wife discussed the draft agreement with a solicitor, Mr NN. She deposed that Mr NN advised her not to enter into the agreement and declined to act for her any further on the matter.
The husband deposed that he and the wife had the following conversations after he received a draft Financial Agreement from M Lawyers:
228.... You know why I want a new agreement. I have explained it to you. My reason is the same as why I wanted the cohabitation agreement. I don't want to get married without a new agreement in place. It has got nothing to do with trust. I just want to exclude my father's assets if we break up later on.
The husband deposed further:
230.I had conversations with [Ms Woodby-Chatterjee] about the new agreement. I did not talk to her about it daily. I did not become angry with her. The conversations were civil between us. I recall a specific conversation where we said:
Me:"If one of our kids met someone without any assets and our kids had all the assets wouldn't you want them to protect those assets for their future and their kids future?
[Ms Woodby-Chatterjee]: "Yes I would."
Me:"Well it's the same here. I want to protect my father's assets."
Me:"Don't worry about it. See a solicitor so after this we can move forward. This is important. Agreements are useful because they make sure what will happen if communication breaks down.
Me:"[Ms Woodby-Chatterjee], you just have to get this done. It's not going to affect anything we do together. What we do from this day forward will be ours together, as a family."'
In cross-examination the wife said that she "did not remember" the above conversation with the husband.
The wife deposed that the husband handed to her a list of four or five names of solicitors and told her to "get this sorted out now." In fact, M Lawyers wrote to the wife on 25 September 2002 and provided to her the names of four law firms and identified particular solicitors. This letter referred to "a telephone conversation with you earlier today ..." In cross-examination the wife said that she "did not ring [M Lawyers] at any stage".
The wife made an appointment with OO Solicitors, and consulted with Ms PP. The file of OO Solicitors was in evidence as Exhibit 11 and indicated that the wife first saw Ms PP on 26 September 2002. Ms PP's file note for 26 September 2002 stated inter alia "Sch 1 Suburb L: "never seen the property", "no idea of value", "no idea what's done with the property", "no mortgage". In cross-examination the wife agreed that she gave this information to Ms PP.
A file note for 1 October 2002 read inter alia: "Wants to keep things simple, she wants to get it over with, her main concern is fifty fifty house." In

cross-examination the wife said that she "did not remember" making these statements to Ms PP.
The OO Solicitors file contained a memo dated 23 October 2002 from one Ms QQ to Ms PP. Ms QQ had been asked by Ms PP:
"[Ms QQ] can you call [Ms Woodby-Chatterjee] and chase her for the retainer and the cheque. I can't really keep working on the file without them thanks."
Ms QQ replied as follows to Ms PP on 23 October 2002:
"Rang her on her mobile and she said:
She hasn't even thought about it, one of her family members were involved in the… tragedy. She will speak to her partner and get a cheque sent to us. If we could just then send the paper work and she will just sign it, she can't be bothered making any fucking changes, she really couldn't give a shit."
When asked about this file note in cross-examination the wife said words to the effect:
"I don't recall [Ms QQ.] I don't recall her phoning me. I remember I was frustrated."
The OO Solicitors file contained a letter from the wife "To Whom It May Concern" dated 29 October 2002. This document stated inter alia:
Please go ahead with the final document as per in agreement with my partner's solicitors as this is not a matter which I want to pursue or stress over any longer, due to family issues that I am currently engaged in.
This letter stated also:
I trust this can be done quickly as I would like to put this behind me.
On 7 November 2002 Ms PP wrote to the wife and concluded her letter with advice that:
In our view, even with the amendments [Mr Chatterjee] agreed to, there is little incentive for you to enter into the agreement.
Ms PP's file note of 12 November 2002 stated inter alia:
"[Ms Woodby-Chatterjee] wants to sign it", "doesn't want to put it off", "she doesn't care doesn't want his money.
On 15 November 2002 Ms PP wrote an eight-page letter to the wife, which included the following advice:
"We do not believe that it is prudent for you to enter into the agreement"
and
"We do not believe the agreement is fair and reasonable in all the circumstances".
Ms PP's file note for 15 November 2002 stated inter alia:
"Received my advice read it acknowledges it but still wants to go ahead".
Ms PP noted that the wife signed the agreement on 15 November 2002 and she forwarded the document to the husband's solicitors on 20 January 2003.
In November 2004 the parties purchased a property at D Street Suburb B as tenants in common as to 87.5 per cent to the husband and 12.5 per cent to the wife for $1,530,000. The husband deposed that the purchase money came from a Westpac Bank mortgage of $400,000 and an advance from his father in a sum of $1,200,000. The parties signed the mortgage documents in the presence of a solicitor (husband annexure CS). As noted, the Suburb B property was sold in 2016 and net proceeds are held in a controlled monies account.
In 2007 the Suburb L property was transferred to the husband's sister, Ms RR Chatterjee. A letter dated 24 August 2007 written by Mr LL, solicitor, to the husband and his sister stated inter alia that he received $500,000 from Westpac on settlement and that these funds were handed to their father Mr Chatterjee Snr (Exhibit 17). As noted above, the husband deposed that he received no funds upon the disposal of this property.
Title documents (Exhibit 15) demonstrate that Lot 1 of the Suburb L property was transferred by the husband's sister to one Mr SS on 2 September 2016 for a stated consideration of $1,275,000. At the same time Lot 2 was transferred by Ms RR Chatterjee to one Ms TT for a stated consideration of $1,285,000.
In October 2010 the parties sold the Suburb JJ property for $562,500. The net proceeds of $507,519 were applied ultimately to reduce the mortgage on the title to the Suburb B property.

Consideration

Following my rulings in relation to the contents of the Response the wife's case appeared to amount to the following, insofar as can be ascertained without the benefit of final submissions by her previous lawyers:
1.the Financial Agreement dated 28 January 2003 is not an agreement between the parties due to:
i.         unconscionable conduct on the part of the husband
ii.        undue influence exerted upon the wife by the husband
iii.      equitable duress exerted upon the wife by the husband
2.alternatively the Financial Agreement should be set aside pursuant to section 90A(1)(a) because of:
i.non-disclosure of material matters by the husband at the time the wife signed the Agreement
ii.the wife did not enter into the Agreement of her own free will because of undue influence exerted upon her by the husband
iii.fraudulent misrepresentation by the husband
3.the Financial Agreement should be set aside pursuant to section 90K(1)(b) because of:
i.         non-disclosure by the husband
ii.undue influence exerted by the husband upon the wife
iii.fraudulent misrepresentation by the husband
4.the Agreement is voidable at law and thereby liable to be set aside pursuant to section 90K(1)(b)
5.the Financial Agreement should be set aside pursuant to sections 90K(1)(a), (b) and (e) due to unconscionable conduct on the part of the husband.
In an Outline of Case document dated 28 March 2018 the wife's former counsel summarised her case for orders to set aside the Financial Agreement as follows:
The plaintiff (sic) seeks to set aside the Financial Agreement pursuant to section 90K(1)(a), (b), (d) and (e) based on:
i.fraud including material non-disclosure pursuant to section 90K(1)(a), (b)
ii.        the equitable doctrine of undue influence within section 90K(1)(b)
iii.the equitable doctrine of unconscionable conduct within section 90K(1)(b)
iv.       unconscionability within the meaning of section 90K(1)(e)
v.impracticality within the meaning of section 90K(1)(d), 90UM(1)(f)
vi.       material change in circumstances pursuant to section 90K(1)(d)"
The Response contained no pleadings in relation to the allegations of impracticability within the meaning of section 90K(1)(d) and/or section 90UM(1), nor a material change in circumstances pursuant to section 90K(1)(d). These contentions accordingly will not be considered in my Reasons for Judgment.
As noted, the wife's solicitor filed a Notice of Ceasing to Act in July 2018 and she was unrepresented at the completion of the trial on 9 and 10 July 2018. Effectively, the wife made no submissions in support of her case at the conclusion of the evidence. I intend no criticism at all of the wife in making that observation and acknowledge that final submissions in this matter would have been very difficult for a non-lawyer.

The Financial Agreement dated 28 January 2003

Fraud/Fraudulent Misrepresentation

Insofar as can be gleaned from the Statement of Claim and Case Outline on behalf of the wife, her case for setting aside the Financial Agreement on the ground of fraud appeared to be based on the following contentions:
1.the husband did not disclose and/or misrepresented his true annual income in Recital 16 of the Financial Agreement
2.the husband did not disclose and/or misrepresented the wife's annual income in Recital 17 of the Financial Agreement
3.the husband misrepresented that the Suburb L property was in fact his father's asset
4.the husband fraudulently misrepresented that he wanted a Financial Agreement so as to exclude the Suburb L property and his inheritance from any financial settlement with the wife
5.the husband did not disclose his shareholding in HH Pty Ltd, JC Pty Ltd and GG Pty Ltd.
Counsel for the husband relied upon the well-known authority of Derry v Peek (1889) 14 App Casa 337 at 374, where Lord Herschell said:
"... [Fraud] is proved when it is shewn that a false representation is being made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief."
In Banditt v The Queen (2005) HCA 80; 224 CLR 262 Gummow, Hayne and Heydon JJ said:
"... to sustain an action in deceit, fraud is proved when it is shown "that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false." But (3) is an instance of (2) ..."
The husband gave clear evidence to the effect that he was a 17 year old high school student at the time of acquisition of the Suburb L property and that he made no financial contribution to the purchase price. In his affidavit the husband deposed as follows:
219.On 20 June 2000 [Ms Woodby-Chatterjee] and I entered into a Cohabitation Agreement to which I have referred in paragraph 123 above. A copy forms part of the BFA.
220.At the time I informed [Ms Woodby-Chatterjee] that a property at [K Street, Suburb L] was registered in my name. I said to her words to the effect:
"My father has the property at [Suburb L] in my name. It is not mine. I don't want to jeopardise it if we break up. It is not mine to lose. I need to exclude it from any settlement we might have if we break up".
In the exact words that I cannot now recall, [Ms Woodby-Chatterjee] said to me that she understood and that she was not interested in my father's assets."
The husband deposed further:
223.In early 2002 [Ms Woodby-Chatterjee] and I spoke of getting married. I said to [Ms Woodby-Chatterjee] words to the effect:
"We should get advice about what effect our marrying would have on the Cohabitation Agreement".
In about February 2002 I saw a solicitor from [M Lawyers] in relation to the Agreement and what effect [Ms Woodby-Chatterjee] and my marrying would have on it. My solicitor was [Ms MM], who became an accredited specialist in family law the following year.
224.After my meeting at [M Lawyers] I said to [Ms Woodby-Chatterjee] words to the effect:
The Cohabitation Agreement will not operate if we marry. We will need a Binding Financial Agreement under the Family Law Act.
I also said to her:
"My reasons for wanting a new Agreement are the same as they were for the Agreement we already have. [Suburb L] is in my name but it really belongs to my father. I don't want to jeopardise his assets or my inheritance if we break up. It is not mine to lose. I need to exclude it from any settlement we might have if we break up".
[Ms Woodby-Chatterjee] did not express to me any opposition to there being a new Agreement between us ..."
In cross-examination the husband said, inter alia, when asked about this evidence in his affidavit:
This was my main reason for wanting the Cohabitation Agreement. [Ms Woodby-Chatterjee] and I had discussed many times that the [Suburb L] property was in my name but not mine. It is absolutely incorrect that I had no belief that I held the [Suburb L] property on trust for my father."
The husband said further in his oral evidence words to the effect:
Sure I intended her to rely on these statements. She said that she did not want any of my inheritance or any of my father's assets.
In my view, the husband was unshaken in his evidence that he held legal title to the Suburb L property but that his father was its true owner. On this issue the wife said in cross-examination only the following:
I don't recall him saying he wanted the Cohabitation Agreement because there was a property at [Suburb L] in his name and that he wanted to protect it if we broke up.
The wife was asked about certain entries in the file of OO Solicitors. She said words to the effect:
I don't remember discussing the Suburb L property with Ms PP. I don't remember telling [Ms PP] that I wanted to keep things simple, that my main concern was fifty-fifty on the house.
It seems to me that the husband gave unshaken evidence to the effect that he had consistent conversations with the wife, concerning the ownership of the Suburb L property, prior to the execution of both the Cohabitation Agreement and the Financial Agreement. The wife did not deny that these conversations occurred and could say only that she had no recollection of such discussions with the husband.
In my view, the wife failed to establish that the husband made these representations concerning ownership of the Suburb L property either with knowledge that such were false; without belief in their truth or recklessly or carelessly as to their truth. Accordingly it seems to me that the wife cannot succeed on the ground of fraudulent misrepresentation by the husband, as set out in paragraphs 13 to 18 inclusive of the Response.

The wife alleged further that the husband engaged in "fraudulent misrepresentation as to income levels" (paragraphs 25 to 44 inclusive of the Statement of Claim). In essence these arguments appeared to amount to a contention that the husband, who is a chartered accountant and had prepared tax returns for both parties, knew to be false the information set out in Recitals 16 and 17 of the Financial Agreement. It was submitted on behalf of the wife that "the Financial Agreement was thereby obtained by a fraudulent misrepresentation as to the husband's and/or the wife's income or fraudulent

non-disclosure of the husband and/or the wife's true income in Recital 16 and Recital 17".
It seems to me that there are a number of difficulties with these submissions. Firstly, the wife must have signed her tax returns and should thus be taken to be aware of the representations contained therein to the Australian Taxation Office in relation to her income. Obviously, the wife was in a position to provide particulars of her income to Ms PP and was not dependent on the husband for that information. I do not consider that the husband can be taken fraudulently to have misrepresented to the wife the level of her own income.
Recital 16 of the Financial Agreement stated that the husband received "income" of $50,000 per annum. The husband's 2002 tax return recorded a taxable income of $92,135 (Exhibit 6). It thus appears that the husband's level of income was recorded incorrectly in the Financial Agreement.
In my view it was open to the wife to instruct Ms PP to seek verification of the level of income of the husband, if she entertained doubts in relation to that issue. At all relevant times, the wife had the benefit of capable legal advice. The husband denied that he "knew that $50,000 income was a false statement. ..."
For these reasons, I am satisfied that the wife failed to establish that the husband engaged in "fraudulent misrepresentation as to income levels". Accordingly the wife cannot succeed on this ground, as set out in paragraphs 25 to 44 inclusive of the Response.
The wife submitted that the husband engaged in "non-disclosure of material financial matters ... at the time she signed the Financial Agreement". She alleged that the husband failed to disclose a mortgage on the title to the Suburb L property and his ownership of one share in each of the company's HH Pty Ltd Pty Ltd and GG Pty Ltd.
There was no evidence that the husband held these shares on the date when the wife executed the Financial Agreement. All which was put to the husband in cross-examination in relation to HH Pty Ltd was: "[HH Pty Ltd] is one of your companies with your father?" and he answered "That's correct". In my view "one of your companies with your father" is such a vague and generalised proposition that no inference can be drawn that the husband held one share and was a director of this company.
The wife's evidence in relation to GG Pty Ltd was confined to paragraph 559 of her affidavit. Upon objection by counsel for the husband this material was struck out of the wife's affidavit.
During an exchange between counsel and myself on 10 April 2018, Ms Obrart put some surprising propositions. The transcript reads in part as follows:
MS BRIDGER:   ‑ ‑ ‑ August 16. The nondisclosure is pleaded in paragraph 12, subparagraph (a) and subparagraph (b).
MS OBRART:   Your Honour, in the ‑ ‑ ‑
HER HONOUR:   But I don’t see any reference to [UU Pty Ltd].
MS BRIDGER:   Neither do I. That’s my point.
MS OBRART:   Your Honour, in the – I can say this, that in the wife’s outline submissions at page 14, the – there is a submission as to the nondisclosure of the husband of shareholdings in various entities. There appears to be – and number (i) appears to be ..... possible attempt to refer to this company. It says [HH] Proprietary Limited. But what – the submission obviously should have said [UU] Proprietary Limited. What the submissions ‑ ‑ ‑
HER HONOUR:   You have not pleaded anything in relation to this company.
MS OBRART:   I think that may be so, your Honour. I will just check. Certainly the – in terms of notice ‑ ‑ ‑
HER HONOUR:   Well, satisfy yourself that that’s so and please feel free to take me to the paragraphs in your response which refer in any way to this company.
MS OBRART:   No, your Honour, there is a reference in the pleading, and it’s not to this company. I don’t know whether that’s by way of error or otherwise, but the only ‑ ‑ ‑
HER HONOUR:   Well, that doesn’t help you. You haven’t pleaded it.
MS OBRART:   Yes.
HER HONOUR:   You haven’t put the husband on notice of what your case is in relation to this company.
MS OBRART:   Well, the husband was certainly on notice, your Honour, that the wife was alleging that there were shareholdings that had not been disclosed. Yes ‑ ‑ ‑
HER HONOUR:   What, he’s supposed to just intuit from that what your case is, is he?
MS OBRART:   No, but there’s certainly notice that there was an allegation that shareholdings were not disclosed ‑ ‑ ‑
MS BRIDGER:   Where?
MS OBRART:   ‑ ‑ ‑ in the financial agreement. 12A(c). Obviously, there’s the – 12A(c) and 12A(d), the wrong companies are referred to there.
HER HONOUR:   Yes.
MS BRIDGER:   Well, that’s not my problem.
HER HONOUR:   No, it’s ‑ ‑ ‑
MS OBRART:   But there’s a notice about the issue of shareholding. To the extent that that’s going to be made an issue of, these are the matters – the husband’s shareholdings obviously are matters which are very much within his knowledge and he would know what was not quite held by him at the time of the financial agreement very clearly. To the extent that the pleading doesn’t refer to this, I would seek leave, your Honour, to amend the pleading by striking out “[HH] Pty Ltd” in paragraph (c) and including the name “[UU]”.
HER HONOUR:   Why would I grant that leave in the middle of the
cross-examination of the husband?
MS OBRART:   What ‑ ‑ ‑
MS BRIDGER:   In any event, your Honour ‑ ‑ ‑
MS OBRART:   For this ‑ ‑ ‑
MS BRIDGER:   ‑ ‑ ‑ this matter has been – the wife’s application to set aside the agreement has been on foot ‑ ‑ ‑
HER HONOUR:   Yes.
MS BRIDGER:   ‑ ‑ ‑ since December 2013 when she was given directions by Judge Kemp to plead the matter fully. We have sought particulars, particulars have been provided. Never once – in fact, there was a further amended response filed during – I think it might have been April or May 2015. No reference to this company was made. And then we have the third document of August 16. And again, if that is their case, it was incumbent upon them to put us fairly and squarely on notice. If they didn’t, their client’s remedies may lie – she – her remedies might lie elsewhere.
MS OBRART:   Your Honour, just two things to say in response, that both parties put on evidence in relation to this company. In the event of the objections – there’s evidence about this company in the husband’s affidavit and the wife’s affidavit. The husband’s evidence about this company is at paragraph 247. Appears that it may have been struck out. And the wife’s evidence, whether ‑ ‑ ‑
MS BRIDGER:   Which she did not read.
MS OBRART:   Was not – but that does not constitute – so the first point is, your Honour, that both parties dealt with this company in the evidence. The next point is the husband was on notice that the wife was alleging a failure to disclose shareholdings. When those two things are put together, combined with the fact that this is just an issue of a shareholding as disclosed by an ASIC search, is not a question of shades of grey, that there is no prejudice suffered by the husband by the wife asserting that the shares in [UU], which was the extent – which was the subject of evidence by the husband, were held by him at the time of the financial agreement are not disclosed is just – the question is what’s the prejudice?
MS BRIDGER:   No, your Honour.
HER HONOUR:   Why does your client not bear an onus of properly pleading her case in accordance with directions of the court? Can you please explain that to me.
MS OBRART:   She does, your Honour. And, your Honour, that’s the simple application. Given that there’s notice of the parties, given that there’s evidence and given that the general issue of shareholding is raised, that would be sufficient ‑ ‑ ‑
HER HONOUR:   The general issue of shareholding is not raised.
MS OBRART:   It is, in my – in the wife’s submission, your Honour, in paragraph 12C(d), but that’s all I would say, your Honour. I won’t labour it any further. And the wife does seek leave to amend to add the substitute UU Proprietary Limited as one of the companies in which shareholding was not disclosed, and that’s the application. That’s – I won’t – I think I’ve made the submissions as ‑ ‑ ‑ "
In my view, the wife did not establish that the husband failed to disclose shareholdings as pleaded in paragraph 12(b) of the Response. As noted above, counsel for the wife purported to seek leave to amend these particulars in the course of cross-examination of the husband.
I do not regard the omission of the mortgage on the title to the Suburb L property as a "material" non-disclosure on the part of the husband. It could be observed that this omission is consistent with his evidence that his father was the true owner of the property and directed dealings in relation to this asset. Accordingly, the wife cannot succeed on this ground, as set out in paragraph 12 of the response.

Unconscionable conduct / undue influence

In Bridgewater v Leahy (1998) 194 CLR 457 at 478-9 the High Court of Australia (Gaudron, Gummow and Kirby JJ) said as follows:
... it is appropriate to emphasise the distinction between the equitable doctrines concerned with undue influence and unconscionable dealings or conduct. On occasion, both doctrines may apply in the one case (68). Each doctrine may be seen as a species of that genus of equitable intervention to refuse enforcement of or to set aside transactions which, if allowed to stand, would offend equity and good conscience. However, there are conceptual and practical distinctions between them ...
74In Commercial Bank of Australia Ltd v Amadio (69), Deane J said that the two doctrines are distinct, undue influence looking to "the quality of the consent or assent of the weaker party", whilst unconscionable conduct looks to the attempted enforcement or retention of the benefit of a dealing with a person under a special disability. Further, the recognition of certain special relations, the existence of any of which would itself support a presumption of undue influence (70), could provide a particular forensic advantage to plaintiffs.
75.Sir Anthony Mason, with reference to the well developed Australian body of authority on the subject, has contrasted the two doctrines as follows (71):
"My understanding of undue influence ... is that it denotes an ascendency by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party (72). In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence (73).
...
Unconscionable conduct, as the term suggests, focuses more on the unconscientious conduct of the defendant. As a ground of relief in England unconscionable conduct has been confined largely to 'catching bargains' with expectant heirs and others in particular categories of disadvantage eg those who are illiterate ... In Australia, it has been recognised that unconscionable conduct is a ground of relief which will be available 'whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is taken of the opportunity thereby created' (74). Unconscionable conduct is also recognised in New Zealand as a ground of relief in these circumstances (75)."
76.In Commercial Bank of Australia Ltd v Amadio (76), Deane J spoke of unconscionable conduct as occurring where, in the circumstances, it is unconscientious to "procure, or accept, the weaker party's assent to the impugned transaction". ..."
In Thorne v Kennedy 56 Fam LR 2018 56 Fam LR 559 at 568-9 the plurality of the High Court of Australia (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) said:
Undue influence
[30]     In Allcard, Lindley LJ said that "no Court has ever attempted to define undue influence". One reason for the difficulty of defining undue influence is that the label "undue influence" has been used to mean different things. It has been used to include abuse of confidence, misrepresentation, and the pressure which amounts to common law duress. Each of those concepts is better seen as distinct. Nevertheless, the boundaries, particularly between undue influence and duress, are blurred. One reason why there is no clear distinction is that undue influence can arise from widely different sources, one of which is excessive pressure. Importantly, however, since pressure is only one of the many sources for the influence that one person can have over another, it is not necessary that the pressure which contributes to a conclusion of undue influence be characterised as illegitimate or improper.
...
[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 automation 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.
...
[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 Latham CJ described the relationships that could give rise to the presumption as including a 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.
In Thorne v Kennedy their Honours said further:
"Unconscionable conduct
...
[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."
Counsel for the husband submitted that the wife failed to particularise her allegations of unconscionable conduct. That submission appears to be correct on a reading of the Response. It appears also to be correct, as submitted by counsel for the husband, that he was not cross-examined on the wife's "position of disadvantage".
In my view, the file of OO Solicitors (Exhibit 11) contained material which runs contrary to any assertion by the wife that she did not enter into the Financial Agreement of her own free will. I have referred above to various entries in the file made by Ms PP and a member of staff. As recorded in those paragraphs the solicitor's file contained the following entries:
·on 26 September 2002 the wife told Ms PP that in respect of the Suburb L property "never seen the property", "no idea of value", "no idea what's done with the property", "no mortgage"
·on 1 October 2002 "wants to keep things simple, she wants to get it over with, her main concern is fifty-fifty house"
·on 23 October 2002 "she hasn't even thought about it, one of her family members were involved in the … tragedy. She will speak to her partner and get a cheque sent to her. If we could just then send the paperwork and she will just sign it, she can't be bothered making any fucking changes, she really couldn't give a shit"
·in a letter dated 29 October 2002 the wife wrote:
Please go ahead with the final document as per an agreement with my partner's solicitors as this is not a matter which I want to pursue or stress over any longer, due to family issues that I am currently engaged in ... I trust this can be done quickly as I would like to put this behind me
·on 7 November 2002 Ms PP wrote to the wife inter alia "in our view, even with the amendments [Mr Chatterjee] agreed to, there is little incentive for you to enter into the Agreement"
·on 12 November 2002 Ms PP noted "just wants to sign it", "doesn't want to put it off", "she doesn't care doesn't want his money"
·on 15 November 2002 Ms PP wrote to the wife inter alia:
"We do not believe that it is prudent for you to enter into the Agreement"
and:
"We do not believe the Agreement is fair and reasonable in all the circumstances"
·on 15 November 2002 Ms PP noted "received my advice read it acknowledges it but still wants to go ahead."
It seems to me to be abundantly obvious that the wife received unambiguous advice from Ms PP, to the effect that her entering into the Financial Agreement would be contrary to her interests. The file contained several references to the wife's clear instructions to Ms PP that she wished to enter into the Financial Agreement despite this advice.
The wife adduced no evidence from Ms PP (as her Honour then was) and advanced no explanation for this election on her part. Accordingly, the inference must be that evidence from Ms PP would not have assisted her case.
For these reasons, I am satisfied that the wife failed to establish that she was subject to a special disadvantage "which seriously affected her ability to make a judgment as to her own best interests". Additionally, I am satisfied that the wife failed to establish that the husband "unconscientiously took advantage of her special disadvantage." Accordingly, the wife cannot succeed on the ground that the husband engaged in unconscionable conduct or subjected the wife to undue influence as set out in paragraphs 11(a), 11(b), 12(b)(ii), 12(c) and 23 of the Response.

For these reasons, I conclude that the wife established no ground for the setting aside of the Financial Agreement between the parties dated 28 January 2003. Accordingly, I will dismiss paragraphs 11 to 50 inclusive of the Second Amended Response filed on 8 August 2016.
As noted above, the husband sought orders for enforcement of the Financial Agreement dated 28 January 2003. The Outline of Case Document filed on behalf of the husband set out the following submissions in support of this relief:
1.The husband claims an order for the enforcement of the financial agreement dated 28 January 2003. It is his case that the document:
(i)constitutes a financial agreement pursuant to the provisions of s.90B of the Family Law Act (FLA) – comes within the definition of "financial agreement" contained in s.4
(ii)constitutes a binding financial agreement pursuant to the provisions of s.90G of the FLA
(iii)operates as a bar to a claim for orders for alteration of property interests under Part VIII of the FLA
(iv)does not exclude the operation of Part VIII per se – retains a party's right to make a claim for spouse maintenance
(v)is a binding financial agreement capable of enforcement.
2.The husband carries the onus of proof that the document is a binding financial agreement and conforms with the provisions of ss.90B and 90G.
3.Submitted the husband has discharged his onus at a prima facie level.
4.It is understood the wife does not challenge that the document confirms with the provisions of ss.90B and 90G and is a binding financial agreement."
Ultimately, these submissions were not disputed by the wife. I am satisfied, and I find, that the husband discharged the onus of proof which rested upon him for the purposes of an order for enforcement of the Financial Agreement pursuant to section 90KA. I will make such an order in favour of the husband.

Spouse maintenance

The Outline of Case document submitted by the wife's former counsel indicated that:
1. Before the court is the:
i.respondent wife's application to have a Binding Financial Agreement dated 28 January 2003 set aside;
ii.parenting matters between the wife and husband relating to the children [E] aged 12 and [F] aged 10.
This Outline of Case document made no reference whatsoever to any application for spouse maintenance by the wife.
In the Second Further Amended Response to Initiating Application filed on 8 August 2016 the wife sought the following order, inter alia:
54.That the husband pay or cause to be paid to the wife by way of spousal maintenance the amount of $1,200 per week until the youngest child commences High School."
By this Response the wife also sought Child Support Departure orders.
Counsel for the husband cross-examined the wife in relation to her financial position and made submissions in relation to spouse maintenance. Accordingly, I will assume that the wife pressed her application for spouse maintenance. In the absence of any reference during the trial to Child Support Departure orders, I will assume that this application was not pressed by the wife.
On 9 March 2015 an order was made that the husband pay to the wife $100 per week by way of interim spouse maintenance. Clause 41 of the Financial Agreement provided that a party could bring an application for spouse maintenance if the marriage broke down after five years. That threshold condition is satisfied and the wife commenced proceedings for spouse maintenance on 13 January 2015. Accordingly, the court has jurisdiction to entertain the wife's application for spouse maintenance.
The first issue is whether the wife is unable to support herself adequately for the purposes of section 72 of the Family Law Act. In Hall v Hall (2016)
FLC 93-709 the High Court of Australia said:
3. Part VIII of the Family Law Act governs, amongst other things, spousal maintenance. The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that "[a] party to a marriage is liable to maintain the other party, to the extent that the
first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately ... having regard to any relevant matter referred to in [s] 75(2)".
4. The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, [i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part".
5. A court exercising the power conferred by s. 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as "the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment". They also include, by virtue of s 75(2)(o), "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account".
Pursuant to orders made of 6 July 2018 the children will spend six nights per fortnight with the husband for the remainder of 2018 and thereafter live with each parent on a week-about basis. Accordingly, the wife has considerable time available to engage in gainful employment. Accordingly, it is my view that she cannot establish that she is unable to support herself adequately because she has the care and control of a child of the marriage under the age of 18 years.
There was no evidence that the wife is unable to support herself adequately by reason of age or physical or mental incapacity for appropriate gainful employment. There was some indication that the wife acts as carer for her mother. There was no evidence, however, as to the extent of these duties and the impact, if any, upon her capacity to undertake appropriate gainful employment.
Counsel for the husband submitted that the wife failed to satisfy the threshold test as set out in section 72(1) of the Family Law Act. For reasons set out above, I accept that submission.
In any event, I am not satisfied that the husband is reasonably able to pay spouse maintenance to the wife. His Financial Statement of 14 March 2018 showed a total gross weekly income of $1,849 and expenditure of $2,246. The husband's major items of expenditure were rental of $750, income tax $436 and child support of $250. In my view, Part N of the husband's Financial Statement contained no items of unreasonable expenditure.
There was no evidence of any capital sum upon which the husband could draw to pay a sum of $1,200 per week, or any lesser amount, to the wife as spouse maintenance. His Financial Statement indicated a bank balance of $2,862 as at 14 March 2018 and there was no evidence that he holds any additional liquid assets. The only other available money is the contents of the controlled monies account, upon which the husband's father holds a substantial claim.
For all of these reasons I will dismiss the wife's application for spouse maintenance. I will discharge the interim order for spouse maintenance made on 9 March 2015.

The wife's Application in a Case dated 28 February 2018

By this Application in a Case the wife sought orders to the effect that she receive a payment of $70,000 from the controlled monies account, to her solicitor. This application was opposed by the husband and his father. Mr Chatterjee Snr relied upon an affidavit of his solicitor, Ms WW, of O Solicitors. Ms WW deposed, inter alia, to the following:
1.on 26 September 2017 Mr Chatterjee Snr received a sum of $1,618,478 from the controlled monies account pursuant to orders of the Court of Appeal, leaving a balance of approximately $538,000
2.the total costs liability of the wife to Mr Chatterjee Snr is $300,889
3.the wife and her solicitor have made no proposal for payment of these costs to Mr Chatterjee Snr
4.on the basis of the wife's Financial Statement, her debts amount to a total of approximately $636,382 including the liability for costs
5.the wife's notional entitlement of 12.5 per cent to the original sum of $2,219,934 in the controlled monies account equals $277,491 and she has received $50,000, leaving a balance of $227,499
6.the wife's costs liability to Mr Chatterjee Snr thus exceeds her notional entitlement to the funds in the controlled monies account.
When I made the order that the wife receive a sum of $70,000 from the controlled monies account on 27 July 2017, she had the benefit of a first instance judgment in her favour from the Supreme Court of New South Wales. The wife no longer has that benefit and she now has a substantial liability for costs.
Enforcement of orders always involves an exercise of discretion by the court. In my view, it is highly significant that the wife no longer has the benefit of a judgment in her favour in relation to the funds in the controlled monies account and that she now has a substantial liability for costs.
Additionally, my purpose in making the order for payment to the wife of $70,000 was to enable her to fund her litigation. As submitted by both the husband and his father, her application is now otiose as the proceedings are completed with the wife having represented herself on 9 and 10 July 2018.
Mr Chatterjee Snr is a legitimate creditor of the wife, who has received from her no proposal whatsoever for payment of the costs liability. If the wife receives a sum of $70,000 from the controlled monies account, it is highly likely that Mr Chatterjee Snr will suffer prejudice.
For these reasons I decline to exercise jurisdiction in favour of the wife in terms of enforcement of the order made on 27 July 2017. I will dismiss the Application in a Case of the wife filed on 3 April 2018.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 November 2018.

Associate:

Date: 15 November 2018

[2018] FamCA 930

15 November 2018

Key Legal Topics

Areas of Law

Family Law

Contract Law

Equity & Trusts

Legal Concepts

Res Judicata

Remedies

Breach

Reliance

Natural Justice

Procedural Fairness