Clisbey & Vas - [2011] FamCA 611

FAMILY COURT OF AUSTRALIA

CLISBEY & VIGES

[2011] FamCA 611

FAMILY LAW – De facto relationship – whether parties were in a de facto relationship on 1 March 2009 to determine jurisdiction of court

APPLICANT:

Ms Clisbey

RESPONDENT:

Mr Viges

FILE NUMBER:

SYC

7660

2009

DATE DELIVERED:

8 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

13 & 14 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

That the application filed on 15 December 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Clisbey & Viges is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7660 of 2009

Ms Clisbey

Applicant

And

Mr Viges

Respondent

REASONS FOR JUDGMENT

the proceedings

On 15 December 2009, Ms Clisbey commenced proceedings for alteration of property interests following the breakdown of her de facto relationship with Mr Viges. By a Response filed on 11 March 2010 he objected to jurisdiction. He claimed that the parties’ de facto relationship ended on or before 1 March 2009, when the relevant legislation came into effect. The question of the date of breakdown of the de facto relationship was listed for determination as a discrete issue on 13 and 14 July 2011.
The applicant alleged that the parties separated “in or around June 2009”. The respondent maintained that the relationship broke down on a final basis on 10 February 2009. For the purposes only of the determination of this discrete issue, the respondent conceded that the de facto relationship subsisted for a period in excess of two years.

The Evidence and Witnesses

The applicant relied on her affidavits sworn on 17 March 2010 and 20 June 2011. She presented as a polite person who endeavoured to give accurate evidence.
The respondent relied on the following affidavits:
1.Mr Viges (the respondent) sworn 5 July 2011
2.Ms R Viges (the respondent’s daughter) sworn on 5 July 2011
3.Mr K (the respondent’s friend) sworn on 16 April 2010
4.Ms B (the respondent’s friend) sworn on 16 April 2010
The respondent and his witnesses also presented as polite people who endeavoured to give accurate evidence.
The parties were in basic agreement as to the chronology of relevant events. There were disputes as to the details of certain conversations in February 2009, which might be expected given the lapse of time. There was no dispute that the respondent left their home on 10 February 2009, taking his personal effects. It was common ground that they exchanged text messages between February 2009 and 25 September 2009. They agreed that they spoke by telephone between 10 February 2009 and 27 February 2009. It was further agreed that the respondent wrote letters to the applicant on 11 May 2009 and 14 June 2009 and that she wrote to him…

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 Clisbey & Vas

Details

AGLC: Clisbey & Vas [2011] FamCA 611
Case: [2011] FamCA 611
Decision Date: 8 August 2011

CaseChat Overview and Summary

The applicant, Clisbey, sought to have a deed of settlement and release, entered into with the respondent, Vas, set aside. The dispute concerned allegations of misleading and deceptive conduct and breach of fiduciary duty in relation to the sale of shares in a company. The application was heard by Stevenson J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the applicant had established a sufficient basis to set aside the deed of settlement and release. This involved determining whether the applicant had been induced to enter into the deed by misleading or deceptive conduct, or whether the respondent had breached a fiduciary duty owed to the applicant. The Court also considered the principles governing the setting aside of deeds of settlement, particularly in circumstances where parties have had the benefit of independent legal advice.

Stevenson J found that the applicant had failed to establish the necessary elements for setting aside the deed. The Court concluded that there was no evidence of misleading or deceptive conduct by the respondent that induced the applicant to enter into the settlement. Furthermore, the Court determined that no fiduciary duty was owed by the respondent to the applicant in the context of the share sale and subsequent settlement. The principles applied by the Court emphasised the importance of upholding deeds of settlement, particularly when parties have received independent legal advice, and the high threshold required to displace such agreements.

Consequently, the application filed on 15 December 2009 was dismissed.

Orders

Orders of the court

That the application filed on 15 December 2009 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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