Corelli & Beroni

[2019] FamCA 911

FAMILY COURT OF AUSTRALIA

CORELLI & BERONI [2019] FamCA 911

FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Where the wife seeks to either set aside or declare void a Binding Financial Agreement entered into with the husband and signed by the wife on 31 March 2011 – Issue of what extent the wife could communicate in, or understand, written and spoken English at 31 March 2011 – Where the court is satisfied the wife was not proficient in English on the day she signed the Binding Financial Agreement – Where the court is not satisfied that the wife was unaware of the essential nature of what she was signing on 31 March 2011 – Where the wife’s claim based on non est factum fails –Where the wife’s claim for duress fails – Where the wife was in a position of special disadvantage at the time she signed the Binding Financial Agreement – Where the advice given by the wife’s solicitor was not sufficient to remedy that special disadvantage – Where the husband insisted that the Binding Financial Agreement be signed by the wife knowing her special disadvantage – Where the wife entered into the Binding Financial Agreement as a result of unconscionability and undue influence – Where the wife’s claim to have the Binding Financial Agreement set aside succeeds.

Evidence Act 1995 (Cth) s 97 and s 100
Family Law Act 1975 (Cth) ss 90G, 90UJ and 90UM

Agricultural and Rural Finance Pty Ltd v Bruce Walter Gardiner & Anor (2008) 238 CLR 570; [2008] HCA 57
Bond v Walford (1886) 32 Ch D 238
Fitzgerald v Masters (1956) 95 CLR 420
IMM v R (2016) 257 CLR 300; [2016] HCA 14
Jacara Pty Ltdv Perpetual Trustees WA Ltd (2000) 106 FCR 51
LC & TC (1998) FLC 92-803; [1998] FamCA 47
Payne v Parker [1976] 1 NSWLR 191 at 200-202
Rowell v Rowell (1900) 1 QB 9
Summers v The Commonwealth (1918) 25 CLR 144; [1918] HCA 33
Taylor & Johnson (1983) 151 CLR 422; [1983] HCA 5
Thorne v Kennedy (2017) Fam LR 559; [2017] HCA 49

APPLICANT: Ms Corelli

RESPONDENT: Mr Beroni

FILE NUMBER: ADC 1771 of 2016

DATE DELIVERED: 2 December 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Adelaide

JUDGMENT OF: Tree J

HEARING DATE: 26, 27, 28, February, 1, 2 March, 16 April, 22, 23, 24 October and 8 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitington QC together with Mr McGinn

SOLICITORS FOR THE APPLICANT: Angela Ferdinandy Solicitor

COUNSEL FOR THE RESPONDENT: Mr Livesey QC together with Mr Bullock

SOLICITORS FOR THE RESPONDENT: JKR Lawyers

Orders

1. That the Binding Financial Agreement between the parties dated 7 April 2011, be set aside. 

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 Corelli & Beroni has been approved by the Chief Justice pursuant to s…