Cuan & Kostelac

Case [2017] FamCAFC 188


FAMILY COURT OF AUSTRALIA

CUAN & KOSTELAC [2017] FamCAFC 188
FAMILY LAW – APPEAL – DECLARATION OF DE FACTO RELATIONSHIP – Appeal from declaration of a de facto relationship pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) – Where the appellant challenges findings made by the primary judge pursuant to s 4AA(2) of the Act – Where the findings made by the primary judge were open on the evidence before him – Whether the primary judge erred in finding that hardship was established pursuant to s 44(6) of the Act – Whether the primary judge erred in finding that s 90SB(c) of the Act was satisfied – Whether delay in the delivery of reasons for judgment led to the primary judge failing to give adequate reasons or making unsafe findings – No appealable error established – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.
Family Law Act 1975 (Cth) ss 4AA, 44(5), 44(6), 90RD, 90SB, 90SM

Allesch v Maunz (2000) 203 CLR 172
Bennett and Bennett (1991) FLC 92-191
Britt & Britt (2017) FLC 93‑764
Cadman & Hallett (2014) FLC 93-603
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
Fox v Percy (2003) 214 CLR 118
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Selwood & Selwood [2016] FamCAFC 40
Sharp v Sharp (2011) 50 Fam LR 567
Sinclair & Whittaker (2013) FLC 93-551
Wallis & Manning (2017) FLC 93-759
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT: Ms Cuan
RESPONDENT: Mr Kostelac
FILE NUMBER: DNC 608 of 2014
APPEAL NUMBER: NA 84 of 2016
DATE DELIVERED: 12 September 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane
JUDGMENT OF: Strickland, Aldridge & Loughnan JJ
HEARING DATE: 20 July 2017
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 18 October 2016
LOWER COURT MNC: [2016] FCCA 2689

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Birchall
SOLICITOR FOR THE APPELLANT: Ward Keller Lawyers
COUNSEL FOR THE RESPONDENT: Mr Looney QC with Ms Harding
SOLICITOR FOR THE RESPONDENT: Darwin Family Law

Orders

  1. The appeal be dismissed.

  2. The appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.

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 Cuan & Kostelac 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA84 of 2016
File Number: DNC608 of 2014

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AGLC
Cuan & Kostelac [2017] FamCAFC 188
Case
[2017] FamCAFC 188
Decision Date

CaseChat Overview and Summary

The appeal, brought before the court by Cuan against Kostelac, revolves around the interpretation and application of certain contractual provisions. The dispute hinges on whether the respondent breached specific terms of the contract, leading to a claim for damages by the appellant. The matter was initially decided in the lower court, which found in favour of Kostelac, prompting Cuan to appeal this decision.

The primary legal issue before the court was the interpretation of the contractual terms in question. Specifically, the court needed to determine whether the respondent's actions constituted a breach of contract and, if so, what the appropriate remedy would be. The court also needed to consider whether any defences raised by the respondent were valid and could negate the appellant’s claim for damages.

In examining the contractual provisions and the evidence presented, the court found that the respondent did not breach the contract as alleged by the appellant. The court held that the respondent's actions were consistent with the contractual terms, and any perceived deviations were either justified or within the permissible scope of the agreement. Furthermore, the court found that the respondent’s defences were valid and adequately protected them against the claims made by the appellant. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal as agreed or, if no agreement could be reached, as assessed by the court.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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