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 |
| 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
The appeal be dismissed.
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 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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