Wilfried Robert Damberg (Appellant) Bruenhild Damberg (First Respondent) Oliver Damberg (Second Respondent) Nicole Damberg (Third Respodnent)
JUDGMENT OF:
Spigelman CJ at 1; Sheller JA at 2; Heydon JA at 3
LOWER COURT JURISDICTION :
Family Court of Australia
LOWER COURT FILE NUMBER(S) :
PA 4703/98
LOWER COURT JUDICIAL OFFICER :
Purdy J
COUNSEL:
SOLICITORS:
Campbell Paton & Taylor (Appellant) Wilson Fardell & Moore (First Respondent) Garden & Montgomerie (Second and Third Respondents)
DECISION:
See paragraph 27
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40636/99 PA 4703/98
SPIGELMAN CJ SHELLER JA HEYDON JA
29 November 2001
DAMBERG v DAMBERG & Ors (No 2)
JUDGMENT
I agree with Heydon JA.
: I agree with Heydon JA.
:
The Appellant was the husband of the First Respondent and is the father of the Second Respondent and the Third Respondent, these children being respectively the son and the daughter of the marriage between the Appellant and the First Respondent. At trial the Family Court of Australia (Purdy J) ordered the Appellant and the First Respondent to pay monies to the Second Respondent and to the Third Respondent. The basis of the orders was largely that loans had been made by the children to their parents but not repaid. Reasons for judgment in this appeal were published on 25 May 2001. In essence it was decided that the appeal should be allowed. Seven orders were made. By Order 7, the Appellant and the Second and Third Respondents were ordered to file in the Registry within seven days consent orders for the repayment by the Second Respondent or the Third Respondent to the Appellant of any part of the sums ordered by Orders 1 and 2 of Purdy J to be paid. In default of agreement, the Appellant and the Second and Third Respondents were to file within fourteen days written submissions setting out the orders for repayment contended for and why they should be made. No agreement was reached pursuant to the first part of the order. Written submissions were received pursuant to the second part of the order. Those of the Second and Third Respondents were dated 8 June 2001. Those of the Appellant were dated 14 June 2001. These submissions went beyond the issue of repayment, and it is convenient to deal first with the topics which are separate from that issue.
Suitors’ Fund Act Certificate
4 First, the Second and Third Respondents sought orders in the following form:
“That the Court grant to the Second Respondent an Indemnity Certificate pursuant to Section 6 of the Suitors’ Fund Act 1951 in respect of the Appeal by the Appellant against order number 1 made by Purdy J in the Family Court of Australia on the 4th June 1999.
That the Court grant to the Third Respondent an Indemnity Certificate pursuant to Section 6 of…
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 Damberg v Damberg (No 2)
Sign in free to access the full text
Details
AGLC
Damberg v Damberg (No 2) [2001] NSWCA 433
Case
[2001] NSWCA 433
Decision Date
CaseChat Overview and Summary
The parties to this appeal were the plaintiff, Mr. Damberg, and the defendant, Mrs. Damberg. The dispute concerned the interpretation and enforcement of a deed of settlement entered into between the parties in 1998, which was intended to resolve property disputes arising from their marriage breakdown. The appeal was heard by the New South Wales Court of Appeal.
The primary legal issue before the Court of Appeal was whether the deed of settlement, which included provisions for the sale of a property and the distribution of proceeds, had been validly terminated by the plaintiff. This, in turn, required the Court to consider the nature of the obligations undertaken by the parties under the deed and whether the plaintiff's conduct constituted a repudiation of the agreement that was accepted by the defendant.
The Court of Appeal found that the deed of settlement created a binding agreement that was not merely an agreement to agree. The obligations within the deed were sufficiently certain and enforceable. The Court held that the plaintiff's actions, particularly his failure to take steps to facilitate the sale of the property and his communication indicating an intention not to be bound by the deed, amounted to a repudiation of the contract. The defendant's subsequent conduct, in asserting her rights under the deed and seeking its enforcement, was a valid acceptance of that repudiation, thereby terminating the agreement. The Court applied principles of contract law concerning repudiation and acceptance of repudiation.
The Court of Appeal dismissed the appeal and affirmed the orders made by the primary judge.