DONALD & FORSYTH

Case [2015] FamCAFC 72

FAMILY COURT OF AUSTRALIA

DONALD & FORSYTH [2015] FamCAFC 72

FAMILY LAW – APPEAL – PROPERTY – BINDING FINANCIAL AGREEMENT – Where the trial judge set aside a binding financial agreement made between the appellant husband and the respondent wife pursuant to s 90C of the Family Law Act 1975 (Cth) – Where the trial judge found that the acts of the husband in seeking that the costs of repairs of a property that the agreement contemplated be sold be met by the respondent wife instead of shared equally by the parties amounted to a repudiation of the agreement entitling the respondent wife to rescind the agreement – Where the trial judge did not err in effectively finding an anticipatory breach of a term of the agreement by the appellant husband – Where the trial judge failed to consider and make findings as to whether the relevant term of the agreement was an essential term or whether if not, the anticipatory breach was sufficiently serious such that the agreement may be terminated – Where the trial judge also failed to consider and make findings as to the willingness and readiness of the wife to complete the agreement at the time of the rescission of the agreement – Where the trial judge’s reasons were inadequate – Merit in the grounds of appeal – Appeal allowed.

FAMILY LAW – APPEAL – PROPERTY – RE-DETERMINATION – Where the clause of the agreement providing for the parties to share the costs of placing the property in “good repair” for the purposes of sale was neither an essential term nor a sufficiently serious breach of a non-essential term justifying rescission of the agreement – Where the respondent wife was not ready and willing to complete the agreement and she was not therefore entitled to rescind it – Where the agreement was not repudiated by the appellant husband.

FAMILY LAW – APPEAL – COSTS – Where the appeal was successful – Where the appellant husband sought an order for costs – Where the respondent wife did not oppose an order for costs – costs ordered in favour of the appellant husband.

Family Law Act 1975 (Cth) – ss 90C, 90K and 90KA

Family Law Regulations 1984 (Cth)

Bennett & Bennett (1991) FLC 92-191
D.T.R. Nominees Pty Ltd v Mona Homes Pty Ltd and Anor (1978) 138 CLR 423
Foran v Wight (1989) 168 CLR 385
Koompahtoo Local Aboriginal Land Council and Anor v Sanpine Pty Limited and Anor (2007) 233 CLR 115
Laurinda Pty Limited and Ors v Capalaba Park Shopping Centre Pty Limited (1989) 166 CLR 623
Rawson v Hobbs (1961) 107 CLR 466
Shevill v Builders Licensing Board (1982) 149 CLR 620
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632

APPELLANT: Mr Donald
RESPONDENT: Ms Forsyth
FILE NUMBER: LEC 423 of 2009
APPEAL NUMBER: NA 64 of 2013
DATE DELIVERED: 5 May 2015
PLACE DELIVERED: Adelaide
PLACE HEARD: Brisbane
JUDGMENT OF: May, Strickland & Ryan JJ
HEARING…

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AGLC
DONALD & FORSYTH [2015] FamCAFC 72
Case
[2015] FamCAFC 72
Decision Date

CaseChat Overview and Summary

In the case of Donald and Forsyth, the appellant husband, Donald, and the respondent wife, Forsyth, contested the validity of a binding financial agreement. The agreement was set aside by the trial judge under section 90C of the Family Law Act 1975, based on the husband's actions in seeking to have the wife solely responsible for the costs of repairing a property they intended to sell. The wife argued that the husband's actions constituted a repudiation of the agreement, entitling her to rescind it. The husband appealed, arguing that the trial judge's decision was flawed as it failed to adequately address the essentiality of the contested clause and whether the husband's actions amounted to a serious breach.

The court considered whether the trial judge's decision to set aside the binding financial agreement was justified. The clause in question, which required the parties to share the costs of repairing the property for sale, was found not to be an essential term of the agreement. Additionally, the court determined that the husband's actions did not constitute a sufficiently serious breach to warrant the wife's right to rescind the agreement. Furthermore, the wife's willingness and readiness to complete the agreement were found to be questionable, which was not adequately addressed by the trial judge. The court concluded that the trial judge's reasoning was inadequate, leading to the appeal being allowed.

The appeal was successful, and the orders made by Judge Demack on 9 October 2013 were set aside. The court ordered that upon the sale of the property at T Street, Town A, the respondent wife would pay the appellant husband the costs of the appeal, with such costs to be assessed if the parties could not agree on the amount. The costs of the appeal were ordered in favour of the appellant husband, as the respondent wife did not oppose the order.

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders made by Judge Demack on 9 October 2013 be set aside.

3.

Upon the sale of the property at T Street, Town A the respondent wife pay to the appellant husband the costs of and incidental to the appeal with such costs to be assessed in default of agreement.

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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