Duncan and Duncan

In *Duncan and Duncan*, heard by Judge O’Sullivan, the wife sought to enforce a binding financial agreement dated 18 November 2009. The husband had tendered correspondence from the wife's former solicitors, McBain Lawyers, dated 26 February 2010, which stated that the husband was to remain responsible for mortgage payments on two properties, Property A and Property K. The wife relied on a letter from the bank dated 8 March 2013, which indicated that both home loans were secured by a mortgage over Property A.

The central legal issue before the court was the interpretation of the binding financial agreement, specifically concerning the parties' responsibilities for mortgage payments and the underlying loans. The court was required to determine whether the parties' intentions, as evidenced by surrounding circumstances and objective facts at the time the agreement was made, supported the wife's claim for enforcement. This involved considering admissible evidence to clarify any ambiguity in the agreement.

The court reasoned that while it could not look to the subjective intentions of the parties to interpret an order, it could examine admissible evidence of surrounding circumstances if the order was ambiguous. Applying this principle, the court considered the correspondence tendered by both parties. It noted that the bank had been used to purchase Property H, which the husband retained, but this loan was secured against the former matrimonial home, Property A, which the wife retained. The court found that, by reference to the tendered exhibits, it was clear the parties had agreed the husband was responsible for the mortgages, which necessarily included responsibility for the associated bank loans.

The hearing of the wife’s application for enforcement of the binding financial agreement was adjourned to 20 February 2015.