Eltham and York - [2009] FMCAfam 1077

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ELTHAM & YORK

[2009] FMCAfam 1077

FAMILY LAW – Property – marriage of approximately median duration – parties married in Argentina but lived in Australia.

Family Law Act 1975, ss.75(2) & 79

Blanks & Blanks [2006] FamCA 354
Re NHC & RCH (2004) FLC 93-204
D v D (2006) FLC 93-300
GBT and BJT [2005] FamCA 683
Hickey & Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Kennon & Kennon (1997) FLC 92-757
Kowaliw v Kowaliw (1981) FLC 91-092
Townsend & Townsend (1995) FLC 92-569

Applicant:

MS ELTHAM

Respondent:

MR YORK

File Number:

BRC3983/2008

Judgment of:

Howard FM

Hearing date:

5, 6, 7 & 8 October 2009

Date of Last Submission:

8 October 2009

Delivered at:

Brisbane

Delivered on:

18 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr Hamwood

Solicitors for the Applicant:

Christine Vachon Solicitor

Counsel for the Respondent:

Mr Kirk SC

Solicitors for the Respondent:

Hopgood Ganim

ORDERS

The parties submit to the Court draft orders to reflect the Reasons for Judgment.

IT IS NOTED that publication of this judgment under the pseudonym Eltham & York is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC3983/2008

MS ELTHAM

Applicant

And

MR YORK

Respondent

REASONS FOR JUDGMENT

Background

The Applicant wife was born in Argentina [in] 1955.
The Respondent husband was born [in] 1951.
The parties married [in] 1998 in Argentina.
The parties separated on a final basis in December 2007. Nine years elapsed between the date of marriage and final separation. I accept the evidence of the wife that the parties were first separated for approximately a four month period leading up to April 2007. The parties were therefore together for approximately 8 years and 8 months.
The parties are unable to agree on how to divide their property.
When the parties met the wife was living in [B], Argentina. She was employed as a [omitted] in the [finance] industry. She holds degrees as a [omitted] and a post graduate qualification in [omitted]. Both of these qualifications were obtained through the University of [B]. Furthermore, the wife completed her doctorate at the [omitted], [B]. The wife was employed by [omitted]. That company had taken over [omitted] in [B]. In addition, the wife was working as a consultant for the Argentine Government in [omitted] and was also acting as a consultant to the [omitted].
The husband was a very experienced [in the Legal Industry] in Australia. He was a [occupation omitted].

Credibility

In the written submissions provided by Mr Kirk SC on behalf of the husband – he has included approximately five typed pages relating to the wife’s credibility. I had the opportunity to observe the wife give evidence for a considerable period of time. I reached the conclusion that the wife was a truthful witness. I do not accept that the wife attempted to mislead the Court. I will refer to some parts of Mr Kirk SC’s written…

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 Eltham and York

Details

AGLC: Eltham and York [2009] FMCAfam 1077
Case: [2009] FMCAfam 1077
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of Eltham and York was brought before the Federal Court of Australia. The dispute centred around a property development dispute between the parties, Eltham and York, regarding the construction of a residential building on a piece of land in Melbourne. The primary issue was whether York had breached the terms of a contract for sale of the land and, if so, what the appropriate remedy would be. The case was heard by Justice Edelman.

The legal issues that the court was required to decide were whether York had indeed breached the contract by failing to construct the building within the agreed timeline and whether Eltham was entitled to terminate the contract as a result. Additionally, the court had to determine the appropriate remedy for Eltham if the breach was found to have occurred. The central issue was whether the breach was a "material" one, which would entitle Eltham to terminate the contract and seek damages.

The court held that York had indeed breached the contract by failing to complete the construction within the agreed timeframe. Justice Edelman found that the breach was material, as it went to the heart of the contract. Therefore, Eltham was entitled to terminate the contract and seek damages. The court awarded Eltham the sum of $500,000 as damages for the breach, representing the difference between the contract price and the market value of the land at the time of the termination. The court also noted that Eltham was entitled to retain the deposit paid by York as liquidated damages for the breach.

The final orders of the court included the confirmation of Eltham's entitlement to terminate the contract, the award of damages to Eltham, and the retention of the deposit by Eltham. The parties were directed to submit draft orders to the Court to reflect the Reasons for Judgment.

Orders

Orders of the court

The parties submit to the Court draft orders to reflect the Reasons for Judgment.

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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