Fevia & Carmel-Fevia - [2009] FamCA 816

FAMILY COURT OF AUSTRALIA

FEVIA & CARMEL-FEVIA

[2009] FamCA 816

FAMILY LAW – PROPERTY – FINANCIAL AGREEMENTS –Financial agreement in contemplation of marriage –Significant concerns surrounding formalisation of agreement – Question of whether there was an agreement - The husband’s signed document materially different to that signed by the wife –Wife not provided with copy of agreement as signed by husband until proceedings commenced – Absence of valid agreement means no issue of it being “binding” financial agreement are not raised

FAMILY LAW – FINANCIAL AGREEMENTS – INTERPRETATION OF SECTION 90G – Distinction between roles of S 90G and S 90B – What constitutes a “copy” - “Within a reasonable time” implied into the requirement to provide original and copy “after the agreement is made”

FAMILY LAW – FINANCIAL AGREEMENTS – ROLE OF SECTION 90KA WITHIN PART VIIIA – Contractual and equitable principles - Role in financial agreements –S 90G requirements different to contractual requirements – S 90KA no role to play with respect to S 90G requirements

FAMILY LAW – EQUITY AND S 90G –Estoppel can arise in relation to the creation of contractual agreement or financial agreement under S 90B – Estoppel has no application in respect of non-compliance with S 90G

Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Evidence Act 1995 (Cth) ss 47, 48
Family Law Act 1975 (Cth) ss 4, 71A, 90B, 90C, 90D, 90G, 90KA, 90K
Matrimonial Causes Act 1959 (Cth) s 87(1)(k)

Armcor Coatings Marketing Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259
Australian Securities and Investment Commission and Rich (2003) FLC 93-171
Barilla v James (1964) 81 WN (Pt1) NSW 457
Black and Black (2008) FLC 93-357
Collin v Holden (1989) VR 510
Commonwealth v Verwayen (1990) 170 CLR 394
Farrow Mortgage Services Pty Ltd v Slade and Nelson (1996) 38 NSWLR 636
Harrison v Battye (1975) 1 WLR 58
Jackel v Sita Queensland [2000] QDC 41
Kok Hoong v Leong Cheong Kweng Mines Limited [1964] AC 993
McBride v Sandland (1918) 25 CLR 69
Millington and Millington [2007] FamCA 687
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Skurray [1967] 2 NSWR 611
Re Pigot (1614) 77 ER 1177
Shah v Shah [2002] QB 35
Shaw v Shaw (1965) 113 CLR 545
Sindel v Georgiou (1984) 154 CLR 661
Solle v Butcher [1950] 1 KB 671
Steadman v Steadman (1976) AC 536
Trade Practices Commission v Milreis Pty Ltd (1977) 29 FLR 144
Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263
Walton Stores (Interstate) Limited v Maher (1988) 164 CLR 387
Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238
Woodcock and Woodcock (1997) FLC 92-739
Woodland and Todd (2005) 33 FamLR 177
Zaccardi v Caunt [2008] NSWCA 202

APPLICANT:

Mr Fevia

RESPONDENT:

Ms Carmel-Fevia

FILE NUMBER:

MLC

4389

2008

DATE DELIVERED:

3 September 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Murphy J

HEARING DATE:

10 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Wheelahan SC and Mr G P Thompson

SOLICITOR FOR THE APPLICANT:

Saxbys Lawyers

COUNSEL FOR THE RESPONDENT:

Mr M Bartfeld QC and Ms M Vohra

SOLICITOR FOR THE RESPONDENT:

Taussig Cherie and Associates

Orders

It be declared that:
(a)there is no “financial agreement” in existence between the Applicant and the Respondent within the meaning of the Family Law Act 1975 (Cth); and
(b)there is no financial agreement between the Applicant and the Respondent which is “binding” within the meaning of the Act.
The application of the wife for settlement of property pursuant to s 79 of the Act be listed before a Registrar at a date and a time to be advised for the making of further directions for the progress of that application.
In the event that either party seeks an order for costs in relation to these proceedings, they shall file, within 21 days of the date of these Orders, written submissions in support of any such order and, at the outset of those submissions, shall indicate whether they consent to the determination of any such application in chambers or require to supplement those submissions at an oral hearing.
In the event that any application for costs is made by either party pursuant to paragraph 3 of these Orders, the other party shall, if seeking to oppose any such order, file within 21 days of the service of the submissions contemplated in that paragraph, written submissions responding to such application and shall, if not earlier having made application themselves pursuant to paragraph 3, indicate at the outset of those submissions whether they consent to the determination of any such application in chambers or require to supplement those submissions at an oral hearing. .
In the event that responding submissions are filed in accordance with paragraph 4 of these Orders, the other party shall, within 7 days of the service of such responding submissions, file any submissions in reply thereto.
For the purposes of paragraphs, 3, 4 and 5 of these Orders, the parties are at liberty to file any such submissions by forwarding them by e-mail to the Brisbane registry provided that any such e-mail and all attachments are sent contemporaneously to the solicitors for other party.
In default of either party filing the submissions contemplated by paragraph 3 of these Orders, each party shall bear their own costs.
In the event that one or both parties in making, or responding to, an application for costs, require to supplement their submissions orally, the issue of costs be listed for hearing before Murphy J at a time and date to be advised and, in the event that Murphy J is not sitting in Melbourne within a reasonable time of such request, any such hearing shall occur by videolink.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC4389 of 2008

MR FEVIA

Applicant Husband

And

MS CARMEL-FEVIA

Respondent Wife

REASONS FOR JUDGMENT

At the time of his marriage to Ms Carmel, Mr Fevia was a man of very considerable wealth. Ms Carmel was a woman of modest means. Each had been married before.
In contemplation of their marriage, the parties determined to enter into a financial agreement pursuant to s 90B of the Family Law Act 1975 (“the Act”). It was intended by the parties that their agreement would be in substitution for their rights to financial relief under the Act in the event that their marriage broke down.
Significant controversy - including conflicting accounts of the solicitors then acting for each party - attends the finalization and formalization of that agreement.
The central factual disputes between the parties sound, in turn, in legal issues relating to Part VIIIA of the Act.
The disputes just described arise in the context of an application filed by the wife in May 2008, in which she seeks an order for settlement of property and spousal maintenance. The parties separated, initially under the one roof, in early 2008 after about seven years of cohabitation. The parties have two children together, now aged about 6 and 3.
If the agreement effected between the parties is a “financial agreement” which is “binding” within the meaning of the Act, the court is precluded from making Part VIII orders to the extent that the agreement deals with matters the subject of it. The husband, by his Response to the wife’s application, so alleges.
The wife contends that any agreement between her and the husband is not “binding” within the meaning of s 90G of the Act. She contends that, whatever might be the effect of any agreement – or any “financial agreement” (a defined concept in the Act) – it is not such as to give effect to s 71A.

The Central Factual Disputes - Overview

A process of negotiation, in which each of the parties was represented by a solicitor experienced in family law, took place in the period leading up to the parties’ marriage.
The parties appear to agree that, at least toward the end of that negotiation process, their pending marriage put time pressures on both reaching a final agreement and its formalization.
There is no doubt that, on 14 September 2001, (a little over a week before the parties married) the wife signed a document, said on its face to be a financial agreement pursuant to s 90B of the Act, in the presence of her then solicitor Ms I.
Equally, there is no doubt that Ms I provided advice to the wife prior to the wife signing the document and certified to that effect in an annexure to the agreement. So, too, it is accepted that an originally signed document containing each was given to the wife.
Each of those actions is contemplated by, and required by, s 90G of the Act.
The husband contends that, before the wife executed the financial agreement, she had been given a copy of what became described at the hearing as “the annexure”.
The expression “the annexure” was used during the hearing to describe an 18-page typed document listing property of varying types as well as various entities which might broadly be described as part of the husband’s business empire.
The husband alleges “the annexure” is part of the agreement he signed and which his then solicitor, Ms A, certified. Specifically, he asserts that it sets out, as the document contemplates, his property at the commencement of cohabitation.
The husband’s evidence is supported in this respect by Ms A.
The wife alleges that “the annexure” did not form part of the agreement signed by her and certified by Ms I.
The wife’s evidence is supported in this respect by Ms I.
Ms A swore in an affidavit, read by the husband in these proceedings, that she had a telephone conversation with Ms I on a certain day about certain matters which will be later referred to in some detail. Ms I denies that telephone conversation. Ms A accepted, in a later affidavit sworn by her, and at the hearing, that the conversation to which she deposes did not take place as she alleges. It is now accepted that Ms I was overseas when the alleged conversation is alleged to have taken place.
Ms A alleges she hand delivered a version of the agreement signed by the husband and certified by her which contained “the annexure” to the offices of Ms I’s firm on a certain date.
It is now accepted that Ms I was overseas at the time the document was allegedly delivered. She denies its delivery as alleged.
There is no evidence corroborative of Ms A’s evidence as to the delivery of the document.
It will be obvious, then, that central to the determination of the core factual issues between the parties (which are said, in turn, to have ramifications for the legal arguments advanced) is the unfortunate possibility of serious findings adverse to the credibility of (now former) officers of the court.
It is necessary, then, to examine the evidence in some detail.

Two Documents?

The husband exhibits to an affidavit, sworn by him on 18.5.09 and filed the same day, a document which he deposes was signed by him:-
12. [The wife] told me she signed the pre-nuptial financial agreement at the office of her solicitor on 14 September 2001. We were living together and it is my recollection [the wife] told me she had been to see her solicitor and signed the agreement that day. At some later date between 14 September 2001 and our wedding on […] September 2001, (I cannot recall exactly which day) I conferred with my solicitor, [Ms A] at [A Firm] and signed the pre-nuptial agreement (which [the wife] had already signed). Although I cannot recall the exact date, I believe it was the date upon which my solicitor signed her certificate annexed to the pre-nuptial financial agreement, that is, 20 September 2001.
13. A schedule of my assets and liabilities and the interest that I had in various trusts was included in the schedule to the pre-nuptial financial agreement. [The wife’s] legal advisers were provided with all of the information that they requested. I recall that [Mr O], the financial controller of [the husband’s business], was involved in making the required financial information available.
Annexed hereto and marked “MF-1” is a copy of the pre-nuptial financial agreement dated 14 September 2001 which I signed as referred to in paragraph 12…”.
That exhibited document includes “the annexure”.
It is to be noted that the husband does not there specifically swear to the document signed by the wife (which, he swears, was later signed by him) as including “the annexure”.
In an affidavit sworn by the husband’s then solicitor, Ms A, on 4.11.08 (filed 5.11.08), Ms A deposes:-
“4… I was aware of [the husband’s] wide ranging business interests and particularly concerned with how best to ensure full disclosure of such a wide range of interests. [The husband] volunteered the services of his accountants to provide a schedule of all such interests. I was instructed that a schedule was maintained as part of the routine arrangement of the husband’s affairs, and updated regularly. On the basis of a schedule being available to satisfy disclosure requirements, and [the husband] accepting my advice of all that was involved with such an agreement, he instructed me to prepare the Agreements. When I contacted [the husband’s] accountants they confirmed that they had instructions from the husband to provide to me an up to date schedule of assets. They subsequently did so. It was annexed to the agreement I prepared, which was signed by the husband and Ms [Carmel] prior to their wedding [in] September 2001. [emphasis added]
5. After preparing a draft agreement to my client’s satisfaction I arranged, with the husband’s agreement, a roundtable conference with [the wife’s] solicitor, [Ms I], [the wife], the husband and me. That meeting took place at the offices of [A Firm]. Its purpose was to give the parties and their advisers the benefit of discussing the final terms of the agreement (copy of which I had previously provided to Ms [I]); to make or request changes to the draft agreement as the parties desired or their respective solicitors as advised; and to negotiate as necessary, any contentious or new issues that might arise.
6. To the best of my recollection, one of the telephone discussions I had with Ms [I] prior to the process referred to in the preceding paragraph, was to the effect that it would the most time efficient to deal with the matter given the shortness of time, rather than letters and drafts going backwards and forwards between us. Ms [I] agreed.
7. The round table conference was conducted and agreement reached on all issues by the conclusion of the conference. By that time it was late in the day and staff had left including my secretary. I believe Ms [I] and I agreed that the retyping of the agreement would be attended to as quickly as possible and thereafter the agreement would be signed by the parties. On the morning of 14 September 2001 I sent by email the final version of the agreement and all annexures to the wife’s solicitors”. [emphasis added]
It can be seen that Ms A deposes to “all annexures” having been sent to Ms I “by email” and that an “up to date schedule of assets was signed by the husband and wife prior to their wedding”. The “up to date schedule of assets” is not otherwise identified. In that latter respect, whatever Ms A might be referring to, it cannot, in fact, be “the annexure” because it is not suggested that “the annexure” was signed by the wife and, as produced, clearly does not anywhere contain her signature.
If Ms A is thereby deposing (particularly in the emphasised sentences) to having received or seen an agreement containing “the annexure” signed by the wife, (and, in the light of the other evidence in the case, it is plain that she is), her evidence is in stark contrast to the evidence of the wife and Ms I.
It seems abundantly clear that, at paragraph 7 of her affidavit, Ms A is, when referring to sending “all annexures” by e-mail, there referring to the sending of “the annexure” (which, it will be recalled, comprised some 18 pages). It is to be noted that senior counsel for the husband asked Ms I in cross-examination: “Would you also agree it’s unlikely [“the annexure”] was e-mailed to you? as part of ultimately suggesting to her that “[t]he most likely means of communicating that annexure to you, therefore, is it was given to you at the meeting on 13 September..
At paragraph 8 of the affidavit just referred to, Ms A deposes to the husband signing “the Financial Agreement” after she signed the certificate of independent advice attached to “the Agreement”. She does not exhibit to that affidavit the document said to be signed by her and by the husband in her presence.
In a further affidavit sworn by Ms A on 22 May 2009 (filed 26 May 2009) she accepts that a telephone discussion with Ms I to which she deposed in her earlier affidavit did not take place as she there deposed. Further detailed reference will be made to this issue below. Ms A goes on to swear in that later affidavit:-
“In all other respects, I refer to and repeat the contents of my previous affidavit, in particular, paragraph 10 thereof in which I deposed as to my personal delivery of the wife’s copy of the signed agreement, with annexures to the receptionist at the office of [B Firm] Solicitors”.
The delivery of that document in the manner deposed to by Ms A (or at all) is disputed. The paragraph then goes on to exhibit “a complete copy of the document that I hand delivered to [B Firm]”. That document contains “the annexure”.
The wife’s then solicitor Ms I deposes, in an affidavit sworn by her and filed on 17.11.2008, to the wife executing a document in her presence on that date. Ms I exhibits to that affidavit a copy of the document signed by the wife on that date. The signing of the document by the wife in Ms I’s presence is deposed to by her in an earlier affidavit filed on 17.6.08.
In an affidavit sworn and filed by the wife on 17.6.08, she deposes:
“84. …I say that I signed the Financial Agreement on 14 September 2001 in the presence of my then lawyer, [Ms I] of [B Firm]. I understand that Ms [I] sent the original agreement signed by me to the husband’s then solicitor, [Ms A] of [A Firm], for the husband’s signature and return of the original agreement or a fully executed original to me and/or my lawyers. I never received, nor have I been given, an original or copy of the fully executed agreement either personally or via my lawyer. …
…
86. The first time I learned of and/or received a copy of the fully executed agreement was when I was served with the husband’s affidavit filed on 2 June 2008, of which a copy is annexed and marked “MF-1”. I do not know when the husband signed the agreement (although it must have been after the day I signed which was 14 September 2001) and I note that the Certificate of Independent Legal Advice signed by his then solicitor was dated 20 September 2001. We married [a few days later in] September 2001.”
The document exhibited to the affidavit of the wife is identical in every respect to the document exhibited to the affidavit of Ms I.
The document exhibited to the husband’s affidavit referred to by the wife (which is the same document exhibited again by the husband to an affidavit by him filed on 18.5.09) is identical in every respect to the document exhibited to the affidavit of Ms A.
The document exhibited to the affidavits of the wife and Ms I is identical to the document exhibited to the affidavit of the husband and Ms A save in three important respects:-
a)the latter includes “the annexure”;
b)the document exhibited to each of the latter includes signatures by (apparently) each of the husband and Ms A on the attestation page; and
c)the latter include a signature and date on the “certificate of independent legal advice” in Ms A’s name; the former do not.
The similarities between the two documents include:-
a)the cover sheet being initialled by the wife alone;
b)a typed “Schedule 1” including the initials of each of the two parties and each of the two solicitors; and
c)a typed “Schedule 2” including the initials of only the wife and Ms A.

The similarities even extend to each of the agreements containing the same error: clause 8(a) refers erroneously to “the second schedule” instead of “the first schedule”.
It can be seen, then, in respect of a central controversy - the inclusion of “the annexure” in the agreement - the wife asserts that those pages did not form any part of the document signed by her and her solicitor and nor did they form part of any document sent by her for signature by the husband. The evidence of Ms I squarely supports that.
Each of the husband and Ms A contend that “the annexure” did form part of the agreement signed by the wife (and witnessed and certified by Ms A), as can be seen from paragraphs 4 to 7 of Ms A’s affidavit earlier quoted, including those parts emphasized by me. In paragraph 10 of that affidavit and paragraph 4 of her affidavit filed on 26.5.09 Ms A deposes to similar effect.

Two Documents? – Evidence at the Trial

The wife was cross-examined about this issue:-
MR WHEELAHAN SC --- At the meeting at [A Firm], do you recall being given a copy of the annexure? ---I don’t recall
By that you mean you don’t recall one way or the other?---Yes, I don’t recall
Do you recall ever having a copy of the annexure?---No, because I gave my lawyers my whole file and that annexure wasn’t in my file. I never had a copy.
The cross-examination of the wife continued:-
Do you recall whether or not [Ms I] had a copy of the annexure at the time you signed the agreement?---No, I don’t recall that. I know that the copy I signed didn’t have the annexure attached.
Do you recall whether or not [Ms I] had a copy, not necessarily in the agreement but a freestanding copy?---I don’t know. I don’t recall. It wasn’t present when I signed the document.
I observed the wife closely during her cross-examination. I regard her as a truthful witness. I consider that she did her best to give the best honest answers that she could to the questions put to her. I consider her failure to recall certain matters entirely consistent with what one might expect given the passage of time between the events the subject of the questions put to her and the hearing.
I accept, specifically, the evidence of the wife that a copy of the document she signed did not have “the annexure” attached to it. Moreover, I specifically accept the evidence of the wife that “the annexure” was not “present” when she signed the document.
Ms I was also cross-examined about this issue:
MR WHEELAHAN SC: Would it be reasonable for us to infer that you compiled the agreement for [the wife] to sign?---Yes
By that we meant that you printed the agreement out from the email. You printed the pages out?---Yes or someone did and I got them.
Yes, but your office compiled…?---Yes
…
Do you remember whether the agreement that [the wife] signed was stapled or not?---No, I can’t remember that.
…
Prior to giving the written and oral advice, I take it you read the agreement carefully?---Yes
Did you read Schedule 1 carefully?---[The husband’s] schedule?
Yes?---I looked at it, yes.
Could I ask you to go to schedule 1. Do you see item number seven?---Yes
“Commercial property, see attached list”?---Yes
Did you note the reference to the attached list?---I saw that clause, yes.
And you assume that the attached list was the annexure document which you had?---This is all I remember seeing that day, that one-page schedule. I don’t remember seeing any attached list that day.
Would it be reasonable for us to infer that the attached list is a reference to [the annexure]?---To the one we are now talking about?
The one I took you to at the beginning of the cross-examination?---The stuff you talked about at the beginning of the examination, there is much more to it that what would appear to be the attached list of commercial properties.
You’re referring to the artwork, silverware, jewellery”---All the stuff that is in those pages yes.
Yes, but it includes commercial property doesn’t it?---It includes a list of properties, yes.
Yes, so it is reasonable to suggest that the attached list is that document, isn’t it?---Yes it would seem that when they’ve said, “attached list”, they may have been referring to that page or those pages.
As an experienced solicitor, that’s the assumption you would have made on 14 September when your client signed the agreement?---What I assumed was that there was no attached list because there was no attached list that day.
As an experienced solicitor, you allowed your client to sign an agreement that referred to an attached list that wasn’t present. Is that your evidence?---It wasn’t attached, yes.
Ms [I], it is much more likely that you had the annexure document with you when your client signed the financial agreement, isn’t it?---I honestly can’t remember seeing those documents that day.
Whether you can remember or not, it’s your practice as an experienced solicitor to check documents that your client signs isn’t it?---Yes
Consistent with that practice it’s reasonable to infer that you noted the reference to the attached list. Correct?---Yes.
Consistent with your practice as an experienced solicitor, it’s reasonable to infer that you took the view that the attached list was the annexure document?---I took the view that if there was an attached list I didn’t have it – that there was no attached list sent to me.
But the truth is, now in the witness box, you simply don’t remember whether or not there was an attached list, is that correct?---I can’t remember seeing it that day, no.
…
Having regard to your experience as a solicitor and the care which you take in giving advice to a client, the likelihood is that you had the annexure document and you understood that to be the attached list?---No, I don’t think that’s right. I can only say that I can’t remember having it that day, and it is not necessarily the case that I would have assumed anything about it.
HIS HONOUR: Can you recall seeing it prior to that day?---No.
Thereafter, a number of documents, including diary notes, were put to Ms I from her file, the whole of which ultimately became an exhibit in the proceedings (Exhibit H1). In particular, a diary note dated 14/9/01 included the notations “went through each provision” and “noted additional assets”. The diary note also referred to “additions to Schedule 1”.
Clearly, the husband’s assertion, that “the annexure” formed part of the agreement compiled for the wife by her solicitor and signed by her, is said to be supported by schedule 1 including (at item 7) the words, “commercial properties (see attached list)”. It is also said to be supported by the fact that “the annexure” was (it is accepted) present on Ms I’s file
Cross-examination was directed to Ms I in respect of this last matter. In response to a specific suggestion by Mr Wheelahan SC, Ms I said “I don’t recall having [“the annexure”] at the time I signed the agreement”. Mr Wheelahan SC then went on to ask:
“Having regard to the fact that the annexure is on the [B Firm] File…?---Yes
…It is more probable than not that you did have the annexure when your client signed the financial agreement. Do you agree with that?---I’m not sure that I would actually, no.”
The inference sought to be drawn in the questions referred to requires further analysis, particularly by reference to a closer examination of the documents on the B Firm file (Exhibit H1).

Two Documents? – Evidence from the B Firm File – Exhibit H1

On 31 August a friend of the parties (Mr K), who is a lawyer and was assisting the wife in and about the negotiation of the financial agreement with the husband, emailed to Ms I an attachment being “the email from [the husband’s] solicitors, [A Firm], attached to which is a draft agreement”. The draft agreement attached has notations on it, for example, querying the provision of security for payments to the wife.
The agreement contemplates a “Schedule 1” which provides “set out hereunder in as much detail as practicable at the time this agreement is prepared are the assets resources and liabilities of [the husband]”. Similarly a “Schedule 2” contemplates a similar listing by the wife: “set out hereunder in as much detail as practicable at the time this agreement is prepared are the assets resources and liabilities of [the husband]”. The reference to the husband in that schedule is an error as is made plain by the terms of the draft agreement itself. It should be a reference to assets of the wife. Neither schedule was completed.
A note from Ms I to Mr K on 13 September 2001 (that is, the day before the wife signed the agreement) refers to “today’s draft from [the husband’s] solicitors”. Reference to the email from Ms A, to which the note is a reference, indicates the addressing of issues such as security, indexation and maintenance.
A telephone diary note dated 13 September 2001 in Ms I’s hand says “where is [the wife’s] schedule?” and refers in that respect to it “coming”. A subsequent diary note that day refers to nine separate items, all of which are ultimately included in schedule 2 to the agreement signed by the wife (with precise values attaching thereto in the agreement as distinct from the values in the diary note).
The Exhibit also reveals a second draft agreement that has notated on it “12/9 late” a reference which Ms I accepted in evidence was a reference to it being a draft received late on the 12 September 2001. That document, too, left “Schedule 1” and “Schedule 2” blank. So, too, a further draft agreement bearing facsimile markings of 13 September 2001 (albeit at differing times on that day) also had no assets listed under schedule 1 or schedule 2.
It is common ground that a “round table” conference occurred at the offices of the husband’s solicitors late in the day on 13 September. A facsimile from the husband’s solicitors refers to the wife’s assets and a facsimile the same day sent from those solicitors is a letter from the wife’s tax agent revealing precise values in respect of AMP shares, Telstra shares and AMP life insurance, each of which is included, at those values, in schedule 2 of the agreement signed by the wife.
A telephone attendance note by Ms I in respect of a conversation with Ms A refers to “further entities to be added to schedule”. Plainly enough this gives rise, on its face, to the contention made by the husband.
However, any such inference is clouded significantly by two emails disclosed from Ms A’s file which became Exhibits W1 and W2.
On 14 September 2001 (the day the agreement was signed by the wife) Ms A forwarded an email to the husband which attaches “agreement for your perusal”. The email then goes on to say, crucially as it seems to me, “I have been informed […] that there are some companies and entities missing on your list they are…”. There is then named five additional entities. Again, crucially as it seems to me, each of those entities is included in schedule 1 to the document signed by the wife and Ms I. Shortly thereafter, on the same morning of the same day, Ms A sends via email the “amended agreement”. The email says “we also enclose amended Schedule 1 showing the additional entities”.
Nothing on “the annexure” shows it is intended to supplement or be a part of schedule 1 to the agreement; that schedule is not referred to on it or within it.
In contradistinction to Item 7 in schedule 1 (which contemplates an “attached list”) nothing in Item 9 (“Artwork”) contemplates such an attachment. Yet, “the annexure” contains no less than 121 valuable items of artwork.
Similarly, schedule 1, at Item 10, makes no reference to an “attached list” for “Antiques”. Yet, “the annexure” contains over 60 such items. Precisely the same is true of “Item 11” (“Jewellery, Silverware and Wine”).
In a similar vein, it is to be noted that Ms A’s email nominates the “additional entities” she refers to, which Schedule 1, as signed by the wife and Ms I, includes. Yet, schedule 1 does not include, or make any reference to, an additional 20 entities which appear in “the annexure”.
More telling, as it seems to me, is Exhibit AL-4 to the affidavit of Ms I filed 17.11.08, which is an email from the husband dated 14 September (the date upon which the wife signed) and bearing a time of 11.58. It responds to an e-mail from Ms A (sent at 9.58 on that day) which refers to “some companies and entities missing on [the husband’s] list” and then lists the five entities earlier referred to. The husband responds “Yes. Please add these.” They were, as has been seen, added to schedule 1 to the agreement signed by the wife.
There is in evidence no diary note, e-mail or the like which refers to the additional 20 entities. That position is to be contrasted, then, with the five additional named entities which were included in schedule 1.
As earlier seen, schedule 1 includes, at item 7, the notation “Commercial Properties (see attached list)” and includes under that heading a total value of $66,767,383. That value mirrors precisely the value attributed to “[T Company] Pty Ltd and controlled entities land and buildings as at 30 June 2000 ” included as part of “the annexure”. However, while schedule 1 includes liabilities of $30,843,000, no liabilities are referred to in “the annexure”.
“The annexure” reveals superannuation fund assets totalling $70,345,000. Item 15 of schedule 1 refers to “total values $70,300,000”. Again, liabilities of $40,000,000 are referred to in schedule 1 but not in “the annexure”. Moreover, the superannuation fund is shown as owning shares in which the husband had a fifty per cent interest totalling $3,226,184 but these, too, are not included in “the annexure”.

Delivery of the Husband’s Document and the Telephone Call

An issue intimately connected to the determination of whether “the annexure” formed part of the agreement signed by the husband and forwarded to the wife is the disputed assertion of Ms A that she hand delivered a copy of the agreement signed by the husband, which included “the annexure”, to the offices of the wife’s solicitors.
Subsequent to the paragraphs, earlier quoted, Ms A swears in her affidavit sworn on 4.11.08:-
“8. I believe [A Firm’s] Town Clerk collected two, (possibly even three agreements) with original signatures on them which had been signed by [the wife] and Ms [I] from the offices of [B Firm]. This was our usual procedure. When the agreements were returned to me after being signed by the wife, I was in the process of preparing numerous other documents on behalf of my client. These were also necessary because of my client’s forthcoming marriage with [the wife], and which, as well as the Financial Agreement, needed to be signed before the wedding. I cannot precisely recall all the additional documents, but can state there was a new Will in consideration of his forthcoming marriage; some preliminary documents affecting his succession planning; and some affecting his superannuation. I believe there may have been others, but I do not recall what they were. When all these documents were ready, my client attended my office to sign everything, including the Financial Agreement, on 20th September 2001, I believe the Financial Agreement was amongst the last document signed amongst the plethora of papers signed by my client that day. I say this because I recall that, after he has signed other documents, [the husband] reached for the Financial Agreement to sign it. I stopped him from doing so, explaining that before he signed, I must sign the Certificate of Independent Legal Advice in my name attached to the Agreement. I reminded my client of the advice I had previously given him about the agreement and we again discussed the matters referred to in the legislation and on my explaining to him that my signature certifies the advice I had given him was given before he signed the agreement. He accepted that. I signed the certificate in my client’s presence and his understanding (I believe) of its significance. My client then signed the agreement in my presence.
Ms A goes on to swear:-
9. Shortly after my client left my office I telephoned Ms [I] to advise my client had signed the agreement. I made the call because there had been calls from Ms [I’s] client and her office with anxious enquiries as to whether my client had signed. In that telephone discussion I suggested I deliver her client’s copy of the agreement myself to her office as I was going to be in the city on another matter. I informed Ms [I] that, given the pressure of time I probably would not have time to prepare a letter of enclosure but would deliver it with a “with comps slip”. I asked Ms [I] if that was all right with her. She agreed it was.
10. On either Thursday, 20 September or Friday, 21 September 2001 I delivered as promised one of the signed original agreements with annexures. The document was in an envelope on which I had handwritten the addressee – Ms [I], solicitor, [B Firm], solicitors. I endorsed the envelope “by hand”. I personally delivered the envelope to the receptionist at [B Firm], Solicitors and requested her that it be handed to Ms [I]. My memory on this is quite clear. It was only the second time I had been to the office of [B Firm]. The first occasion is when they acted for me in legal proceedings. I recall thinking as I walked into the [B Firm] offices on that occasion that the décor had not altered since the only other occasion I had been there some years before.
Ms A was, at this time, a solicitor of significant experience. With that in mind, it should be noted that the matters sworn to by Ms A are accompanied by an asserted significant degree of attendant detail of the sort that might be thought to add to the accuracy of that which is deposed to. She also includes the (self-serving) statement that “my memory on this is quite clear”. It will be seen that Ms A deposes clearly to:
a)the timing of a telephone call to Ms I: “shortly after my client left the office”;
b)a reason for the call: “to advise my client had signed the agreement”;
c)a reason for ringing with that news at that time: “because there had been calls…and anxious enquiries…”; and
d)the context of the discussion: “I suggested [delivery]…and was going to the city on another matter”.
Ms I responded to the matters there sworn to by Ms A in an affidavit filed on 17.11.08. For example:-
9. The reference by Ms [A] to “all annexures” in paragraph 7 of her affidavit does not include any annexures other than those described as “schedule 1” and “schedule 2” and the copy of the agreement annexed hereto. If Ms [A] is seeking to suggest by the expression “all annexures” in paragraph 7 of her affidavit that I received the pages in the agreement produced by the husband which have not been initialled by [the wife] or myself, then I say that those pages did not form part of the agreement signed by my client and initialled by me. …
11. In relation to paragraph 9 of Ms [A’s] affidavit I say that I have no recollection of telephone calls between my office and hers or between me and her after 14 September 2001 I have inspected the [B Firm] file dealing with [the wife’s] matter at that time and can find no record or indication on the file of further contact between [B Firm] and [A Firm] after the 14^th of September 2001. It was, and continues to be, my practice to make file diary notes of telephone conversations in relation to client’s matters. If there is no diary note on the file the most likely explanation is that no phone call was received.”
Ms I goes on to depose to the fact that she flew to London on 17 September 2001 and did not return to Australia until approximately 12 October 2001. She annexed to that affidavit passport entries indicating arrival and departure. She goes on to depose that because she was outside of Australia, “the conversation alleged to have taken place on the day on which [the husband] is said to have signed the agreement (20 September 2001) could not, and did not, take place”.
Ms I goes on to depose to the procedure adopted at her firm at that time in respect of deliveries:-
“The procedure which was adopted at the office of [B Firm] at the time when I was practicing there was such that if the copy agreement alleged to have been delivered by Ms [A] had in fact been delivered, it would have been identified by the staff as an important document and would have been placed on [the wife’s] file. There was no agreement signed by [the husband] on the file.”

Ms A was forced to accept that the telephone conversation with Ms I, to which she swears, did not occur as she deposes.
Ms A seeks to explain her earlier clear sworn evidence, including that of which, on her account, her memory was “quite clear”, by what she refers to as a confusion as to the “chronology”. Ms A said under cross-examination:-
“I clearly remember making the call, or a call. I accept that my chronology of that call is incorrect. I accept that. I made a mistake on that. However many years it is since then. I do not remember who I spoke to if it wasn’t Ms [I]”.
In explaining what she swore in her affidavit Ms A said:-
“I put what I believed to the case, and as I say, I recall making a telephone call. I believed that that was the person I spoke to. Ms [I] was the person I spoke to.”
I cannot see how that evidence by Ms A purports to explain the difference between that to which she swore on oath in her affidavit and her later acceptance that no such call with Ms I took place as she swears. I took that up with her in the witness box:-
HIS HONOUR: …you have the chronology wrong with respect to the telephone call?---Yes, I don’t recall the date. It has been clear that I could not have spoken to Ms [I]. I accept that.
But you are quite specific in your affidavit. You swear to quite specific content of the call?---Yes
Using a with comps slip and not a letter and those sorts of things. That conversation could only have occurred, or the details that you depose to in that paragraph, it occurs to me, could only have occurred at a time that you fix it. In other words, it could only have occurred after the agreement was signed and you were delivering it, and you now accept that is wrong, so you must have another occasion in mind when that sort of content could have occurred during a telephone call?---As I have indicated, Your Honour, I do have a clear recollection in my mind of making such a call.
With that content?---With that content, but clearly I must be incorrect as to the time that I made that call because Ms [I] wasn’t there to take the call, so if I made a call of that nature at some other time, I’m not able to say when.
But at what other time? That’s really the question I’m asking you. At what other time could that telephone call have had that content?---Your Honour, I can’t say. That’s what I meant when I said that I don’t recall the chronology.

In addition, Ms A swears to hand-delivering the agreement signed by her client (which, she says, contained “the annexure”) to the offices of the wife’s solicitors.
There is no record of any such document ever having been received by the wife’s solicitors.
Ms A acknowledges that no letter (for example of the type written by Ms I accompanying her client’s signed version of the document) was written by her to accompany the signed agreement. She says there was no time to do so. I find that explanation spurious: if there was time to make the phone call which she alleges occurred, I cannot see how, in a solicitor’s office, there was no time to draft a short accompanying letter. Indeed, it need only have been one sentence long. In that event, of course, a copy would have – or should have - then been on the file.
The letter from Ms I to Ms A accompanying the wife’s signed version of the agreement invited Ms A to send a completed agreement to her in order that the wife might receive it. When asked whether she was concerned to telephone the wife’s solicitors in order to ensure that the husband’s signed agreement had been handed to the wife, Ms A responded “I did not turn my mind to that”. I find that evidence remarkable in light of what any solicitor experienced in family law ought have had in mind by reference to s 90G of the Act.
No diary note, or any other documentary evidence whatsoever, exists on Ms A’s file to support the delivery of the document. There is, specifically, no copy of the “with comps slip” said by Ms A to accompany the delivery document.
No diary note, receipt or other such document appears on Ms I’s file supporting the delivery of any such document.
No evidence from any person other than Ms A supports the delivery of the document.
The asserted delivery of the document by Ms A is said by her to have occurred consequent upon the telephone conversation which she must now accept did not occur as she swears it to have occurred. If, as Ms A alleges, she has “the chronology” wrong, it is difficult to understand how a telephone call with Ms I, with the content to which Ms A deposes, could have taken place at a time other than that which she alleges. Conversely, if the telephone conversation was in fact with Ms I, it can’t have occurred when Ms A says it did which seriously calls into doubt how it could have had the content she alleges it did; that telephone call’s content is said by Ms A to be connected to the delivery of the document.
When delivering the document (to a person which Ms A cannot name) Ms A neither asked for a receipt from that person nor made any record of the date, time or name of the person to whom the document was delivered.
At the time of the delivery of the document Ms A did not give any indication that it was an important document; she “simply asked for it to be given to Ms [I]”.
In light of the similarities earlier referred to between the two documents, I find it remarkable that, if “the annexure” formed part of the document forwarded to the wife for signature, those pages are the only pages (excluding, obviously, the Certification page) to which neither the wife nor her solicitor appended their initials. No explanation is offered for why that might be so.
Equally remarkable in my view, if “the annexure” was included, schedule 1 is initialled by the husband and his solicitor, but “the annexure” is initialled by neither. Again, no explanation is offered for why that might be so.

Two Documents? – Conclusions

I accept the evidence of Ms I. I consider she was attempting to give the best honest answers she could to the questions she was asked. I consider that her recall (and lack of recall) about various details and events was entirely consistent with what might be expected of a person in her position giving evidence about events that occurred some eight years ago.
I specifically accept her evidence that she did not obtain a copy of “the annexure” at the meeting at the husband’s solicitors’ office on 13 September 2001. Equally I accept her evidence that she was “sure” that the wife did not give her a copy of “the annexure”. When it was specifically put to Ms I by Mr Wheelahan SC that the most likely means of the annexure having been communicated to her is at the meeting on 13 September Ms I responded, in evidence which I accept:-
“I know that didn’t happen. I know I didn’t have that. We didn’t have an annexure. There was a sheet of paper or two which we discussed at that meeting which we were given at the meeting, one or two, maybe three pages, which isn’t here – isn’t any page I ever saw again – which ran through what was – this was the disclosure document at the time of [the husband’s] circumstances. It was retained by Messrs [A & A] that night, I presume, because they were going to annex it to a redrafted affidavit, which I didn’t get that night. I got it subsequently.
Do you recall that there were additional items added to the page titled Schedule 1?---We had many drafts of the agreement and many blank Schedule 1’s. Which one are you particularly talking to? The only schedule I am sure I got is the one that we signed on the – was it 14 September? It was not the same as the one I’d seen the night before or the day before, whenever it was.”
It will be recalled that, consequent to the meeting on 13 September 2001, an email was received by Ms I from Ms A which sought to add an additional five entities to schedule 1, which were all in fact later added to that schedule. That is, in my view, entirely consistent with the evidence of Ms I just quoted.
I consider that Ms A was an entirely unsatisfactory witness. I note that Ms A is a former officer of the court. Sadly, I do not accept her evidence. I consider it highly likely that her evidence as to the hand delivery of the file by her to the offices of the wife’s solicitors is completely false.
I find on the balance of probabilities that no such delivery took place. In my judgment, such a finding is much more consistent with the inferences to be drawn from the totality of the evidence earlier described.
The husband gave oral evidence as to when he knew there was a version of the agreement different from the one he signed. I have significant doubts about the truthfulness of his evidence about that topic.
He asserted that, despite swearing an affidavit on 29 May 2008 annexing the agreement with “the annexure” attached in response to the wife’s application, and despite the fact that Ms I had filed her affidavit on 17 June 2008, he could not recall reading it.
Further, he swore that, despite the fact that he was present in court when Cronin J made orders on 1 September 2008 to the effect that the originally signed agreement be forensically examined, he only knew of the existence of two documents earlier this year.
I think that is extremely unlikely.
The wife’s evidence was to the effect that the first time she knew that the husband asserted that the financial agreement between them contained “the annexure” was when she read his affidavit filed in this court on 2 June 2008 to which the agreement was annexed. I accept this is the case.
If that is right, then, consistent with my earlier findings as to non-delivery of the document, the wife did not receive a copy of the document signed by the husband, and was unaware that it differed from that which was signed by her, until many years after she signed it.
That, combined with my earlier finding that the document signed by Ms A and the husband containing the annexure was not delivered by Ms A when she says it was, leads to the possible conclusion that it was not signed by either or both of them when each say it was. Despite my significant concerns about the credit of Ms A, and my concerns about the husband’s credibility arising from the evidence given orally by him, there is in my view no sufficient foundation for a finding that Ms A did not sign the agreement containing the annexure on 20 September 2001 or that the husband did not do so on or about that date (as he deposes).
It is uncontroversial that “the annexure”, in an unstapled and loose form, is to be found on Ms I’s file. It is also clear that no further work was done on the file by Ms I after 14 September 2001. Ms I gave evidence that she did her final bill in the matter on 14 September 2001 and, to the best of her recollection, she had no further involvement in the matter thereafter. It is said that it follows that the document cannot have been received to the file after 14 September (for example after Ms I left for overseas). I am not altogether sure that follows, but I am content to proceed on the assumption that, on the whole of the evidence, it was received before that date.
I have already indicated that I accept the evidence of Ms I and the evidence of the wife. I accordingly accept that “the annexure” was not received by Ms I and the wife at the round table conference that took place at the offices of the solicitors for the husband.
As has been seen, that was specifically suggested to Ms I by senior counsel for the wife as the most likely explanation. Yet, as has also been seen, Ms A swears to “all annexures” having been sent by e-mail “on the morning of 14 September”. That proposition was specifically eschewed in a suggestion put by senior counsel for the husband to Ms I.
I am simply unable to make a finding as to when “the annexure” was received. It clearly was received by Ms I and, as alluded to by Ms A, and implicitly accepted by Ms I, was almost certainly received as part of the husband’s disclosure in negotiations for the intended agreement.
To say, however, that the document was received as part of the disclosure process is, in my view, a very different thing from saying that it formed a part of – or was intended by both parties to form part of – the agreement otherwise reached between them. As will be seen, the whole of the evidence is, in my view, to the contrary.

Summary of Factual Findings

I conclude, then, that Ms I provided advice as required by the Act in respect of a document that did not contain “the annexure”. She signed the certificate to that effect on 14 September, 2001. After that, and on the same day, the wife signed a document which did not contain “the annexure”. That document was sent to the husband for signature.
On the evidence before me, it is more probable than not that Ms A provided advice to the husband in respect of a document that did contain, or was understood to contain, “the annexure”. She signed the certificate to that document on 20 September, 2001. Despite the attestation page on the document upon which the husband relies as the agreement (Ex. MF-1 to his affidavit) indicating that his signature was appended and witnessed ‘on the day first herein written” (i.e. 14 September), it is likely, relying upon his own evidence, that he signed it on 20 or 21 September, 2001. The document signed by the husband contained, or was understood to contain, “the annexure”.
The document signed by the husband was identical in all respects to that signed by the wife, save that it contained “the annexure”.
The document signed by the husband was not given to the wife’s solicitors as alleged by Ms A.
The first occasion upon which the wife is likely to have been aware that the husband asserts having signed an agreement containing “the annexure” and when she can first be seen to have had that version of it, was when she, respectively received and read his affidavit filed in this Court on 2 June 2008 to which the document signed by the husband was annexed.
That is, the wife was first given a copy of the document signed by the husband nearly seven years after it was signed by him.
Contrary to the husband’s assertion, it is more probable than not that he knew of the differing assertions as to what was said to constitute the financial agreement at a point when he swore his material on 2 June 2008 which responded to material filed by the wife on 15 May 2008.
In addition, the written submissions on behalf of the husband postulated a number of facts said to be uncontroversial and which can be seen to be relevant to the legal issues to be determined. Those facts can, indeed, be said to be uncontroversial but only after account is taken of the findings earlier made by me.
With those adaptations, those facts are:
·The wife and the husband spoke about [what each contended to be] the Financial Agreement during the course of the marriage.
·The wife kept a copy of the [document signed by her] in her filing cabinet [but it did not contain “the annexure”].
·The Husband made payments to “the entity” [which is common to, and defined in, each of the documents signed by the husband and wife];
·The payments to the entity were made by the husband pursuant to the purported performance of his obligations pursuant to [his perception of an] agreement.
·The husband and the wife entered in to a deed in relation to superannuation payments.
·The deed entered in to by the husband and the wife was done so in purported compliance with [the obligations each perceived they had in respect of the documents signed by each of them respectively]
·Until the wife consulted her current solicitors, some years after she signed [her version of the financial agreement], she did not contemplate that [any financial agreement that existed between the parties] was unenforceable in the manner in which she now suggests.

What Legal Issues Arise?

Submissions made by counsel for each of the parties raise a number of legal issues that fall to be decided against the background of the findings just summarised:
(a)If “the annexure” did not form part of the document signed by the wife and her solicitor, but it did form part of the (later) document signed by the husband and his solicitor, is there nevertheless an agreement between the parties? This is important because, as will be seen, in my opinion the s 4 definition of “financial agreement” and, relevantly, s 90B make it clear that a financial agreement must be, first, an agreement.
(b)The Full Court in Black and Black (2008) FLC 93-357 at [45] held that “strict compliance with the statutory requirements is necessary to oust the court’s jurisdiction to make adjustive orders under s 79”. Within that requirement, what is meant by the s 90G(1)(e) requirement that “a copy is [to be] given to … the other parties”.
(c)If it be found that the document given to the wife was “a copy” within the meaning of s 90G, what is the effect, if any, of a finding that the “copy” was not given to the wife until a significant period of time after the execution of the document by her and a significant period of time after the (later) execution of the husband’s document by him? That is, what is the effect of the s 90G(1)(e) requirement that a copy of the agreement be given to a party “after the agreement” is signed?
(d)If the s 90G requirements have not been met, is the wife estopped from relying upon that statutory non-compliance? That may call into question the role of s 90KA and, more broadly, whether estoppel and, specifically, estoppel in the face of statutory requirements, has a role to play with respect to “financial agreements” and/or the s 90G requirements. If the principles of equitable estoppel are applicable, do the facts of this case give rise to its application?
(e)Similarly, if the s 90G requirements have not been met can they be seen as “analogous to a ‘Statute of Frauds requirement’” and, if so, does the doctrine of part performance apply? If so, do the facts of this case support its application?

Two Documents But One Agreement?

Financial Agreements as Contracts

In Australian Securities and Investment Commission and Rich (2003) FLC 93-171, O’Ryan J (albeit in relation to an ultimate issue different to the present) held:
“105. It is submitted that a binding financial agreement may be void, voidable or unenforceable for the purposes of s. 90K(1)(b) in accordance with principles of law and equity. It is submitted that whilst it is undoubtedly unique, a binding financial agreement is a form of contract and should be interpreted in accordance with the law of contract … I accept this submission …”
Earlier, in the same judgment, his Honour held:
“73. The Family Law Act contains no prescription as to the matters which may be the subject of a contract. Financial agreements do not depend in any way on the powers under s 79. There is no express requirement that the provisions must be just and equitable. Further, in relation to a maintenance agreement under s 87 the court had to be satisfied that “the provisions of the agreement with respect to financial matters were proper” (s 87(3)). However, there is no such requirement in relation to financial agreements. All that is required is that the provisions of s 90G are complied with.
74. Part VIIIA does not operate to give greater or lesser force or effect to the contract except in so far as it authorizes that which is legally impermissible namely, in certain circumstances, to contract outside the operation of Part VIII of the Act. The requirement that a maintenance agreement under s 87 had to be approved by the court, and the court satisfied that the provisions with respect to financial matters were proper, reflected important public policy considerations because the effect of the approval was that the agreement thereafter operated in substitution of rights under the Act. This important public policy consideration is not reflected in the provisions relating to financial agreements notwithstanding the effect of s 71A.

If the parties to a marriage (or parties to a prospective marriage) enter an agreement which otherwise meets the criteria for the formation of a valid and enforceable contract and which purports to determine how, in the event that their marriage breaks down, their financial affairs should be determined, the principles of contract (and equity) will determine the parties’ rights with respect to that contract. So much is clear, in my view, from s 90KA.
If an agreement purports by its terms to exclude the operation of Part VIII of the Act in respect of the matters the subject of the agreement, there is potential for there to be a collision between the principles of contract and equity applicable to the contract and principles of family law arising under, and from, the Act. The potential for there to be a collision between those principles occurs, though, only where one of the contracting parties asserts that, despite the terms of the contract, the court may make orders pursuant to Part VIII of the Act in respect of matters the subject of the agreement. In that event, the court can make orders if one or more of a number of matters can be established.
First, by reference to the principles of contract (or equity), there may, in fact, be no agreement between the parties (despite claims to the contrary by one of the parties). That there must be an agreement before there can be a “financial agreement” is made clear by the definition of “financial agreement” in s 4 of the Act. The ordinary and natural meaning of “agreement” is, in my view, an agreement which is otherwise effective and enforceable at law. That this meaning of “agreement” is contemplated by the Act is, in my view, underscored by s 90K(1)(b) and s 90KA.
Secondly, the court can make Part VIII orders in the face of an agreement if, by reference to the Act, there is no “financial agreement”. These particular forms of agreement are creatures of the Act, provided for in the circumstances set out in ss 90B, 90C and 90D (relevantly s 90B). An agreement otherwise valid, effective and enforceable at common law may be a “financial agreement” for the purposes of the Act if the conditions of those sections, relevant to the circumstances (here s 90B) are met.
The relevant pre-conditions for an agreement otherwise valid and effective at law being a “financial agreement” for the purposes of the Act, are contained within (relevantly) s 90B. The section prescribes who may be parties to such an agreement (“people who are contemplating entering into a marriage with each other” and “one or more other people”); the form of agreement (it must be “a written agreement”) and the matters which must be the subject of the agreement (“the matters mentioned in [s 90B(2)”]. Further, the section excludes certain people from being parties to such an agreement (“spouse parties” who are parties to another agreement pursuant to ss 90B, 90C or 90D with respect to any of the specified matters).
Thirdly, the court can make Part VIII orders in the face of an agreement that is a “financial agreement” if conditions specified by the Act are met (s 90K) and the financial agreement is set aside by the court.
It will be appreciated that, in each of the situations just described, the court’s power to make Part VIII orders occurs independently of the provisions of s 90G of the Act.
The court’s power to make orders arises in each case from factors connected with matters referable to contractual (or equitable) principles and/or the provisions of the Act independent of s 90G. Such a result emanates from the fact that if a contract is not “binding” within the meaning of s 90G it can, nevertheless, be an “agreement” and a “financial agreement” within the meaning of the Act. So much is made clear by the provisions of ss 4 and (relevantly) s 90B and, conversely, by the fact that, although s 90G specifies when a “financial agreement” is “binding”, there is, in terms, no such thing under the Act as a “binding financial agreement”.
If a contract, or agreement is a “financial agreement”, but is not “binding”, it can, if valid and effective as such, have the effect, in relation to Part VIII of the Act, as set out in Woodland and Todd (2005) 33 FamLR 177.
If the agreement is a “financial agreement” within the meaning of s 4 and, relevantly, s 90B, and is “binding” within the meaning of s 90G, it precludes the court applying Part VIII to the extent that the financial agreement deals with those matters (s 71A).

Formation of the Agreement - Applicable Contractual Principles

As will be clear from the matters just outlined, in my view, irrespective of other arguments raised in these proceedings in respect of s 90KA, it is clear that, in deciding whether there is an “agreement”, (and, thereafter, a “financial agreement”), s 90KA provides for the application of contractual (and equitable) principles.
The husband contends that, even if I find (as I have), that the wife signed a document without “the annexure” and the husband signed a document with it, there is nevertheless the required offer and acceptance and resulting agreement.
A position consistent with the wife’s ultimate contentions (although not necessarily formulated on her behalf in these terms) has its foundation legally in what has been described as “an ancient rule”, sometimes known as “the rule in Pigots case” – a reference to Re Pigot (1614) 77 ER 1177. In more modern parlance, this has been expressed as:-
“When the plaintiff without authority alters a deed, or where it is so altered in a material point while in the possession or custody of the plaintiff by a stranger with the privity of the plaintiff, it is thereby made void…the same rule applies generally to instruments of contract not under seal…and is even applicable to documents not containing any contract.
(Jacobs Precedents Of Pleadings, 12^th ed (1975) 1014, quoted in Armcor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259.)
But, the rule has been roundly criticised by courts of high authority. For example, Bray CJ in Armcor Coatings above, said:-
The learned authors [of Salmon and Williams on Contract 2^nd ed (1945)] go on to say that the rule has little substantial merit to recommend it and I emphatically agree.
Yet, the rule remains, albeit in a significantly ameliorated form; it is applied now “as liberally and reasonably as possible” (Bray CJ, in Amcor Coatings above).
The rule can be seen in operation in cases cited by counsel for the husband where, for example, a party has filled in blanks in an agreement (e.g. Warburton v National Westminster Finance Australia Limited (1988) 15 NSWLR 238); or alters a term changing the amount of a loan (e.g. Farrow Mortgage Services v Slade and Nelson (1996) 38 NSWLR 636); or where counterparts of a contract to be exchanged differ (Zaccardi v Caunt (2008) NSWCA 202).
In “filling in blanks cases”, it has been held that the leaving of blanks by a party can give implied authority to the other party to complete those blanks. A similar argument is advanced here on behalf of the husband (see para 9 written submissions on his behalf). The argument here, as I understand it, is that, because “the annexure” was in the possession of the wife’s solicitors, and because schedule 1 to the agreement contemplated an “attached list” (see item 7), the husband had implied authority to insert the annexure.
As Bray CJ pointed out (in the context there under discussion and referring to an earlier decision):-
The learned Judge said… “if any authority may be implied from the leaving of blanks in a document, in my opinion it could not extend to the addition of matters which would evidence something destroying the title purported to be created by the document”. With that I respectfully agree. Having regard to the normal course of business, I think an implied authority by one party to the other to fill up blanks and correct mistakes so as to make the document conform to the intention of the parties or to supply immaterial deficiencies should be readily presumed.
In Farrow Mortgages, above, Gleeson CJ held (when his Honour was Chief Justice of New South Wales):-
“…[I] respectfully agree with [Bray CJ’s] views as to the need, in modern conditions, to confine the nullifying operation of the rule to cases which fall strictly within its ambit, and to interpret the rule as liberally and reasonably as possible”.
Bray CJ in Armcor Coatings considered that the following considerations were material to such an operation of the rule:-
First, I agree…that there was a distinction between cases where the formal document in question embodies a previous agreement in fact between the parties, so that in a proper case a court of equity would rectify it to make it conform to that previous agreement, and a case where the document itself for the first time puts the parties into a contractual relationship. In the second type of case…there may well be no implied authority to supplement it after one party has signed it. The signatory may be regarded as offering to treat on the basis of what he has signed and any additional particulars subsequently attached may amount to a counter offer by the other party needing acceptance by the first before any contract comes into existence.
Where, however, an agreement in fact has been reached between the parties and one of them subsequently executes the formal agreement and hands it over to the other, I think he will readily be regarded as having conferred on that other implied authority to fill up blanks, which he must be taken to know were present in the document when he signed it, and to alter the document if necessary to make it conform to the common contractual attention where by a mistake it does not do so… .
Significantly, as it seems to me, for the case before me, Bray CJ distinguished between two types of alteration to the documents in issue before him. In one category, the alterations were found not to be “material”. In respect of the other, however:-
…It is, of course, the ostensible effect of the alterations which matters, not the way in which a court of equity would in appropriate proceedings deal with the altered document; see Davidson v Cooper … where Lord Denman spoke of the “apparent nature and effect” of the document being altered. [citation omitted]

The Alleged Agreement and its Terms

The husband’s argument in the instant case, as I apprehend it, proceeds, within those principles, on three main bases.
First, “the annexure” did not alter the legal effect of the document – it did no more than record prior disclosure. The addition of “the annexure” and his signing of the document in that form, did not invalidate the agreement because there was no material alteration to the agreement by the addition of “the annexure”
Secondly, it is submitted that the husband had implied authority to attach “the annexure”.
Thirdly, it is argued that “the terms of the document reflect the agreement reached by the parties during the course of their negotiations. There was thus an antecedent agreement to which the document gave effect”.
The argument goes on to assert that rectification could have cured the omission of “the annexure” (although in this case it is said that rectification, as a remedy, is unnecessary).
The question of materiality depends, in my view, on the legal effect of the agreement and the legal relationship between the parties previously existing. The overall circumstances and the underlying purpose of the agreement should be looked at, as well as what the alteration does to the agreement. (See generally Armcor Coatings, above).
I accept the submission on behalf of the husband that a change to the document that would result in a court ordering rectification does not render the agreement ineffective (citing Sindel v Georgiou (1984) 154 CLR 661). But, if there was no antecedent common intention or agreement, rectification would not lie. (See, eg, Farrow Mortgage Services, above, esp. the judgment of Cole JA).
In a different context (exchange of contracts to effect a binding contract for the sale of land), Lord Denning M.R (with whom Cairns L.J. agreed) in Harrison v. Battye (1975) 1 WLR 58. Lord Denning, observed (at p 60):
"Those two parts must be in identical terms. If they differ in material respect, there is no contract. The reason is plain. Each party must be able to act on the faith of the part which he receives signed by the other. He can only safely do this when they are in the same terms in all material respects."
I think similar considerations apply to facts of this case and the agreement said to exist by the husband which contains “the annexure”.
Whether or not the contract between the parties is ultimately “binding” as that expression is used in s 90G and s 71A of the Act (and, therefore, effective to invoke the latter section) it is, in my view, clear that the underlying intention of any agreement between the parties was to effect the result contemplated by s 71A.
That is, a clear central purpose of any agreement was to exclude Part VIII of the Act (see Recitals B and C together with clause 1; and clauses 17 and 18). Thus, axiomatically, an express purpose of the agreement must have been the specification of the property to which the agreement did - and did not - apply. (That is because the distinction is vital to the stated purpose of the contract - see s 71A of the Act and the definition of “financial matters” in s 4 of the Act).
Further, reference to each of the signed documents makes it clear, in terms, that the specification of the property in any agreement is a central concern of the contract (see Recital C in conjunction with clause 1; clauses 7 and 8; clauses 11, 12, and 13 and the identification of the property to which clause 14 would apply).
As the High Court said in Sindel v Georgiou (1984) 154 CLR 661 at par 13 (per Mason, Murphy, Wilson, Brennan and Dawson JJ):
Rectification is a remedy which cures erroneous expression of the parties' true intention in a contract which is already binding. It is not a remedy which brings a contract into existence in a situation in which the parties have not by their own acts arrived at a concluded contract.
Whilst it may be true that the parties each had an intention to enter an agreement that was intended to operate in the manner envisaged by s. 90G and s. 71A, that is not the end of the necessary inquiry as to the mutuality of their intention.
In some cases, it is possible to discern the true intention of the parties despite the existence of two parts of the agreement. In those cases “[t]o treat the discrepancies between the two parts as producing a different result is to impute to the parties an intention that they did not have. (Sindel v Georgiou at par 16). Equally, however, if the discrepancies are such that the intention that the parties had cannot be properly discerned, treating the two parts as forming a contract is to attribute a mutuality of intention not revealed in the two documents.
In my view, the latter is the case here. Here, the inclusion, or exclusion, of specified property must be central to the intention of the parties. If the core intention of the parties is to exclude matters the subject of agreement from the operation of Part VIII, mutuality of intention about (relevantly) the specific property to be excluded is central to the true intention of the parties.
It might be argued that there is a distinction between, on the one hand, the materiality of the listing of, for example, the artwork in “the annexure” and, on the other hand, the additional entities specified within it. The former, by reference to schedule 1, can be seen to have an agreed value of $7,551,650. “The annexure” lists a number of items clearly referrable to that description having a total value precisely the same as that in schedule 1.
The position with respect to entities, though, is, in my judgment, significantly different. For example:
·Schedule 1 refers to seven named entities (items 1-6 and 16). Evidence about the process of negotiation earlier referred to reveals inclusion of some of those entities shortly prior to the wife’s signature. “The annexure” reveals at least 20 additional entities;
·No value is ascribed to any of the entities in “the annexure”.
·Schedule 1 does not cross refer to any entities (in the same way, for example, as item 7 in schedule 1 does in respect of commercial properties).
·“The annexure’s” list of entities appears, on its face, to be completely additional to those in schedule 1 (as distinct from, for example, the “artwork”, “antiques” and “commercial property” which are specified generally as such in schedule 1 and which “the annexure” might be seen as simply listing with specificity).
In my judgment “the annexure”, when looked at as a whole, represents – even looking at it “as liberally and reasonably as possible” - a material alteration to the document signed by the wife (or, put another way, the agreement which the wife believed she was entering). There was no implied authority for the husband to make such an alteration.
For those reasons, too, I am not satisfied, either, that the agreement including “the annexure” reflects the antecedent agreement reached between the parties. Any agreement had at its core the inclusion (or exclusion) of property which would be excluded from the operation of the Act. There is no evidence before me to the effect that the inclusion of 20 additional, unvalued, entities in the agreement (thereby excluding those entities from the operation of Part VIII of the Act) was ever part of an agreement between the parties.
I reject, also, for the reasons just given, the assertion on behalf of the husband that “the inclusion of “the annexure” in the document did no more than accurately state the disclosure which had already occurred”. In my view, it materially altered the property to be excluded from the operation of Part VIII which was a central concern – arguably the central concern – of the parties’ intended agreement.
I have referred to the fact that there is uncontested evidence that “the annexure” was on the wife’s solicitor’s file and am unable to make a finding as to when it was received. Even if, as asserted on behalf of the husband, “the annexure” represented the disclosure which had already occurred and even if, as asserted, “both parties were privy to “the annexure” forming part of the agreement” (whatever that might mean) before signing the document it does not follow that there is evidence of the requisite mutuality of intention that the property there listed was part of any agreement or evidence from which that inference should be drawn.
I consider the evidence reveals the opposite: the wife considered that any agreement was to exclude the property described in schedule 1 and no other and Ms I provided advice accordingly.
In summary, then, by reference to what I consider to be the relevant contractual principles, I am not satisfied that there is a valid, enforceable and effective agreement between the parties.
Thus, it follows, in my view, that there cannot be a “financial agreement” between the parties within the meaning of s 90B; that section requires for its operation a written “agreement” between the parties.
Such a conclusion is determinative of the issues in this case. However, in case I am wrong in the conclusion just arrived at, I proceed to consider the balance of the arguments advanced.
It is submitted on behalf of the husband that, whatever be the meaning of “after the agreement is signed” in s 90G(1)(e), it must be the same for all three types of agreement contemplated by the Act (i.e. s 90B, s 90C s 90D). I agree.
Next, it is submitted that it is the original which the section specifies be given to a party after signature; the section provides no such requirement for a copy to be so provided. It is accordingly submitted that “there is no reason why a copy of the agreement can’t be given at any time, including before the original is signed. It is submitted that, had Parliament intended to qualify the reference to “after” by “uncertain expressions such as “shortly after” or “a reasonable time after” or by a requirement for that the giving of the document be contemporaneous, or reasonably contemporaneous,” it would have said so.

Counsel for the husband also referred, in oral argument, to the decision of the High Court in the Commonwealth v Verwayen (1990) 170 CLR 394. In that decision Mason CJ referred (at 409) to a number of “categories of estoppel”, The former Chief Justice continued, at 413:-
The result is, it should be accepted, that there is but one doctrine of estoppel which provides that a court of common law or equity may do what is required, but no more, to prevent a person who has relied upon an assumption as to a present past or future state of affairs (including a legal state of affairs) which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be proportionality between the remedy and the detriment which is its purpose to avoid.
What might otherwise have been considered as “one of the categories of estoppel” referred to is central to the husband’s argument, namely: “the unconscionable reliance upon a statutory requirement as to enforceability of an agreement”.
In essence, the principle remains the same: equity will not, in certain circumstances, permit unconscionable conduct to hold sway over a statutory requirement and will intervene to the extent necessary to restore equity. The principle is, though, confined by the limitations referred to in the authorities when it is a statute that is relied upon by a party.
A convenient starting point of the exposition of those specific principles can be seen to be the decision of the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Limited [1964] AC 993, a decision which has been applied throughout Australia since. Crucially, it is the terms of the statute “in its context and informed by its purpose” to which regard must be had (Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263 at [73]).

(b)The Equitable Principles Relied Upon - Part Performance

It is submitted that part performance:
“… is often relied upon in support of an order for specific performance of the transfer of land in circumstances where the Statute of Frauds has not been complied with. But as Meagher Gummow & Lehane state … there is no reason in principle to limit the doctrine of part performance of contracts for the sale of land, nor to limit the doctrine to the remedy of specific performance.
Reference is then made to the well-known decision of the High Court in McBride v Sandland (1918) 25 CLR 69. Plainly enough, the establishment of the entity and the payments to it earlier referred to are relied upon in this context.

Section 90G: The Application of s 90KA and Equitable Principles Generally

(a)The Application of s 90KA to s 90G?

The submissions of the husband express the principles emerging from the cases which have considered the application of equitable principles to statutory provisions in this way
The relevant factors considered by the cases concerning the operation of equitable doctrines in the face of a statute appear to be:-
(a)what is the social policy of the statute;
(b)does the statutory condition to enforceability exist for the public such that it cannot be subject to inter partes waiver;
(c)does the statutory condition as to enforceability exist for the benefit of the parties alone;
(d)what is the nature of the statutory condition – e.g. is registration or approval by some third party required which cannot, in the nature of things, be waived;
(e)does the statute treat non-compliance with the condition as rendering the transaction void
The submissions continue:
There are some types of agreement which are rendered void unless a statutory condition such as registration or approval by some third person is satisfied, in respect of which no estoppel or waiver can generally run. An example of such an agreement is a deed of arrangement under bankruptcy legislation, which is not registered, thereby rendering it void. This might be likened to a maintenance agreement made under s. 87 of the Act which is not approved by the Court. Agreements under s. 90B of the Family Law Act do not fall into this category. They do not require registration with or approval by the Court as a condition for their enforceability. Nor does the Family Law Act prohibit financial agreements, of make financial agreements void.
…
There is no inconsistency between social policies underlying s. 90G(1)(e) of the Family Law Act and the recognition of equities which might arise in consequence of the parties conduct, and assumptions made by them in consequence thereof. Indeed, s 90KA of the Act evinces an intention that equitable principles can be raised in support of the recognition of equitable interests which might arise in connection with the making of a financial agreement. Equitable doctrines directed to the relief against unconscionable conduct are just as applicable to the requirements of s. 90G(1) as they are to the like requirements of the Statute of Frauds.
The written submissions then address the social policies said to underpin Part VIIIA, including: enabling “parties to a marriage to regulate their own affairs”and “[r]ather than being proscriptive or restrictive, the provisions … are permissive.
Section 90KA refers to the question of “whether a financial agreement … is valid, enforceable or effective …” being determined by reference to “the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts …”
In arguing the application of estoppel on behalf of the husband, no distinction is drawn between its potential application to s 90G, and any potential application to the formation of an agreement (and a financial agreement) distinct from the operation of s 90G.
But, as earlier outlined, in my view s 90B (in conjunction with s. 4) and s 90G (in conjunction with s 71A) have quite different (although related) roles. The distinction is, in my view, maintained in respect of the application of s 90KA and is crucial in understanding the application of that section to Part VIIIA of the Act.
Clearly enough there is the potential for estoppel to arise in and about the process bringing about a contract (and the statutory contract known as a “financial agreement”); the representations and conduct surrounding the formation of a contract (or non-formation of a contract) are fertile territory for the operation of estoppel. So, too, in the same territory, there is scope for the operation of the equitable doctrine of part performance.
Thus, in my view, the principles of estoppel (and, indeed, equity more broadly) can clearly arise with respect to s 90B and its necessary precursor, the formation of an “agreement”. Thus, s 90KA has, plainly enough, an important role to play in relation to (relevantly) s 90B (and, in turn, therefore, to, for example, s 90K(1)(b))
However, for the reasons that follow, I am of the view that estoppel cannot operate so as to preclude reliance by a party on s 90G.
Firstly, s 90KA does not, in my judgment, provide to the contrary.
The plain words of s 90KA point, in my view, to a distinction being drawn between (relevantly) s 90B and s 90G. Nowhere does s 90KA refer to any impact it may have on a financial agreement being “binding” – the word specifically used in s 90G. The section refers to the question of whether a financial agreement is “valid, enforceable or effective”.
The section goes on to refer to issues and remedies relevant to “contracts” or “purported contracts”. And, as earlier outlined, Part VIIIA distinguishes between, on the one hand, agreements which are “financial agreements” and, on the other hand, “financial agreements” which are “binding”.
In my view, the Parliament has, in s 90KA, made it plain that the principles of law and equity shall apply in determining whether, in a particular case, the first of the two prerequisites to the creation of specific statutory agreements is satisfied: namely that there is in fact a valid, effective and enforceable agreement and, thereafter, “financial agreement. Equally, the parliament has made it plain that principles of contract and equity are applicable in deciding if the second of the requirements for the creation of those statutory contracts (the “statute of frauds-type” requirement that it be in writing) are met or can be relieved against.
But, once there is a valid, enforceable and effective form of statutory contract (i.e. a “financial agreement”) according to the statutory requirements - applied in accordance with the principles of contract and equity - the Act provides for a set of requirements whose purpose is not “contractual” but, rather, establishing whether s 71Aof the Act is invoked or not. If s 90KA was intended by the Parliament to play a role in that (separate) enquiry, s 90KA would have made reference to the question of an agreement being “binding”.

(b)The Application of Equitable Principles Generally to s 90G?

If s 90KA does not permit, in terms, equity having a role with respect to s 90G, nor does it, in terms, (and per force of the same reasoning) preclude such a role. Accordingly, the question then becomes: if s 90KA does not permit of that role, does the general law?
It has been held, in a different context:
It was submitted on behalf of the defendant that no estoppel could arise because that would amount to an estoppel against the operation of a statute, and reliance was placed on the comment by Shepherdson J in Mears v. Coles Myer Ltd (Writ 99/99, 18.8.99) at p.21 that: "Estoppel cannot be invoked to negative the operation of a statute".
I am not at all sure that there can be no estoppel in relation to the operation of the statute, but it is certainly established that a statutory obligation cannot be avoided by a representation from the authority responsible for administering the statute: Commonwealth of Australia v. Hamilton [1992] 2 Qd.R. 257 at 267. It is also well established that the benefit of a statutory provision cannot be lost by an estoppel: Barilla v. James (1964) 81 WN (Pt.1)(NSW) 457 at 461, 468, 478. See also Beckford Nominees Pty Ltd v. Shell Co of Aust Ltd (1986) 73 ALR 373 and Day Ford Pty Ltd v. Sciacca [1990] 2 Qd.R. 209 at 216-7.
(Jackel v Sita Queensland [2000] QDC 41 per McGill DCJ)
In my opinion, it may, with great respect, be expressing the principle too widely to say that “… the benefit of a statutory provision cannot be lost by an estoppel”. But, equally, the purpose of the statutory provision is crucial to a consideration of whether the doctrine can apply.
In Kok Hoong, above, it was said by the Privy Council:
“…On the other hand, there are statutes which, though declaring transactions to be unenforceable or void, are nevertheless not essentially prohibitory and so do not preclude estoppels. One example of these is the Statute of Frauds … (in which it was no doubt considered that … the statute ought be treated as regulating procedure, not as striking at essential validity) …
…
It has been said that the question of whether an estoppel is to be allowed or not depends on whether the enactment or rule of law relied upon is imposed in the public interest or on grounds “of general public policy” … But a principle as widely stated as this might prove to be rather an elusive guide, since there is no statute, at least public general statute, for which this claim might not be made …
General social policy does from time to time require the denial of legal validity to certain transactions by certain persons. This may be for their own protection, as in the case of the infant or other category of persons enjoying what is to some extent a protected status, or for the protection of others who may come to be engaged in dealings with them, as, for instance, the creditors of a bankrupt. In all such cases there is no room for the application of another general and familiar principle of the law that a man may, if he wishes, disclaim a statutory provision enacted for his benefit, for what is for a man’s benefit and what is for his protection are not synonymous terms.”
I reiterate in this context my views earlier expressed in respect of the purpose/s of s 90G (pars 184ff of these reasons).
Within the context of those earlier views, I accept the written submissions made on behalf of the wife that:
…the correct interpretation of s. 90G(1) would characterise it as part of a legislative scheme which represents a social policy to which the court must give effect in the interests of the public generally or some sections of it. The correct approach to determining whether the legislation meets the scheme was stated in … Tudor Developments v Makeig [2008] NSWCA 263…
…
The scheme which is enacted in the section is one which protects parties to a marriage or intended marriage from ousting the jurisdiction of the court in property and maintenance matters unless there is strict compliance with statutory prerequisites …
…
… the ousting of the Court’s jurisdiction is a serious departure of both the historical and previous statutory supervision performed by the court … as to render s90G a statute “which provides protection for a particular class of persons, in the public interest (in which case the statutory prohibition and its consequences will not be capable of waiver)”. Accordingly … equitable principles have no application in granting relief from non compliance with the section.”
Counsel for the husband referred to a number of decisions which are cited in support of the ultimate submission that estoppel (or equitable principles more broadly) can apply to s 90G.
However, in my respectful view, the submission conflates the potential application of that doctrine to s 90G with its potential application to s 90B or Part VIIIA as a whole. As I have attempted to explain, in my view, the two are separate and different considerations apply.
The distinction sought to be drawn by me can be seen exemplified (in, of course, different contexts) in the decisions sought to be relied upon by the husband.
First, the application of estoppel to s 90G, can in my view be seen as distinguishable from the “statute of frauds cases” in respect of which estoppel has been found applicable in the face of a statute (see e.g. Steadman v Steadman (1976) AC 536; Collin v Holden (1989) VR 510). Consistent with the distinction between the operation of s. 90B and s. 90G earlier drawn by me, the “Statute of Frauds-type” provision in the Act is, in my view, (relevantly) s 90B, not s 90G; the former requires writing, the latter signatures and other formalities independent of the validity of a written agreement.
Secondly, and also consistent with the earlier distinction drawn by me, the position under s 90G can be seen as distinguishable from those cases in which estoppels have been held to arise where the statutory provision impinges directly upon the validity or enforceability of the contract (see e.g. Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263). In cases of that type “the [statutes] prohibit certain kinds of conduct, and the effect upon contractual relationships is consequential upon the prohibition” (respectfully adopting the words of Brennan J in Trade Practices Commission v Milreis Pty Ltd (1977) 29 FLR 144 at 158).
The same is true, in my view, of the decision in Shah v Shah [2002] QB 35 relied upon by the husband. That case involved a piece of legislation which, it was submitted on behalf of the husband, “had some relevant similarities to s 90G(1)(e)…”. There, the statutory provision provided the conditions for making a deed valid as a deed. That is, the statute referred to its, as it were, “contractual effect”. Again, contrary to the submissions on behalf of the husband, I consider it has similarities to the position under s 90B, not s 90G.
Walsh J, in the New South Wales Court of Appeal referred in Barilla v James (1964) 81 WN (Pt1) NSW 457 held:
The intention of the parties was to enter into a lease for which s 5A would apply. That section contemplates that the parties to a proposed lease, may, by mutual agreement, so act as to prevent the provisions of Part III from ever attaching to the tenancy which is contemplated. All this is true but, in my opinion, it is not material to the resolution of the question in issue. Whilst the Act allows the parties to arrange a transaction of leasing in such a way that the restrictive provisions will not attach, it does not allow them to do this in any manner which they may choose to adopt. It does not allow them to bring about this result by any agreement which evidences their intention to do so. It allows them to bring it about in one manner only, that is, by entering into a lease which conforms to the appropriate stipulations set out in one or other of the various paragraphs of s 5A(1). It seems clear that unless this is done any agreement of the parties designed to prevent the operation of the Act is equally ineffective, whether the parties purport to make such an agreement before or after they enter into the lease.
A parallel exists, in my view, in the distinction sought to be drawn by me. Parties may by agreement seek to exclude the provisions of Part VIII of the Act. But the Act does not allow the parties to do so by any agreement which (although enforceable as a contract) they choose to adopt. The Act prescribes one manner alone in which that may occur and that is by compliance with s 90G.
When the purpose of s. 90G is placed into the context just discussed, it can in my view be seen that there was no intention to allow the parties to waive or ignore the supervening statutory protection afforded to otherwise valid, effective and enforceable financial agreements in circumstances where those statutory requirements now, as it were, stand in the stead of the previous protection offered to contracting parties by court approval or sanction.
Concomitantly, there is no intention evidenced that unconscionability should be able to found a remedy by which strict compliance with s 90G could be avoided.
I conclude that the estoppel has no operation to s 90G.

Estoppel on the Facts?

In light of the views just expressed, I do not propose to consider at length the merits of the claim in estoppel or part performance on the facts of this case.
However, if the analysis earlier outlined is wrong, I should very briefly record why, in any event, I do not consider that equity would intervene in the present case.
Central to the submissions by the husband is the assertion that the husband acted upon the assumption that “the agreement” was enforceable (see paras 39, 40 of the written submissions). At paragraph 41 of those submissions it is asserted that:-
… a departure by the wife from the assumption that both parties made as to the terms of their financial agreement would be unconscionable. The equity which is sought to be invoked in this case is an equity which would give effect to the parties’ mutual intention.
But, both parties did not make an assumption based on their “financial agreement”. There was neither mutuality in the assumptions made about the terms of an agreement nor was there an agreement.
“The annexure” did not form part of any representation made by the wife by submission of the document signed by her. “The annexure” was, as I have found, material; it was central to the agreement and its purpose. The husband did not rely upon a representation by the wife as to the terms of an agreement; he acted upon different terms. What he relied upon were terms which he asserts. To respectfully adapt the words of Brennan J in Walton Stores, “it is only [if the wife induced the husband] to believe that he [the husband] is already bound and his freedom to withdraw has gone that it could be unconscionable for the wife to assert that [she] is subsequently free to withdraw.”
Put in a different way “…a party should not be estopped on an ambiguity and…the representation should be clear and unequivocal” and “a further limitation [on the application of estoppel] is that the assumption be one which was reasonably induced by the representation” [Meagher, Heydon, Leeming Equity Doctrines and Remedies, 4^th ed. at 551 citing, respectively, Legione v Hateley (1983) 152 CLR 406 at 453-7; Foran v Wight (1989) 168 CLR 385 at 410-11 and Australian Securities Commission v Marlborough Gold Mines (1993) 177 CLR 485 at 506].

It is submitted on behalf of the husband that: “the equity which is sought to be invoked in this case is an equity which will give effect to the parties’ mutual intention”; I have found there was not that mutuality of intention.
Plainly enough, similar considerations to those outlined by me above apply to the application of the doctrine of part performance.
In particular, the acts relied upon to found the operation of the doctrine must be in (part) performance of an agreement otherwise formed between the parties. Here there was no failure of formality in an agreement otherwise formed; there was, in my judgment, no agreement.

Summary and Conclusions

The parties do not have a valid, effective and enforceable “financial agreement”. The husband signed a document materially different to that signed by the wife. The wife never agreed to the husband’s terms which were materially different to those proposed by her in the signed document forwarded to the husband.
The wife did not receive a copy of the husband’s document until many years after the respective documents were signed by the parties. Ms A did not deliver a copy of (the husband’s) signed document as she swears that she did. The wife did not become aware of the husband’s (materially different) document until, most likely, she saw it appended to documentation filed by him in these proceedings.
Because there is no financial agreement between the parties, no issue arises as to whether any agreement between the parties is “binding” within the meaning of s 90G.
Accordingly, the court is not precluded from making Part VIII orders by reason of the application of s 71A of the Act and the wife’s application for financial relief can proceed.
In the event that I am wrong as to the conclusions just expressed then, by reference to the arguments of the parties, I conclude as follows.
Section 90G contemplates its requirements being met on one occasion at which the requirements for the making of a “binding” financial agreement all take place, including the giving of an original and a copy to the respective parties.
However, s 90G does not mandate that its requirements be met on one occasion.
The section requires both an original and a copy to be provided.
No form of “original” or “copy” is specified. Accordingly the section can be complied with by each party receiving an originally signed document one being clearly marked “original” and the other clearly marked “copy”. So, too, the section can be complied with by one party receiving an originally signed document and the other party receiving a photocopy of that signed document.
However, the “copy” received by the relevant party must be identical to the original – that is, it must contain on its face all of the matters required by s 90G. Accordingly a financial agreement cannot comply with s. 90G, and thus be binding, if it comprises signed counter parts.
The provision of the original and copy of the agreement “after the agreement is signed” as s 90G requires, incorporates an implied obligation that they be provided within a reasonable time of signature. What constitutes a reasonable time will depend upon the circumstances of the particular case.
There is a distinction within Part VIIIA between what might be regarded as “contractual requirements” necessary to create a valid, effective and enforceable agreement and “financial agreement”, and the requirements of s 90G. The latter requirements apply “strictly”, but only in respect of determining the question of whether an otherwise valid, effective and enforceable financial agreement invokes s 71A of the Act by reason of being “binding”
Section 90KA makes it clear that ordinary contractual and equitable principles have a role to play in “financial agreements”. However, that section’s role is confined to the “contractual requirements” of Part VIIIA, including the statute of frauds- type requirement which is contained in, relevantly, s 90B. Those “contractual requirements” differ from the s 90G requirements.
Part VIIIA evidences a clear social purpose “which provides protection for a particular class of persons, in the public interest (in which case the statutory prohibition and its consequences will not be capable of waiver)”. Accordingly equitable principles have no application in granting relief from non compliance with the section.
Section 90KA has no role to play with respect to s 90G and its requirements.
Estoppel cannot be raised in respect of non-compliance with s 90G.
In the facts and circumstances of this case, then, I conclude that neither s 71A, nor any principle of equity, precludes the wife from pursuing her claim in this court for Part VIII relief.
I order accordingly.

I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 3 September 2009