RESPONDENT. DEFENDANT, Damages-Breach of contract-Loss not assessable in money-Loss dependent on con-
tingency-Husband and wife-Agreement in composition of differences-Period of agreement limited-Wife to be permitted to remain in matrimonial home for one year-Husband not to take divorce proceedings within a year-D by wife of opportunity to effect reconciliation. Assignment of Chattels-Bill of sale-Power to seize property-Instruments Act 1928
(Vict.) (No. 3706), 8. 30.
By an agreement in writing between husband and wife, after reciting that the husband had made allegations against his wife and that the husband was not at present prepared to agree to a reconciliation but had agreed to permit the wife to remain in the matrimonial home and not to proceed for a divorce for a period of a year or until the wife should commit a matrimonial offence or be guilty of other conduct such as would revive a condoned offence, the husband agreed, subject to a proviso as to the wife's behaviour, for a period of a year to permit the wife to remain in the matrimonial home and to maintain her and not to take any proceedings for divorce. The wife brought an action against the husband claiming substantial damages for breach of the agreement in that he did not permit her to remain in the matrimonial home for a year and, in breach of what was claimed to be an implied condition of the agreement, he interrupted and adversely affected the peaceable and quiet occupation and enjoyment of the matrimonial home by her. She alleged by way of damage that she had been deprived of the opportunity (a) of being reconciled to the husband; (b) of a normal married life with the husband (c) of living with and being supported and maintained by the husband in a comfortable environ- ment during the rest of her life.
Held, by Starke, Dixon and McTiernan JJ. (Latham C.J. and Williams J. dissenting), that the claim must fail as to the damage alleged, because (by Starke J.) no such damage flowed from any breach alleged, the purpose of the agreement being to enable the husband to consider whether he would or would not forgive the wife, not to give her the opportunities of which she complained of having been deprived, (by Dixon and McTiernan JJ.) apart from nominal damages recoverable on proof of a breach of the agreement, the loss alleged was not one for which pecuniary compensation could be assessed.
Chaplin v. Hicks, (1911) 2 K.B. 786, discussed, Damages recoverable by a wife for breach by the husband of an agreement not to take divorce proceedings for a limited period considered.
What constitutes a "bill of sale
whereby the grantee or holder has power
to seize or take possession of any property," within the meaning of S. 30 of the Instruments Act 1928 (Vict.), discussed.
Decision of the Supreme Court of Victoria (Full Court) varied.
APPEAL from the Supreme Court of Victoria.
In an action in the Supreme Court of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Fink v Fink [1946] HCA 54
Case
[1946] HCA 54
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from an order of the Supreme Court of Victoria. The appellant, Mrs. Fink, had commenced an action against her husband, the respondent, Mr. Fink, claiming damages for breach of a written agreement. The agreement, entered into after marital discord, stipulated that Mr. Fink would permit Mrs. Fink to remain in the matrimonial home for one year and would not initiate divorce proceedings during that period, subject to certain conditions regarding Mrs. Fink's conduct. Mrs. Fink alleged that Mr. Fink had breached this agreement by not allowing her to remain in the home for the full year and by commencing divorce proceedings prematurely. She further claimed damages for the loss of opportunity for reconciliation, a normal married life, and financial support.
The central legal issues before the High Court were whether the damages claimed by Mrs. Fink for the loss of opportunities were recoverable, and whether certain paragraphs of her statement of claim, particularly those relating to an alleged implied term of peaceful occupation and enjoyment of the matrimonial home, and those concerning the assignment of chattels, were properly struck out by the lower courts. The court also considered whether an assignment of chattels within the agreement constituted a bill of sale requiring registration under Victorian legislation.
A majority of the High Court (Starke, Dixon, and McTiernan JJ.) held that while nominal damages might be recoverable for a proven breach of the agreement, the substantial damages claimed by Mrs. Fink for the loss of opportunities for reconciliation and a normal married life were not assessable in monetary terms and therefore not recoverable. They reasoned that the purpose of the agreement was to provide a period for Mr. Fink to consider reconciliation, not to guarantee Mrs. Fink the specific opportunities she claimed to have lost. The court also found that the alleged implied term regarding peaceful occupation was either redundant or not a necessary implication to give efficacy to the contract. Furthermore, the court upheld the striking out of claims related to the assignment of chattels, finding that a subsequent agreement acknowledged the husband's possession and that the initial assignment, even if considered a bill of sale, was not void for want of registration in the circumstances. Latham C.J. and Williams J. dissented, finding that the loss of the opportunity for reconciliation, given the special circumstances and the wife's transfer of property, was a recoverable head of damage.
The High Court varied the order of the Supreme Court of Victoria by allowing certain paragraphs of the statement of claim to stand, but ultimately dismissed the appeal, upholding the decision that the substantial damages claimed for loss of opportunity were not recoverable. The court also varied the order concerning the chattels, confirming that claims relating to specific items acknowledged in a subsequent agreement were to be struck out.