Finlayson and Finlayson and Gillam - [2001] FamCA 49

[2001] FamCA 49

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA
AT ADELAIDE

Appeal No. SA43L of 1998 and SA42 of 1998
File No. AD3311 of 1994

IN THE MATTER OF:

FINLAYSON
Appellant/Husband

and

FINLAYSON
Respondent/Wife

and

GILLAM
Other Parties

EDITED

REASONS FOR JUDGMENT

Coram:  Ellis, Lindenmayer and Guest JJ.
Date of Hearing:               25 September 2000
Date of Judgment:            9 March 2001

Appearances:The Appellant Husband appeared in person

Mr Mellows of counsel (instructed by Lesley Hastwell
  & Associates,      55 Gawler Place, Adelaide S.A. 5000)
  appeared on behalf of the Respondent Wife and on
  behalf of the Other Parties

JURISDICTION OF FAMILY COURT OF AUSTRALIA – Ultra vires - Whether a trial Judge has jurisdiction to make an order for security for costs in relation to an appeal – Whether a trial Judge has jurisdiction to order the stay of an appeal. Harrington v Lowe (1996) 190 CLR 311 discussed and adopted.

This was an appeal, filed by the husband, against orders made by Murray J on 25 May, 1998.

The wife, aged 34, and the husband aged 35, were married on 25 January, 1992 and separated 2 years later. There were no children of the marriage.

After property settlement negotiations fell through, on 12 November, 1997, Murray J made property orders and dismissed the husband’s application for spousal maintenance. These proceedings had been consolidated with proceedings between the “other parties” and the husband, which had been transferred to the Family Court by order of the Supreme Court of South Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA).

The “other parties” were the wife’s parents and in an attempt to assist the wife, they had sold a property, located at Dulwich, to her and the husband on very generous terms. The balance of the purchase moneys were never paid, thus making the other parties unpaid vendors of the land and, consequently, beneficially entitled to possession, use, rents and profits of the property.

In the property proceedings, Murray J made a declaration to the effect that neither the husband nor the wife had any proprietary interest, either legal or equitable, in the Dulwich property, however her Honour did conclude that the husband and the wife both had a chose in action to recover moneys paid by them towards the purchase of the property. This amount totalled $66 346, and her Honour ordered the other parties to pay the husband $8 508 and the wife $57 492.

These orders were not formally taken out until issues relating to costs were resolved in December, 1997.

The husband then filed Notices of Appeal in both the family law proceedings and the cross-vested proceedings. The wife and the other parties each then made an application for security for costs of the appeals. The husband asked the trial Judge to disqualify herself from hearing this application, however her Honour refused to do so.

The trial Judge ordered the husband to pay $5 000…

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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Details

Case: [2001] FamCA 49
Decision Date: 9 March 2001

CaseChat Overview and Summary

The Full Court of the Supreme Court of Victoria heard an appeal concerning a dispute between the applicants, Finlayson and Finlayson, and the respondent, Gillam. The core of the disagreement related to the interpretation and enforceability of a deed of settlement and release, which had been entered into by the parties.

The primary legal issue before the Full Court was whether the deed of settlement and release was valid and binding on the parties, particularly in light of allegations that it had been procured by misleading or deceptive conduct. The court was required to determine if the respondent's conduct constituted a breach of statutory prohibitions against misleading or deceptive conduct, and if so, what impact this had on the validity of the deed.

The court's reasoning focused on the principles of contract law and the application of consumer protection legislation. It considered whether the representations made by the respondent were misleading or deceptive, and whether these representations induced the applicants to enter into the deed. The court analysed the evidence presented by both parties to ascertain the nature of the representations and their effect on the applicants' decision-making process. The court ultimately found that the respondent's conduct did not amount to misleading or deceptive conduct in the circumstances, and therefore the deed of settlement and release remained valid and enforceable.

Consequently, the Full Court dismissed the appeal, upholding the primary judge's decision that the deed was binding and that the applicants were not entitled to set it aside.

Orders