Ford v Henry - [2009] NSWSC 147

CITATION: Ford v Henry [2009] NSWSC 147

HEARING DATE(S): 27 February 2009

JUDGMENT DATE :
13 March 2009

JURISDICTION: Equity

JUDGMENT OF: Austin J

DECISION: Declaration that agreement is valid and binding; declaration as to beneficial interests of parties; orders for trust for sale; cross-claim dismissed.

CATCHWORDS: CONTRACT - parties to terms of settlement intend to obtain consent orders - intention later abandoned - whether intention to be contractually bound - whether grounds for orders under Contracts Review Act - FAMILY LAW AND CHILD WELFARE - de facto relationships - termination agreement - whether binding - whether solicitors' certificates complied with s 47 - consequences of non-compliance

LEGISLATION CITED: Contracts Review Act 1980 (NSW) ss 7, 9
Property (Relationships) Act 1984 (NSW), ss 14, 17, 18, 20, 21, 44, 46, 47, 48
Property (Relationships) Regulation 2005 (NSW), Form 3

CATEGORY: Principal judgment

PARTIES: Debra Anne Ford (Plaintiff/Cross-Defendant)
George Francis Henry (Defendant/Cross-Claimant)

FILE NUMBER(S): SC 5854/07

COUNSEL: T J Morahan (Plaintiff/Cross-Defendant)
E Cohen (Defendant/Cross-Claimant)

SOLICITORS: Hozack Clisdell Lawyers (Plaintiff/Cross-Defendant)
Nicholl & Co (Defendant/Cross-Claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 13 MARCH 2009

5854/07 DEBRA ANNE FORD V GEORGE FRANCIS HENRY

JUDGMENT

1 HIS HONOUR: By a summons filed on 5 December 2007, the plaintiff (Ms Ford) seeks relief designed to enforce, as a contract, a document signed by the parties entitled "Terms of Settlement" dated 2 September 2005. Ms Ford seeks a declaration that the agreement reached between the parties and evidenced by that document is a valid and binding agreement. (The summons adds the words "pursuant to section 56 of the Property (Relationships) Act 1984 (NSW)" but the parties agreed at the hearing that that reference was nonsensical and that the claim to relief should be treated as a claim for a declaration of the validity of the contract generally.) Ms Ford also seeks a declaration that she and the defendant, Mr Henry, are beneficially entitled to a property at Jeremadra ("the Property") in the shares of 60% to Mr Henry and 40% to her, and orders for the appointment of trustees for sale. The proposed trustees have consented to that appointment.

2 Mr Henry has filed a cross-claim seeking a declaration that the alleged agreement is not a valid and binding termination agreement under the Property (Relationships) Act 1984 (NSW) ("the PR Act") and in the event that the court determines that the agreement is a valid termination agreement under that Act, relief under the Contracts Review Act 1980 (NSW) ("the CR Act") by way of an order that the agreement is wholly void. Grounds for this relief are pleaded and I shall consider them later in these reasons for judgment.

Background facts

3 Ms Ford and Mr Henry commenced a relationship in about 1995. She is about 45 years of age and he is about 37. There have been two children of the relationship, a girl called Shannon born in September 1997, who is now deceased, and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ford v Henry

Details

AGLC: Ford v Henry [2009] NSWSC 147
Case: [2009] NSWSC 147
Decision Date: 13 March 2009

CaseChat Overview and Summary

The dispute in Ford v Henry involved a disagreement between two parties regarding the enforceability of a settlement agreement. The case was heard in the Family Court of Australia. The primary issue the court had to determine was whether the parties intended to be contractually bound by the terms of a settlement agreement that was later abandoned. Additionally, the court considered whether the solicitors' certificates regarding the agreement complied with section 47 of the Family Law Act, and if non-compliance affected the enforceability of the agreement.

The court examined the intention of the parties at the time the settlement agreement was made. It considered the circumstances surrounding the drafting and signing of the agreement, including whether there was an intention to obtain consent orders and whether this intention was later abandoned. The court also analysed the provisions of the Contracts Review Act and whether they applied to the case. In terms of the Family Law Act, the court reviewed whether the solicitors' certificates complied with section 47, and if non-compliance was a ground for setting aside the agreement.

The court found that the parties did intend to be contractually bound by the terms of the settlement agreement, despite the later abandonment of the intention to obtain consent orders. The court held that the solicitors' certificates did not comply with section 47 of the Family Law Act, but this non-compliance did not affect the enforceability of the agreement. Consequently, the court ruled that the agreement was binding on the parties.

The court made orders enforcing the settlement agreement and directed the parties to comply with its terms. The court also made findings regarding costs and any other matters that were before it.

Orders