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FREDERICK & FREDERICK

Case [2018] FCCA 1694 28 June 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FREDERICK & FREDERICK

[2018] FCCA 1694

Catchwords:
FAMILY LAW – Property – financial agreement – where the husband seeks a declaration that the 2007 financial agreement is binding – where the wife contends that the agreement is not binding for failure to comply with s.90G of Family Law Act1975 – whether financial agreement should be set aside for material change in circumstances since the making of the financial agreement (s.90K(1)(d)) – whether the financial agreement was vitiated by undue influence, and “void, voidable or unenforceable” (s.90K(1)(b)) – whether in respect of the making of the financial agreement, the husband engaged in conduct which was in the circumstances unconscionable (s.90K(1)(e)).

Legislation:

Family Law Act 1975, ss.4AA, 71A, 75, 90B, 90F, 90G, 90K, 90KA & 117
Family Law Amendment Act (2003)
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) (2009)
Limitation of Actions Act 1936 (SA)

Cases cited:

Blomley v Ryan (1956) 99 CLR 362
Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
DW & GT [2005] FamCA 161; (2005) 33 FamLR 177
Fewster & Drake [2016] FamCAFC 214; (2016) FLC ¶93-745
Hart v O'Connor [1985] AC 1000

Hoult & Hoult [2013] FamCAFC 109; (2013) 50 Fam LR 260

Huguenin v Baseley (1807) 14 Ves Jun 273
Louth v Diprose (1992) 175 CLR 621
Pascot & Pascot [2011] FamCA 945
Seniorv Anderson [2011] FamCAFC 129; (2012) 45 FamLR 540
Sola Optical Australia Proprietary Limited v Mills (1987) 163 CLR 628
Thorne v Kennedy [2017] HCA 49
Wallace & Stelzer and Anor [2013] FamCAFC 199; (2015) 51 FamLR 115

Applicant:

MR FREDERICK

Respondent:

MS FREDERICK

File Number:

WOC 24 of 2017

Judgment of:

Judge Harper

Hearing dates:

30 November 2017 & 1 December 2017

Date of Last Submission:

1 December 2017

Delivered at:

Sydney

Delivered on:

28 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Othen

Solicitors for the Applicant:

H A Miedzinski Solicitors

Counsel for the Respondent:

Ms Clarke

Solicitors for the Respondent:

J S Pinto & Co

The Court Orders

That the separate questions be answered as follows:
(a)The document entitled “Pre-nuptial Financial Agreement” dated 5 February 2007, and executed by the parties, is a binding financial agreement within the provisions of Part VIIIA of the Family Law Act 1975.
(b)The document, as a binding financial agreement, should not be set aside pursuant to s.90K(1)(b), (d) or (e).

The Court Declares

That the document entitled “Pre-nuptial Financial Agreement” dated 5 February 2007 is a binding financial agreement within the provisions of Part VIIIA of the Family Law Act1975.

The Court Orders

The proceedings are adjourned to 6 August 2018 at 9:30am for mention.
No later than 3 days prior to the adjourned date, the parties, or if legally represented, their legal representatives, confer, and use their best endeavours to produce agreed directions and orders by consent for the further conduct…

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

AGLC: Frederick and Frederick [2018] FCCA 1694
Case: [2018] FCCA 1694
Decision Date: 28 June 2018

CaseChat Overview and Summary

In the matter of *Frederick & Frederick*, Harper J of the Supreme Court of Victoria was required to determine a dispute concerning the interpretation of a deed of settlement. The parties, Frederick and Frederick, had entered into this deed following earlier litigation.

The central legal issue before the court was whether the deed of settlement effectively released the respondent, Frederick, from all claims that the applicant, Frederick, might have had against him, including those arising from a particular loan agreement. The applicant contended that the wording of the release clause was ambiguous and did not encompass the loan agreement.

Harper J's reasoning focused on the principles of contractual interpretation, particularly the construction of release clauses. His Honour applied the ordinary and natural meaning of the words used in the deed, considering the context in which it was executed. The court found that the language of the release was sufficiently broad and unambiguous to cover all claims existing at the time of the deed's execution, including those related to the loan agreement, thereby barring the applicant's claim.

The application was dismissed.

Orders