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Grant v Grant

Grant v Grant

Case [2012] NSWSC 725 28 June 2012

Specific Performance

Contract Formation

Unconscionable Conduct

Res Judicata

Fiduciary Duty

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725
Hearing dates: 10 May 2012
Decision date: 28 June 2012
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Wife entitled to specific performance of heads of agreement

Catchwords: FAMILY LAW AND CHILD WELFARE - The Family Law Act 1975 (Cth) and Related Legislation - breakdown of marriage - husband brought equity suit for declaratory and other relief with respect to the property of the parties - settled by heads of agreement with deed to follow during mediation - husband refused to execute deed - wife sought specific performance - whether in 1st or 3rd category under Masters v Cameron - maintenance agreement but not a financial agreement - whether s 86A of the Family Law Act rendered it unenforceable - whether validated by s 29(1) of the Civil Procedure Act 2005 - whether maxim that equity will not allow a statute to be used as a cloak for fraud applied
Legislation Cited: Family Law Act 1975 (Cth)
Civil Procedure Act 2005
Statute of Frauds 1677 (29 Car II c 3)
Cases Cited: Masters v Cameron (1954) 91 CLR 353
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Cacace v Bayside Operations Pty Ltd [2006] NSWSC 572
Kostres v Kostres [2009] FamCAFC 22; (2009) 42 Fam LR 336
Maddison v Alderson (1883) 8 App Cas 467
Frame v Dawson (1807) 14 Ves 386 at 387; (1807) 33 ER 569
Nelson v Nelson (1995) 184 CLR 538;
Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215
Ash Street Properties Pty Ltd v Pollnow (1987) 9 NSWLR 80
Dent v Moore (1919) 26 CLR 316
Texts Cited: Meagher, Gummow and Lehane's Equity Doctrines & Remedies, 4th ed (2002), Butterworths LexisNexis
Category: Principal judgment
Parties: Merle Gwynneth Grant (Plaintiff)
Alan Grant (Defendant)
Representation: Counsel:
J Steele (Plaintiff)
F Assaf (Defendant)
Solicitors:
Lockhart Quinn & Co (Plaintiff)
Jackson Lalic Solicitors (Defendant)

File Number(s): SC 2011/366638

Judgment

The plaintiff, Merle Gwynneth Grant, and the defendant, Alan Grant, are an elderly married couple. Mrs Grant seeks orders to give effect to a settlement agreement reached in mediation.

Dr Grant brought proceedings against the NSW Registrar General of Lands and Mrs Grant in the Equity Division of this court seeking an injunction restraining the Registrar General from registering any transfer severing joint tenancy on the application of Mrs Grant in respect to three properties. He sought a declaration that Mrs Grant held a portion of her undivided share in the joint tenancy in the properties on trust for him in a percentage to be determined by the court, and a declaration that Mrs Grant held two other properties on trust for him in a percentage to be determined by the court.

In the alternative, Dr Grant sought orders that the properties be subject to orders under the Family Law Act 1975 (Cth), s 78 and s 79.

The former section empowers the court…

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 Grant v Grant

Details

AGLC: Grant v Grant [2012] NSWSC 725
Case: [2012] NSWSC 725
Decision Date: 28 June 2012

CaseChat Overview and Summary

The case of Grant v Grant involved a dispute between the husband and wife concerning their property following the breakdown of their marriage. The husband had initiated an equity suit seeking declaratory and other relief regarding the parties' property. The case was settled by way of heads of agreement, with a deed to be executed during mediation. However, the husband refused to execute the deed, prompting the wife to seek specific performance of the agreement. The central legal issues were whether the maintenance agreement fell into the first or third category under Masters v Cameron, whether the agreement was enforceable despite section 86A of the Family Law Act 1975, and whether the agreement was validated by section 29(1) of the Civil Procedure Act 2005. Additionally, the court considered whether the maxim that equity would not allow a statute to be used as a cloak for fraud applied.

The court determined that the maintenance agreement was not a financial agreement as defined in section 4 of the Family Law Act, and thus was not subject to the prohibitions in section 86A. The court also found that the agreement was not invalid under section 29(1) of the Civil Procedure Act. The court held that the husband's refusal to execute the deed constituted a breach of the agreement, and that the wife was entitled to specific performance. The court rejected the husband's argument that the application of the maxim that equity would not allow a statute to be used as a cloak for fraud rendered the agreement unenforceable.

The final orders of the court were that the husband was directed to execute the deed, and that the wife was entitled to an order for specific performance of the agreement. The husband was also ordered to pay the wife's costs of the proceedings. The court's decision emphasised the importance of upholding the terms of agreements reached during mediation, and the role of equity in enforcing such agreements where necessary.

Orders