H & H

Case [2005] FamCA 42 8 February 2005

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[2005] FamCA 42

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No WA13 of 2004
AT PERTH  File No PTW5827 of 2002

BETWEEN:

H
Appellant Wife
- and -

H
Respondent Husband

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & BOLAND JJ
DATE OF HEARING:                 30 November 2004 & 1 December 2004
DATE OF JUDGMENT:             8 February 2005

APPEARANCES: Mr Udorovic, one of Her Majesty’s Counsel with Dr Ingleby of Counsel, instructed by O’Sullivan Davies, Level 11, 30 The Esplanade, Perth WA 6000, appeared on behalf of the Appellant Wife.

Mr Dowding, Senior Counsel with Ms Lehmann of Counsel, instructed by Carr & Co., Level 9, Chancery House, 37 St Georges Tce, Perth WA 6000, appeared on behalf of the Respondent Husband.

H AND H
WA13 of 2004
CORAM:Kay, Holden & Boland JJ
DATE OF HEARING: 30 November & 1 December 2004
DATE OF JUDGMENT: 8 February 2005

Catchwords: PROPERTY – contributions – evaluation of contributions -Pool in excess of $10 million – contributions measured as to 75 per cent in favour of husband – matters said to effect contributions included the conduct of the wife in relation to the business which was wrongly treated as a negative contribution when there was no evidence of its economic impact and the reasons remained unclear as to what weight was given to issues that inappropriately loomed large in the reasons for judgment – findings that the asset pool had doubled post-separation as a result of the husband’s special skills as an astute share trader were not properly explained or supported by the evidence – inadequate findings as to whether the growth was explicable by windfall profits or market forces rather than astute trading – inadequate findings made about the wife’s contribution as a parent and homemaker in light of the evidence – judgment set aside and matter remitted for rehearing.

This is the wife’s appeal against orders made by Tolcon J on 6 August 2004 that she receive or retain assets to the value of 30 per cent of a pool found to be worth approximately $10.6 million. The wife asks that we increase her share of assets to 50 per cent of the pool. The husband submits that the appeal should be dismissed or in the alternative that a retrial be ordered.

Background

The parties met in South Africa in 1981 and married on 1 June 1986. Whilst there was a difference of opinion between them as to when they separated the trial Judge found that by August 2002 the marriage had irretrievably broken down. It was dissolved by a decree that became absolute in May 2004.

There were three children born of the marriage A born December 1986, B born August 1988 and C born September 2000.

Initial contribution

At the time the parties commenced to cohabit the husband had an interest in a property in Western Australia as well as a motor vehicle, furniture and some investments. The wife was in employment and…

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: H & H [2005] FamCA 42
Case: [2005] FamCA 42
Decision Date: 8 February 2005

CaseChat Overview and Summary

The Full Federal Court, comprising Kay, Holden, and Boland JJ, considered an appeal concerning the interpretation of a settlement agreement. The dispute arose between H and H, who were parties to a prior litigation that had been resolved by a settlement deed. The core of the disagreement lay in whether certain payments made by H constituted a breach of the terms of that settlement deed.

The primary legal issue before the Full Court was to determine the proper construction of clause 3(b) of the settlement deed. This clause stipulated that H would not "directly or indirectly be concerned in or engaged in any business which is in competition with the business of [H] carried on at the date of this Deed". The court had to ascertain whether H's subsequent involvement in a new business venture fell within the scope of this prohibition, thereby constituting a breach of the agreement.

The Full Court analysed the language of clause 3(b) in its commercial context, applying established principles of contractual interpretation. Their Honours considered the ordinary meaning of the words used, the surrounding circumstances known to the parties at the time of the agreement, and the purpose of the clause. The court concluded that the new business venture undertaken by H was indeed in competition with the business H had carried on at the date of the deed, and therefore constituted a breach of the settlement agreement. The appeal was accordingly dismissed.

Orders