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Hadden and Pendle

Hadden and Pendle

Case [2017] FCCA 1610 11 July 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

HADDEN & PENDLE

[2017] FCCA 1610

Catchwords:
FAMILY LAW – Property – a prenuptial agreement between the parties – whether a financial agreement – whether it should be set aside – whether it is binding under the Act.

Legislation:

Family Law Act 1975, ss.90B, 90G, 90K, 90KA

Cases cited:

Kostres v Kostres (2009) FLC 93-420
Saintclaire & Saintclaire [2013] FamCA 491
Senior & Anderson [2011] FamCAFC 129
Australian Woollen Mills Pty Limited v The Commonwealth (1954) 92 CLR 424
Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Petelin v Cullen (1975) 132 CLR 355
Johnson v Buttress (1936) 56 CLR 113
Weldon v Asher [2014] FCWA 11
Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1997] FCA 1107
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Yerkey v Jones (1939) 63 CLR 649
Pascot & Pascot [2011] FamCA 945
Bilal & Omar [2015] FamCAFC 30
Jones & Dunkell (1959) 101 CLR 298

Gaskell v Denkas Butchery Services Pty Ltd (2008) NSWCA 35
Manly Council v Byrne [2004] NSWCA123

Applicant:

MS HADDEN

Respondent:

MR PENDLE

File Number:

SYC 3338 of 2014

Judgment of:

Judge Kemp

Hearing dates:

27, 28, 29 & 30 June 2016

Date of Last Submission:

24 February 2017

Delivered at:

Sydney

Delivered on:

11 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr Santisi

Solicitors for the Applicant:

Goh Lawyers

Counsel for the Respondent:

Ms Christie

Solicitors for the Respondent:

Sarah Bevan Family Lawyers

THE COURT DECLARES THAT:

The agreement between the husband and the wife, as set out in the document dated 21 July 2011, is a financial agreement between the parties for the purpose of s.90B of the Family Law Act 1975 (“the Act”), but is not binding pursuant to the provisions of s.90G of the Act.

THE COURT ORDERS THAT:

The matter be listed for further directions on 13 October 2017 at 9:30am in respect of the wife’s property application, pursuant to s 79 of the Act.

IT IS NOTED that publication of this judgment under the pseudonym Hadden & Pendle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3338 of 2014

MS HADDEN

Applicant

And

MR PENDLE

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Ms Hadden (“the wife”) filed on 2 June 2014, seeking to set aside a financial agreement between Mr Pendle (“the husband”) and the wife, as set out in a document dated 21 July 2011 (“the subject document”) (Exhibit “4” as the original and Exhibit “Court 1”, being a copy thereof), pursuant to the provisions s.90K(1)(b), (d) or (e) of the Family Law Act 1975 (“the Act”). An additional ground under s.90K(1)(a) of the Act was added during the course of the hearing and the parties’ submissions.
The wife also seeks orders pursuant to s.90K(3) of the Act or, in the alternative, pursuant to s.79 of…

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 Hadden and Pendle

Details

AGLC: Hadden and Pendle [2017] FCCA 1610
Case: [2017] FCCA 1610
Decision Date: 11 July 2017

CaseChat Overview and Summary

In the matter of Hadden and Pendle, heard before Judge Kemp, the dispute concerned a property application brought by the wife pursuant to section 79 of the *Family Law Act 1975* (Cth).

The court was required to determine the appropriate listing for further directions in relation to the wife's property application.

The court ordered that the matter be listed for further directions on 13 October 2017 at 9:30 am.

Orders

Orders of the court

The matter be listed for further directions on 13 October 2017 at 9:30am in respect of the wife’s property application, pursuant to s 79 of the Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Hadden and Pendle [2017] FCCA 1610

Most Recent Citation

Stanojevic v Damnjanovic [2024] VSC 350

Cases Citing This Decision

Stanojevic v Damnjanovic [2024] VSC 350
Citation 1 (Para 1)

…r, for the reasons given above, I am not satisfied this was sufficient to ameliorate Svetozar’s vulnerability. [40]See for example, Hadden v Pendle [2017] FCCA 1610, [118]; Ribchenkov v Suncorp-Metway Ltd (2000) 175 ALR 650, 662-666. However, such advice does not necessarily rebut the inference, see Stubbings (n 14…

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Cases Cited

Bilal & Omar [2015] FamCAFC 30
Citation 1 (Para 13)

…t is satisfied that the wife has given evidence which rebuts the prima facie position standing on the face of Mr D’s certificate, see: Bilal & Omar [2015] FamCAFC 30.…
WELDON and ASHER [2014] FCWA 11
Citation 2 (Para 2)

…In Weldon v Asher [2014] FCWA 11, Thackray CJ stated at paragraph 102: “For present purposes, I am prepared to proceed on the basis that the claim of duress would be made out in the event it were to be established that [a party] applied pressure that was ‘illegitimate’”.…
Saintclaire & Saintclaire [2013] FamCA 491
Citation 3 (Para 3)

…In Saintclaire & Saintclaire [2013] FamCA 491, Ryan J suggested that the following questions provided the appropriate pathway in a case such as this: 1. Is there a financial agreement? 2. If the answer is affirmative, should that agreement be set aside? 3. If the answer is negative, is the agreement binding?…
Pascot & Pascot [2011] FamCA 945
Citation 4 (Para 3)

…Ryan J considered in Saintclaire s.90K(1)(d) of the Act and applied the test formulated by Le Poer Trench J in Pascot & Pascot [2011] FamCA 945. Ryan J said (at paragraph 119): His Honour formulated the test thus: For the purposes of section 90K(1), it would be useful to adopt the test in the following terms: a) Th…
Senior & Anderson [2011] FamCAFC 129
Citation 5 (Para 4)

….90D) and agreements which are binding financial agreements (s.90G) (see paragraph 74 of Saintclaire per Ryan J and paragraph 94 of Senior & Anderson [2011] FamCAFC 129 per Strickland J).…
Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42
Citation 6 (Para 10)

…mercial sphere, as the Democrat amendment intended. (Lady Hale in her dissenting judgment in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 identified, at [135], the competing arguments and concluded, in effect, that it is for Parliament to determine where the line is to be drawn. Her Ladyship also wen…
Garcia v National Australia Bank Ltd [1998] HCA 48
Citation 7 (Para 6)

…In Garcia v National Australia Bank Ltd (1998) 194 CLR 395, the High Court of Australia held that the law of unconscionability, as established in Commercial Bank of Australia v Amadio , did not disturb the rule in Yerkey v Jones (1939) 63 CLR 649, and instead, both of those were considered as distinct doctrines. Gaud…
Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1997] FCA 1107
Citation 8 (Para 3)

…Mr Santisi has referred the Court to the decision of Davies J in Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1997] FCA 1107 where his Honour said: “To vitiate consent, the duress or compulsion must be of such a nature, illegitimate or unconscionable, as of itself to vitiate consent. The equitable pri…
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14
Citation 9 (Para 2)

…greement engaged in conduct that was, in all the circumstances, unconscionable in the circumstances outlined in Commercial Bank of Australia v Amadio (1983) 151 CLR 447.…
Petelin v Cullen [1975] HCA 24
Citation 10 (Para 4)

…In Petelin v Cullen (1975) 132 CLR 355, the High Court of Australia considered that the doctrine of non est factum is available to those who, through no fault of their own, are unable to have an understanding of the purport of a particular document, however, a party seeking to rely upon that doctrine has a heavy burd…
Jones v Dunkel [1959] HCA 8
Citation 11 (Para 15)

…The wife submits that a Jones & Dunkell (1959) 101 CLR 298 inference should be made against the husband, that is, that the failure to call Mr D would not have assisted his case. The Court is of the view that an adverse inference arising from a parties’ failure to call a witness would only be drawn in circumstances wh…
Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20
Citation 12 (Para 4)

…ng a deed is that there is no requirement for consideration for a promise made in a deed: see Australian Woollen Mills Pty Limited v The Commonwealth (1954) 92 CLR 424.…
Johnson v Buttress [1936] HCA 41
Citation 13 (Para 6)

…n order to have her sign the subject document. Dixon J explains the elements that must be met in proving actual undue influence in Johnson v Buttress (1936) 56 CLR 113 at page 134 as follows: “…facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor…
Yerkey v Jones [1939] HCA 3
Citation 14 (Para 6)

…ustralia held that the law of unconscionability, as established in Commercial Bank of Australia v Amadio , did not disturb the rule in Yerkey v Jones (1939) 63 CLR 649, and instead, both of those were considered as distinct doctrines. Gaudron, McHugh, Gummow and Hayne JJ held, in Garcia , that the rationale of Yerke…
FamCAFC 151 and Hoult & Hoult [2013] FAMCAFC 109
Citation 15 (Para 4)

…financial agreement between the parties and, further, that such an agreement is binding pursuant to the provisions of s.90G of the Act: Hoult & Hoult [2013] FamCAFC 109.…
[1962] AC 600 [1962] AC 600
Citation 16 (Para 10)

…r adjusting any contract between competent persons when it shows a rough edge to one side or the other” (Bridge v Campbell Discount Co. Ltd [1962] AC 600 at 626). However, given what I perceive to be the manifest differences in factors underpinning commercial contracts and those underpinning agreements between p…

Legislation Cited

Family Law Act 1975 (Cth) 90B, 90G, 90K, 90KA
5 mentions (from Para 1)
Conveyancing Act 1919 (ACT)
1 mention (from Para 2)
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Federal Circuit Court of Australia Act 1999 (Cth)
1 mention (from Para 8)
Federal Circuit Court Rules 2001 (Cth)
1 mention (from Para 8)