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Hibberson v George

Hibberson v George

Case [1989] NSWCA 100 13 February 1989

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Civil Procedure

Negligence & Tort

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HIBBERSON v GEORGE [1989] NSWCA 100
Decision date: 13 February 1989

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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: Hibberson v George [1989] NSWCA 100
Case: [1989] NSWCA 100
Decision Date: 13 February 1989

CaseChat Overview and Summary

In *Hibberson v George*, the New South Wales Court of Appeal considered a dispute between the parties concerning a contract for the sale of land. The appellant, Hibberson, was the vendor and the respondent, George, was the purchaser. The core of the disagreement revolved around the interpretation of a special condition within the contract of sale.

The primary legal issue before the Court of Appeal was whether the special condition, which stipulated that the sale was subject to the purchaser obtaining finance on terms satisfactory to the purchaser, had been validly satisfied or waived by the purchaser. The Court was required to determine the legal effect of the purchaser's actions and communications in relation to the finance condition.

The Court reasoned that the special condition imposed an obligation on the purchaser to take reasonable steps to obtain finance. However, it also conferred a discretion upon the purchaser to determine whether the terms of any finance obtained were satisfactory. The Court found that the purchaser had not acted unreasonably in their efforts to obtain finance and that their dissatisfaction with the terms offered was genuine. Consequently, the condition had not been satisfied, nor had it been waived by the purchaser's conduct. The appeal was dismissed.

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Citations

Hibberson v George [1989] NSWCA 100

Most Recent Citation

H, R T v E, C K [2009] SADC 76

Cases Citing This Decision

91

Prem v Surma [2024] WASC 308
Citation 1 (Para 3)

…and for the purposes of this application, Ms Prem's account on oath as to the circumstances in which moneys were transferred provided that link. [32] Hibberson v George (1989) 12 Fam LR 725; Green v Green (1989) 17 NSWLR 343, 369; Miller v Sutherland (1990) 14 Fam LR 416; Re Sabri; Ex parte Brien v Australia & New Zealand B…
Nguyen v Australian Financial Complaints Authority [2024] FCAFC 77
Citation 2 (Para 11)

…lationship—for example, desertion (as in In the Marriage of Tye (1976) 9 ALR 529 (Emery J)), unilateral relocation with children (as in Hibberson v George (1989) 12 Fam LR 725 (Hope, Mahoney and McHugh JJA)), refusal to cohabitate (as in S v S [2000] FMCAfam 50 (Brewster FM)), or refusal to communicate otherwise than in wri…
GFR v SRP [2024] TASFC 2
Citation 3

…nsel for the appellant relied on a number of decisions of appellate courts in other States in relation to the cessation of de facto relationships. In Hibberson v George (1989) 12 FamLR 725, the New South Wales Court of Appeal had to decide whether a couple's de facto relationship was subsisting when the De Facto Relationshi…
B v M [2024] WASCA 34
Citation 4 (Para 5)

…ested in the present case, to enable the one party or the other to decide whether it should continue.[133] (emphasis added) [132] H v P [57]. [133] Hibberson v George (1989) 12 Fam LR 725, 740.…
Corbisieri v NM Superannuation Proprietary Limited [2023] FCA 1319
Citation 5 (Para 25)

…on to sever a de facto relationship is not necessary, citing, among other cases, In the Marriage of Tye (1976) 9 ALR 529; [1976] 1 Fam LR 11,235; and Hibberson v George (1989) 12 Fam LR 725 at 740.…
Sheen v Hesan [2023] NSWSC 468
Citation 6

…SWCA 10 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hibberson v George (1989) 12 Fam LR 725; [1989] NSWCA 100 Howland v Ellis [2001] NSWCA 456 Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 Hunter v Hunter (1987) 8 NSWLR 573 In the Estate of the late Marras [2014] NSWSC 915 Indjic…
NSW Trustee and Guardian v Togias [2022] NSWCA 225
Citation 7

…of Appeal, 20 August 1996) Engwirda v Engwirda [2000] QCA 61 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Green v Green (1989) 17 NSWLR 343 Hibberson v George (1989) 12 Fam LR 725 Hill v Love (2018) 53 VR 459; [2018] VSC 29 Lloyd v Tedesco (2002) 25 WAR 360; [2002] WASCA 63 Miller v Sutherland (1990) 14 Fam LR 416…
Re Gdanski; McLaren v Gdanski [2022] VSC 565
Citation 8 (Para 1)

…nship’ exists between two people is a question of fact. Whether it has broken down, or no longer exists, is also a question of fact.[68] [68] Hibberson v George (1989) 12 Fam LR 725.…
Sun v Chapman [2022] NSWCA 132
Citation 9 (Para 65)

…any communication of a separation by the deceased to [her]”. That is undoubtedly a relevant circumstance and, in some cases, might be decisive ( Hibberson v George (1989) 12 Fam LR 725 at 740). But it is not determinative.…
Pollock v NSW Trustee & Guardian [2022] NSWSC 923
Citation 10 (Para 441)

…It is important to note that Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740; [1989] NSWCA 100 added a reference to, “in that sense keeps apart”.…
Cleese & Colburn [2022] FedCFamC1F 282
Citation 11 (Para 9)

…h intention is not required and, in many cases, is not present, where such an intention can be identified, it can be telling. 30.In Hibberson v George (1989) 12 Fam LR 725 at 740, Mahoney JA said in relation to the De Facto Relationships Act 1984 (NSW): … The essence of the present relationship lies, not in law, but in a de…
G v O [2022] WASCA 23
Citation 12 (Para 3)

…B referred to by Murphy JA, Dutney J, with whom McPherson and Williams JJA relevantly agreed, referred to a passage in the judgment of Mahoney JA in Hibberson v George (1989) 12 FAM LR 725, 739 - 740 where Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows: 'There is, of course,…
Hansen v Noble [2021] NSWSC 138
Citation 13

…lationship or failure of their joint endeavour. I do not consider that the principles established in Baumgartner v Baumgartner and applied in Hibberson v George (1989) 12 Fam LR 725 apply directly in this case. I turn to the claim based on a “common intention” constructive trust. … [46] A constructive trust in different pro…
RADECKI & FAIRBAIRN [2020] FamCAFC 307
Citation 14

…e & Crisp (2016) FLC 93-728; [2016] FamCAFC 157 Herford & Berke (No 2) (2019) FLC 93-919; [2019] FamCAFC 182 Hibberson v George (1989) 12 Fam LR 725; [1989] NSWCA 100 Jennings v Jennings (1997) FLC 92-773; [1997] FamCA 29 Lynam v Director-General of Social Security (1984) FLC 91-577 S v B (No 2) (2004) 32 Fam LR 42…
Varcity Solutions Pty Ltd v Gulliver; Varcity Solutions Pty Ltd v Jagbo Pty Ltd [2020] NSWSC 1517
Citation 15

…lationship or failure of their joint endeavour. I do not consider that the principles established in Baumgartner v Baumgartner and applied in Hibberson v George (1989) 12 Fam LR 725 apply directly in this case. I turn to the claim based on a “common intention” constructive trust.…
MEYVANS & KEMPTON [2019] FCCA 1845
Citation 16 (Para 1)

…[2005] 1 Qd R 537. Dutney J stated at paragraph 33:- (and by reference to a decision of the Court of Appeal of New South Wales in Hibberson v George [1989] NSWCA 100; (1989) 12 Fam LR 725): 33. De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by leg…
DKL v LYK [2019] SASC 100
Citation 17

…[2000] QCA 61; De Lacey v James [ 2003] QSC 94; Stowe v Stowe (1995) 15 WAR 363; Kriezis v Kriezis [2004] NSWSC 167; Anson v Anson (2004) 12 BPR 22; Hibberson v George (1989) 12 Fam LR 725; West v Mead [2003] NSWSC 161; Ikeuchi v Liu (2001) 160 FLR 94; The Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278; M…
Herford and Berke [2018] FCCA 3593
Citation 18 (Para 4)

…ement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George (1989) 12 Fam. L.R. 725 at 739–740 Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows: There is, of course, more to t…
BANNISTER & PERGOLESI [2018] FamCA 888
Citation 19 (Para 11)

…The ending of a relationship and either the communication of that fact or the overt actions to confirm it, was a subject of consideration in Hibberson v George (1989) 12 Fam LR 725; DFC 95-064, where Mahoney JA said: But where one party determines not to “live together” with the other and in that sense keeps apart, the rela…
Miller v Taylor [2018] WASC 75
Citation 20

…e at any time, and continues to exist only insofar as the indicia which give the relationship its 'marriage-like' character continue to exist. In Hibberson v George (1989) 12 Fam LR 725, 740, Mahoney JA spoke of the distinction between a legal marriage and a de facto relationship, where he said: 'There is, of course, more t…
BROWNLESS & WARREN [2018] FamCA 101
Citation 21 (Para 4)

…e differences expressed in relation to the ending of de jure relationships (marriage) and de facto relationships which were expressed by Mahoney J in Hibberson v George (1989) 12 Fam LR 725 at 740 as deriving their essence “not in law, but in a de facto situation.” That situation was in existence while, as expressed in S v…
Laconi and Cosgrove [2017] FCCA 1179
Citation 22 (Para 2)

…nses like buying the groceries. ” ( West v Mead (supra)). In some cases partial integration of resources has been enough. The decision in Hibberson v George (1989) 12 FamLR 725 shows that total pooling of resources is not essential, if there is an ongoing relationship. In Miller v Sutherland (1990) 14 FamLR 416 one party bo…
GROVER and O'DRISCOLL [2017] FCWA 65
Citation 23

…Crandall & Crandall [2009] FamCAFC 120 Dekker & Dekker [2014] FCWA 61 Elias and Elias (1977) FLC 90-267 H v P [2011] WASCA 78 Hibberson v George (1989) 12 Fam LR 725 Jordan & Jordan (1997) FLC 92-736 Lynam v The Director-General of Social Security (1983) 9 Fam LR 305 MW v Director-General of the Department of Community Serv…
Christopher v McFarlane as executor of the Estate of Buss (Deceased) [2017] QDC 154
Citation 24

…[145] George v. Hibberson (1987) DFC 95-054…
Yeo and Rambaldi v Arifovic and Anor [2017] FCCA 604
Citation 25

…Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Gissing v Gissing [1971] AC 886 Grant v Edwards [1986] Ch 638 Green v Green (1989) 17 NSWLR 343 Hibberson v George (1989) 12 Fam LR 725 Hohol v Hohol [1981] VR 221 Miller v Sutherland (1990) 14 Fam LR 416 Muschinski v Dodds (1985) 160 CLR 583 Rasmussen v Rasmussen [1995]…
Clarence & Crisp [2016] FamCAFC 157
Citation 26 (Para 3)

…Counsel for the appellant nevertheless relied on these remarks of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 (emphasis added): There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the…
Chan v Mazurkiewicz [2015] WASC 432
Citation 27

…H v P [2011] WASCA 78 Hibberson v George (1989) 12 FAM LR 725 Re O'Neill (Dec) [1972] VR 327 S v B [2005] 1 QDR 537…
Craig v Craig [2015] SADC 109
Citation 28

…206; R v Sutton (1983) 32 SASR 553; Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; Ryder v Wombwell (1868) LR 4 Ex 32; Hibberson v George (1989) 12 FamLR 273 (NSWCA per McHugh JA); Sweetenham v Wild [2005] QCA 264; Gill v Gill (1921) 21 SR NSW 400; Nathan v Leonard [2003] 1WLR 827; Re Gardiner [1971…
DOBSON & SEABROOK [2015] FCCA 1503
Citation 29 (Para 3)

…arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George (1989) 12 Fam. L.R. 725 at 739–740 Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows: There is, of course, mor…
HARRELL & NESLAND [2014] FCCA 1921
Citation 30 (Para 2)

…arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George (1989) 12 Fam. L.R. 725 at 739–740 Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows: There is, of course, mor…
Hillman v Box (No 4) [2014] ACTSC 107
Citation 31

…9) 17 NSWLR 343 Greer v Kettle [1938] AC 156 Hackett v Public Trustee for the Australian Capital Territory (Unreported, ACTSC, Higgins J, 2 May 1997) Hibberson v George (1989) 12 Fam LR 725 Hillman v Box & Ors as executors of the will of Box (2010) 5 ACTLR 122 Hillman v Box & Ors as executors of the will of Box (No 2) [2011…
Tipping and Stanton [2014] FCCA 507
Citation 32

…998] FLC 92-799 Pelerman & Pelerman [2000] FLC 93-037 Muschinski v Dodds [1985] HCA 78 Green v Green (1989) 17 NSWLR 343 West v Mead [2013] NSWSC 161 Hibberson v George (1989) 12 Fam LR 725 Allen v Snyder [1977] 2 NSWLR 685 Parianos v Melluish [2003] FCA 190 Spencer v Commonwealth of Australia (2010) 241 CLR 118 George v Fl…
Cadman & Hallett [2013] FamCA 819
Citation 33 (Para 5)

…The Supreme Court of New South Wales (Court of Appeal), in Hibberson v George (1989) 12 Fam LR 725 at 740, per Mahoney JA said, considering similar provisions in the New South Wales De Facto Relationships Act: The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that c…
Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675
Citation 34 (Para 1)

…decision not to live together with the other party may in some cases allow the Court to infer the end of the relationship. As Justice Mahoney held in Hibberson v George (1989) 12 Fam LR 725 at 739-740 (with whom Hope and McHugh JJ agreed) a case dealing with an earlier form of the Property (Relationships) Act :…
Bradmore v ALLEN [2012] SADC 51
Citation 35

…Hampson v Circuit Finance Australia [2006] AIRC 24; Coffey v Bennett [1961] VR 264; Page v Page (1982) FLC 91-241; Luxton v Luxton (1968) 12 FLR 382; Hibberson v George (1989) 12 Fam LR 275; Lipman v Lipman (1989) 13 Fam LR 1; Williams on Bankruptcy 18th ed. 1968; McDonald, Henry & Meek's Australian Bankruptcy Law & Practic…
Langford v Reddy [2012] NSWSC 289
Citation 36

…are used to describe conduct which, in previous times, would not have fallen within them: see Baumgartner v Baumgartner (1987) 164 CLR 137 at 147 and Hibberson v George (1989) 12 Fam LR 725 at 731.…
TKM v WRD [2012] QSC 26
Citation 37

…l Matters & Other Measures) Act 2008 (Cth) Property Law Act 1974 (Qld), s 260, s 317 Davies v Richardson [2011] NSWSC 810, considered Hibberson v George (1989) 12 Fam LR 725, considered JJR v PH [2005] QSC 253, considered Jonah & White (2011) 45 Fam LR 460, considered KQ v HAE [2007] 2 Qd R 32, considered PY v CY (2005) 34…
Cameron and Balla [2012] FMCAfam 40
Citation 38

…Bremner and Bremner (1995) FLC 92-560 Clauson (1995) FLC 92-595 Coghlan (2005) FLC 93-220 Ferraro (1993) FLC 92-335 Hibberson v. George (1989) DFC 95-064 Hickey (2003) FLC 93-143 Kessey & Kessey (1994) FLC 92-495 Lawler & Lawler (1988) FLC 91-927 Lee Steere (1985) FLC 91-626 Money and Money (1994) F…
King v The Queen [2011] VSCA 423
Citation 39

…icts of acquittal entered – Crimes Act 1958 s 44(2) – Lambe v Director‑General of Social Services (1981) 38 ALR 405 – Hibberson v George (1989) 12 Fam LR 725 – D v McA (1986) 11 Fam LR 214 – Rolfe v The Queen (2007) 173 A Crim R 168.…
Dahl & Hamblin [2011] FamCAFC 202
Citation 40 (Para 5)

…equire findings in relation to the intentions of the parties at the time a relationship (which was subsequently resumed) had previously ended. (See Hibberson v George (1989) 12 Fam LR 725; Lipman v Lipman (1989) 13 Fam LR 1; Howland v Ellis (2001) 28 Fam LR 656; and Delany v Burgess (2008) DFC 95-412.)…
Davies v Richardson [2011] NSWSC 810
Citation 41 (Para 1)

…decision not to live together with the other party may in some cases allow the Court to infer the end of the relationship. As Justice Mahoney held in Hibberson v George (1989) 12 Fam LR 725 at 739-740 (whom Hope and McHugh JJ agreed) a case dealing with an earlier form of the Property (Relationships) Act :…
Smyth & Pappas [2011] FamCA 434
Citation 42 (Para 8)

…ton [2010] FCWA 91 Thackray CJ considered the ending of a de facto relationship and said: 358I adopt, with respect, the observations of Mahoney JA in Hibberson v George (1989) DFC 95-064, where his Honour said (at 75,766) in considering the time of cessation of a de facto relationship: There is, of course, more to the relev…
IBM v TTV [2011] QDC 76
Citation 43 (Para 1)

…tney J, speaking for the court on this aspect, held that de facto relationships are, by nature, fragile and that it has been recognised [referring to Hibberson v George (1989) 12 Fam LR 725] that the persistence of the observable indicia of a domestic relationship is fundamental to the continuance of a de facto relationship…
H v P [2011] WASCA 78
Citation 44 (Para 2)

…at any time, and continues to exist only insofar as the indicia which give the relationship its 'marriage‑like' character continue to exist. In Hibberson v George (1989) 12 Fam LR 725, 740, Mahoney JA spoke of the distinction between a legal marriage and a de facto relationship, where he said: There is, of course, more to t…
DREW & VICKERY [2010] FMCAfam 1307
Citation 45 (Para 13)

…28 Fam LR 656. [41] Stein JA, in Howland v Ellis at [20], cited with approval, as did Counsel for the Respondent in this case, comments by Cohen J in George v Hibberson (1987) DFC ¶95-054. Although that decision was overturned on appeal, Cohen J’s comment (as noted by Stein JA) is important to recall: “... courts must be ca…
AC v CM [2010] QSC 384
Citation 46

…1974 (Cth), s 44(4) Property Law Act 1974 (Qld), s 258, s 288, s 291 Baumgartner v Baumgartner (1987) 164 CLR 137 Hibberson v George [1989] NSWCA 100 In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776 In the Marriage of Whitford (1979) FLC 90-612 Kennon v Kennon (1997) 22 Fam LR 1 S v B [2005] 1 Qd…
Truman & Clifton [2010] FCWA 91
Citation 47

…E and P [2005] FCWA 4 Hibberson v George (1989) DFC 95-064 Hyde v Hyde (1866) LR 1 P & D 130 at 133…
A and G [2009] FCWA 110
Citation 48

…Hibberson v George (1989) DFC 95-064…
H, R T v E, C K [2009] SADC 76
Citation 49 (Para 1)

…locks, it did not fail until then. Dutney J (McPherson and Williams JJA agreeing), took a different view: [48] Applying the passage of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 739–40….a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality w…
Lubis v Walters as Administrator of the Estate of Robert David Walters deceased [2009] NTSC 23
Citation 50

…Act 1969 (NT) s 66, Sch 6 Pts II and III, ss 26, 41 De Facto Relationships Act 1991 (NT) ss 3(1), 3A Briginshaw v Briginshaw (1938) 60 CLR 336; Hibberson v George (1989) 12 Fam LR 725; In Re Fagan (deceased) (1980) 23 SASR 454; Mavrideros v Mack (1998) 45 NSWLR 80; Nolan v Nolan and Another (2003) 10 VR 626; Pelka v Secreta…

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