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Karjala & Gallard

Karjala & Gallard

Case [2020] FamCA 110 28 February 2020

Statutory Construction

Family Law

Equity & Trusts

Civil Procedure

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FAMILY COURT OF AUSTRALIA

KARJALA & GALLARD

[2020] FamCA 110

FAMILY LAW – PROPERTY DIVISION – binding financial agreement – dispute about the validity of the BFA – assertions that the BFA should be set aside on various equitable principles and principles of common law – factual and legal dispute about construction of BFA – whether this court has jurisdiction to determine property issues.

FAMILY LAW – JURISDICTION OF THE COURT – need for court to determine facts that ground its own jurisdiction.

FAMILY LAW – TRIAL OF SEPARATE ISSUE – whether desirable where major factual discrepancy on most issues exists – held, not desirable – trial of all issues ordered.

Family Law Act 1975 (Cth) ss 21(2A), 79, 90K(1)(ab)(iii), 90K(1)(b)
Supreme Court (General Civil Procedure) Rules 2015 (Vic) o 47.04

Aspdin v Austin (1844) 5 QB 671
Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560
Banks & Banks [2015] FamCAFC 36
Black v Black (2008) 38 Fam LR 503
Bunbury v Fuller (1853) 156 ER 47
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commonwealth v Verwayen (1990) 170 CLR 394
Corelli v Beroni [2019] FamCA 911
D.M.W. v C.G.W. (1982) 151 CLR 491
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Ex parte Dawes, Re Moon [1886] 17 QBD 275
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Grassby v The Queen (1989) 168 CLR 1
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442
Holliday v Overton (1852) 51 ER 366
Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Ltd [2000] VSC 415
Husain v O & S Holdings (Vic) Pty Ltd (No 2) [2007] VSCA 70
Husain v O & S Holdings (Vic) Pty Ltd [2004] VSC 274
Husain v O & S Holdings (Vic) Pty Ltd [2005] VSC 269
Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269
Husain v O & S Holdings (Vic) Pty Ltd [2007] HCATrans 399
In the Marriage of Cierpiatka (1999) 25 Fam LR 548
In the Marriage of H B Schokker & Edwards (1986) 11 Fam LR 446
In the Marriage of Neale (1991) 14 Fam LR 861
In the Marriage of Woodcock (1997) 21 Fam LR 393
In the Marriage of Yunghanns (1999) 24 Fam LR 400
Inland Revenue Commissioners v Raphael [1935] AC 96
Jacobson v Ross & Jacobson [1995] 1 VR 337
Kennon v Spry (2008) 238 CLR 366
L’Estrange v F Graucob Ltd [1934] 2 KB 394
Mackenzie v Duke of Devonshire [1896] AC 400
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Marvel v Marvel (2010) 43 Fam LR 348
Moses v Macferlan (1760) 97 ER 676
Nissan v Attorney-General [1970] AC…

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: Karjala & Gallard [2020] FamCA 110
Case: [2020] FamCA 110
Decision Date: 28 February 2020

CaseChat Overview and Summary

The parties to this proceeding were Karjala and Gallard, with the dispute concerning the validity and construction of a binding financial agreement (BFA). The applicants sought to set aside the BFA on various equitable and common law grounds, also raising questions about the court's jurisdiction to determine property issues. The matter came before Wilson J.

The primary legal issues before the court were whether it possessed jurisdiction to determine the property issues in dispute, and whether the BFA should be set aside. Further, the court was required to consider the construction of the BFA itself, given the factual and legal disputes surrounding its interpretation. A related question was whether it was desirable to try the issue of jurisdiction as a separate question, given the significant factual discrepancies present in most of the issues.

Wilson J held that the court must determine the facts that ground its own jurisdiction. Consequently, the court determined that it was not desirable to try the issue of jurisdiction as a separate question, particularly where there was a major factual discrepancy on most of the issues. Therefore, the court ordered that all issues be tried together.

Orders