Kennedy & Thorne

The appeal heard by the court involved the trustees of the estate of the late husband, the appellants, challenging the trial judge’s orders which found that the two financial agreements entered into by the parties were not binding on them and should be set aside. The legal issues that the court had to decide included whether the trial judge applied the correct test in relation to duress, whether the trial judge provided adequate reasons for finding duress, and whether the trial judge provided procedural fairness to the appellant trustees before pronouncing an order for costs against them.

The court found that there was merit in four of the grounds of appeal. The trial judge had applied the incorrect test in relation to duress, and the reasons provided in relation to the finding of duress were inadequate. The trial judge did not provide procedural fairness to the appellant trustees before pronouncing an order for costs against them. The appeal should be allowed and the matter re-determined. The issues for re-determination were the fate of the agreements and the costs of the trial. The court found that both agreements were valid and enforceable but only the second agreement need be considered because it terminated the first agreement. The second agreement was binding on the parties.

The court also dismissed the Notice of Contention filed by the wife as the Family Law Rules 2004 (Cth) did not provide for the filing of such a Notice. Section 38(2) of the Family Law Act 1975 (Cth) provided that in that event rule 42.08.5 of the High Court Rules 2004 (Cth) applied. The wife filed the Notice in accordance with that rule without objection, and there was no merit in any of the grounds. The determination that the appeal should be allowed, stood.

The court ordered that the appeal be allowed, the Notice of Contention be dismissed, and certain orders made on 4 March 2015 be set aside. It was declared that the financial agreement dated 20 November 2007 was binding on the parties. The trustees were required to file and serve written submissions as to the costs of the trial and of the appeal within 28 days of the date of the order. The wife had to file and serve written submissions in response within 14 days of receipt of the trustees' submissions. The trustees had to file and serve any written submissions in reply within 14 days of receipt of the wife's submissions in response. The form of the order was subject to the entry of the order in the Court’s records.