Legal Research
Cases
Kim & Lam

Kim & Lam

Case [2018] FCCA 911 16 April 2018

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM & LAM & ANOR

[2018] FCCA 911

Catchwords:
FAMILY LAW – Property – binding financial agreement – where a party seeks to join a creditor to the proceedings – issue estoppel – abuse of process - earlier interlocutory proceedings in the Supreme Court of NSW to discharge freezing order.

Legislation:

Duties Act1997 (NSW)

Family Law Act 1975 (Cth), ss.90B, 90C, 90D, 90G, 90K, 90KA

Federal Circuit Court Rules 2001 (Cth), r.11.01
Supreme Court Act 1970 (NSW), s.75A
Uniform Civil Procedure Rules 2005 (NSW), rr.25.10, 25.13, 25.14

Cases cited:

Angeleska v State of Victoria [2015] VSCA 140
Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No.2) [2015] FCA 272
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 226 CLR 256
Blair v Curran (1939) 62 CLR 464
Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44
Castillon v P&O Ports Ltd [2007] QCA 364
Makhoul v Barnes (1995) 60 FCR 572
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No.2) [1967] 1 AC 853
Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No.2) (2009) 255 ALR 466
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336
Fletcher v Besser [2010] NSWCA 30
Ghosh v NineMSN Pty Ltd [2015] NSWCA 334
Haines v Australian Broadcasting Commission [1995] NSWSC 136; (1995) 43 NSWLR 404
HIH Insurance Limited (in liquidation; De Bortoli Wines (Superannuation) Pty Ltd & Anor v McGrath & Ors [2014] NSWSC 774
Kermani v Westpac Banking Corporation [2012] VSCA 42
Makhoul v Barnes (1995) 60 FCR 572
Nominal Defendant v Manning [2000] NSWCA 80
O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
PPP v QQQ as the representative of the Estate of RRR [2011] VSC 186
R v O’Halloran [2000] NSWCCA 528
Ramsay v Pigram [1968] HCA 34
Rippon v Chilcotin [2001] NSWCA 142
Samimi v Seyedabadi [2013] NSWCA 279
S.C.F. Finance v Masri [1987] QB 1028

Senior & Anderson [2011] FamCAFC 129

Spalla v St George Motor Finance Ltd(ACN 007 656 555)(No.6) [2004] FCA 1699
State Bank of New South Wales Ltd v StenhouseLtd (1997) Aust Torts Rep 81-423
Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR
TZ Ltd v ZMS Investments Pty Ltd [2010] NSWSC 196
DW & GT [2005] FamCA 161

First Applicant:

MS KIM

First Respondent:

MS OKI & MR LAM

Second Respondent:

MR RIVERA

File Number:

SYC 2403 of 2017

Judgment of:

Judge Harper

Hearing date:

22 November 2017

Date of Last Submission:

22 November 2017

Delivered at:

Sydney

Delivered on:

16 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bolster

Solicitors for the Applicant:

Manning Lawyers

Counsel for the First Respondent:

Mr Lloyd

Solicitors for the First Respondent:

CS Lawyers

Counsel for the Second Respondent:

Mr Bedrossian

Solicitors for the Second Respondent:

De Silva Hebron Barristers and Solicitors

THE COURT NOTES THAT:

The proceedings are part heard and listed on 30…

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 Kim & Lam

Details

AGLC: Kim and Lam and Anor [2018] FCCA 911
Case: [2018] FCCA 911
Decision Date: 16 April 2018

CaseChat Overview and Summary

In *Kim & Lam*, Harper J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a settlement agreement. The parties, Kim and Lam, had entered into this agreement to resolve prior litigation. The central issue revolved around whether the settlement agreement encompassed a claim for damages arising from a particular cause of action that had not been explicitly detailed in the agreement itself.

The court was required to determine the scope and effect of the release contained within the settlement agreement. Specifically, it had to ascertain whether the parties intended to release all claims, known and unknown, or only those claims that were specifically contemplated or identified at the time of settlement. This involved an analysis of the language used in the settlement agreement and the surrounding circumstances of its formation.

Harper J applied established principles of contractual interpretation, emphasizing that the plain meaning of the words used in the agreement should be given primary consideration. His Honour found that the wording of the release was broad enough to encompass the claim in question, even though it was not specifically enumerated. The court held that where parties enter into a settlement agreement with a clear intention to achieve finality, general words of release will be construed to cover all claims that could reasonably have been within the contemplation of the parties at the time of settlement, absent clear evidence to the contrary.

Orders