FAMILY COURT OF AUSTRALIA
| KOSTRES & KOSTRES | [2009] FamCAFC 222 |
| FAMILY LAW - APPEAL – PROPERTY – BINDING FINANCIAL AGREEMENT – Whether the Federal Magistrate erred in enforcing terms of parties’ financial agreement – Where agreement entered into prior to parties’ marriage – Where agreement purported to deal with inter alia assets acquired during the marriage – Where parties mistakenly thought husband bankrupt at time agreement executed – Where parties purchased business and real property in wife’s name and name of trust in mistaken belief assets could not be purchased in joint names – Where no challenge in respect of compliance with the formal requirements of s 90G of the Family Law Act 1975 – Where Federal Magistrate determined the parties’ financial agreement was binding and should not be set aside – Where there was inconsistency in the reasoning of the Federal Magistrate – Consideration of the terms of the binding financial agreement – Consideration of the meaning of “acquire” – Where neither party’s legal representative before the Federal Magistrate referred to relevant authorities in relation to the question of acquisition of property as distinct from contributions to purchase price – Decision of the High Court in Calverley v Green (1987) 155 CLR 242 considered – Where the parties’ relied on s 90KA of the Family Law Act 1975 – Where the interpretation of the agreement contended by both parties required broad interpretation of the terms of the agreement but where each relied on differing interpretations – Where s 32 of the Judiciary Act 1903 applied– Consideration of general principles of contract law and interpretation – Where there was ambiguity in the terms found in clause 6 of the agreement – Held the terms of the agreement must accurately reflect the intention of the parties at the time of the making of the agreement and be unambiguous – The expressions used in the agreement must be clear and meaning certain – Where it was not possible for the Court to supply or correct the terminology of the agreement with appropriate certainty to give effect to the parties’ agreement – Discussion of the importance of precision in drafting of financial agreements – Where the terms of the agreement ineffective – Where the Federal Magistrate erred in enforcing the terms of the agreement – Appealable error established. |
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- AGLC
- Kostres & Kostres [2009] FamCAFC 222
- Case
- [2009] FamCAFC 222
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Federal Magistrate erred in enforcing the terms of the BFA, particularly concerning the assets and the misunderstanding about the husband's bankruptcy. The court also needed to determine if the agreement was void, voidable, or unenforceable. Furthermore, the court had to address whether the Federal Magistrate properly considered the trust property as an asset and whether the agreement was void for uncertainty.
The court held that the Federal Magistrate erred in enforcing the terms of the BFA due to significant ambiguities and uncertainties in the agreement. The court found that the terms of the agreement were ineffective and ambiguous, leading to an appealable error. The court also determined that the Federal Magistrate failed to consider trust property as an asset, which constituted another error. Additionally, the court concluded that the agreement was void for uncertainty, thus setting it aside. The appeal was allowed, and the cross-appeal was dismissed. The matter was remitted to the Federal Magistrates Court for a rehearing, and the court granted the husband's application to adduce further evidence. Finally, costs certificates were granted to both parties for the appeal and rehearing.
Orders
Orders of the court
1.
The appeal against the orders made by Federal Magistrate Wilson on 17 October 2008 is allowed.
2.
The cross-appeal is dismissed.
3.
Order 2 of the orders made by Federal Magistrate Wilson on 17 October 2008 be set aside.
4.
The husband’s application be remitted for rehearing before a Federal Magistrate other than Federal Magistrate Wilson.
5.
That the husband be at liberty to make further written submissions in respect of the costs appeal (appeal No. NA 22 of 2009) by filing such submissions at the Northern Region Appeal Registry of the Family Court of Australia and serving them on the wife within 21 days of the date hereof.
6.
That the wife have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Northern Region Appeal Registry of the Family Court of Australia and serving them on the husband.
7.
That the husband be at liberty to reply to an answer by way of written submissions by filing such reply at the Northern Region Appeal Registry of the Family Court of Australia and serving it on the wife within a further 7 days.
8.
That each party endorse on the cover sheet of any submissions filed pursuant to Orders 5, 6 and 7, the date upon which a copy of that submission was served on the other party.
9.
That the Court grants to the appellant husband a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
10.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
11.
The Court grants to each party a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of the costs incurred by them in relation to the rehearing.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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