Zaruba & Zaruba
[2017] FamCAFC 91
Para 7
…express or implicit assumptions arising from the marriage relationship underpinned the approach to dealing with the property: cf Zaruba & Zaruba [2017] FamCAFC 91 at [35]. [1] These comments were directed to the provisions of Part VII of the Act, but have force by analogy.…
Garvey & Jess
[2016] FamCA 445
Para 2
…nty may be invoked in relation to a BFA: Ruane Backman-Ruane and Anor [2009] FamCA 1101 (a financial agreement under s 90C of the Act); Garvey & Jess [2016] FamCA 445. The principles of severance of a contractual term can apply to a BFA, otherwise valid and enforceable: Abati & Cole [2015] FamCA 185. Other cases ha…
PARKE & PARKE
[2015] FCCA 1692
Para 2
…ddressed the principles of repudiation and rescission governing termination of a contract, in relation to binding financial agreements: Parke & Parke [2015] FCCA 1692; Donald & Forsyth [2015] FamCAFC 72.…
DONALD & FORSYTH
[2015] FamCAFC 72
Para 2
…ion and rescission governing termination of a contract, in relation to binding financial agreements: Parke & Parke [2015] FCCA 1692; Donald & Forsyth [2015] FamCAFC 72.…
Abati & Cole
[2015] FamCA 185
Para 2
…; Garvey & Jess [2016] FamCA 445. The principles of severance of a contractual term can apply to a BFA, otherwise valid and enforceable: Abati & Cole [2015] FamCA 185. Other cases have addressed the principles of repudiation and rescission governing termination of a contract, in relation to binding financial agreem…
Hay and Hay
[2014] FCCA 775
Para 2
…duress, undue influence, unconscionable conduct, misrepresentation at the point of formation may operate to impugn a BFA: see, for example, Hay & Hay [2014] FCCA 775. The contractual doctrines of uncertainty may be invoked in relation to a BFA: Ruane Backman-Ruane and Anor [2009] FamCA 1101 (a financial agreement…
Stanford v Stanford
[2012] HCA 52
Para 7
…operty interests were sufficient or appropriate during the continuance of their marital relationship ” was brought to an end: Stanford v Stanford (2012) 247 CLR 108 at [42].[1] After the failed auction the parties remained connected through continued joint ownership of the property and care for the children but they…
Raulfs v Fishy Bite Pty Ltd
[2012] NSWCA 135
Para 8
…by the BFA (see also McKay (supra) at [18]-[19]). The entitlements pursuant to the BFA remain unaltered. In Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135, a case about a joint endeavour contained in a partnership agreement, at [82] Campbell JA (as he became) explained at [84]: “ In my view, the present is not a circ…
Crafter and Crafter & Ors
[2011] FamCA 122
Para 6
…on of property for residential purposes .” ( McKay (supra)). There was no “ commitment to, and hopes for, a joint future ”: Crafter & Crafter [2011] FamCA 122 at [82]. Any such relationship had come to an end in April 2002 when the parties separated or at the latest by 20 April 2006 when they divorced. There was no…
Ruane & Bachmann-Ruane
[2009] FamCA 1101
Para 2
…e, for example, Hay & Hay [2014] FCCA 775. The contractual doctrines of uncertainty may be invoked in relation to a BFA: Ruane Backman-Ruane and Anor [2009] FamCA 1101 (a financial agreement under s 90C of the Act); Garvey & Jess [2016] FamCA 445. The principles of severance of a contractual term can apply to a BFA,…
Fevia & Carmel-Fevia
[2009] FamCA 816
Para 4
…Part VIII of the Act. However, the provisions of Part VIIIA of the Act are not affected by, and still operate on, the BFA. See Fevia & Carmel- Fevia [2009] FamCA 816 at [118]-[128].…
Orleans Investments Pty Ltd v MindShare Communications Ltd
[2009] NSWCA 40
Para 7
…or when the property was to be sold. To put it another way, although courts strive to uphold agreements (see Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 40), the terms of the alleged variation are not sufficiently certain to qualify as enforceable. Rather the parties made a “ parol arrangement ” relating…
Cressy v Johnson
[2009] VSC 52
Para 2
…emaker and parent are relevant to the application of the Baumgartner principle: Parij v Parij (1997) 72 SASR 153; Cressy v Johnson (No.3) [2009] VSC 52.…
Handley v Gunner
[2008] NSWCA 113
Para 3
…t this may be because the tests for implication of the term are satisfied in relation to each particular contract: see, for example, Handley v Gunner [2008] NSWCA 113; (2008) 13 BPR 25,139 at [124]. The implied term here was said to meet the well-known requirements set out in BP Refinery (Westernport) Pty Ltd v Shi…
Vella v Permanent Mortgages Pty Ltd
[2008] NSWSC 505
Para 3
…use the tests for implication of the term are satisfied in relation to each particular contract: see, for example, Handley v Gunner [2008] NSWCA 113; (2008) 13 BPR 25,139 at [124]. The implied term here was said to meet the well-known requirements set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (19…
McKay v McKay
[2008] NSWSC 177
Para 3
…ations including domestic arrangements, frustrated contracts, partnership and contractual joint ventures: Muschinski (supra) at 619-20; McKay v McKay [2008] NSWSC 177 at [13]. In principle there is no reason why a contract or deed cannot describe the parameters of a relevant joint enterprise in a domestic or person…
Valceski v Valceski
[2007] NSWSC 440
Para 2
…f s.5(9) it is a pre-requisite to a transfer order that the transferee court have jurisdiction in respect of the relevant matter: Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36 at [20]. As noted above, the proceedings were transferred from the Supreme Court of NSW to the Family Court of Australia. The matter was…
Hill v Hill
[2005] NSWSC 863
Para 1
…In accordance with the decisions in Kriezis v Kriezis [2004] NSWSC 167, Hill v Hill [2005] NSWSC 863, at [35] and McKay (supra) at [16] I am satisfied that there is no blame to be attributed to either party for the failure of either version of the joint enterprise.…
Shepherd v Doolan
[2005] NSWSC 42
Para 2
…In Shepherd v Doolan [2005] NSWSC 42 the plaintiff claimed a joint endeavour in the acquisition of a parcel of real property, during the deceased’s lifetime. At [30], White J summed up the role of unconscionability as follows: The ultimate basis for the imposition of a constructive trust is that it would be uncons…
Kriezis v Kriezis
[2004] NSWSC 167
Para 1
…In accordance with the decisions in Kriezis v Kriezis [2004] NSWSC 167, Hill v Hill [2005] NSWSC 863, at [35] and McKay (supra) at [16] I am satisfied that there is no blame to be attributed to either party for the failure of either version of the joint enterprise.…
Wallera Pty Ltd v CGM Investments Pty Ltd
[2003] FCAFC 279
Para 1
…o further interest in a contract continuing, even though they may have said nothing to that effect ”: Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 at [38]-[40]. Abandonment is generally understood as a consensual form of discharge or termination: see, for example, Cheshire & Fifoot, Law of Contract (1…
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd
[2003] FCA 688
Para 4
…HCA 8; 209 CLR 99 at [24]. See, generally, the discussion in GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50; (2003) 128 FCR 1 at [214]-[232].[2] [2] Followed in Sanger & Sanger [2011] FamCAFC 210.…
West v Mead
[2003] NSWSC 161
Para 4
…ently, the Muschinski principle has since, at times, been referred to as the “ Baumgartner principle”. It was considered at length in West v Mead (2003) 13 BPR 24,431 by Campbell J (as he then was): Before any particular asset can become subject to a constructive trust in accordance with the Baumgartner principle,…
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd
[2003] FCA 50
Para 4
…f SA Inc [2002] HCA 8; 209 CLR 99 at [24]. See, generally, the discussion in GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50; (2003) 128 FCR 1 at [214]-[232].[2] [2] Followed in Sanger & Sanger [2011] FamCAFC 210.…
Black Uhlans Inc v New South Wales Crime Commission
[2002] NSWSC 1060
Para 5
…tribution. (References concerning this aspect of resulting trusts are collected in Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 at [141] -[142]) Even if one bears in mind that mortgage instalments usually include a component of each of principal and interest, it is still possible fo…
Lloyd v Tedesco
[2002] WASCA 63
Para 6
…The objective of improving joint material wealth is a crucial element of a joint enterprise to which the principle may apply. In Lloyd v Tedesco [2002] WASCA 63 at [30], [31] the Court of Appeal of the Supreme Court of Western Australia per Murray JA said: The guiding principle is unconscionability. In this, as in…
Ermogenous v Greek Orthodox Community of SA Inc
[2002] HCA 8
Para 4
…otherwise satisfy the requirements of a valid contract, ie there must be certainty and consideration: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 99 at [24]. See, generally, the discussion in GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50; (2003)…
Sprott v Harper
[2000] QCA 391
Para 3
…ffecting ownership. Although no submissions were directed to this question, in my view, the BFA itself severed the joint tenancy: Sprott v Harper [2000] QCA 391 at [7]-[8]. Consequently, in the absence of the BFA or the intercession of equitable principles, the controlled moneys would be owned by the parties as t…
Hibberson v George
[1989] NSWCA 100
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…
Hawkins v Clayton
[1988] HCA 15
Para 4
…The implication of a term into a formal written agreement requires, as Deane J observed in Hawkins v Clayton (1987) 164 CLR 539 at 571, the insertion of an additional term which “ effectively involves an alteration to what the parties have formally accepted as the complete written record of the compact between them .…
Baumgartner v Baumgartner
[1987] HCA 59
Para 3
…The High Court of Australia adopted the reasoning of Deane J in Baumgartner v Baumgartner (1987) 164 CLR 137. In Baumgartner (supra) at 149 the application of the principle to the facts of that case was expressed as follows: The facts that the Leumeah property was acquired and developed as a home for the parties and…
Muschinski v Dodds
[1985] HCA 78
Para 6
…t would be unconscionable because the facts present a failed joint enterprise attracting the principle articulated by Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 618. He argued that it would be unconscionable for the wife to retain the “windfall” capital gain in circumstances where he serviced the mortgage fo…
Commonwealth of Australia v Crothall Hospital Services (Aust) Ltd
[1981] FCA 117
Para 4
…be evidenced in writing: Phillips v Ellison Bros Pty Ltd (1941) 65 CLR 221 at 244; Commonwealth of Australia v Crothall Hospital Services (Aust) Ltd [1981] FCA 117; (1981) 36 ALR 567 at 576 per Ellicott J. For an alleged subsequent variation to be contractually effective, it must itself otherwise satisfy the req…
BP Refinery (Westernport) Pty Ltd v Shire of Hastings
[1977] UKPCHCA 1
Para 3
…25,139 at [124]. The implied term here was said to meet the well-known requirements set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 at 26, which include the limitations that it be so obvious that “ it goes without saying ” and it must not contradict any express term of the contrac…
Tallerman & Co Pty ltd v Nathan's Merchandise (Victoria) Pty Ltd
[1957] HCA 10
Para 4
…s by a subsequent agreement, expressed orally or implied from conduct: Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd 1957] HCA 10; (1957) 98 CLR 93 at 112-113, 122-124, except where the contract is required by law to be evidenced in writing: Phillips v Ellison Bros Pty Ltd (1941) 65 CLR 221 at 24…
Fitzgerald v Masters
[1956] HCA 53
Para 3
…er party has taken any action to perform does not of itself inevitably lead to a conclusion the contract has been abandoned: Fitzgerald v Masters (1956) 95 CLR 420. There is some equivocation in the evidence on the question. For example, the enforceability of the BFA was not put in doubt during negotiations in the f…
Phillips v Ellinson Brothers Pty Ltd
[1941] HCA 35
Para 4
…CA 10; (1957) 98 CLR 93 at 112-113, 122-124, except where the contract is required by law to be evidenced in writing: Phillips v Ellison Bros Pty Ltd (1941) 65 CLR 221 at 244; Commonwealth of Australia v Crothall Hospital Services (Aust) Ltd [1981] FCA 117; (1981) 36 ALR 567 at 576 per Ellicott J. For an alleged sub…
Russell v Scott
[1936] HCA 34
Para 5
…rust is one which seeks to give effect to the intention of the parties, by making a presumption about what that intention was ( Russell v Scott (1936) 55 CLR 440 at 451; authorities collected in Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 at [133] - [136] ). Even so, that is not to…
Summers v The Commonwealth
[1918] HCA 33
Para 1
…her, as to abandon or abrogate the contract” regardless of whether there has been something in the nature of rescission: Summers v The Commonwealth (1918) 25 CLR 144 Isaacs J at 152, or seen as “ a conclusion that the parties have no further interest in a contract continuing, even though they may have said nothing t…
Bruinsma v Menczer
[1996] NSWSC 8
Para 3
…ontract or deed cannot describe the parameters of a relevant joint enterprise in a domestic or personal relationship situation. In Bruinsma v Menczer [1996] NSWSC 8 the parties (who were mother and daughter) entered into several deeds, the later one of which made provision for the ongoing shared residence of moth…
Counsel for the wife referred to Sanger & Sanger
[2011] FAMCAFC 210
Para 4
…rconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50; (2003) 128 FCR 1 at [214]-[232].[2] [2] Followed in Sanger & Sanger [2011] FamCAFC 210.…
Pty Ltd v Shire of Hastings
1933 AC 20
Para 3
…08] NSWCA 113; (2008) 13 BPR 25,139 at [124]. The implied term here was said to meet the well-known requirements set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 at 26, which include the limitations that it be so obvious that “ it goes without saying ” and it must not contradict any express term of…