LANDRY & TALFORD

In the matter of *Landry & Talford*, Judge Howard of the Federal Circuit Court of Australia considered a property dispute between a husband and wife following a 34-year marriage. The central conflict revolved around the husband's assertion of an oral agreement regarding the parties' property interests, which the wife disputed. The case also involved considerations of discretionary trusts where both parties were trustees and beneficiaries, with the husband acting as the Appointor and controlling the trust.

The court was required to determine the existence and certainty of the alleged oral agreement concerning the parties' property. Specifically, the court needed to ascertain whether essential terms regarding the J Street property and distributions from the Talford Property Trust to the wife between 2012 and 2019 had been agreed upon. Furthermore, the court had to consider the legal principles surrounding "add backs" of property, particularly in light of the High Court's decision in *Stanford* and subsequent Full Court interpretations in *Bevan & Bevan* and *Trevi & Trevi*. The husband's disclosure practices and the clarity of his evidence were also significant issues.

Judge Howard found that the husband's evidence lacked the necessary consistency, certainty, and clarity to establish a binding oral agreement. Applying the principle that essential terms must be agreed upon for a contract to be enforceable, the court accepted the wife's evidence that no agreement existed regarding the J Street property or the characterisation of the trust distributions. The court noted that the husband's own evidence was contradictory, and he had failed to provide clear documentary evidence to support his claims. The court also addressed the concept of "add backs," referencing *Trevi & Trevi* to confirm that such exercises are permissible to achieve a just and equitable outcome by accounting for dissipated property within the total value of the parties' existing interests.

The court made no final orders at this stage, instead directing the parties to attempt to reach an agreed position on the wording of the Final Order reflecting the Reasons for Judgment. The Applicant was required to provide a proposed Final Order to the Respondent and the Court by 7 January 2021, with the Respondent to provide a reply by 28 January 2021. The parties were to endeavour to agree on the wording by 18 February 2021, failing which the matter would be listed for a Mention.