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Langer & Langer

Langer & Langer

Case [2021] FedCFamC2F 40 16 September 2021

Binding Financial Agreement

Duress

Unconscionable Conduct

Family Law Act 1975 (Cth)

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Langer & Langer [2021] FedCFamC2F 40

File number(s): ADC 3482 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 16 September 2021

Catchwords: FAMILY LAW – property proceedings – binding financial agreement – where husband seeks for the binding financial agreement to be set aside – where the wife seeks for the application to be summarily dismissed – issue of whether the agreement is binding – relationship of approximately ten years – where parties entered into a joint venture in relation to the development and construction of real property – where husband asserts he was under duress when entering into the binding financial agreement due to his mental ill health – where wife asserts there was no duress, undue influence or unconscionability - whether binding financial agreement is valid, enforceable and effective.

Legislation:
Family Law Act 1975 (Cth) Pt VIIIA, ss 45A, 71A, 90C, 90DA, 90G, 90K, 90KA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Circuit Court of Australia Act 1999 (Cth) s 17A.
Federal Court Act 1976 (Cth) s 31A

Explanatory Memorandum, Family Law Amendment (Family Violence and other Measures) Bill 2018.

Cases cited: Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1979) 149 CLR 337
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Dey v Victorian Railway Commissioners (1949) 78 CLR 62.
Garvey & Jess (2016) 55 Fam LR 360
Hoult & Hoult (2011) 48 Fam LR 475
In the Marriage of La Rocca (1991) 14 Fam LR 715
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409
Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Ritter & Ritter and Anor [2020] FamCAFC 86
Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188
Sanger & Sanger (2011) 46 Fam LR 275
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Stativa & Stativa [2015] FamCAFC 170
Thorne v Kennedy (2017) 263 CLR 85
Webster v Lampard (1993) 177 CLR 598

Division: Division 2 Family Law

Number of paragraphs: 256

Date of hearing: 8 April 2021

Place: Adelaide

Solicitor for the Applicant: Jennifer M Bradley

Counsel for the Applicant: Mr McGinn

Solicitor for the Respondent: Donlan Lawyers

Counsel for the Respondent: Mr Praolini
ORDERS

ADC 3482 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LANGER

Applicant

AND:
MR LANGER

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

16 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The matter be listed for hearing on 31 March and 1 April 2022 at 10:00 am NOTING that a two day hearing has been allocated and is not to be exceeded without leave of the Court.
2.The hearing is confined to a determination of whether there is any factor that arises pursuant to section 90K of the Family Law…

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 Langer & Langer

Details

AGLC: Langer & Langer [2021] FedCFamC2F 40
Case: [2021] FedCFamC2F 40
Decision Date: 16 September 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, Ms Langer, sought to enforce a binding financial agreement made with her former husband, Mr Langer. The agreement was made in the context of their joint venture in property development and construction, and Ms Langer sought to enforce the financial terms outlined in the agreement. Mr Langer, on the other hand, sought to have the agreement set aside, claiming that he had entered into the agreement under duress due to his mental health issues at the time. Ms Langer argued that there was no duress, undue influence, or unconscionability and that the agreement should be upheld.

The court was required to determine whether there were any factors that would render the binding financial agreement set aside, in accordance with section 90K of the Family Law Act 1975 (Cth). The court found that there were sufficient grounds for a two-day hearing to be held to determine whether there were any factors that would render the agreement set aside. The court also directed that the parties file any further affidavit material in respect of the hearing by a specified date.

The court found that the matter should be listed for a two-day hearing to determine whether there were any factors that would render the binding financial agreement set aside. The court found that the applicant had satisfied the threshold requirements for a two-day hearing, and that the respondent had not raised any substantial question of law that would warrant a shorter hearing. The court also noted that any extension of the hearing time would require leave of the court.

The court ordered that the matter be listed for hearing on 31 March and 1 April 2022 at 10:00 am, and that the hearing be confined to a determination of whether there is any factor that arises pursuant to section 90K of the Family Law Act 1975 (Cth), which renders the binding financial agreement being set aside. The court also ordered that the matter be listed for Directions on 30 November 2021 at 9:30 am where the parties will be directed to file any further affidavit material in respect of the hearing.

Orders

Orders of the court

ADC 3482 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS LANGER

Applicant

AND:

MR LANGER

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

16 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. The matter be listed for hearing on 31 March and 1 April 2022 at 10:00 am NOTING that a two day hearing has been allocated and is not to be exceeded without leave of the Court.

2. The hearing is confined to a determination of whether there is any factor that arises pursuant to section 90K of the Family Law Act 1975 (Cth), which renders the binding financial agreement being set aside.

3. The matter be listed for Directions on 30 November 2021 at 9:30 am where the parties will be directed to file any further affidavit material in respect of the hearing.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Langer & Langer [2021] FedCFamC2F 40

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 14 of 14 shown

Ritter & Ritter
[2020] FamCAFC 86 Para 1

…, and in preference to that of the wife, unless his version of events is inherently incredible or unreliable .[7] [7] See Ritter & Ritter and Anor [2020] FamCAFC 86 at [66] (Ainslie-Wallace, Aldridge and Rees JJ). THE EVIDENCE…
Przybylowski v Australian Human Rights Commission (No 2)
[2018] FCA 473 Para 29

…ns must apply to section 45A given the analogous provisions contained in section 45A(3). [51] Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473. [52] Ibid at [7] (Perry J).…
Thorne v Kennedy
[2017] HCA 49 Para 8

…matrimonial property and thus given them greater control over their own affairs in the event of marital breakdown”.[58] [58] See Thorne v Kennedy (2017) 263 CLR 85, 95 [17] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).…
Riva NSW Pty Limited v Official Trustee in Bankruptcy
[2017] FCA 188 Para 33

…rsuant to the statute in Riva NSW Ltd v Official Trustee in Bankruptcy in the following terms:[55] [55] Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188. •The moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding; •The effect of provisions s…
Stativa & Stativa
[2015] FamCAFC 170 Para 22

…is doing what is just.[43] [41] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J). [42] Stativa & Stativa [2015] FamCAFC 170 at [8] (Ainslie-Wallace, Murphy & Aldridge JJ). [43] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).…
Australian Securities and Investments Commission v Cassimatis
[2013] FCA 641 Para 31

…whether pleadings have been exchanged, or discovery of documents has occurred.[54] [53] Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256. [54] Ibid 271 [46] (Reeves J).…
Spencer v Commonwealth of Australia
[2010] HCA 28 Para 20

…xatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.[38] [37] Spencer v Commonwealth of Australia (2010) 241 CLR 118. [38] Ibid 131 [22] (French CJ and Gummow J).…
McKellar v Container Terminal Management Services Ltd
[1999] FCA 1639 Para 26

…prevent a plaintiff submitting his case for determination … by the court.” [48] [47] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 415 [12] (Weinberg J). [48] Ibid at [13], quoting Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 91 (Dixon J).…
Lindon v Commonwealth of Australia
[1996] HCATrans 165 Para 22

…In Lindon v Commonwealth of Australia (No 2) ,[41] Kirby J provided a list of principles applicable to summary judgment, of which the Full Court of the Family Court, in Stativa & Stativa ,[42] provided the full synopsis in point form: •It is a serious matter to deprive a party of access to the court…
Webster v Lampard
[1993] HCA 57 Para 21

…h exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.[40] [39] See Webster v Lampard (1993) 177 CLR 598. [40] Ibid 602 (Mason CJ, Deane and Dawson JJ).…
Commercial Bank of Australia Ltd v Amadio
[1983] HCA 14 Para 48

…in which he is placed and of the other party unconscientiously taking advantage of that position.[70] [69] Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. [70] Ibid 461 (Mason J).…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
[1982] HCA 24 Para 1

…e concept of mutual mistake, which arose when the parties themselves had mutually, but mistakenly, assumed that a certain state of fact existed. [74] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1979) 149 CLR 337, 360 (Mason J).…
Dey v Victorian Railways Commissioners
[1949] HCA 1 Para 26

…r Terminal Manager Services Limited (1999) 165 ALR 409, 415 [12] (Weinberg J). [48] Ibid at [13], quoting Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 91 (Dixon J).…
Lindon v Commonwealth (No 2)
[1996] HCA 14 Para 28

…In this context, I also bear in mind what was said by Kirby J in Lindon v The Commonwealth (No 2) : An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination… Even a weak case is entitled to the time of a court. Experien…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
71A, 90C, 90G, 90K(1)(b) 6 mentions (from Para 2)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
143 3 mentions (from Para 15)
Federal Circuit Court of Australia Act 1999 (Cth)
17A 2 mentions (from Para 15)
Federal Court Act 1976 (Cth)
31A 2 mentions (from Para 15)

File number(s):	ADC 3482 of 2020
Judgment of:	JUDGE BROWN
Date of judgment:	16 September 2021
Catchwords:	FAMILY LAW – property proceedings – binding financial agreement – where husband seeks for the binding financial agreement to be set aside – where the wife seeks for the application to be summarily dismissed – issue of whether the agreement is binding – relationship of approximately ten years – where parties entered into a joint venture in relation to the development and construction of real property – where husband asserts he was under duress when entering into the binding financial agreement due to his mental ill health – where wife asserts there was no duress, undue influence or unconscionability - whether binding financial agreement is valid, enforceable and effective.
Legislation:	Family Law Act 1975 (Cth) Pt VIIIA, ss 45A, 71A, 90C, 90DA, 90G, 90K, 90KA Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143 Federal Circuit Court of Australia Act 1999 (Cth) s 17A. Federal Court Act 1976 (Cth) s 31A Explanatory Memorandum, Family Law Amendment (Family Violence and other Measures) Bill 2018.
Cases cited:	Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1979) 149 CLR 337 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Dey v Victorian Railway Commissioners (1949) 78 CLR 62. Garvey & Jess (2016) 55 Fam LR 360 Hoult & Hoult (2011) 48 Fam LR 475 In the Marriage of La Rocca (1991) 14 Fam LR 715 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409 Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 Ritter & Ritter and Anor [2020] FamCAFC 86 Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188 Sanger & Sanger (2011) 46 Fam LR 275 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Stativa & Stativa [2015] FamCAFC 170 Thorne v Kennedy (2017) 263 CLR 85 Webster v Lampard (1993) 177 CLR 598
Division:	Division 2 Family Law
Number of paragraphs:	256
Date of hearing:	8 April 2021
Place:	Adelaide
Solicitor for the Applicant:	Jennifer M Bradley
Counsel for the Applicant:	Mr McGinn
Solicitor for the Respondent:	Donlan Lawyers
Counsel for the Respondent:	Mr Praolini

ADC 3482 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS LANGER Applicant
AND:	MR LANGER Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	16 SEPTEMBER 2021