Langer & Langer - [2021] FedCFamC2F 40

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 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.
IT IS NOTED that publication of this judgment under the pseudonym Langer & Langer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

These proceedings relate to a binding financial agreement between former spouses, who are now divorced. The spouses concerned are Ms Langer (“the wife”) and Mr Langer (“the husband”).
The husband has commenced proceedings, in this Court, to have the binding financial agreement set aside, pursuant to section 90K of the Family Law Act 1975 (Cth) on the basis that:[1]
·he was subject to duress, when the agreement was made;
·the terms of the agreement itself are unconscionable;
·it is impracticable for the terms of the agreement to be carried out;
·the agreement is unenforceable.
[1] Hereinafter referred to as “the Act” or “the Family Law Act”.
The wife’s position is that the provisions of the Act, relating to binding financial agreements,[2] have been compiled with and therefore the agreement between the parties is binding.
[2] See Family Law Act 1975 (Cth) Part VIIIA.
In these circumstances, at a preliminary stage, prior to a full canvassing of the evidence, she seeks that the Court dismiss the husband’s application pursuant to section 45A of the Act on the basis that he has no reasonable prospect of successfully prosecuting his application.
BACKGROUND
The parties began to live together in 2007. At the time, each was in their late forties and had previously been married. They were both in paid employment.
When the parties began their cohabitation, the husband moved into the wife’s home, located at City C. She had owned this home for many years. The parties subsequently married in 2008. They finally separated on 27 February 2018 and were divorced on 9 August 2019.
During their marriage, the parties entered into a joint venture to develop a piece of land at Suburb F. The venture was to take place in phases and involved the pooling of some of their capital. In the first phase, an existing dwelling on the property was to be demolished and the vacant land, so created, sub-divided into three plots.
In the second phase, two town houses were to be constructed on two of the plots,[3] one of which was to be owned by the parties, as tenants in common in the proportions of 70/30% in the wife’s favour; the other to be owned by the husband alone.
[3] At this stage, it is useful to identify these properties as “E(1) Street” and “E(2) Street” respectively. E(1) Street is owned by the husband alone; E(2) Street being owned by the parties as tenants in common. In these reasons for judgment, I have referred to the properties in this way in an attempt to avoid confusion.
In the third phase, a third town house was to be constructed on the third plot,[4] which was to be the parties’ joint family home and which would also have a separate piece of accommodation, which could be let as a holiday rental. This third allotment was to be registered in the wife’s name alone.
[4] At this stage it is useful to identify this property as the “Suburb F property”.
The parties separated, after the two initial properties had been constructed, but prior to the construction of the third property. They reconciled in the year prior to the construction of the third property and before the completion of the building contract relating to it.
Necessarily, the completion of the third dwelling entailed a significant financial commitment. It was in these circumstances that the parties entered into negotiations, both directly with one another and via their respective solicitors, to draft a binding financial agreement.[5]
[5] Hereinafter referred to as “the BFA”.
These negotiations took place in the light of their recent reconciliation and prior to the undertaking of the third and emotionally laden component of their joint venture – the purchase of a large and expensive dwelling.
The BFA was ostensibly directed towards crystallising their respective capital situations – both at the outset of their relationship and at the time of the BFA – and more significantly what should occur in respect of each of the three properties at Suburb F, created by their joint venture, in the event of their separation.
In respect of the third dwelling, the BFA dealt with any separation occurring during the construction phase, as well as what should happen if the separation occurred after the relevant dwelling had been completed.
The relevant binding financial agreement was executed by them, on 22 December 2015, whilst their marriage was intact. This was some weeks after the wife had entered into a contract to build the third dwelling and shortly prior to the first progress payment, in respect of the build, fell due.
Controversies have subsequently arisen as to the equity and workability of the provisions of the BFA, so far as it applies to the third dwelling, which is now completed and which remains registered in the wife’s sole name and is her current home. She has no current intention to sell it and the BFA itself has no specific mechanism to compel its sale.
The husband contends that the BFA was completed with haste, shortly prior to the final commitment having to be made, to the building company concerned, in respect of the construction of the final dwelling, in the light of the wife’s desire to go ahead with its construction. It is his case he was presented with an ultimatum – either execute the BFA and allow the construction to proceed or the marriage would be over.
He claims this placed him under significant emotional pressure, particularly because he was suffering from depression at the time and wished to make the parties’ comparatively recent reconciliation successful.
In his own words, the husband contends that the wife told him that if he did not execute the agreement, the reconciliation between the parties would be terminated. In these circumstances, he claims his will was overborne.
In addition, he contends that he agreed to an arrangement, which was fundamentally inequitable to him, particularly because the agreement does not envisage him receiving any sum in respect of the third property, until it is sold, in circumstances in which the agreement itself provides no mechanism to force a sale, given that the wife remains its sole proprietor.
It is also his case that the BFA recognised that he would make significant financial contributions towards the construction of the third dwelling, which were recoupable by him if the parties separated during the construction phase. He contends that it is axiomatically anomalous that the BFA does not provide for him to be reimbursed for any sum in respect of these contributions until either the property is sold or one of the parties dies.
In these circumstances, he contends that he executed the BFA against his better judgement, knowing to some degree that it had the potential to be unfair to him. In a formal sense, he asserts that he was subject to some species of duress at the time; the provisions of the agreement itself are impractical to carry out; and its terms unconscionable in nature.
Evidentiary controversies arise as to whether the wife was in a position to finance the construction of the third dwelling alone or whether she needed the husband’s assistance to secure finance.
The third dwelling was completed in January of 2017 and the parties lived in it together, until the date of their separation in early 2018. The wife denies that the husband was under any disadvantage during what she would characterise as protracted negotiations leading up to the execution of the BFA. She denies that the husband suffered any form of psychological impairment in this period.
It is her case that, during the process of the parties’ reconciliation in mid to late 2015, she made it clear to the husband that one of the essential prerequisites of the reconciliation continuing was an end to financial uncertainty between the parties and the formalisation of the financial aspects of their relationship.
On 30 July 2020, the husband filed an application to the Court seeking to have the agreement set aside pursuant to the provisions of section 90K of the Act.
The wife responded to this application on 9 October 2020. She seeks the dismissal of the husband’s application and that he pay her costs incurred in the proceedings on an indemnity basis.
More recently again, on 25 March 2021, the wife applied for summary dismissal of the husband’s application pursuant to section 45A of the Act on the basis that it has “no reasonable prospects of success”.
It is her position that the agreement in question is binding on the parties and provides the only mechanism for the division of their property following the end of their marriage and therefore excludes the application of Part VIII of the Act to their circumstances.[6]
[6] Family Law Act 1975 (Cth) s 71A.
These reasons for judgment are directed towards the resolution of this preliminary issue. If the wife’s application is unsuccessful, the husband agrees that there should be a discrete hearing to determine whether or not the agreement should be set aside.
THE LEGAL PROVISIONS APPLICABLE
The applicable legal provisions are contained in Part VIIIA of the Act. Section 90C authorises spouses to enter in financial agreements during the course of their marriage to determine the disposition of either part or all of their property and financial resources in the event of a breakdown of their marriage.
In the absence of a divorce, in order to trigger the operation of such a financial agreement, it is necessary for one spouse to make a written declaration as to the separation of the parties concerned. Mr Langer executed such a separation declaration, pursuant to the provisions of section 90DA on 22 March 2018.
In general terms, in order to be binding on the parties concerned, any such financial agreement must:
·Be signed by each of the parties concerned; and
·Each spouse must receive independent legal advice as to the subjective advantages and disadvantages of the relevant agreement; and
·The relevant legal practitioner providing this advice certifies that it has been provided; and
·The other spouse concerned receives such certification.
Section 90K provides the circumstances in which the Court may set aside a financial agreement. It provides as follows:
Circumstances in which court may set aside a financial agreement or termination agreement
1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(a) the agreement was obtained by fraud (including non-disclosure of a material matter); or
(aa) a party to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii)with reckless disregard of the interests of a creditor or creditors of the party; or
(ab) a party (the agreement party) to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or
(ii)for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or
(iii)with reckless disregard of those interests of that other person; or
(b)the agreement is void, voidable or unenforceable; or
(c)in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or
(d)since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(e)in respect of the making of a financial agreement--a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(f)a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
(g)the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB.
As previously indicated, section 45A of the Act provides a mechanism for the Court to summarily dismiss an application. In particular section 45A(2) provides as follows:
The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
Section 45A(3) provides a gloss to this provision. It provides that a proceeding need not be either hopeless or bound to fail to have no reasonable prospects of success.
THE CONDUCT OF THE PROCEEDINGS TO DATE
As indicated above, the husband commenced these proceedings on 30 July 2020. On a final basis, his application simply sought the setting aside of the relevant BFA, pursuant to section 90K, but did not provide details of which particular subsection of the provision was germane.
Thereafter, he sought that the parties’ matrimonial property be divided so that he received 45% of such assets and the wife receive 55%. The husband now acknowledges that it is necessary for the Court to conduct discrete hearings, if necessary, into the two distinct aspects of the case – firstly whether the BFA is binding or should be set aside and secondly, only if the BFA is negated how the parties’ property should be divided. These reasons for judgment are solely directed towards the first limb.
The case first came into court on 13 October 2020. On this occasion, the husband was ordered to file an affidavit, on or before 3 November 2020, in which the following matters were to be addressed:
·The specific provisions of section 90K on which he relied;
·What grounds provided, by each such subsection, did he seek to establish;
·The material facts he asserted established such grounds;
·The date or dates on which these facts occurred.
Division 2 of the Federal Circuit and Family Court of Australia, in its family law jurisdiction, is not a court of pleadings. However, the clear import of these orders was that Mr Langer was required, in effect, to plead his case. It is in this context that the application for summary dismissal has been brought by Ms Langer on 25 March 2021.
DOCUMENTS RELIED UPON
The wife’s application for summary dismissal has necessarily taken place in a truncated form. There has been no cross-examination of either party. Accordingly, I am not in a position to make findings of fact regarding their respective credit.
The only evidence currently before the Court is in the form of affidavits, which each of the parties have filed. In the husband’s case, he relies on the following affidavits:
·An affidavit of himself filed 30 July 2020;
·A further affidavit of himself filed 6 November 2020;
·A third affidavit of himself filed 12 March 2021.
In the wife’s case, she relies on the following affidavits:
·An affidavit of herself filed 9 October 2020;
·A further affidavit of herself 4 December 2020;
·A third affidavit of herself filed 25 March 2021.
The wife objects to the husband’s third affidavit on the basis that it contains only submissions and no evidence regarding his assertions that the BFA is not binding on the basis of any consideration stipulated in section 90K. It is her further position that the husband was directed to file his evidence in respect of this issue in November and therefore there is no obvious reason for its filing.

In respect of assessing the husband’s prospects of arguing that the BFA is not binding I am required to accept his case and what he asserts during relevant events, at its highest, 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
The recital to the BFA provides a useful synopsis of the parties’ financial circumstances, both at the commencement of their cohabitation and afterwards. In summary, this recital indicates the following matters.
In 2007, the wife owned her house in City C, which was unencumbered. She also owned an investment property, in Adelaide, which was subject to a mortgage. In addition, she had modest superannuation and savings, along with a motor car and a small parcel of bank shares.
For his part, the husband owned a house in Town D, which was subject to a mortgage of equal value. He had a smaller amount of superannuation than the wife and a leased motor car.
As part of the BFA, the parties, ostensibly at least, attempted to encapsulate their respective financial positions, as at the date of the commencement of their relationship. In summary, these indicated that the wife had a net worth of around $1,000,000.00; whilst the husband had a net worth of around $30,500.00.[8]
[8] See Affidavit of Mr Langer filed 30 July 2020 at Annexure-1.
Prior to their marriage, the parties entered into a deed, prepared by a solicitor, to evidence this marked in-balance in capital backing, as at the date of their marriage. This deed, dated 2008, indicates that the wife held property worth in excess of $1,000,000.00. The husband has deposed that he only signed the deed “to appease” the wife. However, he does not otherwise dispute its veracity.
In March 2009, the husband sold his property in Town D for a modest profit. Thereafter, he purchased a property, in City C, close to the wife’s home, for the sum of $365,000.00. The property was registered in his sole name, although the wife contributed around $75,000.00, in cash, from a bequest made to her by her aunt towards its purchase.
The wife sold her City C property, in February 2012, netting approximately $940,000.00. Later that year, the parties purchased a large plot of land, on E street, Suburb F. This was the subject of the joint venture.
They intended to demolish the existing dwelling on the property and subdivide the land into three separate titles on which would be built three new dwellings. This was done creating properties at Suburb F; E(1) Street; and E(2) Street. The purchase price for the Suburb F land was $1,085,000.00 of which the wife contributed $940,000.00; the husband $50,000.00; with the rest borrowed by way of mortgage.
Prior to the land’s development, the parties entered into a joint venture agreement, which provided that the property was owned as to 70% to the wife; and 30% to the husband.
In 2013, the existing structure on the land was demolished and later that year, two townhouses were constructed on what became E(1) Street and E(2) Street respectively. The Suburb F remained vacant and undeveloped, although the plan remained for it to be utilised for the construction of another dwelling, which in time would become the parties’ family home.
Whilst construction was underway, the parties lived in the husband’s City C property. The wife has a history of employment as a manager; whilst the husband is a transport worker. He has enjoyed a higher salary than the wife, from time to time.
The cost of construction of the two houses at number E(1) Street and number E(2) Street was about $828,000.00, which was obtained by a mortgage secured against the Suburb F property and another property owned by the wife in Suburb H, which she had purchased after the sale of her Adelaide investment property.
In accordance with their agreement, number E(1) Street was registered in the husband’s sole name; the Suburb F property was registered in the wife’s sole name; and number E(2) Street was registered in the parties’ name as tenants in common as to 70% to the wife and 30% to the husband.
Upon the completion of the construction of the two houses, the parties moved into number E(2), whilst number E(1) Street was rented. The future construction of the property on the Suburb F block represented a significant level of investment and was deferred.
In this context, the parties anticipated that ultimately number E(2) Street would be sold, following the construction of the Suburb F home, with its proceeds utilised to pay construction costs of what would become their joint home.
During their relationship, the parties operated a joint offset account into which each deposited funds from time to time. These included two significant redundancy payments, received by the wife in March of 2012 and April 2013 of $70,000.00 and $65,000.00 respectively. It seems to be the case that both needed to authorise payments from this account. Certainly, this is the husband’s position.
During 2013/14 the parties entered into negotiations to construct their home on the Suburb F land. Ultimately, they decided to engage Company J.[9] It is the wife’s position that it was around this time that the issue of the parties entering into a BFA was first mooted, given the fact that they had previously separated and reconciled.
[9] Hereinafter referred to as “Company J”.
In the context of plans being well advanced to construct the Suburb F home, the husband’s City C property was also sold in January 2013 and the profits of $212,000.00 utilised to reduce borrowings associated with the construction of number E(1) Street and number E(2) Street. The Suburb F property remained debt free.
In March of 2015, the parties separated for a time (until May/June). Upon separation, the wife lodged a caveat over number G Street to protect what she assessed to be her interests in it. It is common ground that the parties had previously separated during earlier periods of their marriage and then reconciled prior to this separation.
It is in reference to the period before and after the parties’ separation that the most significant evidentiary issues arise. As I have already indicated, these issues cannot be definitively resolved in the course of the limited hearing, which took place in the context of the wife’s summary dismissal application, which necessarily did not entail the taking of oral evidence and its testing through cross-examination.
Accordingly, I am not in a position to make concluded findings of fact in respect of the various issues of controversy which arise regarding when the possibility of the parties entering a BFA first arose, and when its broad terms were negotiated.
In general terms, the husband asserts that these discussions arose in a period during which the parties were separated and the execution of a BFA was an essential pre-condition to the parties’ reconciliation. The wife asserts otherwise, and contends that such discussions had taken place prior to separation and were formalised after reconciliation but were not dependent upon it, given the parties’ obviously intermingled financial affairs.
During the early 2015 separation, the husband remained living at number E(2) Street, as the wife had temporarily relocated to Sydney, where she has relatives. The husband deposes that he was depressed and sleeping poorly at the time. In this context, the husband deposes as follows:
It was around the time the wife was living in Sydney in April 2015 that the wife suggested that we enter into a binding financial agreement. I told the wife that I did not want to enter into the Binding Financial Agreement. She told me that she thought it would help our relationship and give her greater comfort if we were to reconcile that we had an agreement as to our financial affairs in the event of separation. She said words to the effect that ‘if I was not after her money that I could prove it by having an agreement’ etc (sic).[10]
[10] See Affidavit of Mr Langer filed 6 November 2020 at [8].
It is the husband’s case that the parties reconciled again in June of 2015. The wife asserts that the date of reconciliation was 1 May 2015. Apart from the date, there seems to be no controversy about the fact of this reconciliation. Thereafter the parties continued to negotiate the terms of the building agreement with Company J.
The husband’s position is that it was the wife who was the instigator of the BFA proposal, as she wished the parties to have a formal financial record in the light of their recent reconciliation to provide her with greater comfort that Mr Langer was not “after her money”.
Mr Langer also complains to have been severely depressed, both at the time of separation and afterwards during the negotiation phase of the BFA, which coincided with the discussions with Company J. It is his position that he did not want to enter into a BFA and it was the wife who agitated for it.
In this context, the husband has deposed as follows:
The wife desperately wanted to build the home. She needed my financial support to build it as she was unable to borrow sufficient funds to finance the build on her own. At that time I was on a good income. I remained uncertain as to the status of our marriage and reluctant to commit financially to the build in the circumstances. The wife said words to the effect that the build of the new home would give us a new start and strengthen our relationship living in a beautiful home (or similar).[11]
[11] Ibid at [9].
As I understand it, the elements of duress to which the husband alleges he was subject to in the period leading up to his execution of the BFA was the suggestion that any reconciliation between the parties would be shelved if he did not enter into the BFA and to secure the reconciliation he had to commit to the funding of Company J to construct the Suburb F home.
It is the wife’s position that the parties had been engaged in discussion, regarding the construction of the Suburb F home during much of 2013/14 and it was in this context that they discussed the possibility of there being some form of agreement between them to provide mutual financial security which would be directed towards the:
preserv[ation] of our respective contributions, secure a home for each of us and provide the husband with ongoing freedom for his personal spending as he chose. Many options were considered but it became apparent over time a BFA was the most appropriate for us both.[12]
[12] See Affidavit of Ms Langer filed 9 October 2020 at [6.2].
It is implicit in the wife’s evidence that these discussion pre-dated separation and reflected the history of parties’ long term financial relationship with one another. The wife’s position is that she was concerned about the husband’s profligate financial habits and purchases, as evidenced by an expensive motor vehicle purchase and overseas holiday, which had led to an escalation in his personal level of debt and her desire to safeguard her position, whilst still allowing the husband the level of financial autonomy which he wanted.
The wife denies that a concluded agreement, in the form of a BFA, was a necessary precondition to reconciliation. Rather, she asserts that the parties reconciled before the actual nut and bolts of any negotiations, for the BFA, took place but in the context of a pre-separation understanding that a BFA was the best fit for them.
In this context, the wife deposes as follows:
I deny that I required a BFA before we would reconcile. Negotiations concerning the BFA did not arise until after the reconciliation. Following our reconciliation on 1 May 2015, the husband and I had reached a broad agreement between us concerning the terms of our BFA. It was agreed that I would arrange for an initial draft document be prepared reflecting our agreed terms, as I would incur the cost of this. My solicitor sent a copy of this initial draft BFA to the husband on 24 August 2015. A response was finally received from the husband’s solicitor under cover of a letter dated 5 November 2015.[13]
[13] Ibid at [6.3].
In this context, she points to the fact that the parties reconciled prior to the commencement of the formal process to draw up the necessary document to rebut any implication that the husband was subject to any form of coercion or that his will was otherwise overborne and any delay relating to its execution arose at the husband’s end. It is her position that both parties were keen to enter a BFA and were equally committed to building the Suburb F home together.
Where there is significant controversy between the parties is the extent of the parties’ respective commitment to build the Suburb F home. The husband asserts that he was reluctant to commit to the project, whilst the wife desperately wanted to go ahead.
More significantly, they disagree about whether they had the need of the other’s financial support to go ahead with the build. The husband asserting that the parties’ joint financier required the security provided by his level of income, whilst the wife asserts that she had sufficient resources to fund the build herself.
In these circumstances, the wife deposes as follows:
Our negotiations with Company J continued during the latter half of 2015 culminating in the signing of the contract for construction on 27 November 2015. I was the sole signatory to the contract. The husband had no contractual obligation under the contract. The BFA had not been signed at that time. I was aware that in signing the contract, I was committing to the payment of the first progress payment in late December 2015. I had sufficient funds from a lump sum redundancy payment and ex-gratia payment received from my prior employer to meet the progress payment myself and accepted that the payment may be made prior to finalising the BFA. At no time did I issue the husband with an ultimatum that the BFA must be signed prior to making the first progress payment.[14]
[14] Ibid at [6.4].
It seems apparent that, in the light of the plan to build their home on the Suburb F block that the parties entered into formal negotiations, through separate firms of solicitors, in respect of the BFA, which is the subject of these proceedings.
The wife acknowledges that she undertook the necessary steps to formalise the BFA and was the first to seek legal advice. Accordingly, the first draft of the relevant BFA was prepared by the wife’s solicitor and forwarded on to the husband on 24 August 2015.
On the wife’s case, this process followed broad discussions between the parties, which were based on the understanding that, if the parties subsequently separated, she would retain the completed Suburb F property; the husband would retain E(1) Street; and E(2) Street would be sold to reduce borrowing costs for the whole development.
The wife is critical that the husband was tardy in seeking his own advice in respect of the draft document. However, in early November of 2015 his solicitor responded to the wife’s solicitor providing a handwritten annotation to the original document.
The wife’s solicitor, Ms Bradley responded promptly, in mid-November, asserting that it was her understanding that both her client and the husband wished to have an in principle agreement by 21 November 2015. Ms Bradley wrote as follows:
[M]y client does not consent to the removal of clauses 15 (e) – 15 (h) inclusive. These clauses are designed to define separate property and relationship property. Given that the parties both held separate assets at the commencement of the relationship and have operated separate finances throughout the marriage, these clauses are relevant and effective. It is certainly my client’s understanding that her separate assets brought into the relationship and not involved in the Suburb F venture are to be effectively quarantined from the marital pool. The Suburb F venture has been particularly entered into as a formal joint venture and is quite distinctive in that regard.[15]
[15] See Annexure-2 to the Affidavit of Mr Langer filed 6 November 2020.
On 1 December 2015, the husband’s solicitor provided to the wife’s solicitor, two copies of a BFA, executed by Mr Langer, seeking the wife’s return of an executed and stamped counterpart from the wife.
The wife’s solicitor then sought an electronic version of this document to enable her to make further revisions to it. Ultimately, the wife’s solicitor made some further changes to this document and, under cover of a letter dated 18 December 2015, returned it to the husband’s solicitor, after having been executed by her client. The husband concedes that he executed this document on 22 December 2015, although he asserts he did so reluctantly.
It is his position that he was under pressure, emanating from the wife, to do so, as she was desirous of having a completed agreement prior to Christmas of that year and before she was due to make the first significant payment towards the construction of the Suburb F property, which had long been a joint aspiration of the parties.
The wife refutes this assertion. It being her position that the completion of the BFA was not in any way dependent on any the finalisation of any contractual arrangement with Company J. It is her evidence that she was more than happy to go it alone so far as the Suburb F property was concerned.
In this context, she deposes as follows:
I had hoped to reach an 'in principle' agreement with the husband by mid November 2015, when the building contract with Company J needed to be signed. When this did not occur, I made enquiries on my own into my financial situation and determined that I could fund the build without recourse to the husband's financial contribution. I then told the husband that I wished to proceed with the build. I told the husband that I had signed the building contract alone and that he did not need to make any financial contributions to the build. He then told me he very much wished to be a part of the build. I told him I was amenable to this and we continued discussions through our respective solicitors to then refine the terms of the Agreement. No terminating time for the conclusion of negotiations was provided by either of us to the other. We both told the other in mid-2015 that as discussions between us concerning a financial agreement had started in late 2014 and we wished to proceed with the construction of the Property F house during 2016 that we wished to conclude the Agreement by Christmas, if possible.
At no time did I present the husband with a final offer of or a deadline for signing the Agreement. Although I believed it was a common goal for both of us to attempt to finalise the Agreement by Christmas from our discussions with each other during 2015, if this could not be achieved, there was no reason why negotiations could not continue in January 2016.[16]
[16] See Affidavit of Ms Langer filed 25 March 2021 at [4.3]-[4.4].
The invoice for the first progress payment, in respect of the construction of the Suburb F property, was received from Company J, on 17 December 2015. The amount required to be paid was $121,118.70 due on 24 December 2015. The sum required was paid the day prior from the joint offset account by the wife. The invoice itself was addressed to Langer Mr & Mrs.[17]
[17] See Annexure-3 to the Affidavit of Mr Langer filed 6 November 2020.
Thereafter, construction of the Suburb F property proceeded, with regular progress payments being made from the parties’ joint offset account. As had always been the case, the Suburb F property remained registered in the wife’s sole name.
The wife withdrew the caveat, which she had lodged over number E(1) Street on 1 July 2016. As indicated above, she refutes any suggestion that the husband was subject to any degree of pressure to execute the BFA because of the need to proceed with the first instalment payment to Company J, as she asserts she could make the payment without any assistance from the husband.

For his part, the husband points to the close coincidence of the execution of the BFA with the requirement for the first instalment payment to be paid to support his assertion that the wife was imploring him to enter the BFA in order to save the reconciliation. He also points to the fact that the first instalment payment came from the parties’ joint offset account, rather than any financial source solely controlled by the wife.
THE TERMS OF THE BINDING FINANCIAL AGREEMENT
The husband has described the BFA as being cumbersome in its provisions and not easy to follow. I do not disagree with this assessment. Mr Langer summarises its salient provisions as dealing with the following scenarios:
[The BFA] provides for different payments to me in the event of separation under different scenarios, including whether certain properties have been sold or not prior to separation and whether or not the construction of the property at Suburb F had been completed.[18]
[18] See the Affidavit of Mr Langer filed 6 November 2020 at [22].
The BFA is dated 22 December 2015. It is 26 pages in length. It has 46 recitals designated “A” to “Z” and “AA” to “VV” respectively. The BFA itself has 45 clauses and 4 schedules. The schedules deal with the wife’s assets at the commencement of the relationship; the husband’s assets at the commencement of the relationship; the wife’s assets and liabilities at the time of execution of the BFA; and the husband’s assets and liabilities at the time of execution of the BFA.
In specific terms, these schedules indicate the wife had a net asset balance of $1,076,300; as opposed to $30,590.00 for the husband, at the commencement of the relationship; and she had a net asset balance of $1,721,400.00 at the time of the BFA; as opposed to $843,100.00 for the husband.
The BFA explicitly indicated that the husband was not to be a signatory to the building contract for the Suburb F property.[19] The BFA recitals further indicated that the construction costs would be met by withdrawals from a joint offset bank account then holding $389,000.00. It is the wife’s evidence that she had contributed approximately 65% of this sum.
[19] See the Binding Financial Agreement at Recital CC.
The BFA indicates that when this sum had been expended, the parties intended to apply for a mortgage over the Suburb F property to fund the remainder of the construction costs. However, in this context, it is the wife’s evidence that she did not require the husband’s assistance to secure such a mortgage, as she had ample security, in the form of other real property, owned by her, to obtain finance to complete the build on the Suburb F site, which was registered in her name alone. In this context, one of the relevant recitals indicated that what was termed the residual mortgage was estimated to be in the vicinity of $185,000.00.
The husband disputes that the wife was able to progress the build without his financial input. He contends that the relevant financier required the guarantee provided by his secure and significant income to endorse the mortgage.
The recitals to the BFA make specific reference to the offset account. In particular, one half of all progress payments, made during the construction phase, were to be designated as Mr Langer’s progress payment contribution. In particular, it read as follows:
The parties intend to withdraw funds from the Suburb F home Offset Account to pay all progress payments that will become payable from time to time during the construction of the new home on the Suburb F property. One half of all such progress payments) will be attributable to Mr Langer (‘Mr Langer’s progress payment contribution’).[20]
[20] Ibid Recital BB.
Accordingly, this recital (BB) acknowledges that each party will contribute towards construction costs incurred for the Suburb F property and provide the attribution that one half of these payments will be designated as the husband’s. What the recital does not do is indicate what, if any, is the significance of such designation, when the provisions of the BFA are called into effect.
The BFA contains the required statutory prerequisites in order to ensure that it is binding in nature, namely:
·The agreement is intended by both of them to be binding;
·Each has entered into it in good faith;
·The discussions leading to the agreement have taken place over a number of months, and each had the benefit of independent legal advice;
·Each acknowledged that they had made a full and frank disclosure of their respective financial situation;
·The agreement had been reached in order to avoid future disputes about the ownership of property and was intended to define for all time their ownership of property and the provisions of section 90C of the Act applied to it;
·The agreement contained the required certification, from each parties’ solicitors, regarding the provision of legal advice and the potential pros and cons arising from it.
Under the heading Actions Upon Signing This Agreement, the parties agreed to withdraw the caveats on any of the subject properties and Mr Langer agreed to do all things necessary to ensure the release of funds from the joint fund to pay all progress payments for the construction of the Suburb F property, as they fell due.
The BFA dealt with prospective arrangements, in respect of financial responsibilities between the parties, in the event their marriage continued. This in turn dealt with arrangements before and after the completion of the dwelling on the Suburb F property.
Pending completion of the construction of this property (the Suburb F), it was agreed:
·Both parties will contribute their 2014/15 income tax refunds towards construction costs;
·The husband would pay all recurrent mortgage payments on both number E(1) Street and number E(2) Street;
·If the husband defaulted in respect of making payments in respect of number E(2) Street (the co-tenanted property), number E(1) Street (the husband’s property) was to be sold and after payment of expenses, the proceeds were to be utilised to discharge the mortgage on number E(2) Street, with the balance paid to the husband;
·If number E(2) Street was sold in 2016 or 1 February 2017, whichever was earlier, the husband would continue to pay the mortgage instalments on number E(1) Street;
·If number E(2) Street was not sold prior to 1 February 2017 the parties would contribute equally to its mortgage repayments;
·The wife would pay any mortgage costs related to the Suburb F home.
Following completion of the construction of the Suburb F property, it was agreed:
·Number E(2) Street would be listed for sale, at a price to be agreed between the parties;
·The net proceeds of number E(2) Street would be applied to discharge the residual mortgage on the Suburb F property, with the balance to be paid to the wife;
·In the event of the sale of the Suburb F property, it was directed that the husband would receive a sum entitled Mr Langer’s payment, from the proceeds of sale, after the discharge of the mortgage, provided the sum to be paid to the husband did not exceed $200,000.
As indicated above, the BFA dealt with mechanisms for the sale of the jointly owned property at number E(2) Street and responsibility for the servicing of mortgages relating to it and the property registered in the husband’s sole name (number E(1) Street) pending completion of the construction of the Suburb F home.
What is meant by the expression completion of construction is not defined in the BFA and I have not been provided with a copy of the building contract with Company J. Given the parties occupied the property and did not pay the final progress payment due to controversies about the build, no formal certificate of occupancy was issued.
In contrast, the BFA recognises that the parties will pay one half of all repayments relating to the Suburb F property once they begin to reside in the new house.
The expression Mr Langer’s payment is not specifically defined but seems analogous to the expression Mr Langer’s progress payment contribution referred to in the BFA recitals,[21] referred to above.
[21] Ibid Recital BB.
In addition, the amount in question is roughly half of the sum said to be contained in the offset account,[22] which was agreed to be wholly utilised towards the construction costs of the Suburb F property.
[22] Ibid at Recital Z.
The BFA dealt with what would occur in the event that the Suburb F property was not sold during the husband’s lifetime,[23] and what the implications of this would be in respect of his payment. This was calculated by reference to his approximate 50% pro-rata contribution from the offset account.
[23] Ibid cl 23(b)(v)-(vi).
The BFA, in this eventuality, envisaged either the wife or her estate making this payment to the husband or his estate. Essentially, the payment was deferred until the death of one of the spouses concerned.
Prior to the completion of the Suburb F property, whilst the marriage between the parties was ongoing, the BFA envisaged the following:
·Pending construction of the Suburb F property, the wife would pay all mortgage payments in respect of the residual mortgage relating to the property;
·Once the parties began to live in the Suburb F property, the parties would share expenses arising from their joint occupation of the Suburb F property, including the residual mortgage, if it had not been discharged, equally;
·The husband would be responsible for all mortgage payments on number E(2) Street until it was sold;
·The husband would be responsible for all mortgage payments on number E(1) Street and all other outgoings in respect of it but would receive any rent from it;
·The wife would retain income from her other real property.
One of the difficulties with this provision, it occurs to me, is that it does not deal specifically with amounts paid by the parties into the joint offset account, which were potentially utilised to pay construction costs on the Suburb F property, as envisaged in recital BB. It is the husband’s case, as I understand it, that this represents a significantly unfair lacuna so far as he is concerned.
Clause 24 of the BFA deals with the disposition of property in the event of the parties’ permanent separation. There is no dispute that the parties are permanently separated given both their separation and the execution of a settlement declaration by the husband. Accordingly, it is this clause which will be the operative one so far as the application of the BFA is concerned to the parties’ circumstances, if it is un-impugned.
There is no controversy that the marriage between the parties was in difficulties in late 2017. Mr Langer suffered a heart attack on 15 November 2017. The parties then agreed they finally separated on 27 February 2018, with the husband executing a settlement declaration on 22 March 2018 triggering the operation of the BFA.
By this stage, number E(2) Street (the jointly owned property) had been sold. It was sold on 24 March 2017. Construction of the Suburb F had largely been completed and the parties were certainly living in the new home. Once again, the operation of clause 24 is subject to the recurrence of two distinct factual scenarios:
·What should occur if the sale of the jointly owned property at E(2) Street had not occurred;[24] and
·Secondly, what should occur, if separation occurs during the construction of the Suburb F property.[25]
[24] Ibid cl 24(a).
[25] Ibid cl 24(b).
The remainder of clause 24 [subclauses (c)-(f)], by necessary implication, deals with what should occur, if number E(2) Street had been sold and construction of the Suburb F property completed. However, it is not explicitly expressed in these terms.
Firstly, in the event that separation occurs and number 6 has not been sold, the parties agree that the property should be sold and, after payment of selling costs, the husband should receive Mr Langer’s payment, with the balance of the proceeds to be paid to the wife.[26]
[26] Ibid cl 24(a).
Secondly, if separation occurred during the construction of the Suburb F property, the husband was required to pay to the wife 25% of the amount owing on the residual mortgage, owing on the property, which sum was capped at $47,000.00 but would otherwise have no financial obligation towards construction costs on the Suburb F or financial obligations for number E(2) Street.
In these circumstances, the BFA recognises an apportionment of liability between the parties in respect of the residual mortgage, which arose only when the monies in the jointly held offset account had been utilised in construction costs related to the Suburb F.
Otherwise, clause 24(c) envisaged that the wife would retain, free from any claim from the husband, the following items of property:
·The Suburb F property;
·E(2) Street, if not sold; and
·All other property and superannuation standing in her name.
Clause 24(d) envisaged the husband retaining the following items of property, free from any claims from the wife, on permanent separation:
·The E(1) Street property; and
·All other property and superannuation standing in his name.
None of these clauses, it would seem to me, deal in explicit terms with what should occur if number E(2) Street was sold during the period of the marriage but prior to the parties’ occupation of the Suburb F property, particularly in terms of the husband’s contribution towards its construction cost arising from any payments made by him into the joint offset account.
As indicated above, on 27 November 2015, approximately one month prior to the execution of the BFA, the wife alone entered into a contract with Company J to construct a home on the Suburb F site for $807,458.00. The first progress payment of around $121,000.00, required to secure the pouring of the concrete footings for the property was due around the Christmas period of that year.
It is the wife’s case that, at this stage, although she would have preferred to have the husband’s involvement in the build, she was in a position to go ahead without it. She wanted the building underway by Christmas. She did not conceal the fact that she had executed the building contract from the husband. She denies that she was under any degree of financial pressure in respect of the first progress payment or indeed in respect of any of the subsequent ones.
Further progress payments were made from the joint line of credit to Company J during 2016 to pay for the framework, cladding, and the roof. The husband also deposes that he and the wife borrowed $100,000.00 from his father to assist with construction costs. Mr Langer has deposed that the sums advanced by way of progress payments was around $725,000.00.
As previously indicated, recital Z recognised that, at the time of the execution of the BFA, the parties intended to draw down $389,000.00 from their jointly held offset account and then “towards the end of construction the parties will apply for a mortgage over the Suburb F property for the final payment of $185,000.00. This mortgage was referred to as the residual mortgage.[27]
[27] Ibid Recital Z.
It seems uncontroversial that when the BFA was executed, the parties each recognised that their reconciliation was stable and this entailed the construction of the Suburb F property, which would involve their joint commitment of funds to it. In these circumstances, the BFA recognised that the jointly owned property at number E(2) Street would be sold but only when the Suburb F property was completed.
There is limited evidence as to why this provision was inserted. Presumably, given the Suburb F property was intended to be their joint matrimonial home, they no longer had the need to own number E(2) Street and it was expedient to reduce their level of debt, accrued in respect of the construction costs on the Suburb F property, by selling it.
It is interesting to note that the sale of one jointly owned property (number E(2) Street) and the distribution of its sale proceeds into another property (the Suburb F property) did not trigger any readjustment in respect of issues of ownership in the latter property. The tenor of Mr Langer’s case is that he believes this was fundamentally unfair to him, particularly as during the construction phase of the Suburb F property, he made significant financial contributions to the offset account from his wages.
In this context, the husband has deposed as follows:
I met all of my obligations towards making payments and servicing the mortgages on the property at Suburb F property and the properties at E(1) and E(2) Street as provided in the agreement as well as paying for rates and taxes and household expenses as provided in the agreement. I in fact made payments in respect to Suburb F property far in excess of what was provided in the agreement.[28]
[28] See the Affidavit of Mr Langer filed 6 November 2020 at [23].
The wife does not agree with this formulation. She has deposed that the husband did not contribute his tax return; pay half of the rates and related expenses; or expenses related to the occupation of the Suburb F. She agrees he paid mortgage payments on number E(1) Street and E(2) Street but received the rent from number E(2) Street.
Number E(2) Street (the jointly owned property) was sold on 24 March 2017. On the basis of the husband’s evidence, the sale price was $890,000.00. A mortgage secured against the property, in an amount $470,274.00, was discharged; $286,000.00 was utilised to discharge a line of credit relating to the construction of the two townhouses; $100,000.00 was used to fund construction costs on the Suburb F property; and $50,000.00 was used to repay the personal loan owned to Mr Langer ’s father.[29]
[29] See the Affidavit of Mr Langer filed 30 July 2020 at [59]. The sums in question do not exactly correspond with the sale price.
By necessary implication, it is the husband’s case that his actual contributions made in respect of number E(2) Street, made during the entirety of the marriage, along with his contributions to the offset account, which had been used to fund the construction of the Suburb F property, were not translated or formally recognised in the provisions of the BFA relating to the division of that property during his lifetime.
In a formal sense, construction of the Suburb F property had not been completed, in the sense that a formal certificate of completion had not been issued, although it seems that the parties had commenced to live in the property. Controversies arose with the builder regarding the workmanship of construction.
On the husband’s case, the final progress payment of $80,754.80 was not paid due to the parties being dissatisfied with the workmanship provided. The wife does not disagree. Initially Company J denied the parties entry to the building, but they broke into it. They lived in it together for a period of approximately twelve months, prior to separation. The wife continues to live in the property.
Given the marriage was still intact, the sale of number E(2) Street attracted the provisions of the BFA relating to financial arrangements during marriage. The parties fundamentally disagree about the relevant provision and its effect in practical terms. However, the net proceeds were allocated towards reducing the mortgage secured against the Suburb F property and Mr Langer did not personally receive anything from the sale.[30]
[30] See the Binding Financial Agreement at cl 23(b). The clause in question reads following completion of the construction of the Suburb F property that number E(2) Street would be listed for sale.
As previously indicated, the only provision for the husband to receive any sum created by the sale of the Suburb F property arises pursuant to the aspect of the BFA dealing with financial arrangements during the marriage.[31] In these circumstances, Mr Langer’s payment is triggered either by the property’s sale or the husband’s death. The sum is capped at $200,000.00.
[31] Ibid cl 23(b)(iii)-(iv).

It appears to be common ground that the husband did not receive a sum in cash of $200,000.00 when number E(2) Street was sold, and accordingly his legal interest in the property, along with any contributions made towards the Suburb F property were effectively negated once the property was sold and he and the wife moved into the Suburb F property.
In the husband’s view, this is unfair to him. He asserts that clause 24(a)(iii) provides for him to receive a payment capped at $200,000.00 from the sale of number E(2) Street, if it remains in joint ownership at separation. There is no doubt that the property was sold prior to permanent separation. In this context, Mr Langer deposes as follows:
Paragraph 24(a)(iii) of the Agreement provides that if the property at E(2) Street had not been sold prior to permanent separation it would on separation be offered for sale, and after payment of expenses and discharge of any mortgage over it I would receive my payment capped at $200,000. That property was sold on 24 March 2017 prior to what can be defined as Permanent Separation. The proceeds after the discharge of the mortgage and expenses were not applied towards making my payment but rather were applied by our joint agreement towards the reduction of the mortgage over the Suburb F property much to the Wife's current benefit.
I never understood it to be the case in entering into the Agreement or in making contributions toward all mortgages including the mortgage relating to the Suburb F property that I would not receive any payment on separation unless the property was sold by the wife or one of us died.[32]
[32] See the Affidavit of Mr Langer filed 6 November 2020 at [27].
On the other hand, the wife contends that the proceeds of sale of number E(2) Street, as the sale occurred whilst the parties’ marriage remained on foot, are covered by the provisions of clause 23(b)(ii), which required Mr Langer to contribute $47,000.00 towards the residual mortgage but have no further obligation towards construction costs.
More significantly, she asserts that the property at number E(1) Street, which the husband owned exclusively, was utilised by the parties’ financier as security. When number E(2) Street was sold, she asserts that this effected a significant reduction in the husband’s mortgage on number E(1) Street to a degree equivalent to $200,000.00.
This would appear to be the central evidentiary conflict in the matter thus far. The husband deposes as follows:
The Binding Financial Agreement provides at paragraph 24 my entitlements to the sales proceeds of the property at E(2) Street, Suburb F, and my entitlement to receive my payment "Mr Langer's Payment" if that property had not been sold by that time. I did not receive my payment as the property had been sold by the time of separation notwithstanding that the sales proceeds of that property were applied towards reduction of the mortgage over the property at I 64 The Suburb F. I consider that the result of that is that I would lose any entitlement to the payment notwithstanding that the wife got the benefit of the sale proceeds.[33]
[33] See the Affidavit of Mr Langer filed 6 November 2020 at [30].
On the other hand, the wife has deposed as follows:
I deny the Applicant's allegation that he has not received payment. The reduction of debt from the sale of E(2) Street Suburb F in accordance with paragraph 23(b)(ii) increased the Applicant's equity in E(1) Street Suburb F by at least $200,000. The Applicant retained this latter property following permanent separation and thereby receives his payment through the increased equity.[34]
[34] See Affidavit of Ms Langer filed 4 December 2020 at [36].
I do not consider that I can resolve this controversy in the context of these truncated proceedings. The difficulty, from my perspective, is that the BFA does allude specifically to this situation, either in the exhaustive recitals or the specific wording of the operative clauses, which I regard being, as Mr Langer puts it, somewhat cumbersome.
True it is that the BFA has consistently recognised Mr Langer’s distinct ownership of number E(1) Street and Ms Langer’s distinct ownership of the Suburb F property both during the currency of their marriage and afterwards. However, the BFA also establishes mechanism that recognises each of their possible contributions toward construction costs of the Suburb F property and means of distributing their interests in number E(2) Street, which was held as tenants in common.
The problem arising with the wife’s formulation of how their interests in number E(2) Street would be crystallised, is that the various provisions of the BFA do not specifically recognise the in specie transfer which she asserts occurred and the Court itself has not been provided with any relevant statements from the relevant financier that this did indeed occur.
The only material relating to the asset backing of the parties prior to the sale of number E(2) Street and the level of mortgage it and number E(1) Street were carrying is in the schedules to the BFA. This indicates that the wife had a 100% interest in the Suburb F property valued at $700,000.00, which was mortgage free and a 70% interest in number E(2) Street (net of mortgage) estimated to be worth $595,000.00.
On the other hand, the husband is recorded as having a 100% interest in number E(1) Street valued at $850,000.00 which is subject to a mortgage of $500,000.00 and a 30% interest in number E(2) Street valued at $255,000.00, subject to a mortgage of $149,400.00. Each party is recorded as having $200,000.00 in the offset account.
The husband deposed in his first affidavit that he has listed number E(1) Street for sale, as he could no longer service the mortgage related to it. It is my understanding that the property has now been sold and Mr Langer has purchased another property with his current partner. I have not been provided with details of the sale.
In his first statement of financial affairs, filed on 30 July 2020, the husband estimated the value of E(1) Street at $880,000.00 and asserted it was subject to a mortgage of $530,891.00.
Mr Langer remains aggrieved that, in his view, the BFA does not enable him to be provided with any immediate recompense “for his contributions to the matrimonial property, including the construction of the property at E Street in Suburb F.”
THE NATURE OF SUMMARY DISMISSAL PROCEEDINGS
Section 45A of the Family Law Act was inserted pursuant to the provisions of the Family Law Amendment (Family Violence & Other Measures) Act 2018. It is in similar terms to section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth),[35] and section 31A of the Federal Court Act 1976 (Cth).
[35] Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) is the equivalent provision of section 17A of the Federal Circuit Court of Australia Act 1999 (Cth).
In each case, the provision is directed towards the expeditious disposal of unmeritorious proceedings and a concomitant saving of costs to the parties and court resources. However, laudable those aims are, the Court must be careful to avoid becoming a slave to expediency.
The Family Law provision was inserted as part of the Australian Government’s response to a number of inquiries into family violence. In particular, the legislature was concerned at the prospect of the proponents of family violence bringing unmeritorious applications to Court to perpetuate control over their former spouses in the courtroom setting.
The relevant Explanatory Memorandum indicates as follows:
Various stakeholders have raised concerns about this power being used in situations where victims of family violence who are litigants in person make mistakes which could make their cases appear unmeritorious. New section 45A includes strict parameters around when a court may dismiss an application. The court may only dismiss an application if it is satisfied that the application has no reasonable prospect of success, is vexatious or frivolous or is an abuse of process. Given the high rate of litigants in person in the family law system, the family law courts have significant experience in working with litigants with limited legal backgrounds. The courts are well placed to identify the difference between a litigant in person who is underprepared due to inexperience or trauma, and a litigant whose case should be dismissed because it is an abuse of process or has no reasonable prospect of success.[36]
[36] Explanatory Memorandum, Family Law Amendment (Family Violence and other Measures) Bill 2018, 18 [77].
These considerations are not relevant to the current matter. There is no suggestion that the current application is an abuse of process for reasons relating to family violence. In these circumstances, in my view, authorities relating to summary dismissal in jurisdictions other than family law remain relevant to the Court’s considerations in the current matter.
In Spencer v Commonwealth of Australia,[37] French CJ and Gummow J said of section 31A of the Federal Court Act 1976 (Cth) that it:
[A]uthorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious 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).
In Webster v Lampard,[39] the High Court said as follows:
The power to order summary judgment must be exercised with 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).
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 courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” 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).
Kirby J said in Lindon v Commonwealth of Australia (No 2):
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.[44]
[44] Ibid.
In applying these principles, the Court must not overlook what the High Court characterised as the negative admonition contained in section 45A(3) that a proceeding, or part thereof “may be found to have no reasonable prospects of successful prosecution even if it cannot be said that it is ‘hopeless’ or ‘bound to fail’”.[45]
[45] Spencer v Commonwealth of Australia (2010) 241 CLR 118, 139 [52] (Hayne, Crennan, Kiefel and Bell JJ).
In this context, the High Court said as follows:
[I]t is important to begin by recognising that the combined effect of sub-sections (2) & (3) is that the inquiry required in this case is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceedings would necessarily fail.
In this respect section 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.[46]
[46] Ibid at [52]-[53].
The jurisdiction of the Court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[47] The case “must be very clear indeed to justify the summary intervention of the court to 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).
In McKellar v Container Terminal Manager Services Limited, Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
[A] proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.[49]
[49] Ibid 416 [18].
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. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently uncompromising cause into a successful judgment.[50]
[50] See Lindon v The Commonwealth (No 2) (1996) 136 ALR 251, 256 (Kirby J).
In Przbylowski v Australian Human Rights Commission (No 2),[51] Perry J considered that section 31A set a lower threshold than previous tests for summary dismissal, which required cases to be manifestly groundless or hopeless before they warranted dismissal.[52] In my view, similar considerations 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).
Whilst bearing in mind the need for caution, Her Honour indicated that the exercise of discretion under section 31A involved the making of value judgements in the absence of a full and complete factual matrix and argument.
In this context, Perry J endorsed the following comments of Reeves J in Australian Securities and Investment Commission v Cassimatis:[53]
[T]he determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, 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).
In exercising this practical judgment, a demonstration that an aspect of a case that relied on the establishment of a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all available documents or evidence was likely to be central in whether that case should be summarily dismissed. To the contrary, a case which raised a real question of fact of a substantial, plausible or weighty nature should not be so dismissed.
Perry J further summarised the principles applicable to the entry of summary dismissal pursuant 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 such as that contained in section 31A is to lower the bar. It is not necessary to establish that an action is manifestly groundless or hopeless for a proceeding to be summarily dismissed;
•An assessment of whether a proceeding has no reasonable prospects of success necessitates “necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court”;
•This discretion may include whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined;
•Although the threshold for summary dismissal has been lowered, the discretion must nonetheless still be exercised with caution;
•In this context, it was noted that the discretion was concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”;
•A mini-trial is not required. However there must be a critical examination of relevant material to determine whether there is a real question of fact or law to be determined. As such each application for summary dismissal must be determined on its particular circumstances;
•The exercise involved is one of practical judgment, which will be influenced by the stage the proceedings have reached and the amount of material available to the Court;
•In applying these principles:
[T]he moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous or contradicted by all the available documents or evidence. Conversely … as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter … is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
•In conclusion, the inquiry required is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination can be made that the proceeding would necessarily fail. [56]
[56] Ibid at [45]-[50] (Perry J).
In the current matter, the application for summary dismissal arises at a comparatively early stage of proceedings. I have not been provided with contemporaneous financial records dealing with the implications of the discharge of mortgage on number E(2) Street and whether this increased the husband’s level of equity in number E(1) Street.

In this context, I am conscious that I must exercise a level of practical judgment in determining whether the case should be dismissed. Necessarily much of the evidence in the case remains opaque to me. In addition, I am not necessarily bound to make this assessment only in respect of the formal bases propounded by the husband.
If it appears to me that Mr Langer has some claim for relief, but has not articulated it satisfactorily, the overall interests of justice may dictate that he be given an opportunity to amend his application or raise other issues which have reasonable prospects of success.
Mr McGinn, counsel for the wife is critical of what he characterises as deficits in the way in which Mr Langer has currently pleaded his case. Currently, it relies on allegations that the BFA in question is not binding, as it is capable of being set aside on one of the grounds specified in section 90K, whilst at the same time suggesting other species of general unfairness or lack of clarity.
However, in this context, Mr Langer, whilst asserting the BFA is not enforceable, has not provided any basis, if it remains un-impugned, on which it may be amenable to rectification so, from his perspective, it can be carried out fairly.
This, I take it, is particularly germane regarding his assertion that it is unfair that the BFA did not provide for him to have recognition of his contributions to the Suburb F property, if number E(2) Street had been sold at separation, but did make some allowance if the property had not been sold.
PRINCIPLES RELATING TO THE SETTING ASIDE OF FINANCIAL AGREEMENTS
A binding financial agreement is essentially a contract. If the pre-conditions stipulated in section 90G are complied with, namely the provision of independent legal advice to each of the spouses concerned, the agreement is binding.
There are significant public policy considerations relating to the principle that the parties to a marriage should be permitted, whilst their marriage is intact or prior to it, to contract as to how their assets are to be divided in the event their marriage breaks down.[57]
[57] Family Law Act 1975 (Cth) s 90C.
The relevant legislation, which inaugurated Part VIIIA of the Act being designed to “encourage people to agree about the distribution of their 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).
As such, individuals should be free to contract as they each see fit, about their idiosyncratic property affairs, from time to time. The only protection being provided to them, in this regard, being that each has been provided with independent legal advice about the advantages and disadvantages of any such agreement prior it becoming binding.[59]
[59] Family Law Act 1975 (Cth) s 90G.
In these circumstances, a party to a BFA does not retain a residual entitlement to come to Court to request the Court to conduct some form of adjudication as to whether the agreement, on which the parties had earlier agreed, is fair or equitable to him or her.
The implication of section 90G being that advice in this regard was provided anterior to the execution of the agreement and was secured in the light of the contracting parties knowing what they were getting themselves into.
In this particular case, I have not been provided with the written advice provided to either of the parties. I note however that each was represented by a solicitor throughout the process of negotiation of the BFA.
In addition, the parties are of a similar age; neither is under a disadvantage so far as language is concerned; and, significantly, in the past, they had gone into business together, in respect of the development of the Suburb F property.
The plan to develop the property had been a theme of the parties’ relationship since late 2012. It had been the subject of a joint venture agreement between them. In addition, when the parties agreed to purchase and the develop the land at Suburb F, they entered into a sophisticated arrangement whereby the husband would own one townhouse; the wife would own the bigger townhouse on the Suburb F, when it was completed; and they would be tenants in common in shares favouring the wife, in respect of the third townhouse.
The transaction involved the borrowing of significant sums of money and the provision of security. It took place over a period of years rather than months. It is clear to me that the husband was well aware, from the earliest stages of the parties’ relationship, that the wife was concerned that, as from the relationship’s instigation, there was a significant disparity in regards to the level of asset backing each brought into it. The husband does not suggest that he was not able to understand the commercial implications of the joint venture agreement.
Significantly, the BFA provided a schedule of what were the parties’ respective levels of asset backing at the time the agreement was concluded. This was signed by each party. It has not been suggested that this was inaccurate. It specified what each party owned and their respective level of indebtedness.
Throughout the parties’ involvement with the Suburb F project, it was always envisaged that the husband would maintain his interest to number E(1) Street to the exclusion of the wife. In addition, it was always the parties’ intention that their interest in number E(2) Street would be realised at some stage in tandem with the construction of the Suburb F property.
Significantly, the relevant schedule does not assert that Mr Langer had any legal interest in the Suburb F land. His complaint is that the BFA did not provide any explicit mechanism for any contribution made by him towards the construction of this property to be realised other than if the property was sold or he died.
However, it cannot be said that either of the parties was some kind of financial neophyte or the subject of their negotiations was totally foreign to one of them. The parties had been literally living with the main subject of the BFA – the various properties on the Suburb F land – for a number of years.
In respect of the current matter, I have no reason to doubt the veracity of Ms Langer’s motivation for wanting to enter a BFA with Mr Langer. The parties had previously separated. She disapproved of what she regarded as Mr Langer’s profligate attitude to financial management, when compared to what she saw as her more competent management skills.
In this context, she wanted to preserve what she considered was both her historical and contemporaneous superior level of asset backing, particularly in respect of keeping the Suburb F property, which had always been registered in her name. There is no suggestion that she kept her motivations in this regard secret from Mr Langer.
Individuals do not necessarily enter into a BFA on the proviso that they should ipso facto be fair to their partner. They do so because they wish to protect proprietorial interests and to prevent the later expense and ensuing bother of litigation. They wish to crystallise their asset position against the potential uncertainty of adjudication.
These are understandable motivations, and are not necessarily sinister. As the High Court pointed out “the nature of agreements of this type means that their terms will usually be more favourable, and sometimes much more favourable, for one party”.[60]
[60] See Thorne & Kennedy (2017) 263 CLR 85, 109 [56] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).
In general terms, the courts strive to uphold bargains between freely contracting individuals.[61] Neither party in this case asserts that he or she was given erroneous advice regarding the implications of the BFA. Of particular moment, Mr Langer does not assert the requirements of section 90G were not adhered to in his case.
[61] See Garvey & Jess (2016) 55 Fam LR 360, 367 [29] (Carew J).
In addition, it seems hard for him to establish that he did not have a detailed and personal knowledge of the financial implications relating to both the past and future development of the various Suburb F properties.
In Hoult & Hoult,[62] Murphy J said as follows of the section:
Section 90G’s requirements must be seen against a crucial consideration. The legislature has decided that the essence of the regime created by Part VIIIA of the Act is that parties who are independently advised and receive appropriate advice should, in the absence of fraud, unconscionability or other vitiating factors, be perfectly free to bind themselves to an entirely unjust and inequitable agreement (in s 79 terms) that governs their future rights and operates as a bar to future property (and/or maintenance) proceedings. In short, if the relevant pre-requisites are met, and there is an absence of vitiating factors, the parties are perfectly free to make a ‘bad bargain’.[63]
[62] Hoult & Hoult (2011) 48 Fam LR 475.
[63] Ibid 288 [63] (Murphy J).
However, as with all contractual situations, the Courts at Common Law and subsequently the Legislature has reserved to the Courts the discretion to set aside contracts, including pre-marital agreements, which are made in circumstances which render them void, voidable or unenforceable.
The relevant sections of the Act are section 90K and section 90KA. Basically, the Court has to apply all principles of law and equity, available to the Court, in the area of contract, to determine whether a financial agreement is void, voidable or unenforceable.
In this particular matter, as I understand his case, Mr Langer asserts that the BFA is either void or voidable,[64] because he was subject to either duress or some form of undue influence or was mistaken about some material fact in the agreement; Ms Langer herself engaged in unconscionable conduct;[65] and it would be impracticable for the agreement to be carried out.[66]
[64] Family Law Act 1975 (Cth) s 90K(1)(b).
[65] Ibid s 90K(1)(e).
[66] Ibid s 90K(1)(c).
In Thorne v Kennedy, the High Court summarised these sections as follows:
The restriction upon the validity of financial agreements which is central to this appeal is contained in ss 90K and 90KA. Section 90K(1) provides that a court may make an order setting aside a financial agreement if the court is satisfied of matters including, in s 90K(1)(b), "the agreement is void, voidable or unenforceable" and, in s 90K(1)(e), "a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable". Section 90KA then provides, in part, that the question whether a financial agreement is valid, enforceable or effective "is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts.[67]
[67] Thorne v Kennedy (2017) 263 CLR 85, 95 at [21] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).
Section 90KA provides that, in its determination of whether a BFA is valid, enforceable or effective, the Court is entitled to apply principles of law and equity relevant to the enforceability and effect of contracts generally.
Accordingly, it is Mr Langer’s case, as currently pleaded, that the BFA should be vitiated on the basis that the agreement in question is not valid or effective because it offends the equality of bargaining considerations provided at Common Law, particularly that he was subject to some species of duress or other form of undue influence emanating from the wife, prior to his execution of the agreement in question, which is further vitiated by some form of unconscionability.
This duress and or undue influence is said to be constituted by the fact that the wife knew that he was suffering from depression in the period during which the parties were conducting their negotiations. Nonetheless, she presented him with an ultimatum, either execute the BFA or the reconciliation between the two would be over.
It is further his position that the negotiations were conducted with unseemly haste, in the light of the requirement for progress payments to be made to Company J prior to Christmas.
In Thorne & Kennedy, the plurality of the High Court (comprised of Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) discussed the interrelated but distinct concepts of duress, undue influence and unconscionable conduct within the context of a binding financial agreement. Ultimately, they determined the relevant BFA should be set aside, a decision with which Nettle and Gordan JJ agreed but for distinct reasons.
It is useful, I think, to set out in brief terms, the factual issues which were applicable to the parties in the case concerned. The parties met over the internet in 2006. At the time, Ms Thorne was 36 years old. She was from Eastern Europe but was living in the Middle East. She shared the Greek Orthodox religion, with Mr Kennedy, who was about thirty years her senior. He was a Greek/Australian property developer, who was a multi-millionaire. He was divorced with three adult children.
Ms Thorne, who spoke little English, spoke with Mr Kennedy in Greek. He travelled overseas to meet her and on meeting told her that, if he liked her then he would marry her but that “you will have to sign paper. My money is for my children.” Ms Thorne herself was impecunious. From Mr Kennedy’s perspective, the ground rules for the relationship had been set from the start.
In February 2007, after a European holiday, Ms Thorne moved to live with Mr Kennedy in his Australian penthouse. A wedding was arranged for 30 September 2007. On 8 August 2007, Mr Kennedy instructed his solicitor to prepare a binding financial agreement. By this time, Ms Thorne’s family had come to Australia for the wedding, as had other guests. Her dress had been made and the wedding reception was booked.
Around 19 September, days before the wedding, Mr Kennedy told Ms Thorne that they were going to see solicitors about the signing of the agreement. She asked him if she had to sign the agreement. He said if she did not sign, then the wedding would not go ahead.
The solicitor concerned was an accredited family law specialist. She was independent of Mr Kennedy and his solicitor. The independent legal advisor unequivocally advised Ms Thorne against signing the agreement, in writing. The advisor formally advised Ms Thorne, in words to the effect of, I only think you are signing this agreement so that the wedding will not be called off. In later oral advice, the lawyer told Ms Thorne the agreement was the worst agreement she had ever seen.
At trial, it was found that Ms Thorne understood the effect of what she was signing but nonetheless the agreement was found to be unenforceable. On appeal the High Court was called upon to consider the inter-relationship of the various considerations created by section 90K.
The High Court held that the essence of duress focussed on the type of pressure exerted by one party on the other, which was of such intensity to deprive that other of any free agency or ability to decide freely whether or not to engage in a particular course of conduct. Usually such duress was wielded by threat – either against the person or against property. It is not necessarily the case that the threat involved is one of an unlawful nature.
The High Court described the boundary between duress, on the one hand and undue influence on the other, as being “blurred”. However, in fundamental terms, as with duress, undue influence arises in circumstances where the party to whom it is subject has no free will or is not a free agent in regards to the action later sought to be impugned. In both incidents, the person concerned may very well know the implications of what he or she has done but because of the undue influence being exerted has gone ahead with it nonetheless.
In such an eventuality, it will be necessary for the Court to consider the circumstances surrounding the transaction in question, including whether any presumption arises from the nature of the relationship between the parties concerned. Certain relationships – such as solicitor/client or doctor/patient – give rise to such a presumption, if there is no explanation for the action other than the relationship concerned.
In Thorne & Kennedy, the High Court said as follows:
Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a "substantial benefit" to another, which cannot be explained by "ordinary motives", or "is not readily explicable by the relationship of the parties".[68]
[68] Ibid at [34].
The High Court went on to doubt whether common contemporary experience was such that a presumption of undue influence would arise in respect of the relationship between fiancé and fiancée, which, in my view could be considered to be broadly analogous to that of spouses who have been separated and are considering reconciliation, as is the case in the current matter.
Again, unconscionable conduct is a species of equitable remedy closely related to duress and undue influence but distinct in its nature. It requires the innocent party to be subject to a level of special disadvantage, which affects that person’s ability to make a judgment as to what is in their best interests. Essentially, unconscionable conduct arises when one party knowingly exploits another’s weakness or disadvantage to the advantage of the former.
In Commercial Bank of Australia Ltd v Amadio,[69] Mason J emphasised the difference between unconscionable conduct and undue influence as follows:
In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position 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).
Ultimately, in Thorne & Kennedy, the High Court found no error in the manner in which the trial judge had characterized Ms Thorne’s disadvantage in respect of her negotiations with Mr Kennedy regarding the BFA between them. It endorsed the trial judge’s analysis that she had been powerless in this context and had no choice in respect of the agreement placed before her, other than to sign it, regardless of the content of the legal advice provided to her. Essentially Ms Thorne had been deprived of her free will, although she knew the agreement in question was not favorable to her.
In all these circumstances, the High Court considered the relevant binding financial agreement was vitiated by undue influence given what were the gross financial imbalances the document gave rise to within the overall relationship which existed between Ms Thorne and Mr Kennedy.
The High Court further indicated that the following types of consideration were likely to be relevant to the Court’s deliberations in the light of any challenge to the equity of a financial agreement regulating either the pre or post-nuptial finances of parties:
ŸWhether the agreement was offered on a basis that it would not be subject to negotiation;
ŸThe emotional circumstances in which it was entered, including any explicit or implicit threat to end any relevant marriage;
ŸWhether there was any time for careful reflection;
ŸThe relative financial positions of the parties;
ŸThe nature of the independent legal advice provided and whether there was any time to reflect upon it.[71]
[71] Thorne v Kennedy (2017) 263 CLR 85, 110-111 [60] (Kiefel CJ, Bell, Keane and Edelman JJ).
The word impracticable is not defined in the Act. It is an ordinary English word, which means that which cannot be carried out or done; practically impossible; unmanageable; not practicable. Inthe Marriage of La Rocca,[72] Kay J said of the word (in the context of section 79A) the following:
My own view is that the concept of impracticability, as referred to in this section, is akin to the application of the doctrine of frustration in contractual matters. What the Parliament is concerned with and what ought to be concerning the Court is the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to.[73]
[72] In the Marriage of La Rocca (1991) 14 Fam LR 715.
[73] Ibid 720 (Kay J).

In Codelfa Construction Pty Ltd v State Rail Authority of NSW,[74] Mason J considered that the doctrine of frustration of contract was closely related to the 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).
As I understand Mr Langer’s case, he asserts that the parties did not consider what would occur in respect of his contributions to the construction costs of the Suburb F dwelling if the parties separated after it was completed and number E(2) Street had been sold.
On the other hand, the wife asserts that, if any mistake arose, it was not mutual in nature but was the husband’s alone. As a result, the BFA can clearly be put into practice (as has, in fact, occurred) and it is therefore immaterial that the husband now considers the outcome to be unfair to him because he personally had not contemplated what would happen, when the explicit terms of the BFA were carried out.
In a similar vein, in Sanger & Sanger,[75] the Full Court said as follows:
[T]here is a material distinction between an agreement which is unable to be put in practice, and is thus impracticable, and an agreement which, although producing a potentially different outcome to that for which a party hoped, is able to be implemented, or put into practice. Our conclusions with respect to this issue are necessarily reached in the light of the conclusions with respect to the interpretation of the BFA which we have earlier recorded.
[75] Sanger & Sanger (2011) 46 Fam LR 275, 291 at [82] (Coleman, May and Thackray JJ).
In Codelfa Construction Pty Ltd v State Rail Authority of NSW, the High Court identified the following aspects of frustration:
•A frustrating event must have severe consequences;
•Frustration cannot be exhaustively defined in advance;
•Frustration involves aspects of impossibility;
•The frustrating event must usually not be foreseen;
•Negligence is probably not frustration;
•Self-induced action cannot be frustration.[76]
[76] See Codelfa Construction Pty Ltd v State Rail Authority of NSW (1979) 149 CLR 337.
CONCLUSIONS
It is a significant thing to summarily dismiss an application in this Court. After all, a litigant is entitled to ventilate even a weak case. However the Court retains the discretion to dismiss cases which has no reasonable prospect of success. A respondent should not be put to the expense and emotional bother of defending a hopeless case.
These considerations are, in my view, particularly germane in cases involving binding financial agreements, given that the raison d’être of such agreements is that they circumvent any potential legal avenues regarding the division of marital property because the parties concerned have individually contracted as to what should occur in respect of the division of their property, which is their statutory entitlement.
Division 2 of the Federal Circuit and Family Court of Australia, in its family law jurisdiction is not a court of pleadings. Mr Langer’s Initiating Application only sought that the agreement in question be set aside, with no other particularity. In these circumstances, in my view, with some justification, the wife sought to know with some level of specificity, the nature of the case, which she was required to meet.
As a consequence, the husband filed a further lengthy affidavit, which, in my view, continues to contain a somewhat inchoate assertion that he has been subject to some level of unfairness in respect of the process arising from the drafting and execution of the BFA and thereafter, there is some level of mistake regarding its provisions, particular in regards to how any contributions made by him to the Suburb F property were to be accounted for in the event of separation.
For her part, Ms Langer through those advising her, is critical that the husband has adopted a scattergun approach to his case in the hope that he will ultimately be able to persuade the Court as to one or more of the considerations contained in section 90K. From her perspective, such an approach is fundamentally unfair to her and should not be endorsed by the Court. I agree that the husband’s case remain somewhat diffuse.
In respect of the first major aspect of the husband’s case – that there was some species of inequality in the bargaining positions of the parties concerned, which rendered Mr Langer effectively powerless in deciding whether or not to execute the BFA, the following matters appear to me to be unequivocal from the evidence:
·Mr Langer cannot be considered a commercial neophyte. He and Ms Langer had been engaged in the development of the Suburb F land over many years;
·Each was fully aware of the other’s financial position;
·In this context, throughout the process of the development of the Suburb F land, each party had retained a distinct property each outright and one property had been held in designated proportions;
·The BFA in question has the required certification as to the provision of legal advice to each party, particularly as to its pros and cons;
·In this context, it is significant that Mr Langer has not elected to provide evidence as to the effect of the advice given to him in sharp contradiction to the situation involving Ms Thorne;
·The process of negotiating the BFA began in April of 2015;
·The husband consulted his solicitor in October of 2015;
·A first draft was prepared, by the wife’s solicitor, in early November of 2015;
·The husband’s solicitor requested amendments on 1 December;
·The wife proposed amendments on 17 December;
·No medical evidence has, as yet, been provided as to the husband’s psychological status.
In all these circumstances, the husband’s position that the agreement was negotiated with unseemly haste may be open to question. More significantly, there is an evidentiary dispute regarding whether Ms Langer provided Mr Langer with an ultimatum that he either execute the BFA or the reconciliation was off.
The central issue is firstly whether such an ultimatum was made, and secondly what were its implications, if any, for the equality of bargaining power between the parties, given the nature of their relationship and the fact that throughout it, Ms Langer had gone to some lengths to quarantine what she considered was her property from that of Mr Langer and the various drafts of the agreement recognise this state of affairs.
Essentially, what Mr Langer must establish is that he was deprived of a significant component of free will, when he signed the BFA, given what the wife had allegedly said to him, in the context of the parties’ respective bargaining positions with one another and given that each had independent legal advice.
If the ultimatum was given, it is arguable that it may have had some consequences for Mr Langer’s capacity to contract freely. However, apart from his assertions of compromised health and his understandable desire to save the marriage, there is not a great deal of other evidence to indicate an inequality of bargaining power.
The BFA in question does not deprive Mr Langer of all property. Rather it recognises that each party would, in effect retain the property registered in his or her name and provides various mechanisms for the distribution of the proceeds of sale of the commonly held property. This had been how the parties had approached the Suburb F joint venture, as it had unfolded over several years.
In the context of unconscionability, it is necessary for Mr Langer to establish that Ms Langer has derived some form of substantial benefit over him because she knowingly took advantage of him in some way. Ms Langer refutes any such assertion, claiming that Mr Langer retained number E(1) Street, with an increased level of equity as a consequence of the sale of number E(2) Street and she retained the Suburb F property, as she had always done.
Accordingly, Ms Langer asserts that the husband is not in a position to demonstrate any sufficient degree of unconscionability, in respect of the BFA, which reflected the parties’ existing level of asset backing. As I have already indicated, I am not in a position, at this stage, to resolve this evidentiary controversy, in the absence of contemporary financial documents.
Finally, Mr Langer asserts, as best I can understand his case, that the BFA in question is unenforceable because it is vitiated by some species of mistake in the sense that it failed to deal with the factual scenario of the parties separating after the sale of number E(2) Street but after the construction and occupation of the Suburb F property as their joint home.
To establish this ground, Mr Langer would need to establish a degree of mutuality of a mistake of fact and that it has had severe consequences for him. Ms Langer would assert that there was no such mistake on her part and given Mr Langer left the marriage, pursuant to the provisions of the BFA, with an enhanced interest in number E(1) Street, there have been no such severe financial consequences for him.
In essence, it is Ms Langer’s case that the parties bargained on a level playing field; each received independent legal advice; and accordingly each of them knew what they were doing, within the matrix of their long commercial relationship with one another, occasioned by their mutual investment, to differing degrees in the Suburb F development.
The problem confronting the Court is that, at this stage, I do not have a full and complete factual matrix of the parties respective states of mind in the immediate period surrounding the execution of the deed in December 2015, particularly the consequences of the alleged ultimatum said to have been given by the wife to the husband, which he asserts robbed him of his free will to a significant degree.
Although the bar for summary dismissal is now lower, as a consequence of section 45A of the Act, it is still a discretion which has to be carefully exercised. In my view, this is an extremely finely balanced case. I have come to the conclusion that there are some issues of both fact and law which the Court must determine on Mr Langer’s case despite the fact that there are some significant weaknesses in it.
As such, at this stage, I have concluded that Mr Langer has some reasonable prospects of convincing the Court that there was some element of undue influence leading to the execution of the BFA by him. In addition, it is my view, at present, that there is some prospect currently, in the absence of other evidence, that there is, as a consequence of a mutual mistake, a missing element in the BFA regarding what should occur in respect of the recognition of Mr Langer’s direct financial contributions to the Suburb F property construction costs.
In my assessment, Mr Langer’s case is not currently a strong one, but it is not one which can be considered fanciful. It has some prospects and, as such, it would be inequitable for it to be dismissed only on the basis of the Court’s assessment of the documents currently filed. I am not persuaded that it would be prudent for me to exercise the discretion conferred upon me, by section 45A, at this juncture.
However, I also note that it is open to the wife to re-agitate her application, at a later stage, if the various controversies as currently articulated between the parties, crystallise further. In this context, I invite each of the parties to closely consider their respective positions in the light of these reasons for judgment, given the financial implications the proceedings must inevitably have for each of them.
In these circumstances, at this stage, I have come to the view that it is not possible to finalise the parties’ respective applications. Accordingly, it will be necessary for the case to proceed to a further hearing involving the canvassing and testing of the parties’ oral evidence through cross-examination.
It is clearly appropriate that this hearing should be confined to a determination of whether there is any factor, arising under section 90K of the Act, which renders the applicable BFA liable to being set aside. I will allocate two days for this hearing, which I propose be on 31 March and 1 April 2022 subject to the convenience of the parties and their respective counsel.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and fifty-six (256) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 16 September 2021

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