LINCOLN (DECEASED) & MOORE
[2016] FamCA 547
•7 July 2016
FAMILY COURT OF AUSTRALIA
| LINCOLN (DECEASED) & MOORE | [2016] FamCA 547 |
| FAMILY LAW – BINDING FINANCIAL AGREEMENT - Validity - Whether the respondent has standing to prosecute his claim - Where the respondent is bankrupt - Whether the Court has the power to grant declaratory relief in the circumstances - Whether a de facto relationship existed between the respondent and the deceased - Whether the respondent signed the agreement under duress |
| Bankruptcy Act 1966 (Cth) Family Law Act 1975 (Cth) |
| Abati & Cole [2015] FamCA 185 |
| APPLICANT: | Ms A Lincoln (deceased) by her legal personal representatives Mr B Lincoln, Ms Burke and Mr C Lincoln |
| RESPONDENT: | Mr Moore |
| FILE NUMBER: | BRC | 7194 | of | 2012 |
| DATE DELIVERED: | 7 July 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J. |
| HEARING DATE: | 8 April 2016 |
DATE OF LAST SUBMISSION: 6 May 2016
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms. Sweetapple |
| SOLICITOR FOR THE APPLICANT: | SJP Law |
| THE RESPONDENT: | Self-represented |
order
That the Amended Application filed 25 July 2014 be dismissed.
That the Amended Response filed 12 August 2014 seeking to have the financial agreement set aside be dismissed.
That all outstanding applications be dismissed and removed from the list of cases awaiting finalisation.
notation
A finding was made that the agreement entered into between Ms A Lincoln and Mr Moore on 5 July 2010 is a Part VIIIAB (of the Family Law Act 1975 (Cth) (as amended)) financial agreement and is binding.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lincoln & Moore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: Brisbane 7149 of 2012
| Ms A Lincoln (deceased) by her legal personal representatives |
Applicant
And
| Mr Moore |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to this dispute are the legal personal representatives (“the applicants”) of Ms A Lincoln, (“the deceased”) and Mr Moore (“the respondent”).
The dispute concerns a purported financial agreement (“the agreement”) signed by the deceased on 30 June 2010 and the respondent on 5 July 2010.
By Order made on 15 August 2014 the issues before the Court for determination at this hearing were stated to be:
a)Whether a de facto relationship existed between the parties within the meaning of the Family Law Act 1975 (Cth) (as amended) (“the Act”); and
b)Whether or not the financial agreement entered by the parties be set aside.
By Amended Application filed 25 July 2014 the applicants seek the following:
a)A declaration that there has been no termination, variation or waiver of the Part VIIAB Financial Agreement of July 2010 (“the agreement”).
b)A declaration that the agreement has not been modified, varied or added to.
c)A declaration that there is no waiver of the agreement or relinquishment of the right to require strict performance by the other party.
A further declaration that “there be an absolute bar and estoppel to the Respondent commencing proceedings contrary to the terms of the Agreement” was abandoned.[1]
[1] See paragraph 3 of written submissions filed 22 April 2016
The declaration initially sought in the Application filed by the deceased that “there be a declaration that the Part VIIIAB Financial Agreement (the Agreement) dated 5 July 2010 is a valid and enforceable Agreement pursuant to Section 90UN of the Family Law Act.” was not sought, a position confirmed by counsel for the Applicants at the commencement of the hearing.
It was submitted on behalf of the applicants that “the declarations sought by the Applicant seek to establish that the financial agreement signed by the parties in mid-2010 was, and remains, a binding financial agreement pursuant to s 90UC”. It is perhaps curious therefore that a declaration that the financial agreement is binding is not sought nor an order for the agreement to be enforced.
The respondent seeks the following order:
a)That the Initiating Application filed 13 August 2012 and Amended Initiating Application filed 25 July 2014 be dismissed; and
b)That the Financial Agreement made on 5 July 2010 pursuant to s 90UC of the Act be set aside.
The bases for the order sought by the respondent are that:
a)There was never a de facto relationship between himself and the deceased;
b)The solicitor who provided the certificate of advice was not independent; and
c) He entered into the agreement under duress.
Background Facts
The deceased was married to Mr D Lincoln for thirty-seven years prior to his death in 2009. It was in or about April of that year that the deceased and respondent met when he came to inspect equipment the deceased had for sale at her property in Suburb E.
The deceased deposes to them being in an established de facto relationship by the end of that year.
The respondent contends that his relationship with the deceased was only ever an employer/employee relationship. He denies they were even friends.
Despite the respondent’s denial, it is common ground that on 5 July 2010 the parties entered into what purported to be a financial agreement pursuant to s 90UC (one made during a de facto relationship) of Part VIIIAB of the Act.
The agreement was signed by the deceased on 30 June 2010 and by the respondent on 5 July 2010.
The first schedule to the financial agreement demonstrates that the deceased was a woman of considerable means and included two pieces of real estate at 1 and 2 F Street, Suburb E. The second schedule to the financial agreement demonstrates that the respondent was a man of very modest means.
On 24 May 2012 the deceased was diagnosed with a fatal melanoma. The deceased deposes to separation having occurred in June 2012. She signed a separation declaration pursuant to s 90UF on 21 June 2012 stating that she and the respondent had commenced a de facto relationship in December 2009 and separated on or about 1 June 2012. The deceased also gave notice of the termination of a business partnership on 1 June 2012.
On 6 August 2012 the respondent commenced proceedings in the Supreme Court of Queensland. The proceedings were between G Pty Ltd and H Pty Ltd Pty Ltd. G Pty Ltd was the respondent’s company and H Pty Ltd was the deceased’s company. The parties through their respective companies had entered into a partnership on 20 October 2010 which operated a business known as Company I. The principal business activity of the business was to hire out equipment in and around South East Queensland. The respondent sought an order for the appointment of a receiver and for all necessary accounts to be taken so that the partnership could be wound up. There was a dispute between the parties as to the entitlements of each party to be paid a wage and as to the payment of expenses associated with the operation of the business. It seems that a receiver was appointed but that the respondent took issue with the fees charged by the receiver and as a consequence of those fees not being paid the respondent was declared bankrupt in or about February 2014.
The respondent remains an undischarged bankrupt.
It also seems that at some stage the respondent commenced proceedings in the District Court seeking to recover wages allegedly due to him.
The deceased commenced these proceedings in the Federal Circuit Court on 13 August 2012 and they were transferred to this Court on 12 September 2012 and an Order was made for a hearing to occur on 27 and 28 September 2012 on the discrete issue of the existence or otherwise of a de facto relationship.
The deceased died in 2012 and on 26 March 2013 the applicants were substituted for the deceased in the proceedings. There were proceedings ongoing in other courts. Trial directions were made on 10 March 2015. On 22 March 2016 this matter was listed for a one day hearing on 8 April 2016.
There is no evidence before me as to the status of the proceedings in the Supreme and District Courts nor whether the respondent’s trustee in bankruptcy made an election pursuant to s 60 of the Bankruptcy Act 1966 (Cth) or whether the proceedings were deemed abandoned.
The purpose of the current proceedings is unclear given the unknown status of the proceedings in other Courts. If they have been discontinued or abandoned there seems little point in the current proceedings.
The respondent eschews the existence of a de facto relationship and does not seek any property settlement pursuant to the Act.
Material relied on
The applicants relied upon the following material:
a)Amended Initiating Application filed 25 July 2014;
b)Affidavit by Ms A Lincoln filed 13 August 2012 (leave was granted to rely upon this affidavit of the deceased);
c)Affidavit by Ms J filed 12 September 2012;
d)Affidavit by Ms K filed 12 September 2012;
e)Affidavit of Ms L filed 13 September 2012 (leave was granted to rely upon this affidavit although the deponent was not available for cross-examination);
f)Affidavit by Ms M filed 13 September 2012;
g)Affidavit by Ms N filed 26 September 2012;
h)Affidavit by Ms O Lincoln filed 13 September 2012 and 16 December 2014;
i)Affidavit by Ms P filed 30 October 2014 (leave was granted to rely upon this affidavit although the deponent no longer had capacity);
j)Affidavit by Mr C Lincoln filed 28 October 2014;
k)Affidavit by Ms Burke filed 30 October 2014; and
l)Affidavit by Mr Q filed 31 October 2014.
The respondent relied upon the following material:
a)Amended Response to Initiating Application filed 12 August 2014;
b)Affidavit by Mr Moore filed 12 September 2012;
c)Affidavit by Mr Moore filed 12 August 2014;
d)Affidavit Ms R Moore filed 12 September 2012; and
e)Affidavit by Mr S filed 4 April 2016.
The evidence was completed in one day and the parties were ordered to file written submissions and to address particular matters.
Order in which to consider the various claims
The applicants seek a number of declarations relating to the agreement but the respondent seeks that the agreement be set aside. It seems to me that I need to consider the issues in the following order:
a)Whether there is a financial agreement that is binding on the parties and as part of that process, consider whether or not the deceased and respondent were in a de facto relationship at the relevant time and whether the solicitor signing the certificate of advice to the respondent was independent; and
b)If there is a financial agreement that is binding, whether it should be set aside by reason of duress; and
c)If the financial agreement is not set aside what, if any, declarations should be made.
Standing of the respondent to prosecute ‘his claim’
Even before I embark on that process however, it seems to me that I firstly need to consider whether the respondent has standing to pursue the relief sought by him viz that the agreement be set aside.
The respondent is an undischarged bankrupt having been declared bankrupt subsequent to the commencement of these proceedings and he seeks not only the dismissal of the application by the applicants but relief in the form of setting aside the agreement.
Section 58 of the Bankruptcy Act1966 (Cth) provides that property of the bankrupt vests in the bankruptcy trustee and renders as incompetent any legal proceedings by a creditor of the bankrupt in respect of a provable debt. That section has no direct relevance to the present case.
Section 60 of the Bankruptcy Act1966 (Cth) provides that ‘an action commenced’ by a person who subsequently becomes a bankrupt is, upon his becoming bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. ‘An action’ is defined as meaning ‘any civil proceeding, whether at law or in equity’. If no election is made within twenty-eight days after notice of the action is served upon the trustee the action is deemed abandoned.
In this case the respondent has not ‘commenced’ the action in the sense of being the first to make a claim but he seeks more than a mere dismissal of the application. His Response could be said to be in the nature of a ‘counterclaim’ and of course his bankruptcy occurred after the filing of his Response. If the Response is interpreted as the commencement of an action within the meaning of s 60(2) of the Bankruptcy Act1966 (Cth), the Response will be stayed pending the election or deemed abandoned.
In Re Timothy John Spratt Ex Parte: Wilson Joseph Wilde and Ernest George Harris & Ors v Janelle Kaye Spratt and P & S Deco Quarries Pty Ltd and Robert William Peach and John Robert Rees [1986] FCA 33 Pincus J observed that a counterclaim may be ‘an action’ within the meaning of s 60(2) of the Bankruptcy Act 1966 (Cth) which would be abandoned if the trustee failed to make an election but only to the extent that a monetary ‘set off’ was exceeded. The Response in the current case could not in my view be considered in the nature of a ‘set off’.
In State of Queensland v Beames [2003] QSC 339 s 60(2) and 60(3) were referred to when finding that a counterclaim was stayed and then abandoned upon the respondent becoming bankrupt.
Accordingly, in my view, the filing of the Response is ‘an action commenced’ within the meaning of s 60(2) of the Bankruptcy Act1966 (Cth).
There remains the curious inconsistent jurisprudence in family law that enables a bankrupt to commence proceedings for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) but not to appeal against an order made. (see Page and Page (No. 2) ; Audet v Audet; Official Trustee in Bankruptcy (Intervener) ; (1994) 19 Fam LR 291; and Reed and Reed; Grellman (Intervener) ; O'Neill v O'Neill (1998) FLC 92-811). The Full Court in O’Neill referred to this state of affairs as ‘unsatisfactory’. But O’Neill and the cases therein considered concern the rights, or lack thereof, to commence proceedings after the bankruptcy.
Trent & Rowley [2014] FamCA 447 was a decision involving proceedings for property settlement in which the applicant was declared bankrupt subsequent to his application. The applicant’s trustee in bankruptcy ultimately abandoned the claim. The applicant argued that as the action was one of a personal nature he was able to continue the action. Cronin J rejected that argument and held that the only rights the applicant had were to seek relief under s 178 of the Bankruptcy Act1966 (Cth) which provides:
(1)If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.
(2)The application must be made not later than 60 days after the day on which the person became aware of the trustee's act, omission or decision.
I respectfully agree with Cronin J. In the current case there is no evidence before me of the trustee having been provided with notice of the action but I was told from the bar table that the trustee had ‘expressed no interest in the proceedings’. If I were to infer from that information that notice has been provided, the trustee had 28 days within which to make an election in writing, failing which the trustee is deemed to have abandoned the action. If such an inference is not available to me, evidence of notice would be required before I can treat the Response as being deemed abandoned.
Before leaving this issue of standing I should refer to s 60(4) of the Bankruptcy Act1966 (Cth) which provides that a bankrupt may continue proceedings in respect of ‘any personal injury or wrong done to the bankrupt’. I have not been referred to any authority which would persuade me that the Response could be interpreted so as to fall within this subsection.
For the reasons outlined, the respondent in my view does not have standing to pursue the relief sought in his Response to set aside the financial agreement.
If I am wrong, I nevertheless propose to dismiss the respondent’s claim for the reasons which follow but I will first consider the relief sought by the applicants.
Whether there is a financial agreement that is binding on the parties
Section 90UC provides that if the parties to a de facto relationship make a written agreement about how their property or financial resources are to be divided upon the breakdown of their relationship and specify that the agreement is made pursuant to that section it is a financial agreement pursuant to Part VIIAB of the Act.
Section 90UJ relevantly provides that a Part VIIIAB financial agreement is binding on the parties if and only if:
a)The agreement is signed by all the parties; and
b)Before signing the agreement each party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
c)Either before or after signing the agreement each spouse party was provided with a signed statement by the legal practitioner stating that the advice was provided and a copy of the statement is provided to each party; and
d)The agreement has not been terminated or set aside by a court.
Section 90UK provides that a Part VIIIAB financial agreement that is binding on the parties to the agreement continues to operate despite the death of a party to the agreement.
The agreement
The agreement provides inter alia:
PARTIES
[Ms A Lincoln] of [1 F Street, Suburb E] …
[Mr Moore] of [T Street, Suburb U] …
BACKGROUND
…
C. [Ms A Lincoln] and [Mr Moore] commenced cohabitation in December 2009
…
F. [Ms A Lincoln] and [Mr Moore] intend their relationship to be permanent, nevertheless wish to define their financial rights and responsibilities during their relationship and upon any breakdown in the relationship.
G. [Ms A Lincoln] is the owner of or otherwise entitled to the assets and resources set out in the first schedule hereto.
H. [Mr Moore] is the owner of or otherwise entitled to the assets and resources set out in the second schedule hereto.
I. [Ms A Lincoln] and [Mr Moore] desire that this Agreement shall constitute a Part VIIIAB Financial Agreement pursuant to section 90UC of the Family Law Act 1975 (“the Agreement”).
…
K. [Ms A Lincoln] and [Mr Moore] mutually agree that each party have (sic) been provided, before the Agreement was signed by him or her, as certified in an annexure to the Agreement, with independent legal advice from a legal practitioner as to the following matters:
(i) The effect of the Agreement on the rights of the parties;
(ii) The advantages and disadvantages, at the time, that the advice was provided to the party or making the Agreement;
…
L. [Ms A Lincoln] and [Mr Moore] intend the Agreement to be binding …
M. [Ms A Lincoln] and [Mr Moore] are ordinarily resident in Queensland …
…
THE PARTIES’ AGREEMENT
…
8. [Mr Moore] agrees that:
8.1 He has made no financial contribution towards the assets, resources and liabilities as set out in the First Schedule.
8.2 He has no entitlement to [Ms A Lincoln’s] assets, resources and liabilities as set out in the First Schedule hereto, or any accretion to them or any income from them, or any asset or resource purchased in substitution of/for (sic) any asset or resource listed in the First Schedule, notwithstanding that he may have directly financial (sic) contributed to the acquisition, conservation or improvement of same.
…
18. [Ms A Lincoln] and [Mr Moore] agree and acknowledge that this Agreement may only be terminated by specifically including a provision stating that it is terminate in this agreement or other Agreement pursuant to the Family Law Act.
19. [Ms A Lincoln] and [Mr Moore] agree and acknowledge that this Agreement cannot be waived, modified, varied or added to and can only be terminated as described pursuant to Section 90UL.
20. [Ms A Lincoln] and [Mr Moore] agree and acknowledge that the failure of either of them to take advantage of any breach of or departure from the terms of this Agreement by the other party, shall not constitute a waiver of the Agreement or relinquishment of the right to require strict performance by the other party.
…The financial agreement at paragraph 4 provides – “[Ms A Lincoln] and [Mr Moore] intend for this agreement to: Eliminate or significantly reduce the prospects of litigation in the event that they separate”.
The financial agreement at paragraph 8 provides – “[Mr Moore] agrees that: he has made no financial contribution towards the assets, resources and liabilities as set out in the First Schedule. He has no entitlement to [Ms A Lincoln’s] assets, resources and liabilities as set out in the First Schedule hereto, or to any accretion to them or any income from them, or any asset or resource purchased in substitution of any asset or resource listed in the First Schedule, notwithstanding that he may have directly financially contributed to the acquisition, conservation or improvement of same.”
The financial agreement at paragraph 33 provides – “[Ms A Lincoln] and [Mr Moore] agree and acknowledge the terms of this Agreement may be pleaded as an absolute bar and estoppel by the parties.”
The agreement has annexed to it a certification by the deceased’s solicitor as to the advice provided.
The certification by the respondent’s solicitor appears at page 12 of the financial agreement and states as follows:
I hereby certify that in relation to an agreement in writing proposed to be entered into between [Ms A Lincoln] and [Mr Moore] (the parties) I advised [Mr Moore] (my client) independently of the other party and before the time at which my client signed the Agreement as to the following matters: a) the effect of the Agreement on the rights of my clients; b) the advantages and disadvantages at the time the advice was provided to my client of the making of the Agreement.
The certification is signed on 5 July 2010 by Mr V, a solicitor at W Lawyers.
I am satisfied that:
a)The agreement is one made in writing;
b)The parties are not parties to any other Part VIIIAB agreement;
c)The agreement deals with the division of property in the event of breakdown of the relationship;
d)The agreement states it is made pursuant to the relevant section;
e)Before signing the agreement each party received the required legal advice from a legal practitioner and a statement to that effect was provided to each party; and
f)The agreement has not been terminated.
In any event, I note that none of the above matters are contentious. The two matters in contention are whether the parties were in a de facto relationship and whether the advice given to the respondent was independent legal advice.
Was Mr V an independent?
Mr V was subpoenaed by the applicants and produced his file prior to the commencement of the proceedings. It was inspected by the parties and tendered into evidence. Mr V gave evidence and was cross examined by the respondent.
Mr V provided the certificate annexed to the agreement certifying as follows:
I hereby certify that in relation to an agreement in writing proposed to be entered into between [Ms A Lincoln] and [Mr Moore] (the parties) I advised [Mr Moore] (my client) independently of the other party and before the time at which my client signed the Agreement as to the following matters:
oThe effect of the Agreement on the rights of my client;
oThe advantages and disadvantages at the time the advice was provided to my client of making the Agreement.
The respondent deposes to attending upon Mr V after the appointment was arranged by the deceased. He states that Mr V was not his usual solicitor. He concedes however that he saw Mr V in the absence of the deceased and that he received advice although he takes issue with the content of that advice. He refused to pay Mr V’s bill.
Mr V’s file note confirms the consultation with the respondent alone and that advice was given about his rights without the agreement (were he and the deceased to remain in a de facto relationship for two years) and the advantages and disadvantages of entering into the agreement. He confirmed his advice in writing.
The deceased had her own solicitor, Mr X, who certified as to relevant matters in the certificate attached to the agreement.
Mr V confirmed that the binding financial agreement was provided to him by the respondent and was already signed by the deceased. He stated that the only time he saw the respondent and deceased together was in the reception area after the respondent had signed the agreement when he provided her with the original and had her sign a statement to acknowledge receipt. He then provided a copy to the respondent.
I accept Mr V’s evidence and find that he was an independent solicitor.
Was there a de facto relationship?
The relevant time to determine whether there was a de facto relationship was at the time the financial agreement was signed on 30 June and 5 July 2010. What may or may not have been their relationship after that time is not relevant other than as to credit.
What is a de facto relationship?
Section 4AA of the Act relevantly provides:
(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)… and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)…;
(h)…;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)…; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
…
The question of whether or not a de facto relationship existed is a determination of fact to be determined on the evidence presented at trial (see Jonah & White [2011] FamCA 221 (upheld on appeal); Ricci & Jones [2011] FamCA FC 222). The parties will be found to have been living in a de facto relationship if, ‘having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis’. No particular finding is a prerequisite e.g. it is not necessary for the parties to have lived in the same home.
Evidence relied upon by applicants
The deceased
The only evidence relevant to this issue contained in the deceased’s affidavit is as follows:
4. I first met [Mr Moore] in about April 2009 when he came to buy a [equipment] which I had for sale.
5. After I met [Mr Moore] he phoned me almost every day to keep in contact. On one July 2009, I arrived back to [Suburb E] from a month long holiday to Darwin. We went out to dinner that night in [Suburb E], then went back to my place, and [Mr Moore] left the next morning. After that evening, we saw each other most weekends when [Mr Moore] would travel to my place.
6. By the end of the year, I believed [Mr Moore] and I were in an established de facto relationship.
…
9.… I rang [Mr Moore] and told him I was concerned about my family and did not wish to continue my relationship with him.
10. [Mr Moore] and I did not see each other for a week, but I then phoned him again and told him I did wish to continue the relationship.
11… he resumed visiting me and I also continued visiting him at his house.
41. In about January 2010, [Mr Moore] first asked me for money. He wanted to borrow $10,000 to buy [equipment] from a person called [Y] in [Z Town]. When [Mr Moore] asked me for money, he was sitting at my kitchen bench. He told me he would pay the money back as soon as he could. I took $10,000 from a box of cash I kept in my house, and gave it to [Mr Moore] the same day. … [Mr Moore] never made any repayments of this money to me …
42. In February 2010, I made a loan to [Ms AA] [respondent’s daughter] as she managed [Mr Moore’s] … business.
43. After these initial loans, I continued to make payments to [Mr Moore] whenever he asked me for money. …
Other witnesses in the applicants’ case
The applicants relied upon evidence from the following witnesses on this issue, all of whom were cross-examined save for Ms P and Ms L:
a)Ms M deposes to having worked as a part time housekeeper for the deceased for at least the twelve months preceding the date of swearing her affidavit being the period from in or about September 2011 to 13 September 2012. She deposes to being introduced to the respondent on an unspecified date (but presumably not before in or about September 2011) by the deceased as “my partner”. She recalls seeing the respondent coming downstairs from the bedroom area dressed in a tee shirt and underpants. During cross-examination she conceded that she did not know how many bedrooms the deceased’s home had as she did not go into rooms other than the main bedroom and the en suite upstairs. Her evidence post-dates the date of the agreement.
b)Ms O Lincoln has no personal knowledge of the circumstances of the relationship between the deceased and the respondent. Her sole source of knowledge was what the deceased told her. In particular, she deposes to having been told by the deceased in or around July 2009 that she had started dating the respondent and that the relationship started after the respondent had come to her home to buy some equipment off her and that he had called her almost every day since. She says the deceased told her that she and the respondent were in a sexual relationship.
c)Ms N is the owner of business and was a good friend of the deceased. She initially deposes to having met the respondent for the first time about six months after the death of the deceased’s husband (which would have been about June 2009). She later deposes to having met him in or about September or October 2009 when he was introduced to her by the deceased – “This is my partner [Mr Moore]”, and deposes that ‘the respondent did not demur’. She deposes to cleaning up the block of land adjacent to the deceased’s home over a period of about nine months commencing, it would seem, some time prior to September 2009. On occasions when she was working just next to the home, within a driveway’s distance, she observed the respondent and deceased in the backyard kissing and holding hands. She deposes to having heard the deceased and respondent discussing the details of their intention to spend time together and about the bed they had purchased and where they were going out to dinner. She also deposes to having seen the respondent at the deceased’s home very early in the morning. This witness was not challenged about her evidence other than her ability to see the deceased and respondent holding hands and kissing. She also deposes to having been told by the deceased that she was in a relationship with the respondent and spent time at his home and on travels with him.
d)Ms L was not presented for cross-examination. She deposes to what she had been told by the deceased and her own observations of the respondent and deceased together when they would discuss where they would be going for holidays and how they would be spending time with each other. She dates the conversations and observations to 2009.
e)Mr Q is the de facto partner of the deceased’s sister. He deposes to having first met the respondent sometime in late 2009 or early 2010. He deposes as to his observation of the deceased and the respondent kissing and cuddling on that occasion when he visited the deceased at her home. He deposes to them coming to his home for dinner on an occasion and going out to dinner together and again observing them holding hands and cuddling. He deposes that he attended at the deceased’s unit. When he arrived at about 7.30am, the deceased opened the door in her night robe. From the doorway he saw the respondent in bed and when he got up he was in only a pair of boxer shorts. He deposes that they then went down to have breakfast and observed the respondent and deceased kissing and cuddling. He recalls them talking about going away to Melbourne and about buying a boat and how they were going to be buying equipment. He recalls them telling him about trips they had made together to Melbourne, Sydney, Perth and Tasmania. He does not provide a time frame for the latter observations.
f)Ms K is the sister of the deceased. She deposes to what the deceased told her about her relationship with the respondent including that it was a sexual relationship. She deposes to being introduced to the respondent in September 2009 when the respondent was in his boxer shorts and tee shirt. She deposes to looking around the unit as she had not been there before and noting that there was only one bedroom and the bed appeared to have been slept in. She noted the chair next to the bed had adult male clothing draped over the chair. She deposes to the deceased complaining about the respondent leaving his clothes lying around for her to have the responsibility of cleaning them. She deposes to the deceased telling her that she was probably in a de facto relationship with the respondent as she had said to her that you only have to spend three days a week with someone to be in a de facto relationship. She deposes to the deceased telling her that she had bought a gift of tickets for a plane flight in an old fighter plane for the respondent and that she had bought and paid for numerous flights for her and the respondent to Sydney, Melbourne, Tasmania and Perth for weekend getaways.
g)Ms J is another sister of the deceased and she deposes to the deceased telling her in or about mid-2009 that the respondent was coming up every weekend to live with her. In most telephone conversations she had with the deceased she says she could hear the respondent in the background. On Sunday 4 September 2011 she visited the deceased at her home at around 8.00 am and the respondent was finishing his breakfast and he said they were heading off to take a joy flight, which he said was a gift from the deceased. On Saturday 14 April 2012 she deposes to having arranged to meet the deceased at the airport to catch a flight together to BB Town and to observing the deceased with the respondent at the airport kissing, hugging and speaking privately. She deposes to observing the respondent and deceased hugging and kissing on their return from BB Town on Saturday 21 April 2012.
h)Mr C Lincoln is the deceased’s youngest son. He deposes to having heard about the respondent and his mother and that when he went to his mother’s home observing men’s clothes on the clothesline and also at the front door. He found some medication in the kitchen which had the respondent’s name on it. He deposes to things his mother told him about her trips away with the respondent and that she was in a relationship with the respondent. He does not say when he went to the home and made these observations.
i)Ms Burke is the deceased’s daughter. She has never met the respondent as she did not approve of her mother having a relationship with him. She deposes to the deceased telling her in or about July 2009 that she was having a sexual relationship with the respondent. She deposes that she attended the deceased’s home “in the early stages of my mother’s relationship with [Mr Moore]” at a time when no one was at home. She entered the home and noticed a man’s shirt on the ironing board, and in the kitchen and bedside table in the main bedroom she noticed prescription medication bottles with the respondent’s name on them. She deposes to re-establishing her relationship with the deceased shortly before her death. Annexed to her affidavit are various financial statements, travel documents, medical appointment records, vehicle registration and invoices/receipts all post-dating the date of the agreement. The documents provide corroboration that the deceased and respondent travelled together at the deceased’s expense, that the respondent paid vehicle expenses and that the respondent was noted as the deceased’s emergency contact as at May 2012.
j)Ms P is the deceased’s mother. She swore an affidavit on 30 October 2014 but no longer had mental capacity by the time of the trial. She deposes to having first become aware of the respondent in her daughter’s life in or about July 2009. She had been house sitting for the deceased while she was on holidays. Upon her return the deceased thanked her and asked her to leave as she had “her new partner” there. She was formally introduced to the respondent about three months later at her flat in Suburb E. The deceased asked her – “Can you come and look after the place for us while we go away”. She deposes to having observed the deceased and the respondent packing their things when she arrived at the house. She observed a man’s clothes in the bedroom and bathroom and shaving gear on the sink. Upon their return about a week later she stayed on at the deceased’s request for about four weeks. She deposes to not having seen her daughter alone over that four weeks. The deceased and respondent were either at the house and staying together overnight or the deceased and respondent would leave together and return together. She deposes to having spoken to the deceased on the telephone when she was told that the deceased was staying at the respondent’s rental property at Suburb U. She was a witness to the deceased and respondent having an argument about the deceased’s sister and their discussions about buying equipment together. The deceased left the home after a dispute with the deceased and the respondent over the respondent’s behaviour.
Evidence relied upon by respondent
The respondent contends that the only relationship he had with the deceased was a business one. He contends that he initially commenced to work for the deceased in cleaning up her property for which he was to be paid at an hourly rate at the conclusion of the job. He and the deceased then entered into a partnership via their respective companies and operated a business. He contends that he told the deceased just before Christmas 2009 that he was going overseas to “to get engaged”. After he returned from overseas in January 2010 he contends that he confronted the deceased about payment for the work he had done on her property. He contends that she said she would look into it. He concedes that she lent him money from time to time but contends loans were repaid. He contends that the deceased was worried about protecting her property from him as it might be conceived that they were in a de facto relationship given the amount of time they spent together. He dismissed the suggestion of a de facto relationship as “ridiculous”. He contends that the deceased kept asking him to sign a document and eventually he did because she said – “Well, if it is not signed, you will have to finish up working for me”. He contends that he signed the agreement because “I didn’t want to lose the job”.
The respondent concedes that he attended upon the office of W Lawyers in the company of the deceased and that he saw Mr. V in his office while the deceased waited in reception. He contends that:
[Mr V] explained to me that the only agreement they could come up with was this de facto agreement. I explained to him that there was no de facto relationship and that it was just a working relationship. His reply was he still had to explain the agreement to me. One comment he made to me was that she was a rich woman and to save any upset or confrontation it is better to just let her have her way and continue on with the work.
Specifically the respondent denies:
a)That he ever spent a night at the deceased’s home;
b)That she ever spent a night at his rented home at Suburb U;
c)That they were friends, describing her as a mere “employer”;
d)That he ever went on holidays with her - but he does concede he accompanied her interstate for business reasons;
e)That he ever kept any of his clothes at her home;
f)That he ever washed any of his clothes at her home; and
g)That he ever kissed or cuddled her.
The evidence from the respondent’s daughter is of little assistance as it relates largely to the period after the business partnership was established which occurred after the date of the agreement. Her evidence is largely based on information provided to her by the respondent or is very general in nature.
The evidence from Mr S was of no assistance on this issue.
Credibility of witnesses
It is necessary at this point to say something about the credibility of the witnesses. The respondent contends that he and the deceased had nothing more than a business relationship at any time. He eschewed the notion that they were even friends. He denies any intimacy of any sort at any time.
I do not accept that the many witnesses relied upon in the applicants’ case imagined the matters about which they gave evidence. The respondent contends that he told Mr V that, prior to signing the agreement, he and the deceased were not in a de facto relationship. Mr V denies this and I accept Mr V’s evidence.
Accordingly, where the respondent’s evidence conflicts with the applicants’ witnesses I accept their evidence. To the extent their evidence details observations made after the 5 July 2010 I nevertheless consider such matters are relevant to the issue of credit as against the respondent and it fortifies my view that the respondent’s evidence on this issue was completely unreliable.
Findings as to existence of de facto relationship
I find that the relevant circumstances of the relationship between the deceased and the respondent were as follows:
a)They commenced a relationship in or about June 2009 and it was ongoing as at 5 July 2010;
b)The deceased stayed at the respondent’s rented home from time to time but the respondent spent more time at the deceased’s home including weekdays and weekends;
c)They had a sexual relationship;
d)The deceased provided financial assistance to the respondent by way of loans which were not repaid;
e)They used property belonging to the deceased for their day to day living and in their business enterprises;
f)They were in a committed relationship and shared day to day activities, holidays and planned purchases for their mutual benefit for which the deceased paid;
g)While the respondent contends he became engaged to another woman there is no corroboration from that other woman and even if there were it would not preclude a relevant finding in relation to the deceased and respondent;
h)They presented to the public and friends as a couple including having the respondent attend medical appointments with the deceased and having him included as her emergency contact; and
i)They signed the agreement which stated they were in a de facto relationship.
I find that the deceased and respondent were in a de facto relationship at the relevant time.
Having found that the agreement is a Part VIIIAB financial agreement that is binding on the parties I now turn to consider the respondent’s claim to set aside the financial agreement.
Should the agreement be set aside?
Section 90UM relevantly provides that a Part VIIIAB agreement may be set aside if an only if the court is satisfied that that agreement is voidable. The respondent contends the agreement is voidable because he entered into the agreement under duress.
Duress
In order for the respondent to succeed with a claim that he entered into the agreement in circumstances of duress he would have to adduce evidence upon which I could find that either the deceased had made a threat of physical harm of such seriousness as to overbear ‘the ordinary power of human resistance’ (Barton v Armstong (1973) 2 NSWLR 598, [1976] AC 104; Kokl & Kokl (1981) FLC 91-078) or some act on the part of the deceased that amounted to ‘illegitimate pressure’.
McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45, 46 formulated the test as to what will amount to ‘illegitimate pressure’ as follows:
A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate. Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.
Other than making an assertion that he signed the agreement under duress the only factual matter relied upon by the respondent is that the deceased told him she would renege on her agreement to pay him for the work he alleges he was doing to clean up her property if he did sign the agreement.
Firstly, I do not accept that there was any agreement to pay the respondent for any work he was doing at the deceased’s residence. I accept the evidence of Ms N that she had been employed by the deceased to clean up the property and that she did so over a number of months. Secondly, I also find that the respondent had money available as the deceased lent the respondent various sums of money at various times which he did not repay. Such behaviour on her part would have been entirely inconsistent with refusing to pay him for work allegedly undertaken by him. Lastly, prior to signing the agreement the respondent conferred with a solicitor, Mr V. Even in his own case, the respondent does not say that he made any complaint to Mr V along these lines. This is despite his evidence that he told Mr V that there was no de facto relationship.
Mr V’s file note relevantly records:
[Mr Moore] said that her children after the death of their father a couple of years ago are suspicious that he is after her money which he is not.
He said the in-laws are worse, that they question what [Ms A Lincoln] does, but he feels that one the agreement is signed, then there will be no problems with that.
…
… [Mr Moore] was adamant that he would prefer to sign the agreement.
The respondent’s claim that he signed the agreement under duress is rejected.
Power of the court to grant declaratory relief
By paragraph 1 of their written submissions filed 22 April 2016 the applicants rely upon s 90UJ(1B) of the Act as the statutory basis for the declarations sought and Collagio & Collins [2015] FamCA 263 as authority to support the power to do so under that section.
Section 90UJ(1B) provides:
For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application).
The declaration made by Foster J in Collagio (supra) is not in the terms sought by the applicants in this case.
There is no general power to grant declaratory relief contained in the Act.
In relation to financial agreements the power to make “an order … declaring that the agreement is binding on the parties to the agreement” is found in ss 90UJ(1A)(d) and 90UJ(1B).
Section 90UJ relevantly provides:
When financial agreements are binding
…(1A) A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
[emphasis added]
The power of this Court to grant declaratory relief was considered by Coleman J in Cousins & Harper and Ors [2007] FamCA 1135; 38 Fam LR 461:
22. Historically courts exercising equitable jurisdiction declined to entertain applications seeking “mere declaratory judgments” (Guaranty Trust Co of New York v Hannay & Co (1915) 2 KB 536). Only by statute in 1880 did the Supreme Court of New South Wales acquire the power to grant “a merely declaratory decree” in the exercise of its equitable jurisdiction.
23. Notwithstanding that statutory provision, and the subsequent Equity Act 1901, the Supreme Court placed a restrictive interpretation on those enabling provisions, consistently ruling that the Court was without power to make a declaration in circumstances where no consequential relief was sought or could be granted (see J C Williamson Ltd v Durno Ltd(1915) 15 SR (NSW) 442).
24. The Equity Court’s persistence in limiting its powers to make declaratory orders or decrees continued after the passing of the Administration of Justice Act1924 which reiterated (section 18) that no suit was open to objection on the ground “that a merely declaratory order is sought thereby”. The Court was provided by statute with the power to make “binding declarations of right whether any consequential relief is or could be claimed or not”.
25. As decisions such as Tooth & Co Ltd v Coombes(1925) 42 WN (NSW) 93 confirm, the Court’s resistance to granting “merely declaratory” decrees continued. In David Jones Ltd v Leventhal[1927] HCA 53; (1927) 40 CLR 357, the High Court adopted a similarly restrictive view of the power to grant merely declaratory decrees, the consequence of which in that case, involving a dispute between the landlord and a tenant as to the obligation to pay certain taxes, was to leave the parties to either resolve their differences by negotiation or, in order to attract the jurisdiction of a Court to resolve their dispute, await one party or the other committing a breach of contract resulting in a damages action in the course of determining which of the legal rights and obligations of the parties under the lease would be declared. In Langman v Handover[1929] HCA 42; (1929) 43 CLR 334 the High Court adopted a similarly constrained view of the power to grant merely declaratory relief.
26. In 1965 the Equity Act was amended to confer a declaratory jurisdiction on the Supreme Court of New South Wales. Notwithstanding the undoubted ability to exercise the power, Equity Courts could be regarded as having been cautious about exercising that power (see Smart v Allen(1970) 91 WN (NSW) 241; Salmar Holdings Pty Ltd v Hornsby Shire Council (1970) 91 WN (NSW) 234).
27. Decisions of the High Court in the 1970’s (Forster v Jododex Australia Pty Ltd[1972] HCA 61; (1972) 127 CLR 421 and Commonwealth v Sterling Nicholas Duty Free Pty Ltd[1972] HCA 19; (1972) 126 CLR 297) made clear that the amendments to the Equity Act had the effect suggested by their terms. The issue was finally laid to rest in New South Wales by s 75 of the Supreme Court Act of 1970 which provided that “no proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential ruling is or could be claimed or not”.
28. The history of declaratory relief is instructive for present purposes. It is significant that, notwithstanding apparently clear statutory provisions enabling Equity Courts to do so, for 90 years after the first of such statutory provisions was enacted in New South Wales, and until the provisions of the Supreme Court Act of 1970 put the matter beyond doubt, courts exercising equitable jurisdiction resisted granting merely declaratory relief.
Ainsworth v Criminal Justice Commission
[1992] HCA 10; (1992) 175 CLR 564 was a case in which the appellants’ reputations had been sullied by a report tabled in Parliament by the Criminal Justice Commission. The appellants succeeded in obtaining a ‘mere declaration’ that in reporting adversely to the appellants in its Report on Gaming Machine Concerns and Regulations, the
respondent failed to observe the requirements of procedural
fairness. It was held:
38. It is now accepted that superior courts have inherent power to grant declaratory relief.
Although the Family Court of Australia is a superior court of record (see s 21 of the Act) it is nevertheless a creature of statute and is “unable to draw upon the well of undefined powers” available to courts not so limited. As a statutory court within the meaning of s 71 of the Constitution it ‘“has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”. It would be inaccurate to use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.’ (see DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226; (2000) FLC 93-015 at [25])
In the marriage of Smith (1979) FLC 90-64269 at 78,363, Lindenmayer J observed:
Finally, it occurs to me that there is another and fundamental reason why this court cannot grant the present application even if it is strictly within the court’s jurisdiction. That is because the only relief sought is a declaration or declarations and the court, in my opinion, has no power to grant such relief . The court is the creature of the Act and it therefore has only such powers as are expressly granted to it by the Act or as may fairly be regarded as being necessarily incidental to the exercise of those powers.
(see also the Full Court discussion in Duroux v Martin(1993) FLC 92-432 at 80,406; and the High Court observations in G v H (1994) FLC 92-504 at 81,248 – there seems to be no concluded view as to whether the Family Court has a general power to make declarations; Re: Sarah [2014] FamCA 208)
The Federal Court of Australia, also a creature of statute, has a specific provision granting to it the power to grant general declaratory relief. Section 21 of the Federal Court Act of Australia Act 1976 (Cth) provides:
(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A suit is not open to objection on the ground that a declaratory order only is sought.
No such provision is to be found in the Family Law Act.
In the Act there is provision for the Court to make declarations in relation to:
a)Validity of a marriage, divorce or annulment of marriage (s 4);
b)Satisfaction of special circumstances where divorce application filed within two years of marriage (s 44(1C));
c)Whether a child is or has entered into a de facto relationship (ss 65H and 66V);
d)An order or injunction that is inconsistent with a family violence order (s 68Q);
e)Parentage (s 69VA);
f)Existing property rights (ss 78 and 90SL);
g)Existence of a de facto relationship (s 90RD);
h)Eligible agreed matters (s 90UE);
i)Financial agreements where there is an enforcement application (ss 90G and 90UJ)
There is no enforcement application before me.
Section 90UN provides:
Validity, enforceability and effect of financial agreements and termination agreements
The question whether a Part VIIIAB financial agreement or a Part VIIIAB termination 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, and, in proceedings relating to such an agreement, the court:
(a)subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and
(b)has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and
(c)in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.
The power of the High Court in exercising its original jurisdiction is found in the Judiciary Act 1903 (Cth). The relevant sections provide:
Judgment and execution
31. The High Court in the exercise of its original jurisdiction may make and pronounce all such judgments as are necessary for doing complete justice in any cause or matter pending before it, and may for the execution of any such judgment in any part of the Commonwealth direct the issue of such process, whether in use in the Commonwealth before the commencement of this Act or not, as is permitted or prescribed by this or any Act or by Rules of Court.Complete relief to be granted
32. The High Court in the exercise of its original jurisdiction in any cause or matter pending before it, whether originated in the High Court or removed into it from another Court, shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter; so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided.In circumstances where there is a question as to whether a Part VIIIAB financial agreement is valid, enforceable or effective this Court has the same powers to grant the same remedies as the High Court. I respectfully disagree with MacMillan J where she expressed a more liberal interpretation of s 90KA (which is in mirror terms to s 90UJ but relates to married couples) in Abati & Cole [2015] FamCA 185 at [68] where her Honour held:
68. … there is no basis for construing the opening words of s 90KA as confining the operation of the words “in proceedings relating to such an agreement” to proceedings in which there is a question as to whether the financial agreement in question is “valid, enforceable or effective”.
In circumstances where there is a question as to the validity, enforceability or effectiveness of the financial agreement the Family Court has, in my view, power to make declarations in relation to that question, even though no specific power to do so is found in the Act. This is because the High Court is a superior court and not one created by statute and at least since Ainsworth (supra) superior courts (not limited by statutory creation) have power to grant declaratory relief and s 90UN specifically extends to this Court the same powers as the High Court.
While it might be arguable that there is before me a ‘question whether a Part VIIIAB financial agreement is valid, enforceable or effective’ within the meaning of s 90UN arising from the necessity to consider whether the Statutory requirements for such an agreement are met (although the only issues of contention were whether there was de facto relationship and whether the legal advice was independent were put in issue) the only declarations sought by the applicant are as follows:
a)A declaration that there has been no termination, variation or waiver of the Part VIIAB Financial Agreement of July 2010 (“the agreement”).
b)A declaration that the Agreement has not been modified, varied or added to.
c)A declaration that there is no waiver of the agreement or relinquishment of the right to require strict performance by the other party.
Whether or not the agreement was terminated, varied, waived, modified or that either party relinquished the right to require strict performance by the other were not issues in contention at this hearing. At best I can find that there was no evidence upon which I could make a positive finding that the agreement had been terminated, waived, modified etc.
Accordingly, I am not persuaded that I should make the declarations sought.
All applications will be dismissed.
I certify that the preceding one-hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 7 July 2016.
Associate:
Date: 7 July 2016
10
18
2