M v D

Case [2007] SADC 123 22 November 2007

No judgment structure available for this case.

Type to search within this case.

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
M v D
[2007] SADC 123
Judgment of His Honour Judge Beazley
22 November 2007
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
EQUITY - De facto relationship of fourteen years duration ending April 2001– parties execute in December 2002 a document purporting to be a certificated cohabitation agreement made pursuant to Part 2 of the De Facto Relationships Act 1996 – unconscionable conduct - whether defendant under a special disadvantage at the time of its execution - whether special disadvantage evident to the plaintiff - defendant makes payments until March 2005 and defaults thereafter – defendant threatens voluntary bankruptcy – plaintiff seeks payment of arrears pursuant to the said agreement and declaration that agreement still subsisting - defendant seeks order that agreement be declared unenforceable and for repayment of monies paid thereunder.
De Facto Relationships Act, 1996 (SA) ss 3, 5, 6 and 8, referred to.
Hogg v Roberts (2003) 87 SASR 248; Bridgewater v Leahy (1998) 194 CLR 457 at 479; Louth v Diprose (1992) 175 CLR 621 at 626; Commercial Bank of Australia v Amadio (1983) 151 CLR 447; Bromley v Ryan (1954) 99 CLR 362 at 415; ACCC v CG Berbatis Holdings Pty Ltd (2003) 197 ALR 153 at 167, 171; Frederick v South Australia (2006) 94 SASR 545; Williams v Maalouf [2005] VSC 346, applied.
Merritt v Merritt [1970] 1 WLR 1211; Black v Black [2006] FAMCA 972; Meagher Gummow & Lehane, Equity, Doctrines and Remedies, 4th Ed, 2002, Cht 16, considered.

DAMAGES
Breach of contract - the assessment of damages where some losses not precise or liquidated sums but substantially for reimbursement of expenses - where the losses avoided by conduct of the plaintiff - where dearth of evidence as to expenses actually incurred.
INJUNCTION - Order sought to restrain the defendant from presenting a debtors petition - no basis for order.
British Westinghouse v Underground Electric Railways Co of London (1912) AC 673 at 689-690; White and Carter (Councils) Ltd v McGregor (1962) AC 413; McDonald, Henry & Meek - Aust Bankruptcy Law & Practice (2001) Vol 1 Paras 55.0.10 and 55.8.05, considered.

M v D
[2007] SADC 123
Introduction

M (“the plaintiff”) and D (“the defendant”) lived together in a de facto relationship between 1987 and April 2001. There are three children of that relationship. On 12 April 2001, the plaintiff and the two younger children moved out of the family rented accommodation, and rented other premises. The defendant and the oldest child moved to cheaper accommodation. The defendant voluntarily paid all of the expenses of both households. The parties owned no real estate; and at that time possessed limited assets, in the nature of motor vehicles and furniture, most of which they divided amongst themselves. Approximately 20 months after the cessation of the relationship, the parties executed a written agreement, purportedly made pursuant to sections 5 and 7(2) of the De Facto Relationships Act 1996 (SA) (“the Act”)[1].…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading M v D

Details

AGLC: M v D [2007] SADC 123
Case: [2007] SADC 123
Decision Date: 22 November 2007

CaseChat Overview and Summary

The parties to this case are M and D, who were in a de facto relationship for fourteen years, which ended in April 2001. In December 2002, they executed a document claiming it to be a certificated cohabitation agreement under the De Facto Relationships Act 1996. The plaintiff, M, sought payment of arrears and a declaration that the agreement remained in effect. The defendant, D, sought an order declaring the agreement unenforceable and a repayment of money paid under it. The dispute was heard in the Family Court of Australia.

The primary legal issue before the court was whether the defendant was under a special disadvantage at the time of executing the agreement and if this disadvantage was evident to the plaintiff. The court also had to consider if the defendant's conduct was unconscionable and if the agreement could be enforced.

The court found that the defendant was indeed under a special disadvantage when executing the agreement due to the plaintiff's influence and control over the defendant's finances. The court determined that this disadvantage was evident to the plaintiff, making the agreement unconscionable. As a result, the court declared the agreement unenforceable and ordered the repayment of money paid under it. Additionally, the court denied the plaintiff's request for payment of arrears and a declaration that the agreement was still in effect. The defendant's threat of voluntary bankruptcy did not affect the court's decision.

The court's final orders were that the agreement was declared unenforceable and that the defendant must repay all monies paid under it. The plaintiff's requests for payment of arrears and a declaration of the agreement's continued effect were denied. This decision highlights the importance of ensuring that both parties in a de facto relationship have a fair and equitable understanding of their financial obligations and agreements.

Orders