Mayne v Robbins - [2009] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MAYNE v ROBBINS
[2009] SADC 58
Judgment of His Honour Judge Lovell
27 May 2009
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - VARIATION AND SETTING ASIDE OF CONSENT JUDGMENT
Application to set aside consent order made pursuant to De Facto Relationships Act 1996 - Defendant alleged to have not made full disclosure of her superannuation entitlements - whether "Duty of disclosure" arises under De Facto Relationships Act - whether Consent Judgment became a "Cohabitation Agreement" - Application of r 84.12 - Application of s 8 of De Facto Relationships Act.
Held: Pursuant to r 84.12 Consent Judgment set aside.
De Facto Relationships Act 1996 (SA) ss 8, 10, 11; District Court Rules 1992 r 84.12, referred to.
Livesey v Jenkins [1985] AC 424; Wilson v Vine [2003] NSWSC 341; Hayes v Marquis [2008] NSWCA 10; Mohtar v Mohtar and Seputis (1988) 146 LSJS 377; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Cavanagh-Lang v O'Callaghan & Ors [2000] SASC 187; Van Jole v Cole [2000] NTSC 18; Huddersfield Banking Company Limited v Henry Lister & Son Limited [1895] 2 Ch 273 at 280; Taylor v Taylor (1979-1980) 143 CLR 1; Harvey v Phillips and Anor (1956) 95 CLR 235, considered.

MAYNE v ROBBINS
[2009] SADC 58

For many years the plaintiff and defendant lived in a de facto relationship. The family home was a small farming property at Basket Range. The two children of the relationship were raised on the farm.
Unfortunately the relationship broke down in March 2003 and they separated. Mr Mayne issued proceedings in the District Court pursuant to the De Facto Partners Act (the Act) seeking a property settlement. The matter was listed for trial. Shortly before trial the parties attended a mediation conference and the matter settled. A consent judgment recording the terms of settlement was entered.
Mr Mayne now alleges that Ms Robbins, prior to the mediation conference, did not disclose all of her assets namely her full superannuation entitlements. He alleges that had he known the true position of her superannuation he would not have agreed to the terms of settlement and therefore he would not have agreed to consent to judgment. He asks this Court to exercise its discretion and set aside the consent judgment.
Ms Robbins alleges she disclosed all information and documents required, and even if she did not, the Court should not exercise its discretion to set aside the consent judgment.
Witnesses
Three witnesses gave evidence.
Mr Mayne’s evidence-in-chief consisted of his affidavit of 31 May 2007. He was cross-examined by Mr Wells QC. Mr Mayne was an impressive witness and I accept his evidence. Part of a further affidavit[1] of Mr Mayne was also tendered.
[1] Affidavit dated the 16^th June 2008.
Ms Robbins’ evidence-in chief consisted of her affidavit of 21 September 2007. She also filed a later affidavit.[2] She was cross-examined by Mr…

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 Mayne v Robbins

Details

AGLC: Mayne v Robbins [2009] SADC 58
Case: [2009] SADC 58
Decision Date: 27 May 2009

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Mayne v Robbins involved a dispute concerning the variation and setting aside of a consent judgment. The parties were in a de facto relationship and had entered into a consent judgment that divided their assets and liabilities. The defendant, Robbins, applied to set aside the consent judgment, alleging that the plaintiff, Mayne, had not disclosed all of her superannuation entitlements during the negotiations. The dispute centred on whether the de facto relationship statute imposed a duty of disclosure on the parties and whether the consent judgment could be treated as a cohabitation agreement, thus permitting the application of certain rules and sections of the De Facto Relationships Act.

The court had to determine the existence of a duty of disclosure under the De Facto Relationships Act and whether the consent judgment could be considered a cohabitation agreement. The court also had to examine the application of rule 84.12 of the Federal Circuit and Family Court of Australia Rules 2021 and section 8 of the De Facto Relationships Act. These issues were critical in deciding whether the consent judgment should be set aside and the extent to which the court could intervene in the parties' agreement.

The court found that there was no duty of disclosure under the De Facto Relationships Act that would require the parties to fully disclose their superannuation entitlements. However, it did consider the consent judgment as a cohabitation agreement, allowing for the application of rule 84.12 and section 8 of the Act. The court emphasised the importance of fairness and just outcomes in such cases. Given the material non-disclosure and its impact on the fairness of the consent judgment, the court set aside the consent judgment and ordered that the matter be remitted to the registrar to be heard as if no consent orders had been made.

In conclusion, the court set aside the consent judgment due to the material non-disclosure of superannuation entitlements by the plaintiff. The court's decision underscores the importance of full disclosure and fairness in de facto relationship property settlements, and it highlights the court's discretion to intervene in such cases where justice demands it.

Orders