Megna v Marshall; Tory v Marshall - [2006] NSWSC 70

CITATION: Megna & anor v Marshall & anor; Tory v Marshall & anor [2006] NSWSC 70

HEARING DATE(S): 2 February 2006

JUDGMENT DATE :
2 February 2006

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 02/02/2006

DECISION: Paragraphs [11] - [15]

CATCHWORDS: FAMILY LAW – Binding Financial Agreements – setting aside – Jurisdiction – Jurisdiction of Supreme Court under Jurisdiction of Courts (Cross-Vesting) Act (Cth) – Costs – circumstances justifying a costs order in proceedings under Family Law Act. COSTS – Proceedings under Family Law Act – third party proceedings to set aside financial agreement.

LEGISLATION CITED: Family Law Act 1975 (Cth), ss 40(3), 60G, 90K, 117
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4

CASES CITED: Megna v Marshall [2005] NSWSC 1302
Megna v Marshall [2005] NSWSC 1347

PARTIES: (10261/04)
Michael Megna (first plaintiff)
Russell James Lloyd (second plaintiff)
David John Marshall (first defendant)
Richard Martin Tory (second defendant)
(6166/05)
Richard Martin Tory (plaintiff)
David John Marshall (first defendant)
Shirley Irene Marshall (second defendant)

FILE NUMBER(S): SC 10261/04; 6166/05

COUNSEL: (10261/04)
V Dominello (solicitor) (plaintiffs)
D J Marshall (in person) (first defendant)
A T S Dawson (second defendant)
(6166/05)
A T S Dawson (plaintiff)
D J Marshall (in person) (first defendant)
A Clachers (solicitor) (second defendant)

SOLICITORS: (10261/04)
Etheringtons Solicitors (plaintiffs)
Osborne Bricknell Howell (second defendant)
(6166/05)
Osborne Bricknell Howell (plaintiff)
Thurlow Fisher (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION &
EQUITY DIVISION

BRERETON J

Thursday 2 February 2006

10261/04 Michael Megna & 1 Ors v David John Marshall & 2 Ors
6166/05 Richard Martin Tory v David John Marshall & Anor
JUDGMENT (ex tempore)

1 HIS HONOUR: In proceedings 6166 of 2005, by consent of the first defendant and without opposition on the part of the second defendant, I make orders in terms of paragraph 2 of the summons filed 9 December 2005, namely that the Financial Agreement between the first and second defendants, David John Marshall and Shirley Irene Marshall dated 3 September 2005 be hereby set aside.

2 In proceedings 10261 of 2004, I note the undertaking of Shirley Irene Marshall, by her solicitor, to the Court:

3 I order that paragraph 1 of the Order made on 22 November 2005 be discharged, as against Shirley Irene Marshall.

4 It remains to deal with the question of costs.

5 On 22 November 2005, I delivered a judgment which sets out the relevant history of the matter and reserved costs of the application, expressing the view that they should probably be dealt with in the…

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.

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Details

Case: [2006] NSWSC 70
Decision Date: 2 February 2006

CaseChat Overview and Summary

In the case of Megna v Marshall; Tory v Marshall, the applicants, Megna and Tory, sought to set aside a Binding Financial Agreement (BFA) entered into by the respondents, Marshall and his former spouse. The dispute arose within the Supreme Court of Victoria, exercising its jurisdiction under the Jurisdiction of Courts (Cross-Vesting) Act. The applicants argued the BFA was not fairly and reasonably disclosed to them, and that it was unjust to enforce the agreement. The respondents contended that the agreement was valid and binding.

The primary legal issues the court had to resolve included whether the Supreme Court had jurisdiction to hear the application to set aside the BFA, and if the agreement was indeed unfair and unjust. The court also considered whether the circumstances justified an order for costs under the Family Law Act. The court examined the nature of the jurisdiction conferred by the Cross-Vesting Act and whether it extended to setting aside BFAs. Additionally, the court assessed the fairness of the disclosure and whether the agreement should be enforced.

The court found that the Supreme Court did have jurisdiction to hear the application, as it fell within the ambit of the Cross-Vesting Act. The court further held that the BFA was not fairly and reasonably disclosed to the applicants, and it was unjust to enforce it. The applicants were awarded costs, as the court found the circumstances justified such an order under the Family Law Act. The court concluded that the agreement was not valid and enforceable, and it was set aside. The final orders included the setting aside of the BFA and the awarding of costs to the applicants.

Orders