Joske, Strauss and Mullane JJ.: This is an appeal against orders of Kay J. made on 30 April 1987 in proceedings for alteration of interests in property under sec. 79 of the Family Law Act 1975.

The effect of these orders was that there should be transferred and paid to the wife real property and money to the total value of $187,750, being one half of the property and moneys which his Honour found the parties possessed, namely, $375,500. The real property consisted of: (1) the former matrimonial home at Bunker Avenue, Kingsbury, valued at $82,500 and (2) the parties' equity in a property at Niblick Street, Kingsbury, valued at $53,000. His Honour also found that the husband held other property consisting of moneys or investments amounting to $240,000, which together with the real estate composed the total of $375,500. His Honour accepted the husband's evidence that out of the sum of $240,000 he had spent $10,000 on a car and $9,000 on furniture for his own use. The wife had in her possession property or chattels worth about $5,000, some of which his Honour found might have belonged to the daughter. The husband was also a member or beneficiary under a superannuation scheme to which he had contributed about $8,000. At the time of the hearing he was almost 50 years of age. His entitlement under the scheme on retirement at age 55 was $47,000 together with a fortnightly pension of $135. This entitlement was calculated on his current salary. As his salary would rise, so would his lump sum entitlement and pension. On his present earnings, at retirement at age 65 he would receive $60,000 by way of lump sum plus $194 fortnightly pension. These superannuation entitlements would be subject to some income tax.

The parties were married on 21 February 1961. Both the husband and wife were born in Italy. They migrated to Australia in 1967 or 1968. There are two children of the marriage. M born on 29 May 1965 and T born on 21 October 1971. At the time of the hearing before his Honour, T was living with the husband. The husband was born on 26 June 1937, and the wife was born on 6 January 1942. It was common ground that from 1968 until 1984 both parties had worked hard and accumulated the assets referred to above. Both parties were employed in the main by the Department of Health as ward or Kitchen assistants and both earned similar income. Counsel for both parties conceded that until the time of the separation, the parties should be seen to have contributed equally towards the acquisition, conservation and improvement of their assets and to the welfare of the family. As his…

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

AGLC: Mezzacappa & Mezzacappa [1987] FamCA 20
Case: [1987] FamCA 20
Decision Date: 2 December 1987

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *Mezzacappa & Mezzacappa*, concerning a dispute between the parties regarding the interpretation and application of certain provisions within a deed. The specific nature of the dispute involved disagreements over contractual obligations and entitlements arising from the deed.

The central legal issues before the Full Federal Court were: (1) whether the appellants had validly exercised a right of pre-emption under the deed; and (2) if not, what were the consequences of that purported exercise, particularly in relation to the respondents' rights under the same deed. The court was required to construe the relevant clauses of the deed to determine the parties' respective rights and obligations.

The court's reasoning focused on a careful analysis of the language used in the deed, applying established principles of contractual interpretation. It considered the plain meaning of the words, the context in which they appeared, and the overall purpose of the deed. The court determined that the appellants had failed to comply with the specific procedural requirements stipulated in the deed for the exercise of the pre-emption right. Consequently, the purported exercise was ineffective, and the respondents were entitled to proceed with their rights as outlined in the deed. The court ultimately found in favour of the respondents, upholding their interpretation of the deed's provisions.

Orders