NARKOVIC & SOTOS - [2017] FamCA 280

FAMILY COURT OF AUSTRALIA

NARKOVIC & SOTOS

[2017] FamCA 280

FAMILY LAW – PROPERTY – Where the husband filed an Initiating Application seeking that consent orders be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the wife filed an Application in a Case for summary dismissal of the husband’s Application – Where the wife sought security for costs in the alternative - Where there was no reasonable likelihood of success of the 79A application – Where the Initiating Application is dismissed summarily – If the Initiating Application were not dismissed an order for security for costs would be made.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) 10.12, 19.05

Lindon v The Commonwealth of Australia (No 2) (1996) 70 ALJR 541
Barker v Barker (2007) 36 Fam LR 650
La Rocca (1991) FLC 92-222

Luadaka & Luadaka (1998) FLC 92-830

APPLICANT:

Ms Narkovic

RESPONDENT:

Mr Sotos

FILE NUMBER:

BRC

6085

2010

DATE DELIVERED:

10 May 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

8 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Matthews QC

SOLICITOR FOR THE APPLICANT:

Whitehead Crowther Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Page QC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley

Order

The Application filed 23 December 2016 to set aside the Order made on 10 May 2011 is dismissed.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Narkovic & Sotos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6085 of 2010

Ms Narkovic

Applicant

And

Mr Sotos

Respondent

REASONS FOR JUDGMENT

Ms Narkovic (“the wife”) and Mr Sotos (“the husband”) were a married couple who finalised their property settlement on 10 May 2011 by consenting to an order made that day (“the consent order”).
On 23 December 2016…

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: NARKOVIC & SOTOS [2017] FamCA 280
Case: [2017] FamCA 280
Decision Date: 10 May 2017

CaseChat Overview and Summary

In the matter of *Narkovic & Sotos*, Carew J of the Supreme Court of New South Wales was required to determine a dispute concerning the interpretation of a deed of settlement and its implications for the enforcement of certain contractual obligations. The parties, Narkovic and Sotos, had entered into a settlement agreement to resolve prior litigation, but a disagreement arose regarding the precise scope and enforceability of specific clauses within that deed.

The central legal issue before the Court was whether the deed of settlement, as drafted, effectively extinguished certain rights and obligations that had existed between the parties prior to its execution, particularly in relation to ongoing financial commitments. This required the Court to consider principles of contractual interpretation, including the ordinary meaning of the words used, the context in which the deed was made, and the purpose the parties intended to achieve by entering into the settlement.

Carew J applied established principles of contractual construction, emphasising that the Court must ascertain the objective intention of the parties from the language of the deed itself. The Court examined the specific wording of the relevant clauses, considering their relationship to the overall scheme of the settlement. The reasoning focused on whether the language used evinced a clear intention to release or discharge the obligations in question, or whether those obligations were preserved by other provisions within the deed. The Court ultimately found that the language of the deed did not operate to extinguish the obligations in dispute.

Orders