NGO & HAN - [2018] FCCA 3806

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGO & HAN

[2018] FCCA 3806

Catchwords:
FAMILY LAW – Allegations made about two binding financial agreements made in 2007 and 2009 – wife alleged parties bound by 2009 document – husband disputed this – there was no valid, effective or enforceable contract.

Legislation:

Family Law Act 1975 (Cth)

Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009

Cases cited:

Adame & Adame [2014] FCCA 42
Millington & Millington (2007) FamCA 687
Fevia & Carmel-Fevia (2009) FLC 93-411

Applicant:

MR NGO

Respondent:

MS HAN

File Number:

MLC 9190 of 2009

Judgment of:

Judge Curtain

Hearing dates:

13 & 14 August 2018

Date of Last Submission:

14 August 2018

Delivered at:

Melbourne

Delivered on:

21 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr Howe of Counsel

Solicitors for the Applicant:

RRR Lawyers

Counsel for the Respondent:

Ms Johnson of Counsel

Solicitors for the Respondent:

Verduci Lawyers

ORDERS

That it is declared that on the balance of probabilities, there is no binding financial agreement executed by all parties in 2009 and the purported financial agreement annexed at “H-3” to the sworn affidavit of the wife filed 29 May 2018 is not a valid, nor enforceable, nor effective binding financial agreement.
That these proceedings be listed on 5 September 2019 as a contested property dispute with an estimated hearing time of two (2) days, with the following trial directions:
(a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 28 days prior to the trial; and
(b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and
(c)Each party electronically file and serve a Case Outline not later than 7 days prior to the trial.

IT IS NOTED that publication of this judgment under the pseudonym Ngo & Han is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9190 of 2009

MR NGO

Applicant

And

MS HAN

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant husband Mr Ngo filed an Amended Initiating Application on 22 March 2018, seeking the following final orders:
1.An order for leave to proceed for property orders out of time, the parties having divorced on 2^nd January 2010.
2.A declaration that the undated purported financial agreement annexed as “H-3” (‘The 2009 document’) in the affidavit of the applicant wife sworn on the 29^thMay 2017 is not a binding agreement between the parties, as the document only bears the signature of the husband and does not bear the signature of the applicant wife and the Certificate of Independent Legal advice pertaining to the applicant wife is also blank and has not be signed by the solicitor, namely Mr L.
3.In the event that the 2009 document referred to in paragraph 2 herein is found to be binding between 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.

Continue reading NGO & HAN

Details

AGLC: Ngo and Han [2018] FCCA 3806
Case: [2018] FCCA 3806
Decision Date: 21 December 2018

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered a dispute between the wife and the husband concerning two financial agreements, one made in 2007 and another in 2009. The wife contended that the parties were bound by the 2009 financial agreement, while the husband disputed its validity, arguing that no valid, effective, or enforceable contract existed.

The central legal issue before the Court was whether the 2009 financial agreement was a valid, effective, and enforceable binding financial agreement between the parties.

Judge Curtain declared that, on the balance of probabilities, no binding financial agreement was executed by all parties in 2009. Consequently, the purported financial agreement annexed to the wife's affidavit was found not to be valid, enforceable, or effective. The proceedings were then listed as a contested property dispute, with directions for the filing of further affidavits and case outlines prior to a two-day hearing.

Orders

Orders of the court

That it is declared that on the balance of probabilities, there is no binding financial agreement executed by all parties in 2009 and the purported financial agreement annexed at “H-3” to the sworn affidavit of the wife filed 29 May 2018 is not a valid, nor enforceable, nor effective binding financial agreement.

That these proceedings be listed on 5 September 2019 as a contested property dispute with an estimated hearing time of two (2) days, with the following trial directions:

(a) The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 28 days prior to the trial; and

(b) The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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