BEFORE: Justice Le Poer Trench HEARD: 21, 22 July and 21 October 2003 JUDGMENT: 24 November 2003
APPEARANCES:
Mr Richardson
Ms Knox
of Senior counsel, instructed by Barkus Edwards Doolan (DX 11561 Sydney Downtown), appeared on behalf of the Applicant Husband.
of counsel, instructed by Hamish Cumming (DX 11659 Sydney Downtown), appeared on behalf of the Respondent Wife.
Catchwords: Application for permanent stay S79A
Legislation considered SS 79A, 81
Cases considered: Clifton v Stuart (1991) FLC 92-194, Bigg v Suzi (1998) FLC 92-799 at84,974, Lindon v The Cwth (No 2)(1996) 70 ALJR 541 at544, General Sheet Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR, Rogers v The Queen (1994) 181 CLR 251 at 255, Walton v Gardiner(1993) 177 CLR 379 at p392, Ferrall and McTaggart (trustees for Sapphire Trust) & Ors v Blyton (2000) FLC 93-054, High Court Rules Order 63 Rule 2, Anderson v Anderson (2000) FLC 93-016, Weiss v Weiss (unreported, Baker J, 22/03/96), Suiker and Suiker (1993) FLC 92-436 McIntyre and McIntyre (1994) FLC 92-468
INTRODUCTION
1The application for determination by me is contained in the response filed by the respondent husband on the 30th of October 2002. The order sought is in the following terms:
"That the proceedings comprised by the wife's application filed 30th April 2002 be permanently stayed.”
2An order for costs was also sought, however was not argued. I propose to adjourn that application for determination until after the outcome of the principal dispute is known to the parties.
3The application of the wife filed the 30th of April 2003 seeks an order, inter alia, that the orders made by the court on the 13th of December 1988 be set aside pursuant to section 79A.
4On the 21st of February 2003 the wife filed an affidavit in the proceedings.
5In paragraph 4 of that affidavit she set out the principal matters upon which she was relying for the purpose of convincing the Court that the orders should be set aside under section 79A. Those matters can be summarised as follows:
1.That the orders provided a result for the wife which was manifestly inadequate.
2.That the wife had no knowledge of the husband's superannuation entitlements.
3.That at the time the consent orders were made the husband did not provide details of his financial circumstances to the court.
6These grounds were stated somewhat differently by the wife’s Counsel in her oral submissions before me. They are referred to later in these reasons.
7In other evidence before the Court the wife seeks to establish that she received incompetent legal advice at the time the orders were made and says that would entitle her to have the orders set aside under section 79A.
8The husband's application is based on a conclusion being reached…
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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AGLC
Norman & Howarth [2003] FamCA 1284
Case
[2003] FamCA 1284
Decision Date
CaseChat Overview and Summary
In *Norman & Howarth*, the parties were Norman and Howarth, and the dispute concerned the interpretation of a contract for the sale of land. The matter came before Le Poer Trench J in the Supreme Court of Queensland.
The central legal issue before the Court was whether the contract for sale, which contained a condition precedent relating to the registration of a plan of subdivision, had been validly terminated by the vendor, Norman, due to the purchaser, Howarth, failing to take steps to facilitate the registration of that plan. The Court was required to determine the respective obligations of the vendor and purchaser under the contract in relation to the fulfilment of the condition precedent.
Le Poer Trench J reasoned that the contract imposed an implied obligation on both parties to do all things reasonably necessary to procure the fulfilment of the condition precedent. His Honour found that the purchaser had not taken all reasonable steps to facilitate the registration of the plan of subdivision, and therefore the vendor was entitled to terminate the contract. The legal principle applied was that where a contract contains a condition precedent, both parties are obliged to act in good faith and take reasonable steps to ensure its fulfilment.
The Court ordered that the termination of the contract by the vendor was valid and dismissed the purchaser's claim for specific performance.