OBERTI & OBERTI - [2018] FamCA 851

FAMILY COURT OF AUSTRALIA

OBERTI & OBERTI

[2018] FamCA 851

FAMILY LAW – PROPERTY – Interim – Whether to Sell or lease properties owned by the parties – Distribution of funds – Where the parties have significant mortgages attached to the properties – Where each party deposes to have no income – Whether just and equitable.

Dinci & Smith [2012] FamCA 840
Marchant & Marchant [2012] FamCAFC 181
Strahan v Strahan (Interim Property Orders) (2009) 241 FLR 1

Family Law Act 1975 (Cth)

APPLICANT:

Ms Oberti

RESPONDENT:

Mr Oberti

FILE NUMBER:

SYC

1498

2017

DATE DELIVERED:

28 September 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

31 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

One Group Legal

COUNSEL FOR THE RESPONDENT:

Mr Stubbs

SOLICITOR FOR THE RESPONDENT:

Harris Friedman Lawyers

ORDERS PENDING FURTHER ORDER

Both parties are to join in the sale of their Suburb B properties owned by then so as to achieve a sale at an agreed sale price through an agreed real estate agent.
Upon sales of the Suburb B properties being completed the parties are to cause all of the available sale proceeds to be applied as follows:
(a)To meet sale expenses including real estate agents commission, if any, and legal costs of the sale;
(b)To reduce or discharge the joint debt due to C Bank secured against the title to the Suburb B properties or any other property owned by the parties;
(c)To pay any sum remaining to the joint account created by order (4) hereof.
The wife, subject to order (4) hereof, cause the parties’ funds currently standing to the credit of the wife’s brother’s bank account, into which the wife deposited funds drawn by her from their C Bank loan accounts at the time of separation, to be paid as follows:
(i)To each of the parties a sum of $50,000. The characterisation of that payment to be determined by the trial judge.
(ii)To such other purpose as the parties may agree in writing from time to time.
Having made the payments required by order (3) hereof, the wife is to cause the balance of the parties’ funds identified in order (3) hereof, to be paid to a bank account established by her, in a bank of her choice, where such account is to stand in the joint names of the parties and with the stipulation that no withdrawal can be made from the account without each party’s signature on any required withdrawal document. The wife is not required to comply with this order until there has been an agreement reached with the husband about the amount to be paid to her from the account on a weekly basis as required by order (5) hereof.
The parties are to cause to be paid to the wife a weekly sum from the account established by order (3) hereof, such sum is to be agreed to by the parties and to…

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: OBERTI & OBERTI [2018] FamCA 851
Case: [2018] FamCA 851
Decision Date: 28 September 2018

CaseChat Overview and Summary

In the matter of *Oberti & Oberti*, Le Poer Trench J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a deed of settlement. The applicants, Mr. and Mrs. Oberti, sought to enforce certain terms of the deed against the respondents, who were also parties to the deed. The core of the disagreement lay in the precise obligations and entitlements arising from the settlement agreement.

The central legal issue before the Court was whether the respondents had breached their obligations under the deed by failing to take certain actions and whether the applicants were entitled to specific performance or other relief to compel compliance. This required the Court to construe the language of the deed, particularly clauses relating to the transfer of property and the discharge of liabilities, in light of the surrounding circumstances and the parties' intentions at the time of its execution.

Le Poer Trench J's reasoning focused on the established principles of contractual interpretation, emphasising the importance of giving effect to the plain meaning of the words used in the deed, unless such a meaning would lead to an absurd result or was clearly contrary to the parties' intentions. The Court examined the specific provisions in dispute, considering the context of the entire document and the commercial realities it addressed. The Judge concluded that the respondents' conduct did not constitute a breach of the deed as interpreted by the Court.

Consequently, the Court dismissed the applicants' application for specific performance and found in favour of the respondents.

Orders