FAMILY COURT OF AUSTRALIA
| OWENS & BENSON | [2014] FamCAFC 243 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – AMENDED NOTICE OF APPEAL – DECLARATON OF DE FACTO RELATIONSHIP – Where the trial judge found that the parties were in a de facto relationship – Where the appellant submits that the trial judge’s findings were erroneous and not open on the evidence – Where the evidence between the parties was largely disparate – Consideration of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 – Where the appellant submits that the adverse credit findings made by the trial judge were not reasonably open – Where the assessment of credit of the parties was open to the trial judge – Where the appellant asserts the trial judge erred in failing to draw a Jones v Dunkel (1959) 101 CLR 298 inference – Where the trial judge referred to ample corroborative evidence in relation to the findings made – Where no error demonstrated – Leave to appeal granted – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the appellant conceded costs if the appeal failed – Appellant pay respondent’s costs of the appeal. |
| Evidence Act 1995 (Cth) s 140 Family Law Regulations 1984 (Cth) reg 15A(1) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Briginshaw v Briginshaw (1938) 60 CLR 336 Johnson & Page (2007) FLC 93-344 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Ltd (2011) 243 CLR 361 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Rutherford & Rutherford (1991) FLC 92-255 Tobin v Ezekiel (2012) 83 NSWLR 757 |
| APPELLANT: | Ms Owens |
| RESPONDENT: | Mr Benson |
| FILE NUMBER: | SYC | 1552 | of | 2011 |
| APPEAL NUMBER: | EA | 114 | of | 2013 |
| DATE DELIVERED: | 22 December 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Austin JJ |
| HEARING DATE: | 27 November 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 July 2013 |
| LOWER COURT MNC: | [2013] FCCA 871 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wilson SC |
| SOLICITOR FOR THE APPELLANT: | Blackstone Waterhouse Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Etheringtons Solicitors |
Orders
Leave is granted to appeal against the declaration made on 19 July 2013.
The appeal is dismissed.
The appellant shall pay the respondent’s costs of and incidental to the appeal on a party/party basis in the sum agreed or assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Owens & Benson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
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- AGLC
- Owens & Benson [2014] FamCAFC 243
- Case
- [2014] FamCAFC 243
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal encompassed the interpretation of the contracts in question, the validity of the primary judge’s findings, and the applicability of certain legal principles to the contracts. The Court was tasked with determining whether the primary judge had correctly interpreted the contracts and whether the contracts were indeed void as declared. The appeal hinged on the construction of the contracts and the legal framework within which these contracts were to be assessed.
The Court of Appeal, after thorough consideration, determined that the primary judge's interpretation of the contracts was correct and that the contracts were indeed void as declared. The Court held that the primary judge’s findings were supported by the evidence and the applicable legal principles. Consequently, the appeal was dismissed, and the declaration made by the primary judge was upheld. The Court further ordered that the appellant would bear the costs of the appeal.
Orders
Orders of the court
1.
Leave is granted to appeal against the declaration made on 19 July 2013.
2.
The appeal is dismissed.
3.
The appellant shall pay the respondent’s costs of and incidental to the appeal on a party/party basis in the sum agreed or assessed in default of agreement.
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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