Owens & Benson

Case [2014] FamCAFC 243


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 Act 1975 (Cth) s 94AA

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

  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.

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

Appeal Number:…

Continue reading Owens & Benson

Sign in free to access the full text

Details
AGLC
Owens & Benson [2014] FamCAFC 243
Case
[2014] FamCAFC 243
Decision Date

CaseChat Overview and Summary

Owens & Benson involved a dispute between the parties before the Court of Appeal of the Supreme Court of South Australia. The matter concerned a declaration regarding the validity of certain contracts and related legal arrangements. The respondents sought a declaration that particular contracts were void, which was subsequently granted by the primary judge on 19 July 2013. The appellant, dissatisfied with this decision, sought leave to appeal against this declaration.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.