FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pearce & Pearce (No 3) [2022] FedCFamC1F 418
File number(s): SYC 2654 of 2017 Judgment of: CAMPTON J Date of judgment: 10 June 2022 Catchwords: FAMILY LAW – PROPERTY – Discrete issues – Where the intervener, being the husband’s mother, asserts she advanced funds to the husband and wife by way of loan – Where determination of this discrete issue is necessary to ascertain the pool available for distribution between the husband and wife – Where the wife contends the advanced sums were a gift to the husband and wife’s children or alternatively were held by the intervener on trust for the husband and wife’s children – Where the intervener advanced funds to the husband and wife on the husband’s assurance that the funds would be repaid – Finding that funds advanced by way of loan – Where the agreement reached between the husband and the intervener did not provide for security – Where it would be unconscionable to permit the husband and wife to depart from that promise and retain the benefit of the intervener’s advance. Legislation: Evidence Act 1995 (Cth) s 136
Family Law Act 1975 (Cth) ss 79, 106B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.10
Cases cited: Ashton v Pratt (No 2) [2012] NSWSC 3
Chaudhary v Chaudhary [2017] NSWCA 222
Darmanin v Cowan [2010] NSWSC 1118
Gray v O’Donnell [2009] NSWSC 259
Heydon v The Perpetual Executors Trustees and Agency Co WA Limited (1930) 45 CLR 111; [1930] HCA 26
Pearce & Pearce [2022] FedCFamC1F 170,
Pearce & Pearce (No 2) [2022] FedCFamC1F 193
Division: Division 1 First Instance Number of paragraphs: 197 Date of hearing: 7 – 9; 22 March 2022 Place: Sydney Counsel for the Applicant: Mr Scarlett Solicitor for the Applicant: Hudson Law Pty Ltd Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Barkus Doolan Counsel for the Intervener: Mr Stapleton Solicitor for the Intervener: Watts McCray ORDERS
SYC 2654 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PEARCE
Applicant
AND: MS PEARCE
Respondent
MS R PEARCE
Intervener
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1.Within seven days of the date of this Order the husband and the wife do all things as are necessary to pay to the intervener or as she may direct in writing the sum of $751,244.90 from the NAB account of the husband and the wife ending #...82.
2.The costs of all parties of and incidental to the Response to Initiating Application filed by the intervener on 13 March 2019 be reserved.
3.The proceedings be listed for case management and directions by Microsoft Teams at 9.30 am on 10 August 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may…
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- Pearce & Pearce (No 3) [2022] FedCFamC1F 418
- Case
- [2022] FedCFamC1F 418
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the funds advanced by the intervener were a loan or a gift, and whether it would be unconscionable to permit the husband and wife to retain the benefit of the advance. The court considered the evidence and the circumstances of the case, including the agreement between the husband and the intervener that the funds would be repaid.
The court found that the funds were advanced by way of a loan, as the intervener had advanced the money on the husband’s assurance that it would be repaid. The agreement between the husband and the intervener did not provide for security, and it would be unconscionable to permit the husband and wife to depart from that promise and retain the benefit of the intervener’s advance. The court ordered that the husband and wife pay the intervener the sum of $751,244.90 from the NAB accounts holding the proceeds of sale of the Q & T properties.
The court also noted that the intervener had been delayed in prosecuting her claim, and reserved the costs of all parties of the intervener’s Response to an Initiating Application filed on 13 March 2019. The court listed the matter for case management and directions.
Orders
Orders of the court
SYC 2654 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR PEARCE
Applicant
AND:
MS PEARCE
Respondent
MS R PEARCE
Intervener
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1. Within seven days of the date of this Order the husband and the wife do all things as are necessary to pay to the intervener or as she may direct in writing the sum of $751,244.90 from the NAB account of the husband and the wife ending #...82.
2. The costs of all parties of and incidental to the Response to Initiating Application filed by the intervener on 13 March 2019 be reserved.
3. The proceedings be listed for case management and directions by Microsoft Teams at 9.30 am on 10 August 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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