PINDER & SLEDGE (No.2)

Case [2019] FCCA 1880

FEDERAL CIRCUIT COURT OF AUSTRALIA

PINDER & SLEDGE (No.2) [2019] FCCA 1880
Catchwords:
FAMILY LAW – PROPERTY – Enforcement – Form of orders – where Final Orders were intended to effect a 70/30 per cent division in favour of the Respondent by way of the Respondent paying a sum certain to the Applicant– where the Applicant asserts the Respondent has defaulted in complying with the Final Orders – where the Respondent did not pay the relevant payment to Applicant by the due date – where failure to pay triggered an obligation for a sale of the Respondent’s property – where the Respondent sold her property and paid the Applicant in accordance with the Final Orders – where the Respondent’s property sold for more than the sworn valuation upon which Final Orders were based – whether the Final Orders may be corrected under the “slip rule”.

Legislation:

Family Law Act 1975 (Cth), ss.79A, 90SM, 90SN, 90ST

Family Law Rules 2004 (Cth), r.17.03

Cases cited:

Blackwell & Scott [2017] FamCAFC 77
Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389
DJL v The Central Authority (2000) 201 CLR 226

Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206

Gould v Vaggelas (1985) 157 CLR 215
In the Marriage of Rohde (1984) 10 Fam LR 56
Kenyon & Hampton [2017] FCCA 2730
L Shaddock & Associates Pty Ltd v Parramatta City Council No 2 [1982] HCA 59; (1982) 151 CLR 590
Monticone & Monticone (1990) FLC 92-114
Noetel & Quealey (2005) FLC 93-230
Pacific Carriers (2004) 218 CLR 451
Re Young and Haston’s Contract (1885) 31 Ch D 168
Sargent v ASL Developments (1973) 131 CLR 634
Sledge & Pinder & Anor [2017] FCCA 3051
Sinclair and Sinclair [2000] FamCA 262
Trask & Westlake [2015] FamCAFC 160
Applicant: MR PINDER
Respondent: MS SLEDGE
File Number: MLC 5648 of 2018
Judgment of: Judge Small
Hearing date: 1 February 2019
Date of Last Submission: 1 February 2019
Delivered at: Melbourne
Delivered on: 9 July 2019

REPRESENTATION

Counsel for the Applicant: Mr Moore
Solicitors for the Applicant: Callahans Lawyers
Counsel for the Respondent: Ms Marshall
Solicitors for the Respondent: Anthonys Solicitors

ORDERS

  1. The Application filed on 23 May 2018 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pinder & Sledge (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5648 of 2018

MR PINDER

Applicant

And

MS SLEDGE

Respondent

REASONS FOR JUDGMENT

Introduction

  1. These are the second set of property proceedings arising from the breakdown in the de facto relationship between Mr Pinder (“Mr Pinder” or “the Applicant”) and Ms Sledge (“Ms Sledge” or “the Respondent”)[1] (collectively “the parties”).

    [1] In the original proceedings, Ms Sledge was the Applicant and Mr Pinder the Respondent. In these proceedings the reverse is true. For the sake of clarity, where I refer in these Reasons to “the Applicant” I mean Mr Pinder, and where…

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Details
AGLC
Pinder and Sledge (No.2) [2019] FCCA 1880
Case
[2019] FCCA 1880
Decision Date

CaseChat Overview and Summary

In *Pinder & Sledge (No.2)*, the Family Court of Australia considered an application concerning the enforcement of Final Orders made in a property settlement. The Applicant alleged that the Respondent had defaulted on her obligations under these orders, which were intended to effect a 70/30 per cent division of property in favour of the Respondent. The core of the dispute revolved around a specific payment due from the Respondent to the Applicant, the failure of which was said to trigger an obligation for the Respondent to sell her property.

The central legal issue before the Court was whether the Final Orders could be corrected under the "slip rule" in light of events that transpired after their making. Specifically, the Court had to determine if the fact that the Respondent's property sold for a sum exceeding its sworn valuation, upon which the Final Orders were based, constituted a "slip" that warranted correction. The Applicant contended that this discrepancy meant the Respondent had not complied with the Final Orders as intended.

Judge Small reasoned that the Final Orders were clear and unambiguous in their terms, reflecting the agreed division of property. The Court found that the Respondent had ultimately complied with the Final Orders by selling her property and making the required payment to the Applicant, even though the sale price exceeded the initial valuation. The Court held that the "slip rule" is intended to correct errors arising from accidental omissions or slips in expressing the judgment or orders of the court, not to alter the substantive rights of the parties or to account for subsequent market fluctuations or unforeseen outcomes of agreed arrangements. Therefore, the Court concluded that there was no "slip" to correct.

Consequently, the Court dismissed the Applicant's application filed on 23 May 2018.

Orders

Orders of the court

1.

The Application filed on 23 May 2018 is dismissed.

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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