FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Quincey & Quincey [2024] FedCFamC1A 30
Appeal from: Quincey & Quincey [2023] FedCFamC2F 791 Appeal number: NAA 205 of 2023 File number: BRC 10033 of 2021 Judgment of: TREE J Date of judgment: 15 March 2024 Catchwords: FAMILY LAW – APPEAL – Binding Financial Agreement – Where the husband appeals from an order setting aside the agreement on the basis that there had been material non-disclosure by him – Where the husband contends that the primary judge was restricted to the sole non-disclosure issue advanced by the wife in her pleadings – Where cases are determined on the evidence, not the pleadings – Where the husband contends the primary judge erred in fact in making the non-disclosure finding – Where the fact another judge may have reached a different factual conclusion does not mean the finding was not reasonably open on the evidence – Whether wife was estopped from denying the financial agreement was binding – Where it was implicitly conceded that if non-disclosure was established the estoppel claim fell away – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79, 90C, 90G, 90K Cases cited: Bain & Bain (Deceased) (2017) FLC 93-772; [2017] FamCAFC 80
Banque Commerciale SA EN Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Browne v Dunn (1893) 6 R 67
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jess & Jess (2021) FLC 94-055; [2021] FamCAFC 159
Kuhl v Zurich Financial Service Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
LC and TC (1998) FLC 92-803; [1998] FamCA 47
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Prysmian Cavi E Sistemi SRL v Australian Competition and Consumer Commission [2018] FCAFC 30
Number of paragraphs: 86 Date of hearing: 20 December 2023 and 11 March 2024 Place: Cairns (via video link) Counsel for the Appellant: Mr Hackett Solicitor for the Appellant: Ramsden Lawyers Counsel for the Respondent: Mr Hartnett Solicitor for the Respondent: Genuine Legal ORDERS
NAA 205 of 2023
BRC 10033 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR QUINCEY
Appellant
AND: MS QUINCEY
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
15 MARCH 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 4 August 2023 is dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $21,415.95 within 28 days.
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…
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- AGLC
- Quincey & Quincey [2024] FedCFamC1A 30
- Case
- [2024] FedCFamC1A 30
- Decision Date
CaseChat Overview and Summary
The case of Quincey & Quincey involved a dispute between the husband, the appellant, and the wife, the respondent, concerning a Binding Financial Agreement (BFA) signed by the parties in 2018. The wife sought to set aside the BFA in the Federal Circuit Court of Australia, and the husband subsequently appealed against the court's order setting aside the agreement. The appeal was heard in the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction.
The appeal raised several grounds, primarily focusing on whether the primary judge had correctly found material non-disclosure by the husband and whether the wife was estopped from denying the BFA's binding nature. The husband argued that the primary judge was restricted to the non-disclosure issue advanced by the wife in her pleadings, which was incorrect. The court emphasised that cases are determined on the evidence, not the pleadings. It further noted that even if another judge might have reached a different conclusion, the primary judge's findings were reasonably open based on the evidence presented. The husband also contended that the primary judge erred in fact, but this argument failed as the findings were reasonably supported by the evidence.
The court dismissed the appeal and ordered the husband to pay the wife's costs in a fixed sum of $21,415.95 within 28 days. The reasons for the judgment were that the primary judge's findings of material non-disclosure and the consequent setting aside of the BFA were supported by the evidence, and the husband's arguments did not persuade the appellate court to alter those findings. The court's order was final, subject to minor corrections or variations as permitted by the rules.
The appeal raised several grounds, primarily focusing on whether the primary judge had correctly found material non-disclosure by the husband and whether the wife was estopped from denying the BFA's binding nature. The husband argued that the primary judge was restricted to the non-disclosure issue advanced by the wife in her pleadings, which was incorrect. The court emphasised that cases are determined on the evidence, not the pleadings. It further noted that even if another judge might have reached a different conclusion, the primary judge's findings were reasonably open based on the evidence presented. The husband also contended that the primary judge erred in fact, but this argument failed as the findings were reasonably supported by the evidence.
The court dismissed the appeal and ordered the husband to pay the wife's costs in a fixed sum of $21,415.95 within 28 days. The reasons for the judgment were that the primary judge's findings of material non-disclosure and the consequent setting aside of the BFA were supported by the evidence, and the husband's arguments did not persuade the appellate court to alter those findings. The court's order was final, subject to minor corrections or variations as permitted by the rules.
Orders
Orders of the court
NAA 205 of 2023
BRC 10033 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR QUINCEY
Appellant
AND:
MS QUINCEY
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
15 MARCH 2024
THE COURT ORDERS THAT:
1. The Notice of Appeal filed 4 August 2023 is dismissed.
2. The appellant is to pay the respondent’s costs in the sum of $21,415.95 within 28 days.
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).
Background
Background to the litigation
For the reasons which follow, the appeal will be dismissed.BACKGROUND The wife is presently 37 years of age, and the husband 46. They commenced their relationship in 2009 and married in 2010. There were two children born to the relationship, presently 12 and 9 years of age. On 30 April 2018, the parties signed the BFA. On 19 April 2019, the parties finally separated, and pursuant to his incorrect understanding of the terms of the BFA, the husband commenced paying the wife her entitlement totalling the sum of $80,000 by monthly instalments of $5,000. (According to the BFA, it should have been paid monthly from 30 April 2018, but nothing turns on that). On 29 July 2021, the wife commenced proceedings in the Federal Circuit Court of Australia (as the Federal Circuit and Family Court of Australia (Division 2) was then titled) seeking to set aside the BFA. It is from the subsequent order of that court that the husband appeals.THE PRIMARY JUDGE’S REASONS The primary judge was satisfied that the BFA was a financial agreement as defined in s 90C of the Family Law Act 1975 (Cth) (“the Act”) (at [48]). Her Honour then addressed the question of whether it was binding on the parties under s 90G of the Act. Having extensively traversed the relevant evidence, the primary judge was not satisfied that the wife was provided with the independent legal advice required by s 90G(1)(b) (at [114]) and hence the BFA was not binding. Her Honour next proceeded to consider whether it would nonetheless be unjust and inequitable if the BFA were not binding on the parties (s 90G(1A)) concluding that she was not so satisfied (at [131]). Her Honour finally considered a further argument advanced by the wife that, in any event, the BFA should be set aside for material non-disclosure by the husband (s 90K(1)(a) of the Act), ultimately being satisfied that there was such non-disclosure (at [144]). Accordingly the BFA was set aside (Order 1).THE APPEAL There are 5 grounds of appeal advanced by the husband, with Ground 5 only being advanced after the hearing of the appeal was adjourned on 20 December 2023 to enable it to be formulated and argued. The first ground challenges the conclusion that the wife had not received the required independent legal advice. The second ground contends that the primary judge failed to determine a pleaded dispute between the parties, namely the husband’s claim that the wife was estopped from denying that the BFA was indeed binding, by virtue of her having taken the benefit conferred on her under its terms. The third ground challenges the primary judge’s conclusion that it would not be unjust and inequitable if the BFA were not binding on the parties. The fourth and fifth grounds challenge the primary judge’s finding that there had been material non-disclosure by the husband. It is convenient to commence by considering Grounds 4 and 5 and then Ground 2, because as shall be seen, it then is unnecessary to address Grounds 1 and 3, as their outcome could not affect the disposition of the appeal.Grounds 4 and 5
Evidence
Evidence Before The Court
This argument is misconceived. In Banque Commerciale SA EN Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 296–297 Dawson J said:It is, of course, the purpose of pleadings to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance. But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings: Dare v Pulham (1982) 148 CLR 658 at 664; Water Board v Moustakas (1988) 62 ALJR 209 at 211; 77 ALR 193 at 197; Leotta v Public Transport Commission (NSW) (1976) 50 ALR 666 at 668; 9 ALR 437 at 446; Maloney v Commissioner for Railways (NSW) (1978) ALJR 292 at 295; 18 ALR 147 at 151.(Emphasis added) Both before and after that decision, many other cases have stated identical principles, of which Prysmian Cavi E Sistemi SRL v Australian Competition and Consumer Commission [2018] FCAFC 30 at [69]–[73] (adopting Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133 at [50]–[52]) is but one example. Plainly the husband did not oppose the admission of the relevant evidence, although after the pertinent cross-examination of the husband had concluded, his counsel noted that, despite no objection having been raised, nonetheless all of that evidence was irrelevant (Transcript 4 May 2023, p.105 lines 15–16). There is no doubt that the relevant evidence was not rejected by the primary judge. Whilst it may have been irrelevant to the pleadings as they then stood, once it was admitted, it was relevant material able to be relied on by the primary judge. Moreover, the husband himself attached the relevant purported loan documentation to his affidavit filed 31 August 2022, which squarely precipitated the lines of cross-examination by counsel for the wife. Ground 4 therefore fails. As to Ground 5, in substance it complains that the primary judge erred in fact in making the findings at [144]. To succeed, the husband would need to persuade me that those findings were not reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296). More, in cases involving issues of credit, a finding of fact will only be disturbed if it is contrary to incontrovertible evidence, uncontested facts or compelling inferences, or glaringly improbable (Fox v Percy (2003) 214 CLR 118 at [28]–[29](“Fox v Percy”).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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