REED & REED - [2016] FCCA 1338

FEDERAL CIRCUIT COURT OF AUSTRALIA

REED & REED

[2016] FCCA 1338

Catchwords:
FAMILY LAW – Family Law Act 1975 – Property settlement – Binding financial agreements – Setting aside the binding financial agreement pursuant to Section 90K of the Family Law Act 1975.

CONSUMER PROTECTION – Australian consumer law and fair trading – Fair Trading Act (Vic) 1999 and Trade Practices Act (Cth) 1974 – misleading and deceptive conduct.

JURISDICTION – Accrued jurisdiction – Setting aside binding financial agreement – Application to join law firm and solicitors with claims pursuant to Fair Trading Act (Vic) 1999 and Trade Practices Act (Cth) 1974 – Joinder application granted.

Legislation:

Family Law Act 1975, ss.79, 90G(1)(b) , 90B, 90K

Trade Practices Act (Cth) 1974 (now the Competition and Consumer Act 2010)
Fair Trading Act (Vic) 1999

Cases cited:
Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570
Re Wakim [1999] HCA 27; 198 CLR 511; 163 ALR 270; 73 ALJR 839
Noll & Noll and Anor [2013] FamCAFC 24; (2013) 48 Fam LR 635
F Firm & Ruane and Ors [2014] FamCAFC 189
Commonwealth vVerwayen (1990) 170 CLR 394
WardleyAustralia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR Thom v Davey Burton [2008] NZSC 65
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Applicant:

MR REED

Respondent:

MS REED

File Number:

MLC 11306 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

4 April 2016

Date of Last Submission:

23 May 2016

Delivered at:

Melbourne

Delivered on:

3 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Matta

Solicitors for the Applicant:

Mills Oakley Lawyers

Counsel for the Respondent:

Mr Arnold

Solicitors for the Respondent:

Susan Snyder

Counsel for the Proposed Second & Third Respondents:

Mr Sweeney

Solicitors for the Proposed Second & Third Respondents:

Lander & Rogers

Counsel for the Proposed Fourth Respondent:

Ms Smallwood

Solicitors for the Proposed Fourth Respondent:

Minter Ellison

ORDERS

Leave be granted to the applicant to join BK as the first third parties and Mr K as the second third party.
The parties file pleadings (or amended pleadings) in accordance with the Federal Court Rules.
The matter be adjourned for directions on a date and time to be advised.
Costs be reserved.

THE COURT DIRECTS THAT:

The parties submit draft directions with respect to the proper conduct of the matter within 28 days.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Riethmuller delivered this day will for all publication and reporting purposes be referred to as Reed & Reed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11306 of 2014

MR REED

Applicant

And

MS REED

Respondent

REASONS FOR JUDGMENT

On 2 November 2006 the applicant and first respondent entered into a financial agreement in contemplation of marriage. The financial agreement was drawn by the proposed second and third respondents (“BK”) who were then solicitors for the applicant. The financial agreement relies…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading REED & REED

Details

AGLC: REED & REED [2016] FCCA 1338
Case: [2016] FCCA 1338
Decision Date: 3 June 2016

CaseChat Overview and Summary

In *Reed & Reed*, the applicant sought to join a law firm, BK, and a solicitor, Mr K, as third parties to proceedings concerning the setting aside of a binding financial agreement under section 90K of the *Family Law Act 1975*. The applicant also sought to advance claims against BK and Mr K for misleading and deceptive conduct under the *Fair Trading Act (Vic) 1999* and the *Trade Practices Act (Cth) 1974*.

The central legal issue before Judge Riethmuller was whether leave should be granted to join BK and Mr K as third parties to the existing family law proceedings, and whether the court possessed the jurisdiction to entertain the claims of misleading and deceptive conduct within the context of the family law matter.

The court determined that it had accrued jurisdiction to hear the claims of misleading and deceptive conduct, as these claims arose from a common factual substratum with the primary family law dispute concerning the validity of the financial agreement. The court reasoned that it was just and convenient to join the third parties to avoid multiplicity of proceedings and to ensure a complete determination of the issues. Consequently, leave was granted to join BK as the first third party and Mr K as the second third party.

The court ordered that leave be granted to join the third parties, that the parties file amended pleadings in accordance with the Federal Court Rules, and that the matter be adjourned for directions. Costs were reserved, and the parties were directed to submit draft directions within 28 days.

Orders

Orders of the court

Leave be granted to the applicant to join BK as the first third parties and Mr K as the second third party.

The parties file pleadings (or amended pleadings) in accordance with the Federal Court Rules.

The matter be adjourned for directions on a date and time to be advised.

Costs be reserved.

THE COURT DIRECTS THAT:

The parties submit draft directions with respect to the proper conduct of the matter within 28 days.

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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