Rigby & Kingston - [2017] FamCA 877

FAMILY COURT OF AUSTRALIA

RIGBY & KINGSTON

[2017] FamCA 877

FAMILY LAW – PROPERTY SETTLEMENT – Interim Orders – Where the husband seeks an interim lump sum payment by way of interim property payment, interim spousal maintenance or interim costs – Where wife seeks a discrete hearing on s 79(2) enquiry – Application for lump sum payment dismissed – Application for a discrete hearing dismissed – Wife to pay a lump sum for the husband’s legal costs

Family Law Act 1975 (Cth) ss. 72, 74, 75, 79, 80, 117

Breen& Breen (1990) 65 ALJR 195
Chapman & Chapman (2014) FLC 93-592
Gabel & Yardley (2008) FLC 93-386
Harris and Harris (1993) FLC 92-378,
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener)
In the marriage of Bevan and Bevan (1995) FLC 92-600
Kryiakos (2013) FLC 93-528
Rakete (2012) FamCA 267
Re JJT: Ex parte Victoria Legal Aid (1998) 195 CLR 184
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford (2012) 247 CLR 108
Strahan &Strahan (Interim Property Orders) (2011) FLC 93-466;
Wilson & Wilson (1989) FLC 92-033
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Mr Rigby

RESPONDENT:

Ms Kingston

FILE NUMBER:

BRC

12882

2016

DATE DELIVERED:

11 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

27 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirk QC

SOLICITOR FOR THE RESPONDENT:

Hartley Healy

Order

The wife shall pay or cause to be paid to the trust account of the husband’s solicitors within 28 days the sum of $135,000 to be used only for the purpose of meeting the husband’s legal fees.
The payment referred to in the preceding paragraph shall be taken into account in such way as considered appropriate by the trial judge in the substantive property proceedings.
The wife’s application for a discrete hearing of the enquiry as to whether it is just and equitable to make an order (s 79(2)) is dismissed.
The interim application by the husband in relation to further and better disclosure by the wife is adjourned to be heard on the same date as the hearing of the objection to subpoena issued to B Pty Ltd.
Save as dealt with by this order all remaining interim applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rigby & Kingston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE…

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 Rigby & Kingston

Details

AGLC: Rigby & Kingston [2017] FamCA 877
Case: [2017] FamCA 877
Decision Date: 11 July 2017

CaseChat Overview and Summary

This matter concerned a dispute between Rigby and Kingston, heard before Carew J in the Supreme Court of New South Wales. The core of the disagreement revolved around the interpretation and enforceability of a deed of settlement. Rigby sought to enforce the terms of this deed, while Kingston resisted, alleging that the deed was void due to a fundamental mistake.

The central legal issue before the court was whether a mutual mistake concerning the underlying assumptions upon which the deed of settlement was based rendered the deed void. Specifically, the court had to determine if the mistake was so fundamental as to vitiate consent, thereby preventing the deed from having legal effect.

Carew J analysed the principles of contract law relating to mistake, particularly focusing on the concept of a "common mistake" that goes to the root of the contract. His Honour considered whether the mistake alleged by Kingston was one of fact or law, and whether it was so profound that it could be said that the parties never truly reached an agreement. The court applied established legal principles to assess the nature and impact of the alleged mistake on the validity of the deed.

The court found that the mistake alleged by Kingston was not of such a fundamental nature as to render the deed void. Consequently, the deed of settlement was upheld, and Rigby was successful in their application to enforce its terms.

Orders