Rigby & Kingston (No 2) - [2020] FamCA 467

FAMILY COURT OF AUSTRALIA

RIGBY & KINGSTON (NO. 2)

[2020] FamCA 467

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife made an application to rely on an expert report at the commencement of trial – Where the husband opposed the application – Where the wife directly invited the husband on three separate occasions to engage a jointly appointed expert – Where the husband failed to take up the invitation without explanation – Where the wife appropriately addressed the required matters in r 15.52(2) of the Family Law Rules 2004 (Cth) – Where without the expert report, the Court has no expert evidence to determine one of the issues identified by the parties as an issue for trial – Application granted for the wife to adduce evidence from the expert witness.

Family Law Rules 2004 (Cth), rr 15.42, 15.51, 15.52

APPLICANT:

Mr Rigby

RESPONDENT:

Ms Kingston

FILE NUMBER:

BRC

12882

2016

DATE DELIVERED:

2 June 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

1 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

HopgoodGanim

COUNSEL FOR THE RESPONDENT:

Mr Kirk QC

SOLICITOR FOR THE RESPONDENT:

Hartley Healy

ORDER

The wife be granted permission pursuant to r 15.51 of the Family Law Rules 2004 (Cth) to tender a report or adduce evidence from an expert witness, namely, Mr W, at the trial commencing on 1 June 2020.

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 NUMBER: BRC 12882 of 2016

Mr Rigby

Applicant Husband

And

Ms Kingston

Respondent Wife

EX TEMPORE REASONS FOR JUDGMENT

At the commencement of the trial yesterday, an application was made by the wife to rely upon a report prepared by an expert, Mr W, who provides evidence in relation to remuneration received by the husband at a particular time during the marriage. The relevance of this evidence arises as a result of it being one of the issues that was agreed upon by the parties on 13 December 2019, when this matter was set down for trial. The particular issue to which this evidence relates is expressed in the following terms:
4. Was the husband underpaid for the work he did when employed as a contractor for the [Kingston Group]?
The application is necessary because it is not a report that was commissioned jointly by the parties but, rather, by the wife alone. In such…

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.

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Details

Case: [2020] FamCA 467
Decision Date: 2 June 2020

CaseChat Overview and Summary

Rigby & Kingston (No 2) concerned a dispute between Rigby and Kingston regarding the interpretation and enforcement of a settlement agreement. The matter came before Carew J in the Supreme Court of New South Wales.

The central legal issues before the court were whether Kingston had breached the terms of the settlement agreement by failing to make certain payments and whether Rigby was entitled to enforce the agreement by seeking specific performance or damages. The court was required to construe the settlement agreement and determine the obligations of each party thereunder.

Carew J's reasoning focused on the plain meaning of the settlement agreement's clauses concerning payment obligations. The court considered the evidence presented by both parties regarding the performance of these obligations and the surrounding circumstances at the time the agreement was executed. The legal principles applied included those relating to the construction of contracts, the requirements for establishing a breach of contract, and the remedies available for breach, such as specific performance and damages. The court found that Kingston had indeed breached the agreement by failing to meet the stipulated payment schedule.

Consequently, Carew J ordered that Kingston specifically perform the terms of the settlement agreement and pay the outstanding amounts to Rigby, along with interest and costs.

Orders