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Saintclaire & Saintclaire

Case [2013] FamCA 491 25 June 2013

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FAMILY COURT OF AUSTRALIA

SAINTCLAIRE & SAINTCLAIRE

[2013] FamCA 491

FAMILY LAW – PROPERTY SETTLEMENT –Financial agreement – Where technical defects to agreement and certificate of legal advice – Where financial agreement can be rectified – Where wife established undue influence and unconscionable conduct – Agreement voidable and set aside

Family Law Act 1975 (Cth) Part VIII, ss 4, 75(2), 79, 79A, 90B, 90C, 90D, 90G, 90G(1A), 90K, 90KA
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009
Property (Relationships) Act 1984 (NSW)

Black & Black (2008) 216 FLR 422
Hoult v Hoult (No 2) [2012] FamCA 367
In the Marriage of Whitford (1979) FLC 90-612
Johnson v Buttress (1936) 56 CLR 113
Kostres & Kostres (2009) 42 Fam LR 336
Louth v Diprose (1992) 175 CLR 621
Pascot & Pascot [2011] FamCA 945
Powell v Powell [1900] 1 Ch 243
Pukallus v Cameron (1982) 180 CLR 447
Re Lloyds Bank Limited [1931] 1 CH 289
Senior & Anderson (2011) FLC 93-470
The Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447
Winefield v Clark [2008] NSWSC 882
Hepburn “Principles of Equity and Trusts” Federation Press (4th ed, 2009)

APPLICANT:

Ms Saintclaire

RESPONDENT:

Mr Saintclaire

FILE NUMBER:

SYC

7614

2010

DATE DELIVERED:

25 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

2 – 4 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nash

SOLICITOR FOR THE APPLICANT:

Kelly Hardie Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Norwest Family Law

Orders

The agreement made between the parties on 28 September 2009 is set aside.
Within twenty one (21) days each of the parties is to file and serve a minute of the orders for property settlement they seek.
The parties are directed to attend a conciliation conference as soon as practicable.
Costs are reserved to the s 79 hearing.
That the application in a case filed by Mr Saintclaire on 3 May 2013 and the response to an application in a case filed by Ms Saintclaire on 29 May 2013 are adjourned with liberty to apply on seven (7) days notice following completion of:
(a) the conciliation conference; and
(b)provision of a certificate under section 60I of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7614 of 2010

Ms Saintclaire

Applicant

And

Mr Saintclaire

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application concerning the validity of a financial agreement dated 28 September 2009. The issue arises in the context of an application for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) brought by Ms Saintclaire (“the wife”). In response to her application, Mr Saintclaire (“the husband”) says notwithstanding a technical error, the financial agreement is binding…

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 Saintclaire & Saintclaire

Details

AGLC: Saintclaire & Saintclaire [2013] FamCA 491
Case: [2013] FamCA 491
Decision Date: 25 June 2013

CaseChat Overview and Summary

In *Saintclaire & Saintclaire*, Ryan J of the Federal Circuit and Family Court of Australia considered an application to set aside an agreement made between the parties on 28 September 2009. The dispute concerned the property settlement of the parties.

The primary legal issue before the court was whether the agreement of 28 September 2009 should be set aside. This required the court to determine if the agreement was vitiated by factors such as fraud, duress, undue influence, or a material misrepresentation, or if it otherwise failed to make proper provision for the parties.

Ryan J determined that the agreement should be set aside. The court ordered that within twenty-one days, each party was to file and serve a minute of the orders they sought for property settlement. Furthermore, the parties were directed to attend a conciliation conference as soon as practicable. Costs were reserved to the subsequent section 79 hearing. The applications filed by Mr Saintclaire and Ms Saintclaire were adjourned with liberty to apply on seven days' notice following the completion of the conciliation conference and the provision of a certificate under section 60I of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

The agreement made between the parties on 28 September 2009 is set aside.

Within twenty one (21) days each of the parties is to file and serve a minute of the orders for property settlement they seek.

The parties are directed to attend a conciliation conference as soon as practicable.

Costs are reserved to the s 79 hearing.

That the application in a case filed by Mr Saintclaire on 3 May 2013 and the response to an application in a case filed by Ms Saintclaire on 29 May 2013 are adjourned with liberty to apply on seven (7) days notice following completion of:

(a) the conciliation conference; and

(b) provision of a certificate under section 60I of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Saintclaire & Saintclaire [2013] FamCA 491

Most Recent Citation

Carran & Carran [2022] FedCFamC2F 818

Cases citing this decision · 9 of 9 shown

Carran & Carran
[2022] FedCFamC2F 818 Para 4

…be set aside under s 90K, including by virtue of principles preserved by s 90KA. This was the approach taken by Ryan J in Saintclaire & Saintclaire [2013] FamCA 491: As to the proper interpretation of s 90G(1A)(c), there is a divergence of views about the meaning of the words “unjust and inequitable”. Namely whethe…
Hadden and Pendle
[2017] FCCA 1610 Para 3

…In Saintclaire & Saintclaire [2013] FamCA 491, Ryan J suggested that the following questions provided the appropriate pathway in a case such as this: 1. Is there a financial agreement? 2. If the answer is affirmative, should that agreement be set aside? 3. If the answer is negative, is the agreement binding?…
Saintclaire & Saintclaire
[2015] FamCAFC 245

…[2013] FamCA 491…
Raleigh & Raleigh
[2015] FamCA 625 Para 1

…welfare and development of a child (of the marriage). Ryan J agreed with Le Poer Trench J’s formulation in Saint Claire & Saint Claire [2013] FamCA 491 at [119].…
PARKE & PARKE
[2015] FCCA 1692

…iprose (1992) 175 CLR 621 Malpass & Mason (2000) FLC 93-061 Powell v Powell [1900] 1 Ch 243 Rohde & Rohde (1984) FLC 91-592 Saintclaire & Saintclaire [2013] FamCA 491 Shevill v Builders Licensing Board (1982) 149 CLR 620 Sindel v Georgiou (1984) 154 CLR 661 Smith v Kay (1859) 7 HL Cas 750 Stoian & Fiening [2014] Fa…
CALLANAN & CALLANAN
[2015] FCCA 1248 Para 2

…ancial agreement, (2) if so, whether it should be set aside and (3) if not, whether it is binding.[2] [2] At paragraph 3 of Saintclaire & Saintclaire [2013] FamCA 491…
Duncan and Duncan
[2014] FCCA 2729 Para 3

…In Saintclaire & Saintclaire [2013] FamCA 491 Ryan J set out the following questions that should be answered in a case such as this were: ·is there a financial agreement? ·if that question is answered in the affirmative, should that agreement be set aside? ·if the answer is negative and the financial agreement shou…
Hay and Hay
[2014] FCCA 775 Para 2

…t agreement be set aside? ·If the answer is negative and the financial agreement should not be set aside, is the financial agreement binding? [20] [2013] FamCA 491.…
ADAME & ADAME
[2014] FCCA 42 Para 19

…cionable conduct is widely established in common law and the elements were summarised, in the current context, by Ryan J in Saintclaire & Saintclaire [2013] FamCA 491 at [108]: · if a stronger person enters into an improvident transaction with a weaker person who, in relation to the former, is in a position of spec…

View all 9 citing cases →

Cases cited in this decision · 8 of 8 shown

Hoult and Hoult
[2012] FamCA 367 Para 3

…is limited to technical mistakes (per Strickland J in Senior v Anderson ) or a more wide ranging provision (per Murphy J in Hoult v Hoult (No 2) [2012] FamCA 367). The paucity of argument on this issue means that it would be inappropriate to express an opinion about this interesting divergence in views.…
Pascot & Pascot
[2011] FamCA 945 Para 4

…ive, the wife relied upon s 90K(1)(d). There is no appellate authority in relation to s 90K(1)(d). Both counsel helpfully referred to Pascot & Pascot [2011] FamCA 945 where Le Poer Trench J discussed this provision.…
Winefield v Clarke
[2008] NSWSC 882 Para 1

…ence in the former, and the former has used that relationship to achieve a transaction in which the first person benefits ... ( Winefield v Clark [2008] NSWSC 882 at 27 per Barrett J)…
Black & Black
[2008] FamCAFC 7 Para 9

…In Black & Black (2008) 216 FLR 422, the Full Court held that a financial agreement must strictly comply with s 90G for it to be binding. It follows, that were it not for later amendments to the Act, reference to the wrong section in the certificate of independent legal advice was fatal to the husband’s claim that th…
Louth v Diprose
[1992] HCA 61 Para 1

…ther equitable remedy may be applied. ( The Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 per Gibbs CJ at [459]; Louth v Diprose (1992) 175 CLR 621)…
Commercial Bank of Australia Ltd v Amadio
[1983] HCA 14 Para 1

…saction may be set aside for unconscionable dealing or another equitable remedy may be applied. ( The Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 per Gibbs CJ at [459]; Louth v Diprose (1992) 175 CLR 621)…
Pukallus v Cameron
[1982] HCA 63 Para 5

…ties to it. The point being, that the document contains a mistake such that it does not reflect the true intention of the parties. Pukallus v Cameron (1982) 180 CLR 447. In Senior & Anderson (2011) FLC 93-470, the majority concluded that the certificates of legal advice could not be rectified so as to include the cor…
Johnson v Buttress
[1936] HCA 41 Para 2

…the capacity to influence the other improperly and that this in fact happened as a consequence of which the transaction occurred. Johnson v Buttress (1936) 56 CLR 113 at [134]. In other words, that the transaction (execution of the agreement) is the direct result of undue influence. The third type of undue influenc…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention (from Para 5)
Property (Relationships) Act 1984 (NSW)
1 mention (from Para 7)