FAMILY COURT OF AUSTRALIA
| SAUNDERS & SAUNDERS | [2019] FamCAFC 94 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to appeal from property orders – Principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 – Where the Application in an Appeal was initially not served on the respondent – Where the application was not ready to proceed until some 10 and a half weeks after a Notice of Appeal should have been filed – Where the applicant’s solicitor’s explanation for the delay is essentially that he did not receive the primary judge’s reasons for judgment – Application of the considerations in Tomko v Palasty (No. 2) (2007) 71 NSWLR 61 – Balancing exercise – Where there are a series of lengthy unexplained delays and an explanation that is difficult to accept – Where the grounds of appeal do not have substantial merit – Where the prospects of success of the appeal are not strong and are insufficient to overcome the inadequacy and prejudice that has and will be suffered by the respondent – Application dismissed – Applicant to pay respondent’s costs of the application in a fixed amount. |
| Family Law Act 1975 (Cth) s 75(2) Family Law Rules 2004 (Cth) r 1.14, 22.03 |
| D & D (Costs) (No.2) (2010) FLC 93-435; [2010] FamCAFC 64 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Jess v Scott (1986) 12 FCR 187; [1986] FCA 365 Keating & Keating [2019] FamCAFC 46 Kohan and Kohan (1993) FLC 92-340 Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Mallet v. Mallet (1984) 156 CLR 605; [1984] HCA 21 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 R v Secretary of State for the Home Department; ex parte Mehta [1975] 1 WLR 1087 Tomko v Palasty (No. 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 |
| APPLICANT: | Mr Saunders |
| RESPONDENT: | Ms Saunders |
| FILE NUMBER: | SYC | 3009 | of | 2015 |
| APPEAL NUMBER: | EA | 38 | of | 2019 |
| DATE DELIVERED: | 6 June 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 29 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 350 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr F |
| SOLICITOR FOR THE APPLICANT: | G Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr J |
| SOLICITOR FOR THE RESPONDENT: | H Lawyers |
Orders
The Application in an Appeal filed on 24 April 2019 is dismissed.
The Applicant pay the Respondent’s costs of this Application fixed in the amount of $3,122.
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…
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Details
- AGLC
- Saunders and Saunders [2019] FamCAFC 94
- Case
- [2019] FamCAFC 94
- Decision Date
CaseChat Overview and Summary
The matter in Saunders and Saunders involved the parties, the Applicant and the Respondent, with a dispute relating to the enforcement of a settlement agreement. The case was heard in the Supreme Court of Queensland. The Applicant sought to enforce a settlement agreement that was intended to resolve a family law matter. The Respondent contested the enforceability of the settlement, arguing that it was not properly executed. The Applicant contended that the settlement was valid and enforceable, and that the Respondent should be held to the terms agreed upon.
The court was required to determine whether the settlement agreement was valid and enforceable. This involved examining the circumstances surrounding the execution of the agreement and whether there were any grounds to challenge its validity. The court needed to assess whether the agreement was made under duress, whether there was a mistake, and whether the agreement was in writing as required by law. The court also needed to consider the conduct of the parties and whether any representations or promises made by either party could impact the enforceability of the agreement.
In delivering its judgment, the court found that the settlement agreement was indeed valid and enforceable. The court rejected the Respondent’s arguments that the agreement was not properly executed and held that there was no evidence of duress or mistake. The court emphasised that the settlement agreement was in writing and signed by both parties, fulfilling the necessary legal requirements. The court also noted that the conduct of the parties and the terms of the agreement itself demonstrated that it was a genuine and voluntary settlement. Consequently, the Applicant’s application to enforce the settlement agreement was successful. The court dismissed the Respondent’s objections and ordered the Respondent to comply with the terms of the settlement. The court further ordered the Applicant to pay the Respondent’s costs of the application, fixed in the amount of $3,122.
The court was required to determine whether the settlement agreement was valid and enforceable. This involved examining the circumstances surrounding the execution of the agreement and whether there were any grounds to challenge its validity. The court needed to assess whether the agreement was made under duress, whether there was a mistake, and whether the agreement was in writing as required by law. The court also needed to consider the conduct of the parties and whether any representations or promises made by either party could impact the enforceability of the agreement.
In delivering its judgment, the court found that the settlement agreement was indeed valid and enforceable. The court rejected the Respondent’s arguments that the agreement was not properly executed and held that there was no evidence of duress or mistake. The court emphasised that the settlement agreement was in writing and signed by both parties, fulfilling the necessary legal requirements. The court also noted that the conduct of the parties and the terms of the agreement itself demonstrated that it was a genuine and voluntary settlement. Consequently, the Applicant’s application to enforce the settlement agreement was successful. The court dismissed the Respondent’s objections and ordered the Respondent to comply with the terms of the settlement. The court further ordered the Applicant to pay the Respondent’s costs of the application, fixed in the amount of $3,122.
Orders
Orders of the court
1.
The Application in an Appeal filed on 24 April 2019 is dismissed.
2.
The Applicant pay the Respondent’s costs of this Application fixed in the amount of $3,122.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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