Selen and Selen & Ors

Case [2011] FamCA 310


FAMILY COURT OF AUSTRALIA

SELEN & SELEN AND ORS [2011] FamCA 310

FAMILY LAW - EQUITY PROCEEDINGS – transferred from the Supreme Court of New South Wales

FAMILY LAW - PROPERTY – farming property – Agreement and Deed of Family Arrangement drafted – Deed provided that parts of the farming property would be transferred to the spouses’ sons – whether Deed is binding on the parties – intention to create legal relations – objective assessment indicates that parties intended to create legal creations – whether Deed rendered unenforceable because of uncertainty and incompleteness of the terms of the Deed 

FAMILY LAW - EQUITABLE RELIEF – Plaintiff seeks rectification of the Deed and specific performance – laches – plaintiff’s delay – wife is not unconscionably prejudiced by delay – wife did not suffer hardship – finding that plaintiff is willing and ready to perform his obligations under the Deed – where there was common intention to include a term omitted by common mistake – rectification of the Deed permitted – order made for specific performance of rectified Deed – equitable estoppel – plaintiff did not act or abstain from acting in reliance upon the second defendant’s representation – estoppel does not apply

Civil Procedure Act 2005 (NSW), s 94
Corporations Act 2001 (Cth), ss 127, 128(1) and 129(6)
Family Law Act 1975 (Cth), s 106A
Judiciary Act 1903 (Cth), s 79
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5(1)

ABC v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540
Atco Controls Pty Ltd (in liq) v Newtronics Pty Ltd (recs and mgrs appointed (in liq) [2009] VSCA 238
Balfour v Balfour [1919] 2 KB 571
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Cohen v Cohen (1929) 42 CLR 91
Commonwealth v Verwayen (1990) 170 CLR 394
Crawley v Short [2009] NSWCA 410
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Fitzgerald v Masters (1956) 95 CLR 420
Fullers Theatres Ltd v Musgrove (1923) 31 CLR 524
Henderson v Miles [2005] NSWSC 710
Jones v Dunkel (1959) 101 CLR 298
Jones v Padavatton [1969] 2 All ER 616
Khoury v GIO (NSW) (1984) 165 CLR 622
Magill v Magill (2006) 226 CLR 551
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Pukallus v Cameron (1982) 180 CLR 447
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
S & E Promotions Pty Ltd v Tobin Bros Pty Ltd (1994) 122 ALR 637
Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149
Thorby v Goldberg (1964) 112 CLR 597
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429
W & J Investments Ltd v Commissioner of Taxation (1987)…

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AGLC
Selen and Selen & Ors [2011] FamCA 310
Case
[2011] FamCA 310
Decision Date

CaseChat Overview and Summary

In *Selen and Selen & Ors*, Austin J of the Supreme Court of New South Wales considered a dispute concerning an Agreement and Deed of Family Arrangement. The plaintiff sought rectification of the Deed and specific performance of its terms, which involved the transfer of parts of a farming property to the parties' sons. The defendants, including the wife, argued that the Deed was not binding due to uncertainty and incompleteness, and also raised the defence of laches.

The central legal issues before the court were whether the Deed was intended to create legal relations, and if so, whether its terms were sufficiently certain to be enforceable. The court also had to determine if the plaintiff was entitled to equitable relief in the form of rectification and specific performance, considering the defence of laches and the possibility of equitable estoppel.

Austin J found that an objective assessment of the parties' conduct and the circumstances surrounding the creation of the Deed indicated a clear intention to create legal relations. Despite arguments regarding uncertainty, the court determined that there was a common intention to include a term omitted by common mistake, justifying rectification. The defence of laches was rejected as the wife was not unconscionably prejudiced by the delay and had not suffered hardship. The court also found that the plaintiff had not established equitable estoppel.

Consequently, the court ordered the rectification of the Deed to clarify the descriptions of the land parcels and to include a provision for transfer within a reasonable time. The court further declared that the plaintiff was entitled to specific performance of the rectified Deed and ordered the defendants to execute all necessary documents to give effect to this, with the Registrar empowered to act in default.

Orders

Orders of the court

1.

Order that the “Agreement & Deed of Family Arrangement” (“the Deed”) dated 2 May 2005 (a copy of which is annexed to these orders) is rectified as follows:

(a) In respect of Clause 2.1:

(i) By omitting the words “Lots 3, 4, 9, 2, 1, 27”, and

(ii) By substituting therefore the words “Lot 3/DP […], Lot 4/DP […], Lot 9/DP […], Lot 2/DP […], Lot 1/DP […], Lot 27/DP […]”, and

(iii) By adding the words “within a reasonable time” between the words “[Mr C Selen]” and “AND”.

(b) In respect of Clause 2.2:

(i) By omitting the words “the lots numbered 26, 25, 15, 49, 18, 19, 29, 16, 53, 50, 31, 52”, and

(ii) By substituting therefore the words “Lot 26/DP […], Lot 25/DP […], Lot 15/DP […], Lot 49/DP […], Lot 18/DP […], Lot 19/DP […], Lot 16/DP […], Lot 53/DP […], Lot 50/DP […], Lot 31/DP […], Lot 52/DP […], Lot 29/DP […]”, and

(iii) By adding the words “within a reasonable time” between the words “[Mr C Selen]” and “AND”.

2.

Order that these Orders be endorsed upon or annexed to the original Deed.

3.

Declaration that the plaintiff is entitled to have the Deed, as rectified pursuant to Order 1 hereof, specifically performed.

4.

Order that the defendants execute all such documents and instruments and do all such things as are necessary in order to specifically perform the Deed, as rectified pursuant to Order 1 hereof.

5.

Order that, in default of compliance with Order 4 hereof by the defendants, or any of them, the Registrar of the Family Court of Australia at Newcastle and the Registrar in Equity of the Supreme Court of NSW are empowered to execute all such documents and instruments and do all such things in the name and on behalf of the defendants as may be necessary in order to specifically perform and carry into execution the Deed, as rectified pursuant to Order 1 hereof.

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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