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) |
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- AGLC
- Selen and Selen & Ors [2011] FamCA 310
- Case
- [2011] FamCA 310
- Decision Date
CaseChat Overview and Summary
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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