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Selen & Selen

Selen & Selen

Case [2013] FamCAFC 39

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FAMILY COURT OF AUSTRALIA

SELEN & SELEN AND ANOR

[2013] FamCAFC 39

FAMILY LAW ─ APPEAL ─ JURISDICTION ─ Whether the trial Judge could entertain an application for rectification of a Deed in the exercise of the Court’s accrued jurisdiction ─ Whether there was, in the circumstances, a single justiciable controversy ─ Discussion of the authorities ─ Where the Court was satisfied that the trial Judge could entertain the application in the exercise of the Court’s accrued jurisdiction ─ Where the Court did not accept that accrued jurisdiction was not enlivened ─ Where the Court was of the view that the issues in the proceedings determined by the trial Judge were a “subset” of the issues underlying the matrimonial cause ─ Challenge unsuccessful.

FAMILY ─ APPEAL ─ POINT OF LAW ─ EQUITY ─ Whether the Deed was supported by consideration, or an imperfect gift which equity would not perfect ─ Whether the trial Judge erred in making orders compelling the wife to perfect the gifts provided for by the Deed ─ Whether the respondent provided consideration for the promises of the wife, the husband, and the corporation, and if he did, was that at the time those promises were made ─ Where it was submitted by the respondent that the agreement contained a variety of terms which were interdependent ─ Where following Milroy v Lord and subsequent authorities, particularly Corin v Patton, the Court concluded that the gifts were never completed, and that the son provided no consideration for the gifts themselves, he was a volunteer who required equity’s assistance to complete the gifts, which they cannot do ─ Where the Court concluded that the son could only provide consideration upon acquiring title to the lands which he was promised in the Deed, or obtaining the executed Memoranda of Transfer and Certificates of Title enabling him to become the registered proprietor of the lands ─ Where the Court concluded that the son did not, and could not provide consideration on the date the Deed was executed and that only by obtaining equity’s assistance to complete the imperfect gift could the son have provided consideration for the donor’s promises ─ Challenge successful ─ Appeal allowed.

FAMILY LAW ─ APPEAL ─ Challenge to the trial Judge’s finding that the parties to the Deed had intended the agreement to create legal relations ─ Where the Court was not persuaded that the trial Judge erred, in fact, or in law, in relation to the evidence before him of “post-contractual conduct” ─ Where the Court was not persuaded that any inference drawn by the trial Judge was not reasonably open to him ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ Whether the Deed was frustrated ─ Discussion of the authorities with respect to the doctrine of frustration ─ Nothing the Court was referred to established that the trial Judge erred in fact, or that his conclusion was other than reasonably open to him ─ Challenge unsuccessful.

Family Law Act 1975 (Cth) Part VIII, ss 79(1),…

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

AGLC: Selen & Selen [2013] FamCAFC 39
Case: [2013] FamCAFC 39
Decision Date

CaseChat Overview and Summary

This appeal was brought by Ms Y Selen (the wife) against an order of the Family Court of Australia which granted relief to her son, Mr C Selen (C). The appeal was against the orders made by Austin J on 6 May 2011 in proceedings between the wife, her deceased husband Mr D Selen (the husband), P Pty Ltd, and the two children of the marriage of the husband and wife, Mr C Selen (C) and Mr N Selen (N). The wife appealed against the orders which provided that an Agreement & Deed of Family Arrangement (the Deed) dated 2 May 2005 be rectified in numerous respects which did not assume significance for present purposes. The orders also provided that the Deed, as rectified, be specifically performed. The wife sought the discharge of the trial Judge’s orders. C resisted his mother’s appeal and sought to maintain the trial Judge’s orders. The primary issue on appeal was whether the trial Judge could entertain C’s application for rectification of the Deed in the exercise of the Court’s accrued jurisdiction. The Court found that the trial Judge could entertain C’s application for rectification of the Deed in the exercise of the Court’s accrued jurisdiction. The Court also found that the Deed was not supported by consideration, or an imperfect gift which equity would not perfect. The appeal was allowed. The orders made by Austin J on 6 May 2011 were set aside.

Orders