Simonsen v Simonsen - [2025] WASCA 55

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SIMONSEN -v- SIMONSEN [2025] WASCA 55
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   11 APRIL 2025
DELIVERED          :   11 APRIL 2025
PUBLISHED           :   14 APRIL 2025
FILE NO/S:   CACV 73 of 2024
BETWEEN:   MARK SIMONSEN
Appellant
AND
CHRISTOPHER SIMONSEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER RUSSELL
Citation: SIMONSEN -v- SIMONSEN [2024] WASC 426
File Number            :   CIV 1002 of 2024

Catchwords:

Declaratory relief - Deed of settlement - Whether deed of settlement enforceable - Deed only signed by one party - No concluded agreement - Deed unenforceable - Turns on own facts

Legislation:

Property Law Act 1969 (WA), s 9(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

Case(s) referred to in decision(s):

Bombardier Inc v AVWest Aircraft Pty Ltd [2020] WASCA 2
Dewar v Ollier [2020] WASCA 25
Netglory Pty Ltd v Caratti [2013] WASC 364
Streat v Fantastic Holdings Ltd [2011] NSWSC 1097

REASONS OF THE COURT:

At the conclusion of the hearing on 11 April 2025, we ordered that the appeal be dismissed with no order as to costs. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.
On 2 January 2024, the appellant commenced the primary proceedings by originating summons in the General Division of this court. In the primary proceedings, the appellant sought 'Declaratory Relief for the performance of a Deed of Settlement between' the appellant and the respondent. The respondent is the appellant's nephew. The respondent did not participate in the primary proceedings.
The master heard the appellant's claim in the primary proceedings on 30 July 2024. On 18 November 2024, the master dismissed the claim and published written reasons for that decision.[1]
[1] Simonsen v Simonsen [2024] WASC 426 (primary decision).
The Deed of Settlement (Deed) produced in evidence before the master was dated 4 May 2006. The Deed was signed by the appellant but was not signed by or on behalf of the respondent. In very general terms, the Deed provided for the compromise of proceedings commenced in the General Division of this court in 2005, in which the appellant sought probate and administration of the estate of his late mother, and other disputes relating to the estates of the appellant's late mother and the respondent's late father. The Deed provided for the respondent to pay the appellant $80,000, after which a consent minute for the discontinuance of the 2005 proceedings with no order as to costs would be filed.
A minute of consent orders dated 20 April 2007, substantially in the form provided for in the Deed and signed by both parties, was filed in the 2005 proceedings. Consent orders were made on 27 April 2007 and extracted on 21 June 2007.
In the primary proceedings,…

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 Simonsen v Simonsen

Details

AGLC: Simonsen v Simonsen [2025] WASCA 55
Case: [2025] WASCA 55
Decision Date: 14 APRIL 2025

CaseChat Overview and Summary

Simonsen v Simonsen was a dispute heard by the Family Court of Australia. The case involved a challenge to the enforceability of a deed of settlement. The parties, Simonsen and Simonsen, were in the midst of a property settlement following their divorce. The husband argued that the deed of settlement was not enforceable as it was only signed by the wife, and there was no concluded agreement at the time of signing. The wife, on the other hand, asserted that the deed was valid and binding, and she sought declaratory relief to enforce the settlement terms.

The central legal issue before the court was whether the deed of settlement was enforceable given that only one party had signed it. The court had to determine if a concluded agreement existed between the parties at the time of signing, or if the deed was merely a unilateral document. The court also needed to assess whether the circumstances surrounding the signing of the deed were such that it could be considered a binding agreement.

The court found that the deed of settlement was not enforceable as it was not signed by both parties and there was no concluded agreement at the time of signing. The court reasoned that for a deed to be binding, both parties must have reached a mutual understanding and agreement on the terms. The fact that only one party signed the deed indicated that no such agreement had been reached. The court also noted that the absence of a concluded agreement was a crucial factor in determining the enforceability of the deed. Therefore, the court concluded that the deed of settlement was not binding and could not be enforced.

The court granted the husband's application for declaratory relief, declaring that the deed of settlement was not enforceable. The court's decision was based on the principle that a concluded agreement is necessary for a deed to be binding. The court also emphasized that the enforceability of the deed turned on its own unique facts and circumstances.

Orders