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Squibb and Graham

Squibb and Graham

Case [2018] FCCA 1906 13 July 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SQUIBB & GRAHAM

[2018] FCCA 1906

Catchwords:
FAMILY LAW – Property – financial agreement – application to set aside financial agreement- availability of rectification – failure to make reference to s.90B of the Act – whether the parties intended to enter in void agreement – rectification ordered.

Legislation:

Family Law Act 1975 (Cth) ss.4(1), 71A, 79, 90B(2) 90G(1), 90G(1A), 90F(2), 90C(1), 90D(1), 90KA

Cases cited:

Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation (2008) 173 FCR 359

Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101

Euphoric Pty Ltd v Rydelar Pty Ltd [2006] NSWSC 2

Senior & Anderson (2011) FLC 93 – 470

ASIC v Fortescue Metals Group Ltd & Anor [2011] FCAFC 19

Sullivan & Sullivan [2011] FamCA 752

Thorby v Goldberg (1964) 112 CLR 597

Applicant:

MS SQUIBB

Respondent:

MR GRAHAM

File Number:

MLC 9821 of 2016

Judgment of:

Judge McNab

Hearing date:

24 May 2018

Date of Last Submission:

24 May 2018

Delivered at:

Melbourne

Delivered on:

13 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bartfield QC

Solicitors for the Applicant:

Lander & Rodgers

Counsel for the Respondent:

Mr Lim

Solicitors for the Respondent:

Francis Lim Barristers & Solicitors

ORDERS

Pursuant to s.90KA of the Family Law Act 1975 (Cth) (‘the Act’) the financial agreement executed by the husband and the wife dated 9 July 2008 (‘the financial agreement’) be rectified such that it is amended to express that the financial agreement is made pursuant to s.90B of the Act.
The court declares that the financial agreement is binding on the parties.
Pursuant to s.90KA of the Act, clause 17 of the financial agreement be rectified to express the applicable law governing the financial agreement is the Act and that clause 17 be amended to provide:

The parties agree that this agreement is governed by the Act and any dispute arising from or in connection with this agreement shall be determined by the courts exercising jurisdiction under the Act.
Costs of the application be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Squibb & Graham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9821 of 2016

MS SQUIBB

Applicant

And

MR GRAHAM

Respondent

REASONS FOR JUDGMENT

By an initiating application filed on 11 October 2016, the wife, aged 44 years, seeks a declaration from the court that the financial agreement the parties entered into on 9 July 2008 is binding on the parties. The wife relies on her affidavits filed 30 January 2018 and 9 May 2018.
The husband, aged 39 years, opposes the orders and seeks orders that the agreement be set aside. The husband relies on his affidavits filed

2 February 2018, 11 May 2018 and 21 May 2018.

Background

The wife was born on 1974. The husband was born on 1978.
In April 2008 the parties had conversations about entering into a financial agreement.
In early July 2008 the wife…

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 Squibb and Graham

Details

AGLC: Squibb and Graham [2018] FCCA 1906
Case: [2018] FCCA 1906
Decision Date: 13 July 2018

CaseChat Overview and Summary

In the matter of *Squibb and Graham*, heard before Judge McNab, the husband and wife sought orders concerning a financial agreement executed on 9 July 2008. The dispute centred on the validity and enforceability of this agreement, particularly in light of its purported basis and governing law.

The court was required to determine whether the financial agreement, as originally drafted, was binding on the parties. Specifically, it needed to consider whether rectification of the agreement was appropriate under section 90KA of the *Family Law Act 1975* (Cth) to reflect the parties' true intentions regarding its statutory foundation and the applicable law.

Judge McNab reasoned that the financial agreement, despite being initially framed under a different section of the Act, was intended by the parties to be made pursuant to section 90B. The court found that rectification was necessary to give effect to this intention and to ensure the agreement was binding. Furthermore, the court ordered rectification of clause 17 to clarify that the agreement is governed by the *Family Law Act 1975* (Cth) and that any disputes arising from it are to be determined by courts exercising jurisdiction under that Act. Consequently, the court declared the financial agreement, as rectified, to be binding on the parties.

Orders

Orders of the court

Pursuant to s.90KA of the Family Law Act 1975 (Cth) (‘the Act’) the financial agreement executed by the husband and the wife dated 9 July 2008 (‘the financial agreement’) be rectified such that it is amended to express that the financial agreement is made pursuant to s.90B of the Act.

The court declares that the financial agreement is binding on the parties.

Pursuant to s.90KA of the Act, clause 17 of the financial agreement be rectified to express the applicable law governing the financial agreement is the Act and that clause 17 be amended to provide:

The parties agree that this agreement is governed by the Act and any dispute arising from or in connection with this agreement shall be determined by the courts exercising jurisdiction under the Act.

Costs of the application be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Squibb and Graham [2018] FCCA 1906

Most Recent Citation

Graham & Squibb [2019] FamCAFC 33

Cases Citing This Decision

Graham & Squibb [2019] FamCAFC 33
Citation 1

…[2018] FCCA 1906…

See all citing cases →

Cases Cited

Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2019] FCA 1849
Citation 1 (Para 12)

…nvalid, the court should lean towards that construction which validates the instrument: Caltex Australia petroleum Pty Ltd v Commissioner of Taxation (2008) 173 FCR 359 at [170]. As is noted in “The Interpretation of Contracts in Australia” , Lewison and Hughes at [7.15]: “…the principal is based upon the presumption…
Forrest v Australian Securities and Investment Commission [2012] HCA 39
Citation 2 (Para 11)

…(2011) 190 FCR 364 [2] Overturned on appeal but not on this point see Fortescue Metals Group Ltd v Australian Securities and Investments Commission [2012] HCA 39…
Sullivan & Sullivan [2011] FamCA 752
Citation 3 (Para 7)

…According to the reasoning of Strickland J and Murphy J in Senior & Anderson (supra), quoted by Young J in Sullivan & Sullivan [2011] FamCA 752 at [54]: …the preliminary questions for determination are: Whether the Agreement between the parties purporting to be a financial agreement pursuant to s.90B is an “agreeme…
Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19
Citation 4 (Para 11)

…courts may, where circumstances permit, apply objective standards of reasonableness to prevent the intention of the parties being defeated.”[2] [1] [2011] FCAFC 19; (2011) 190 FCR 364 [2] Overturned on appeal but not on this point see Fortescue Metals Group Ltd v Australian Securities and Investments Commission [2…
Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98
Citation 5 (Para 11)

…o the intention of the parties, even if that intention has been obscurely expressed: Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98, esp at [6]-[8]. Further, the courts may, where circumstances permit, apply objective standards of reasonableness to prevent the intention of the par…
Euphoric Pty Ltd v Ryledar Pty Ltd [2006] NSWSC 2
Citation 6 (Para 6)

…establish the objective background facts known to both parties and is relevant to the claim for rectification: see Euphoric Pty Ltd v Rydelar Pty Ltd [2006] NSWSC 2 at [31]- [33].…
Thorby v Goldberg [1964] HCA 41
Citation 7 (Para 18)

…of case, that the agreement is void and unenforceable due to uncertain and ambiguous terms. Adopting the language of Menzies J in Thorby v Goldberg (1964) 112 CLR 597 at 607: …the language used is not so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any…
WN Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2
Citation 8 (Para 11)

…proposition that strive to uphold bargains: 122.It is well-established that the courts strive to uphold bargains: Hillas & Co Ltd v Arcos Ltd (No 2) [1932] UKHL 2; (1932) 147 LT 503. To that end, the courts will construe the terms of an agreement with an inclination to give effect to the intention of the partie…
[2009] AC 1101 [2009] AC 1101
Citation 9 (Para 16)

…urt has the power to correct errors that go beyond minor verbal infelicities and errors of grammar and spelling: Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101 at [25]: What is clear from these cases is that there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction whi…
[2002] 1 AC 251 [2002] 1 AC 251
Citation 10 (Para 12)

…resumption is that “the parties are unlikely to have intended to agree to do something – – – legally ineffective” citing BCCI v Ali [2002] 1 AC 251 at 269 per Lord Hoffman.…

Legislation Cited

Family Law Act 1975 (Cth) 4(1), 71A, 79, 90B(2), 90C(1), 90D(1), 9...
10 mentions (from Para 7)
Evidence Act 1995 (Cth)
1 mention (from Para 5)
Federal Circuit Court Rules 2001 (Cth)
1 mention (from Para 1)