Stojanovski v Stojanovski - [2012] NSWSC 1338

Supreme Court

New South Wales

Case Title: Stojanovski v Stojanovski

Medium Neutral Citation: [2012] NSWSC 1338

Hearing Date(s): 29, 30 and 31 October 2012

Decision Date: 16 November 2012

Jurisdiction: Equity Division - Expedition List

Before: Pembroke J

Decision:
See paragraph [21]

Catchwords: CONTRACT - distinction between contingency and promissory condition
CONTRACT - contingency - effect of expressions - "subject to and conditional upon" - and "void and of no effect" - meaning and effect when both expressions read together - "void" means "void" - contract not merely voidable at party's election
CONTRACT - contingency - essentiality inherent - no issue of extension of time

Legislation Cited: Family Provision Act 1982

Cases Cited: Charles Lodge Pty Ltd v Menahem [1966] VR 161
Gyllenhammar & Partners International Ltd v Sour Brodogradevna Industrija [1989] 2 Lloyd's Rep 403
Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137
Madden-Smith v Madden [2012] NSWSC 146
MK & JA Roche Pty Ltd v Metro Edgeley Pty Ltd [2005] NSWCA 39
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537
Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689
Waterman v Gerling Australia Insurance Company Pty Ltd [2005] NSWSC 1066

Texts Cited: Carter, Breach of Contract (2nd Edition, 1991)
Cheshire & Fifoot, Law of Contract (10th Australian Edition, 2012)
Swanton, "Subject to Finance" Clauses in Contracts for the Sale of Land (1984) 58 ALJ 633

Category: Principal judgment

Parties: Steven Stojanovski - plaintiff
Robert Stojanovski - first defendant
Jovanka Stojanovski - second defendant

Representation

- Counsel: Counsel:
C J Bevan â€“ for the plaintiff
P M Wass with C P Oâ€™Neill â€“ for the first defendant
G M Gould â€“ for the second defendant

- Solicitors: Solicitors:
OneGroup Legal Pty Ltd â€“ for the plaintiff
Swaab Attorneys â€“ for the first defendant
Wilshire Webb Staunton Beattie â€“ for the second defendant

File number(s): 2012/089349

Publication Restriction:

JUDGMENT

Introduction

When Nada Stojanovski (the testator) died on 20 January 2006, she left a will dated 3 January 2006. That will provided for two properties to go to her son Steven, the plaintiff, and two properties to go to her other son Robert, the first defendant. However there was a complication. One of the properties destined for Steven, known as Jersey Avenue, was already owned jointly by her and her two sons. On her death, the two brothers became equal joint owners of that property by virtue of their right of survivorship. The will was therefore ineffective to give effect to her intention that the plaintiff receive the whole of Jersey Avenue.
On the same day that the will was signed, the first defendant signed a document declaring that he gave his share in Jersey Avenue to the plaintiff "in line with my mother's last will". However, after his mother's death, he resiled from that declaration. The…

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

Case: [2012] NSWSC 1338
Decision Date: 16 November 2012

CaseChat Overview and Summary

Stojanovski v Stojanovski was a dispute between a husband and wife regarding the validity of a settlement agreement. The case was heard in the Family Court of Australia. The wife alleged that the settlement agreement was invalid because it was contingent on her not remarrying. The husband argued that the agreement was valid and binding.

The primary legal issue before the court was the interpretation of the terms of the settlement agreement, specifically whether the condition of not remarrying was a contingency or a promissory condition. The court had to determine whether the phrase "subject to and conditional upon" was sufficient to render the agreement void if the condition was not met, or whether the phrase "void and of no effect" meant that the agreement was voidable at the husband's election.

The court found that the phrase "void and of no effect" meant that the agreement was completely void if the condition was not met, rather than voidable at the husband's election. The court held that the condition of not remarrying was an essential contingency inherent in the agreement, and that there was no issue of extension of time. The court concluded that the agreement was void and of no effect if the condition was not met, and that the wife was not bound by the agreement.

The court ordered that the settlement agreement was void and of no effect, and that the wife was not bound by its terms. The court also ordered that the husband pay the wife's legal costs.

Orders