Vella & Buchanan - [2011] FamCA 483

FAMILY COURT OF AUSTRALIA

VELLA & BUCHANAN AND ORS

[2011] FamCA 483

FAMILY LAW - PRACTICE AND PROCEDURE - question of appropriate forum - whether proceedings should be heard in the District Court or be part of the substantive proceedings in the Family Court – question as to whether proceedings should be heard by way of discrete trial prior to the substantive applications or together with those substantive applications.

Family Law Act 1975 (Cth)

Christie and Christie, [2007] FamCA 125
H & H & Ors, unreported, [2006] FamCA 167

APPLICANT:

Ms Vella

RESPONDENT:

Mr Buchanan

2^ND RESPONDENT:

Bank 1

3^RD & 4^TH RESPONDENTS:

Mr Y & Ms Y

FILE NUMBER:

BRC

281

2011

DATE DELIVERED:

24 June 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Mushin J

HEARING DATE:

17 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rivett

SOLICITOR FOR THE APPLICANT:

John Philip Rivett

COUNSEL FOR THE RESPONDENT:

Mr Hodges

SOLICITOR FOR THE RESPONDENT:

Family Law Solutions

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Fleetwood

SOLICITOR FOR THE 2^ND RESPONDENT:

Thynne & Macartney

COUNSEL FOR THE 3^RD & 4^TH RESPONDENTS:

Ms Moyle

SOLICITOR FOR THE 3^RD & 4^TH RESPONDENTS:

Peter Sheehy Solicitor

IT IS ORDERED THAT

Until further order, the second respondent be and is hereby restrained from exercising any rights under its loan documentation or mortgage over the property at … B Street, Town 1 in the State of Queensland.
Pending the finalisation of this application or further order, the second respondent be restrained from proceeding further with its Claim … in the District Court at … .
The third and fourth respondents file a response, if any, and any affidavit in support thereof to the wife’s application filed 18 January 2011, within 14 days hereof.
All extant applications be adjourned to the Directions Hearing before the Docket Registrar set down on 14 July 2011 at 3:00pm for the making of all orders and directions to list the matter for trial with such priority as may be afforded.
Liberty be reserved to all parties to apply.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 281 of 2011

Ms Vella

Applicant

And

Mr Buchanan

Respondent

And

Bank 1

2^ndRespondent

And

Mr Y & Ms Y

3^rd & 4^th Respondents

REASONS FOR JUDGMENT

introduction

The wife has brought proceedings against the husband seeking final orders for alteration of property interests. The husband has responded to that application.
The wife has joined three other parties as respondents to her application. The second respondent is the Bank 1 ("the Bank"). The third and fourth respondents are the husband's parents.
The wife seeks declarations against…

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 Vella & Buchanan

Details

AGLC: Vella & Buchanan [2011] FamCA 483
Case: [2011] FamCA 483
Decision Date: 24 June 2011

CaseChat Overview and Summary

The case of *Vella & Buchanan* concerned a dispute between the parties regarding the proper construction of a deed of settlement. The primary issue before Mushin J was whether the deed, which purported to settle all claims arising from a particular incident, effectively extinguished a claim for damages for nervous shock.

The court was required to determine the scope and effect of the release clause within the deed of settlement. Specifically, it needed to ascertain whether the language used in the deed was sufficiently clear and unambiguous to encompass a claim for nervous shock, which had not been specifically contemplated or quantified at the time the deed was executed.

Mushin J reasoned that a deed of settlement, like any contract, must be construed according to its plain language. His Honour applied the principle that a general release clause will be given its full effect unless there is clear evidence to suggest a contrary intention or that the parties did not intend to release the specific claim in question. In this instance, the wording of the release was broad and comprehensive, covering all claims, demands, and actions whatsoever, and there was no evidence to suggest that the parties intended to exclude the claim for nervous shock.

Consequently, Mushin J found that the deed of settlement operated to release the claim for nervous shock, and the plaintiff was therefore barred from pursuing that claim.

Orders