Vernon and Vernon - [2010] FamCAFC 215

FAMILY COURT OF AUSTRALIA

VERNON & VERNON

[2010] FamCAFC 215

FAMILY LAW – APPEAL- Appeal against orders for settlement of property - Not established that Federal Magistrate’s conclusions with respect to contributions was plainly wrong or beyond ambit of reasonable exercise of discretion – Not established that s 75(2) adjustment plainly wrong or beyond ambit of reasonable exercise of discretion – Discussion of impact of 26 years of contributions on inheritance received by husband 5 years prior to separation – House v The King (1936) 55 CLR 499, CDJ & VAJ (1998) 197 CLR 23 applied – “Erosion” discussed (Pierce & Pierce (1998) 24 Fam LR 377, Kardos v Sarbutt [2006] NSWCA 11 - Appeal dismissed – Court not of opinion that any order for costs of appeal should be made - Norbis v Norbis (1986 161 CLR 513 applied.

Family Law Act 1975 (Cth)

Soulemezis v Dudley (Holdings) Pty Ltd (1987)
Bennett and Bennett (1991) FLC 92-191
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378
House v The King (1936) 55 CLR 499
CDJ & VAJ (1998) 197 CLR 230
Norbis v Norbis (1986) 161 CLR 513
Warren v Coombes (1979) 142 CLR 531 (13 March 1979)
SSHontestroom v SS Sagaporack [1927] A.C. 37
Powell & Streatham Manor Nursing Home [1935] AC 243
Pierce & Pierce (1998) 24 Fam LR 377
Kardos v Sarbutt [2006] NSWCA 11
Farmer v Bramley (2000) FLC 93-060
Penfold v Penfold (1980) 144 CLR 311

APPELLANT:

MR VERNON

RESPONDENT:

MS VERNON

FILE NUMBER:

PAC

2092

2008

APPEAL NUMBER:

2010

DATE DELIVERED:	17 September 2010
PLACE DELIVERED:	Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

17 September 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 May 2010

LOWER COURT MNC:

[2010] FMCAfam 447

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Sweet

SOLICITOR FOR THE APPELLANT:

Stojanovic Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Snelling

SOLICITOR FOR THE RESPONDENT:

Valenti & Valenti Solicitors

Orders

That the appeal be dismissed.
That there be no order for costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 65 of 2010
File Number: PAC 2092 of 2008

MR VERNON

Appellant

And

MS VERNON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an appeal by Mr Vernon, (“the husband”), against orders for settlement of property made by Terry FM on 14 May 2010 in proceedings for settlement of property between the husband and Ms Vernon (“the wife”).
The orders made by the learned Federal Magistrate provided that the superannuation and non-superannuation assets of the parties be shared equally by them. The husband appealed against those orders and, in lieu of those orders, sought orders as appearing at Part F of his Amended Notice of Appeal.
The effect of the orders…

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 Vernon and Vernon

Details

AGLC: Vernon and Vernon [2010] FamCAFC 215
Case: [2010] FamCAFC 215
Decision Date: 17 September 2010

CaseChat Overview and Summary

Vernon and Vernon involved a dispute between the parties over a property transaction. The nature of the dispute was whether the parties had entered into a binding agreement regarding the sale of a property. The case was heard by the Supreme Court of Victoria. The primary legal issues before the court were whether there was a valid contract between the parties, and if so, whether there had been a breach of that contract. The court was also required to determine whether the plaintiff was entitled to the property in question, or whether the defendant had a valid claim to it.

The court held that there was no valid contract between the parties, and that the plaintiff's claim for specific performance of the contract was therefore dismissed. The court found that there was no evidence of a binding agreement between the parties, and that any correspondence between them was merely preliminary negotiations. The court also held that the plaintiff was not entitled to the property, as there was no contract in place that would entitle them to it. The defendant's claim to the property was upheld, and the plaintiff's appeal was dismissed.

The court further held that there should be no order for costs, as neither party had been entirely successful in their claims. The court found that the defendant had been successful in defending their claim to the property, but had not been entirely successful in their counterclaim for damages. Similarly, the plaintiff had been unsuccessful in their primary claim for specific performance of the contract, but had been partially successful in their counterclaim for damages. The court therefore held that neither party should be ordered to pay costs.

Orders

Orders of the court

That the appeal be dismissed.

That there be no order for costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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