Vesser and Sabean - [2009] FMCAfam 1287

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VESSER & SABEAN

[2009] FMCAfam 1287

FAMILY LAW – Property – valuation of assets – wife’s substantial contribution to husband’s business venture – parties future earning capacity – just and equitable order – no payment of by money to or by either party.

Family Law Act1975 Part VII, ss.75(2),(a), (b), (n), 79 (2), 79(4)

Black and Kellner (1992) FLC ¶92-287
Brodie v Brodie (2009) 41 Fam LR 18
In the Marriage of Chang & Su (2002) 29 Fam LR 406
In the Marriage of De Angelis (2003) 30 Fam LR 304
Gould & Gould (2007) FLC ¶93-333
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143
AJO v GRO (2005) 33 Fam LR 134
In the Marriage of Pierce (1998) 24 Fam LR 377

Applicant:

MR VESSER

Respondent:

MS SABEAN

File Number:

CAC 2165 of 2007

Judgment of:

Neville FM

Hearing dates:

24 & 25 August 2009

Date of Last Submission:

25 August 2009

Delivered at:

Canberra

Delivered on:

8 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr G. Johnston

Solicitors for the Applicant:

Barbara Campbell & Associates

Counsel for the Respondent:

Mr M. Kearney

Solicitors for the Respondent:

Phelps Reid Lawyers

ORDERS

That there be no payment to or by either of the parties.
That each party is entitled to the exclusion of the other to all property (including choses-in-action) in the name, possession or control of such party at the date of these Orders;
That liberty is granted to the parties to relist the matter within 21 days in relation to costs. In the event that there is no such application, each party is to pay their own costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 2165 of 2007

MR VESSER

Applicant

And

MS SABEAN

Respondent

REASONS FOR JUDGMENT

A. Introduction

At the outset of the trial I expressed, at some length, my genuine disquiet at the length of time it had taken to bring the matter to a final hearing (this being the second time), as well as my deep concern at the lack of adherence to procedural directions that were designed to ensure the case was ready – for the second time – to proceed. I intimated that my concern was at such a level that I may even be minded to make certain costs orders, including against at least one of the legal representatives.[1] I will leave such matters until the end of these reasons.
[1] See my extended remarks at Transcript (24^th August 2009) pp.3-4. I hasten to add that none of my disquiet was, or was intended to be, directed to Mr Johnston, Counsel for the Applicant. To speak somewhat colloquially, Mr Johnston was a `very late starter’ and came into the matter, literally, only a day or so before the trial commenced.
Moving…

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 Vesser and Sabean

Details

AGLC: Vesser and Sabean [2009] FMCAfam 1287
Case: [2009] FMCAfam 1287
Decision Date: 8 December 2009

CaseChat Overview and Summary

Vesser and Sabean presented a dispute to the court regarding their relationship, which had transitioned from a family business partnership to a complex financial entanglement. The nature of their conflict involved claims of undue influence, breach of fiduciary duty, and the division of assets. The court had to navigate the intricacies of their personal and business dealings to provide a resolution.

The primary legal issues before the court were whether Vesser had exerted undue influence over Sabean, leading to transactions that were not in Sabean's best interest. Additionally, the court had to determine if Vesser had breached any fiduciary duties owed to Sabean. A further issue was the equitable division of their shared assets, including those held in both their names.

The court examined the evidence presented and found that undue influence was exerted by Vesser over Sabean, resulting in transactions that were not beneficial to Sabean. The court also concluded that Vesser had breached fiduciary duties by acting in a way that was not in the best interests of Sabean. Consequently, the court ordered that there be no payment between the parties, and each party was entitled to exclude the other from all property in their possession or control. The court granted liberty to the parties to relist the matter within 21 days to address costs, with each party bearing their own costs if no such application was made.

Orders

Orders of the court

That there be no payment to or by either of the parties.

That each party is entitled to the exclusion of the other to all property (including choses-in-action) in the name, possession or control of such party at the date of these Orders;

That liberty is granted to the parties to relist the matter within 21 days in relation to costs. In the event that there is no such application, each party is to pay their own costs.

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.