Viswan & Parveen (No 2) - [2023] FedCFamC2F 666

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Viswan & Parveen (No 2) [2023] FedCFamC2F 666

File number(s): PAC 2990 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 1 June 2023

Catchwords: FAMILY LAW – PROPERTY – Financial agreement set aside – Just and equitable property Orders made.

Legislation: Family Law Act 1975 (Cth) ss 90B, 90G, 90K, 90KA

Cases cited:
Hoult & Hoult [2013] FamCAFC 109

Lotta & Lotta [2017] FamCA 50

Thorne v Kennedy (2017) 263 CLR 85

Division: Division 2 Family Law

Number of paragraphs: 231

Date of hearing: 8–10 March 2023

Place: Parramatta

Solicitor for the Applicant: Mr Prakash

Counsel for the Respondent: Mr Gunning

Solicitor for the Respondent: Joseph Grassi & Associates
ORDERS

PAC 2990 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS VISWAN

Applicant

AND:
MR PARVEEN

Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

1 June 2023

THE COURT ORDERS THAT:
1.The financial agreement signed by the parties in about 2013 be set aside.
2.Within 10 weeks the husband shall pay to the wife the sum of $225,992.
3.Failing the husband complying with Order 2, then the property at B Street, Suburb C (hereinafter “the property”) shall be listed for sale by private treaty for a period of three (3) months with an agent as agreed by the parties.
4.That in the event of any disagreement between the parties with respect to listing price, listing agent or solicitor/Conveyancer on sale then:
(a)In the event of any disagreement with respect to a listing agent at any time, either party may make application to the President for the time being of the Real Estate Institute of NSW who shall then, upon such application being made, appoint an agent to act on behalf of the parties and the parties shall then:
(i)Engage and instruct that agent to act on their behalf.
(ii)Provide all co-operation and assistance to the agent as is required to enable the agent to effectively list the property, advertise the property for sale and undertake and allow inspections of the property by prospective purchasers.
(iii)Sign all documents necessary with respect to the engagement of such agent and negotiate payment of commission to the agent as is customary for work of that nature and that in the event of any disagreement or impasse with respect to commission, the President for the time being of the Real Estate Institute of NSW shall determine such dispute upon application of either party or the agents so instructed.

(b)In the event of any disagreement as to listing price then the parties shall obtain from the agent with whom the property is at such time listed, a realistic appraisal of the selling price of the property on the basis of an eager but not overanxious vendor and the parties shall then list the property for sale at 105% of that price and shall accept all and any offer or purchase at that price or 95% thereof; and
(c)In the event of…

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 Viswan & Parveen (No 2)

Details

AGLC: Viswan & Parveen (No 2) [2023] FedCFamC2F 666
Case: [2023] FedCFamC2F 666
Decision Date

CaseChat Overview and Summary

The matter of Viswan & Parveen (No 2) was a final property hearing held before the Federal Circuit and Family Court of Australia (Division 2). The applicant wife sought orders to set aside a financial agreement, sell certain properties, and make property adjustments between the parties. The respondent husband sought to dismiss the wife's application and discharge a spousal maintenance order. The Court found that the financial agreement should be set aside due to undue influence and unconscionable conduct by the husband. The Court considered factors such as the husband's pressure on the wife to sign the agreement, the wife's lack of time for reflection, and the husband's significant financial advantage. Based on the parties' contributions and section 75(2) factors, the Court made property adjustment orders, with the husband retaining 80% of the net assets and the wife receiving 20%. The Court also discharged the spousal maintenance order as the wife would receive a monetary sum from the property proceedings.

Orders