Webster and Anor and Glover and Anor (No.2) - [2018] FCCA 3340

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEBSTER & ANOR & GLOVER & ANOR (No.2)

[2018] FCCA 3340

Catchwords:
FAMILY LAW AND CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – Property and maintenance of parties – whether the agreement made between the parties is a Part VIIIAB financial agreement.

Legislation:

Family Law Act 1975 (Cth), ss.90KA, 90SA(1), 90SM, 90MC(1), 90MC(2), 90UC(2)(a), 90UL, 90UN, UC

Berkley and Stanfield [2018] FCWA 119
Briginshaw v Briginshaw (1938) 60 CLR 336
Gartside v Inland Revenue Commissioners [1968] 1 All ER 121
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98
Meehan v Jones (1982) 149 CLR 571
Warner & Cummings (2017) 319 FLR 10

First Applicant:

MR WEBSTER

Second Applicant:

S PTY LTD

First Respondent:

MS GLOVER

Second Respondent:

R PTY LTD

File Number:

BRC 11228 of 2016

Judgment of:

Judge Jarrett

Hearing dates:

21 and 22 August 2017

Date of Last Submission:

3 November, 2017

Delivered at:

Brisbane

Delivered on:

16 November 2018

REPRESENTATION

Counsel for the Applicants:

Mr K.C. Fleming QC

Solicitors for the Applicants:

Damien Greer Lawyers

Counsel for the Respondents:

Mr R. Galloway

Solicitors for the Respondents:

APA Lawyers

ORDERS

Within 21 days of the date of these orders, the parties bring in:
(a)an agreed form of declaration to give effect to the reasons of the court delivered on 16 November, 2018;
(b)an agreed form of any other orders to give effect to the reasons of the court delivered on 16 November, 2018 or any agreed form of declarations;
(c)agreed direction for the further conduct of these proceedings.
All outstanding applications otherwise be adjourned to a date to be fixed pending receipt of the declarations, orders, and directions provided for in order (1) hereof.

IT IS NOTED that publication of this judgment under the pseudonym Webster & Anor & Glover & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11228 of 2016

MR WEBSTER

First Applicant

S PTY LTD

Second Applicant

And

MS GLOVER

First Respondent

R PTY LTD

Second Respondent

REASONS FOR JUDGMENT

On 6 March, 2017 this Court ordered that:
1. The question of whether the De Facto Financial Agreement signed by the parties on 1 July 2010 is binding be tried separately.
Orders were made for the filing of a Statement of Claim, a Defence and a Reply.
It is only the first applicant and the first respondent that are immediately interested in the determination of the separate question. Their corporate interests (the second applicant and the second respondent) are not H Pty Ltd concerned with a determination of that question. Accordingly, for convenience, I shall refer to the first applicant simply as the applicant and the first respondent simply as the respondent.
The applicant delivered a Statement of Claim on 17 March, 2017. The respondent delivered a Defence and Cross-Claim on 5 April, 2017. The applicant delivered a Reply to the defence and an Answer to the Cross-Claim on 13 April, 2017.
Having regard to the pleadings delivered by the parties, the central issues appear to be:
a)whether the agreement made between the parties is a Part VIIIAB financial agreement for the purposes of the Family Law Act 1975 (Cth);
b)if so, whether before signing the agreement and in the circumstances described by her more fully set out below, the respondent was provided with independent legal advice from a legal practitioner about the effect of the agreement on her rights and about the advantages and disadvantages, at the time that the advice was provided to her, of making the agreement;
c)whether the agreement has been terminated; and
d)whether the agreement should be set aside by the Court.

A Part VIIAB financial agreement?

The agreement in question purports to be a financial agreement made pursuant to s.90UC of the Family Law Act. At the time the agreement at issue was executed by the parties (there being no dispute about its execution), s.90UC of the Family Law Act 1975 (Cth) provided that if:
a)while in a de facto relationship, the parties to the de facto relationship make a written agreement about how all or any of the property or financial resources of either or both of the parties at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed in the event of the breakdown of the de facto relationship; and
b)at the time of the making of the agreement, the parties to the de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and
c)the agreement is expressed to be made under s.90UC of the Family Law Act
the agreement is a Part VIIIAB financial agreement.
There is no dispute that it was signed by the parties in November, 2010. It purports to have been made on 1 July, 2010 and to have effect from that date. However, no significance attaches to that. The parties might agree to the document having effect from a specified date which predates their signatures to the document. Although no authority decided for this proposition, its correctness did not seem to be disputed by Ms Glover.
By recital A. to the agreement, the parties recorded that:
Ms Glover and Mr Webster intend to live together in a domestic partnership arrangement. They are mutually committed to a shared life as a couple living together on a genuine domestic basis, and both intend it to endure. The parties will commence their relationship on 1/7/2010, and will have a common residence at 68 The Avenue Armidale. However, they recognise that it is possible that any relationship may break down and if that should happen to them, they are anxious to avoid any dispute about finances or property arising out of the breakdown.
However, the recital was not accurate in the sense that the parties were already living together at 68 The Avenue, Armidale and had been so living since April, 2010. By 1 July, 2010 they were already in a romantic association that was exclusive to one another. They intended it to continue. Ms Glover had brought her furniture and “bits and pieces” into Mr Webster’s house. They commenced negotiation for a financial agreement between each other sometime in 2010, but the precise time is not revealed by the evidence. A form of agreement was obtained by Mr Webster from the internet. The settled agreement was executed in November, 2010. Thus, despite recital A. it is safe to assume that the parties were already in a de facto relationship for the purposes of the Family Law Act by the time the agreement is expressed to have commenced.
To the extent that recital A. in the agreement records that the parties intend to live together in a domestic partnership relationship arrangement, arguably that implies that at the time of execution of the agreement they were not so living, but that it would happen in the future. Alternatively, another construction of that recital is that the parties were merely making a statement about their future intentions rather than what had occurred in the past. The latter construction is preferable because it accords with the circumstances that existed at the time the agreement was signed and it is consistent with the parties’ intention, expressed in the agreement, that the agreement was one made during their de facto relationship pursuant to s.90UC of the Act (see recital B.).
It is impossible to make a finding about the date upon which the agreement was, in fact, signed. Neither party puts a date to that beyond saying that it was signed in November, 2010. However, having regard to Ms Glover’s evidence, it is likely that the agreement was signed on or about 18 November, 2010.
To be a Part VIIAB financial agreement, the agreement must deal with:
90UV Financial agreements during de facto relationship
…
(2) …
(a) how all or any of the:
(i) property; or
(ii) financial resources;
of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed;
(b) the maintenance of either of the spouse parties.
One observation should be made about this aspect of s.90UC. An agreement will be a Part VIIAB financial agreement if it is concerned with how relevant property or financial resources are to be distributed in the event of the breakdown of the de facto relationship. It is not necessarily concerned with altering the interests of the parties to the de facto relationship in the property of the parties or either of them as is s.90SM of the Act. Arguably, the concept of distributing the property or financial resources of the parties is a broader concept than altering their interests in their property because the property and financial resources of the parties or each of them might be distributed between them without their interests in their property having to be altered at all.
The terms of the subject agreement do not propose an alteration in the interests of the parties’ property in the event of breakdown in their relationship except in some minor respects.
Clause 3 of the agreement records that the parties shall contribute to their everyday living expenses as they agree from time to time. It also provides that any property acquired or borrowing undertaken by the parties shall be recorded in writing to be the asset or liability of one or other or both of them. According to clause 3 both parties are free to dispose of their separate property by deed, will or otherwise as they see fit.
Clauses 4 and 5 contain acknowledgements by the parties that they have made “no contribution of a financial nature to the acquisition conservation and improvement of the assets” of the other party and that they are not entitled to any benefit from any of those assets set out by each of the parties in their schedules of assets to the agreement. They also agree by those clauses that they have “no entitlement to any gifts or inheritances that are received from time to time” by the other party and that they will make “no claim at law or in equity in relation to such gifts or inheritances”.
Clauses 6 and 7 provide that each party “shall make no claim at law or in equity in relation to any further property that” the other party acquires in their sole name with money accumulated from their sole earnings or other income received during the relationship.
Clause 8 deals with jointly acquired property. It provides that any jointly acquired property is to be acquired as tenants-in-common in equal shares. Clause 8 requires the parties to contribute equally towards any loan repayments if they are required to borrow money, either in relation to the acquisition of the property or in relation to the subsequent improvement of the property. The clause provides that they should be jointly liable for the repayment of any loan. It further provides that following separation the jointly acquired property should be sold and the net proceeds of sale equally divided between them.
Clause 9 provides for the equal division of all furniture and home contents acquired by the parties if they separate. It provides a mechanism to resolve any disputes that might arise as to the division of the furniture and home contents.
Clause 10 makes provision for what is to occur if the parties separate and at the time of separation they are residing in a residence owned by one or other of the parties. If the residence is owned by the applicant, the respondent agrees to vacate the residence within 30 days of receiving a written demand to do so. Similarly if the residence is owned by the respondent, the applicant agrees to vacate the residence within 30 days of receiving a written demand from the respondent that he do so. If the property is jointly owned, the applicant must vacate the property within 30 days of receiving a written demand from the respondent that he do so.
Clause 11 provides for the party leaving the residence to remove his or her personal property including furniture and home contents which the parties might have divided between them pursuant to clause 9. The clause also requires the sharing equally between the parties of “reasonable removal expenses to relocate within New South Wales”.
Clause 12 provides:
12. Except as provided above, the parties are entitled to be the sole legal and beneficial owners of all other items of property, both real and personal, including superannuation entitlements, which are registered in each of their names or in their current possession or control.
Clauses 13 and 14 deal with spousal maintenance. They contain acknowledgements by each party that the agreement makes no provision for the payment of spousal maintenance by one to the other should they separate and that no funds or property will be paid or made available by either party to the other for that other’s maintenance should they separate. The clauses purport to contain an agreement that neither party will make, at any time in the future, any application for the payment of spousal maintenance.
Schedule 1 of the subject agreement is a financial statement of the respondent. Schedule 2 of the subject agreement is a financial statement of the applicant.
I find that the agreement deals with how the property and financial resources of the parties at the time when the agreement was made, or at a later time and during the de facto relationship, is to be distributed in the event of the breakdown of their relationship. Further I find that at the time of the making of the agreement, Mr Webster and Ms Glover were not spouse parties to any other Part VIIIAB financial agreement that was binding on them with respect to any of those matters.
I find that the agreement meets the requirements of s.90UC of the Family Law Act. I find that the agreement signed by the parties in November, 2010 is a Part VIIIAB financial agreement for the purposes of the Family Law Act.

Is the Part VIIIAB financial agreement between the parties binding?

A Part VIIIAB financial agreement is binding if it meets the requirements of s.90UJ of the Act. That section provides:
90UJ When financial agreements are binding
(1) Subject to subsection (1A), a Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if, and only if:
(a)the agreement is signed by all parties; and
(b)before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c)either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca)a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d)the agreement has not been terminated and has not been set aside by a court.
There is no dispute that the agreement is signed by all parties.
The agreement has attached to it a certificate by Ms II dated 23 November, 2010. That certificate is in the following terms:
I, Ms II of JJ Street, V City in the State of Tasmania being a legal practitioner holding a current practising certificate pursuant to the provisions of the Legal Profession Act 2007 hereby certify that before MS GLOVER signed this deed of agreement in writing proposed to be entered into between MR WEBSTER and Ms Glover I advised Ms Glover (my client) independently of:
1   the effect of this agreement on Ms Glover’s rights.
2   Ms Glover’s rights, entitlements and responsibilities in the absence of this deed of agreement and the manner in which those rights, entitlements and responsibilities are or may be effected by this deed of agreement.
3   The advantages and disadvantages at the time the advice was provided to Ms Glover of making the agreement.
The agreement also has attached to it a certificate by Mr LL in respect of the advice that he gave to Mr Webster about the matters dealt with in s.90UC(1)(b of the Act. That certificate is dated 19 November, 2010.
Initially, by her defence, Ms Glover wished to agitate a case that the certificate given by Ms II was given in respect of a different agreement than that which the parties ultimately signed. Ms Glover gave evidence that she had provided the draft agreement given to her by Mr Webster, to Ms II who had suggested some changes. Even on Ms Glover’s evidence, the changes were not substantial and were more in the nature of formatting changes. Nonetheless, Ms Glover seemed to wish to argue that the certificate given by Ms II did not relate to the agreement that had been executed by the parties and therefore, one of the elements necessary to be present for the agreement to be binding was missing. However, during the course of the hearing before me, counsel for Ms Glover, quite properly in my view, conceded that Ms Glover was no longer pressing any irregularity between the form of the two agreements (the executed agreement and the re-formatted draft prepared by Ms II) “as officiating matter”.
Ms Glover’s case is, however, that she did not receive the legal advice that was required by s.90UJ(1)(b) of the Act. The core of her claim about that is that Mr Webster misrepresented his assets and financial resources in the schedule to the agreement in which they were set out and, by reason of that misrepresentation, she was unable to be provided with the requisite advice. She also presses her claim that she did not receive the requisite legal advice on a broader basis to which I shall refer, later in these reasons.
As to the question of misrepresentation Ms Glover argues that the alleged failure by Mr Webster to properly disclose his financial circumstances is relevant in three respects. First, she argues that because he did not accurately set out his financial position in the relevant schedule, she could not obtain the legal advice required by s.90UJ(1)(b) of the Act. Second, she argues that what legal advice she did get, was not legal advice for the purposes of s.90UJ(1)(b) of the Act because the advice could not have been accurate by reason of Mr Webster’s failure to properly disclose his financial position. Third, she argues that his failure to accurately set out his financial position engages s.90UM(1)(a) of the Act and the agreement is liable to be set aside on that basis.
Because each of Ms Glover’s substantive arguments depend upon the proposition that Mr Webster had misrepresented his assets and financial resources in the schedule to the agreement, it is to that matter that I now turn.

Misrepresentations?

Having regard to the defence and the cross-claim delivered by Ms Glover, the gravamen of her case is that Mr Webster did not properly disclose his financial position on the face of the subject agreement. Paragraph 6(b) of Ms Glover’s defence alleges that the applicant did not accurately set out his financial position in schedule 2 to the agreement because he has not disclosed:
(i) … the existence of the “Mr Webster Education Discretionary Trust”, which was an asset or financial resource of the First Applicant”;
(ii) that the assets referred to in the column headed “MM Pty Ltd” in Schedule 2 of his personal financial statement were superannuation interests;
(iii) … that any of the assets in Schedule 2 of his personal financial statement were superannuation interests or financial resources.

Paragraph 3 of her cross-claim repeats those allegations.
Recital L. of the subject agreement provides:
At the date of this Agreement Mr Webster is the owner of the assets and financial resources specified in Schedule 2, which is attached to this Agreement.
I find that recital L., coupled with schedule 2, is a representation of fact by Mr Webster about the assets and financial resources of which he was the owner as at the date of the execution of the document. Mr Webster did not contend to the contrary.
Schedule 2 comprises a list of real property of which the applicant was said to be the sole owner together with a document described as a “statement of wealth” prepared by Mr Webster’s accountants. No issue arises as to the list of real property said to have been owned by Mr Webster although he did give evidence that some of the properties said to have been owned solely by him were in fact owned through corporate vehicles controlled by him. There is no suggestion by Ms Glover, however, that those matters were operative misrepresentations. Schedule 2 to the agreement (and in the case of Ms Glover schedule one) also contain details of “avenues” of income for each of the parties respectively: recitals N. and O. of the agreement.
Mr Webster’s statement of wealth in schedule 2 to the agreement is two pages in length. The first page takes the form of a spreadsheet which has 16 columns, eight of which relate to discrete entities, either corporate, personal or described as a trust entity. Five of those columns deal with what is described as “networth” for the years 2006 – 2010 inclusive. The first column on the left-hand side of the spreadsheet refers to a number of entities and assets, some of which are represented in their own column in the spreadsheet and others of which are not.
Page 2 of the “statement of wealth” comprises three graphs – a vertical bar graph and two pie charts which purport to illustrate Mr Webster’s assets, liabilities and net assets (the bar graph), the distribution of wealth by entity and the distribution of wealth by asset type (the pie charts).
It is fair to say, I think, that the “statement of wealth” demonstrates a complicated structure through which Mr Webster either holds or is entitled to the benefit of the assets and financial resources described in the schedule. Nowhere in schedule 2, however, is there a reference to The Mr Webster Education Discretionary Trust.
Exhibit 2 in these proceedings is a deed establishing “The Mr Webster Trust”. I take the reference in the respondent’s pleadings to the “Mr Webster Education Discretionary Trust” to be a reference to “The Mr Webster Trust”. I will refer hereafter to this trust as “the education trust”.
The education trust was established by a deed of settlement made on 10 December, 2003. Upon its establishment, NN Pty Ltd was its trustee. In evidence Mr Webster said that he may have possibly been a director and shareholder of that company at some stage in the past but that a solicitor called Mr LL and his accountant Mr OO were now directors and shareholders of that company. Mr Webster said NN Pty Ltd was a corporate entity that at the time the education trust was established he had no further use for and so “we recycled it into the trustee”.
According to the terms of the deed establishing the trust, the beneficiaries of the trust comprise the following persons, amongst others:
a)Mr Webster;
b)any child or grandchild of Mr Webster born before the termination date of the deed;
c)any spouse of Mr Webster; and
d)any University established in the Commonwealth of Australia.
There are other classes of beneficiary but it was not suggested that they are particularly relevant for present purposes.
Under the terms of the trust deed, the word “Appointor” means the person entitled under the provisions of the deed to appoint or remove a trustee. Mr Webster was designated as the Appointor for the purposes of the deed. As Appointor, he has the power to appoint a new trustee in the place of an existing trustee or in addition to and jointly with an existing trustee. The power to remove a trustee is also vested in Mr Webster as Appointor. Mr Webster may not appoint himself as trustee of the trust (clause 7(5) of the trust deed).
The education trust is a discretionary trust. The trustee from time to time, has a discretion as to the distribution of income and capital of the trust amongst any or all of the beneficiaries or persons or entities who fall within the classes of beneficiaries. There is no obligation on the trustee to make any distributions at all.
In both evidence in chief and in cross-examination, Mr Webster gave evidence that the education trust was a vehicle for distributing his residuary estate upon his death. In cross-examination the following exchange occurred between counsel for Ms Glover and Mr Webster:
Counsel:All right. And that was a trust that was – had – it was extant. It was going and it is not revealed in that schedule. Why was that do you know?
Webster:Yes, I do. Both myself and my accountant – the trust has never operated. It’s what I think is called a testamentary trust. When I die my funds flow into that and from there they flow to various charitable causes. The – it has only submitted one tax form which was zero. It doesn’t have a bank account. It has never traded. So and because it didn’t report doesn’t – it’s not obliged to report to the tax office both myself and I – I think my – my accountant, given that he didn’t report on it either, thought that that wasn’t something that was necessary to disclose.
A copy of Mr Webster’s most recent will is in evidence and it confirms that the residuary of his estate, after the payment of his debts, funeral and testamentary expenses and certain specific legacies, is to be held by NN Pty Ltd as trustee for the education trust.
The evidence is that, NN Pty Ltd, as trustee of the education trust, has never received any income for the purposes of the trust. Mr Webster’s evidence is that it has lodged one tax return and returned nil income. It holds no bank accounts. In cross-examination he said that NN Pty Ltd held no property as trustee of the education trust. However, upon further cross-examination he conceded that NN Pty Ltd held shares in two other companies, H Pty Ltd and MM Pty Ltd. Mr LL and Mr OO are the current directors of H Pty Ltd and Mr Webster and Mr LL are the current directors of MM Pty Ltd. NN Pty Ltd held all of the shares in H Pty Ltd. H Pty Ltd holds all of the shares in MM Pty Ltd. On that basis it was suggested to Mr Webster that the education trust had assets which were represented by the shares that NN Pty Ltd held in H Pty Ltd, which in turn held shares in MM Pty Ltd.
There was no dispute, however, that all of the property and financial resources held by H Pty Ltd and MM Pty Ltd had been fully set out in Mr Webster’s “statement of wealth”. In answer to that proposition, counsel for Ms Glover suggested that “what wasn’t disclosed was the existence of my client as a potential beneficiary”. However, schedule 2 was intended to deal with Mr Webster’s assets and financial resources, not those of Ms Glover. In those circumstances it is very difficult to understand an argument that because Mr Webster made no mention of the education trust, the trustee of which held no assets other than the shares that I have already described and in respect of which the underlying assets had been properly disclosed, he had somehow misrepresented his assets and financial resources. Schedule 2, as the terms of the deed make clear, was a statement of his assets and financial resources. It was suggested by counsel for Ms Glover that the parties had embarked upon “the undertaking of full disclosure”. It was suggested that somehow through “undertaking a full disclosure” it was incumbent upon Mr Webster to provide to Ms Glover information to the effect that she might be a beneficiary of the education trust and perhaps the MM Pty Ltd FF Superannuation (to which I shall come later).
Although Ms Glover asserted in some of her answers in cross-examination that the education trust was a financial resource and she disagreed with the proposition that it had “no money in it”, she produced no evidence to suggest that the education trust, or NN Pty Ltd as trustee of that trust, held any assets or had access to any financial resources whatsoever other than the shares that it held in H Pty Ltd.
The question to be determined for the purposes of Ms Glover’s argument is whether the failure by Mr Webster to disclose the education trust or NN Pty Ltd in schedule 2 to the parties’ financial agreement was a failure to disclose an asset or financial resource by him and thereby the commission by him of a misrepresentation as to his assets and financial resources. I find that the omission by Mr Webster to disclose the education trust or NN Pty Ltd in schedule 2 to the parties’ financial agreement did not misrepresent his assets or financial resources in the way contended for by Ms Glover. I reach that conclusion because:
a)Mr Webster’s interest (and Ms Glover’s interest if she has one) as a beneficiary under the education trust gives nothing more than an expectancy. A beneficiary to a discretionary trust has no fixed right or equitable interest in the trust assets or income: Gartside v Inland Revenue Commissioners [1968] 1 All ER 121; CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98. In the event that a beneficiary was to become disgruntled with the management of the trust, they might pursue an equitable chose in action designed to enforce an obligation upon the trustee to consider the beneficiary and a right to the proper administration of the trust: Gartside v Inland Revenue Commissioners (above); Kennon v Spry (2008) 238 CLR 366;
b)no rights of a proprietary nature exist in Mr Webster’s hands in respect of the assets, if any, of the education trust;
c)nor can it be seen as a financial resource because the trust has no assets and no income at the time the representation was made (i.e. when the agreement was signed). On the evidence the trust exists only to receive the residuary of Mr Webster’s estate in the event of his death; and
d)to the extent that it might be said that the shares held by NN Pty Ltd in H Pty Ltd represent an asset of the trust, the underlying assets that give value to those shares were disclosed in schedule 2 to the parties’ financial agreement. On the evidence, those shares have not produced any income.
Nor was the education trust a financial resource in the hands of Ms Glover because at best, all she had was a right to due administration of the trust. She asserted in cross-examination that “as a spouse I was entitled to have access to those assets”. For the reasons I have already expressed, her assertion is incorrect. In any event her assertion is a matter that goes to Ms Glover’s financial resources and not to those of Mr Webster. Mr Webster was not making a representation about Ms Glover’s financial resources.
The second matter said to constitute a misrepresentation by Mr Webster is the failure to identify that the assets held by the entity described in the statement of wealth spreadsheet in the column headed “MM Pty Ltd” were superannuation interests. MM Pty Ltd stands for MM Pty Ltd FF Superannuation. The trust deed establishing that superannuation fund is in evidence. There can be no doubt that superannuation is a financial resource for the purposes of the Family Law Act save that, in property adjustment cases it is to be treated as property: ss.90MC(1) and 90MC(2) of the Act.
The evidence shows that Mr Webster was the only employee of MM Pty Ltd who had an entitlement arising in the MM Pty Ltd. It was essentially his self-managed superannuation fund.
The first thing to note is that MM Pty Ltd is specifically disclosed in schedule 2 to the parties’ financial agreement. Ms Glover’s complaint is that the assets were not identified as superannuation assets. But in my view, there was no obligation to identify them as such. The purpose of the schedule was to set out Mr Webster’s “assets and financial resources” (see recital L. and clause 4 of the financial agreement). In the event that Ms Glover found the way in which Mr Webster disclosed his assets and financial resources in the schedule to be confusing or unclear, it was open to her, or those advising her, to seek clarification. There is no evidence that any clarification was sought.
It is of some moment to note that in her statement of wealth (schedule 1 to the parties’ agreement) Ms Glover does not identify the items listed therein as assets or financial resources.
In my view, Mr Webster’s failure to further describe the assets held by MM Pty Ltd as superannuation assets or to in some other way identify them as a financial resource rather than an asset in his hands was not a misrepresentation by him of his assets and financial resources in schedule 2 to the parties’ financial agreement.
For similar reasons, in my view, Mr Webster’s failure to describe any of the items set out in schedule 2 to the parties’ financial agreement as superannuation interests was not a misrepresentation by him of his assets and financial resources. By the recital that I have referred to above, and clauses 4 and 5 of the agreement, the parties acknowledged that their assets and financial resources were set out in schedule 1 and schedule 2 to the agreement respectively. To the extent that either party was confused as to which items listed in the schedules were assets and which were financial resources, each was equally able to make that enquiry of the other person. There is no evidence that either did.
I find that Mr Webster accurately set out his assets and financial resources in schedule 2 to the parties’ financial agreement notwithstanding that:
a)the existence of the “Mr Webster Education Discretionary Trust”, was not set out in that schedule;
b)the assets referred to in the column headed “MM Pty Ltd” in Schedule 2 of his personal financial statement were not identified as superannuation interests;
c)any of the assets in Schedule 2 of his personal financial statement were not identified as superannuation interests or financial resources.
In my view, there was no operative misrepresentation by Mr Webster arising out of the content of schedule 2 to the parties financial agreement or any omission by him to include reference to NN Pty Ltd, The Mr Webster Education Trust or that the assets of the entity described as “MM Pty Ltd” were held in a superannuation fund or might otherwise be considered superannuation interests.

Ms Glover’s legal advice

The relevant principles that bear on this issue were conveniently summarised by Judge Neville in Warner & Cummings (2017) 319 FLR 10 where his Honour said:
112. First, in Wallace & Stelzer, the Full Court (Finn, Strickland & Ryan JJ) said, at [101] – [103] (emphasis added):[: Wallace & Stelzer (2013) 283 FLR 126; (2013) FLC 93-566. See also the general discussion by the Full Court (Ryan, Murphy and Aldridge JJ) in Piper & Mueller (2015) FLC 93-686 regarding, inter alia, the sufficiency of the certificate. There was no mention or discussion of Piper & Mueller in submissions filed on behalf of the Applicant in the current matter; the Respondent’s submissions did refer to both of these Full Court decisions.]:
[101] The person who seeks to establish that a financial agreement is binding carries the onus of proof (Hoult & Hoult (2013) FLC 93-546. Applied to the facts in this case, this means that it fell to the wife to establish that the parties received legal advice in accordance with s 90G(1)(b). As a consequence of recital W and by tendering the signed agreement and the certificates, prima facie the wife was able to discharge her legal onus.
[102] However, once the husband put in issue whether the required legal advice had been provided, there was an onus on him to adduce evidence which would disprove or at least throw into doubt the inference or conclusion to be drawn from recital W and the certificates (being that legal advice had been given) (Hoult at [62] and [261]). Therefore, it was necessary for the parties to give evidence about the provision of advice, and evidence was also adduced from their respective solicitors.
[103] Although there appeared to be some suggestion in the husband’s case before us that in a case such as the present the court is required to consider the accuracy of the legal advice provided, we did not understand that issue to be ultimately pressed. But in any event we note that in the recent Full Court decision of Logan & Logan [2013] FamCAFC 151, and relying on Hoult, it was held that the only enquiry necessary is as to whether advice was given, and not as to the content of that advice.
113. Secondly, in Hoult v Hoult, the Full Court (Thackray, Strickland and Ainslie-Wallace JJ) noted the following in relation to the issues of, inter alia, the burden of proof, the operation and effect of “the certificate”, and the discretion of the Court under s.90G(1A) (the correlative provision to s.90UJ(1A) in Part VIIIAB of the Act).
114. At [62], Thackray J said (Strickland and Ainslie-Wallace JJ agreeing):
… once the party seeking to rely upon the agreement produces in evidence the certificate signed by the other party’s solicitor, there is a forensic obligation on the other party to adduce evidence which would disprove, or at least throw into doubt, the inference or conclusion to be drawn from the certificate (especially when read with the recital in the agreement to the same effect).
115. At [96] - [98], his Honour said (emphasis added particularly in relation to the accepted use made of recitals):
[96] … I am unable to accept the view his Honour expressed at [88] that “the certificate is, without more, insufficient to satisfy the onus of establishing that the relevant s.90G requirements have been met”. The certificate, when read with Recital N, should have been treated as prima facie evidence of compliance with the legal advice component of s.90G(1).
[97] Put another way, employing Windeyer J’s formulation in Purkess v Crittenden (supra at 171), the production of the certificate, read together with the recital, should have given rise to “an inference, a presumption of fact or a presumptio hominis” that the requisite advice had been given.
[98] … the production of the certificate (especially when read with the recital) had caused the evidentiary burden to pass to the wife. The inference properly to be drawn from the certificate (read with the recital) is that the advice required by s.90G had been given, even though there was no evidence of the content of that advice….
116. Then in relation to the specifics of “advice”, Thackray J said, at [100] – [101] (emphasis added):
[100] … the trial Judge did not pose the correct question. He set out to ascertain the content of the legal advice, whereas he needed only to be satisfied that the advice referred to in s.90G(1)(b) had been given. Thus, when his Honour found that the certificate provided “an insufficient evidentiary foundation”, it seems his Honour was requiring the husband to provide a foundation for something that did not have to be proved.
[101] The certificate, read with the recital, provided a sufficient evidentiary foundation for finding there had been compliance with the requirements of the Act. The question whether that foundation had been undermined by other evidence became confused with the question of the precise content of the advice. It is possible, if the questions had not been confused, that the answer would have been the same, but it would be unsafe to make that assumption.
117. In a similar vein, at [279], the joint judgment of Strickland and Ainslie-Wallace JJ recorded that:[FN 68: At [288], their Honours also confirmed, by reference to the Full Court’s decision in Parker that s.90G(1A)(c) “is not confined to “technical” breaches.”]
It also must not be forgotten that, as Justice Thackray has correctly pointed out in paragraph 100 above, it was only necessary for the trial judge to be satisfied that the advice referred to in s 90G(1)(b) had been given, and the certificate can be a sufficient evidentiary foundation for that finding; it was unnecessary for the trial judge to ascertain the “content of the legal advice”, and that was the error his Honour made.

The case before me was conducted, correctly in my view, on the basis that the certificate signed by Ms II, read with recital J, provides a sufficient evidentiary foundation for a finding that Ms Glover had received the legal advice required by s.90UJ(1)(b) of the Act. There is a forensic obligation on Ms Glover to adduce evidence which would disprove, or at least throw into doubt, the inference or conclusion to be drawn from the certificate, read with recital J. in the parties’ financial agreement. To the extent that Ms Glover sought to do that by demonstrating that whatever advice she did receive, it could not have been advice for the purposes of s.90UJ(1)(b) of the Act, she does not discharge the obligation upon her. That is because I am not satisfied that Mr Webster misrepresented his assets and financial resources in schedule 2 to the parties’ financial agreement as Ms Glover alleges. Nor am I satisfied that his failure to identify some of the items in schedule 2 as superannuation interests meant that Ms Glover was unable to receive the requisite advice for the purposes of s.90UJ(1)(b) of the Act. All of the assets and financial resources at Mr Webster’s disposal were specified in the schedule. It was not demonstrated in the evidence or in argument that the additional information Ms Glover argues ought to have been disclosed by Mr Webster would have changed the advice that she received in any way or that it had any significance. All of the assets and financial resources and the values and scribed to them were fully disclosed.
It seems, although this was not put explicitly in submissions made on behalf of Ms Glover, Ms Glover’s case is that leaving aside the question of Mr Webster’s asserted misrepresentation in schedule 2, she nonetheless did not receive the advice she was required to receive by s.90UJ(1)(b) of the Act. In paragraph 35 of her affidavit filed on 25 January, 2017 she asserts that Ms II did not advise her that by signing the agreement she was forgoing her rights under the Family Law Act to a property adjustment arising out of a future breakdown of the de facto relationship.
There are difficulties in accepting that assertion. First, Ms Glover does not say what advice she did receive from Ms II. Second, she did not call Ms II to give evidence about what advice she did give to Ms Glover. Third, in cross-examination the following exchange took place between senior counsel for Mr Webster and Ms Glover:
Counsel:All right. You knew, didn’t you, that you were foregoing rights at law, and at equity in respect of – sorry, we will go back one step. You knew that you were requiring him to forego all rights at law, and in equity in any – in respect of any property that you owned?
Glover:In my personal name, yes.
...
Counsel:And you knew that you were foregoing any rights at law, and in equity in respect of any property that was in his name?
Glover:Correct.
Counsel:All right. So you say that she failed to advise you that you would be foregoing your rights under the Family Law Act to a property adjustment arising out of a future breakdown of the de facto relationship, but she had told you, you were foregoing all your rights at law, and equity?
Glover:Well, the agreement does not deal with
Counsel:   Madam?
Glover:what happened in the future so therefore how could she possibly advise me?
I do not accept the assertion in Ms Glover’s affidavit of paragraph 35 (a) that she was not advised that she was forgoing her rights under the Family Law Act to a property adjustment arising out of a future breakdown of the de facto relationship with Mr Webster. Her answer to counsel in respect of this issue is argument designed to support the assertion in her affidavit. In the absence of evidence from Ms II that she did not give the requisite advice, I am not prepared to infer that the certificate she signed to the effect that she gave Ms Glover advice about her rights, entitlements and responsibilities in the absence of the deed of agreement between the parties and the manner in which those rights, entitlements and responsibilities were or might be affected by the deed was incorrect. In effect, Ms Glover is asking me to find that Ms II, a legal practitioner, signed a certificate that was not correct. That is a serious allegation. “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362.
I am satisfied, and I find, that before signing the agreement, each party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement.
I am satisfied, and I find, that each party has been provided with a signed statement by their respective legal practitioners about that advice as required by the Act.
I am also satisfied, and I find, that a copy of the statement given to each party by their legal adviser has been given to the other party.

Termination

Ms Glover argues that she has terminated the agreement on the basis of the misrepresentations that Mr Webster made about his assets and financial resources. She says that she was entitled to elect to terminate the agreement upon becoming aware of the operative misrepresentations and she has done so. However, given my findings in relation to the alleged misrepresentations, her case in this respect cannot succeed.
Ms Glover also argues that Mr Webster has repudiated the agreement, she has accepted his repudiation and terminated the financial agreement to an end. However, there are two problems with this argument.
The first is that the Family Law Act makes specific provision about how a Part VIIIAB financial agreement can be terminated. Section 90UL of the Act provides:
90UL Termination of financial agreement
(1)The parties to a Part VIIIAB financial agreement may terminate the agreement for the purposes of this Act only by:
(a)including a provision to that effect in another Part VIIIAB financial agreement as mentioned in subsection 90UB(4), 90UC(4) or 90UD(4); or
(b)making a written agreement (a Part VIIIAB termination agreement) to that effect.
On its face, s.90UL prescribes the only way the parties to a Part VIIIAB financial agreement may terminate it. There has been no attempt to terminate the parties’ financial agreement the subject of these proceedings in a way consistent with s.90UL. This matter, and the interaction between s.90UL and s.90UN was not the subject of any argument before me and so I do not decide this aspect of the case on the basis that the agreement between the parties could not be terminated by one or other of them except in accordance with s.90UL.
The second is that on the facts, Mr Webster has not repudiated the agreement. Ms Glover argues that Mr Webster repudiated the parties’ financial agreement by acting inconsistently with clause 8 of the agreement. Clause 8 is in the following terms:
8. If any property is acquired jointly during the relationship, the parties shall acquire that property as tenants in common in equal shares. The parties shall contribute equally towards any loan repayments if they are required to borrow money, either in relation to the acquisition of the property or in relation to the subsequent improvement of the property. They shall be equally liable for the repayment of the loan. Within 30 days of the date of separation, the parties shall do all acts and things and sign all necessary documents in order to sell all jointly acquired property. The manner of sale shall be determined by the proper officer of the Auctioneers and Valuers Association or his nominee. The net proceeds of sale of the property shall be equally divided after deduction of all sale expenses, including GST, selling agent’s fees, legal costs of the sale and any outstanding loan is secured against the property.
Ms Glover’s case is that in about the middle of 2011 she and Mr Webster commenced discussing the development of a management rights business venture that Mr Webster wished to purchase. He wished to use Ms Glover’s skills to develop that business. Ms Glover’s evidence is that she worked extensively in that business and Mr Webster kept assuring her that she was a co-owner and beneficiary in the business as a result of all of her hard work. Her case is that she and Mr Webster were to buy and run the management rights business as a partnership and she was encouraged in that belief by Mr Webster.
In November, 2011 Mr Webster established a company, G Pty Ltd. Mr Webster was the sole shareholder in that company but now the shares are held by H Pty Ltd. according to Ms Glover’s evidence the parties purchased some managements rights businesses using corporate entities, J Pty Ltd, K Pty Ltd and L Pty Ltd. Ms Glover was a director of at least J Pty Ltd and K Pty Ltd. Ms Glover asserts, and it seems to be the case that Mr Webster also established three other companies, M Pty Ltd, N Pty Ltd and P Pty Ltd each to hold management rights to particular real property developments. Ms Glover asserts, although it is in contention, that she “ran the businesses without any assistance from Mr Webster”. Her case is that she made considerable contribution to what she describes as the “Queensland businesses”.
In 2012 Ms Glover says that she identified a property to purchase and using a corporate vehicle called Q Pty Ltd the management rights for certain real property known as “JJ Properties” and the manager’s premises attached to the property. Ms Glover’s company, R Pty Ltd and Mr Webster’s company S Pty Ltd were the shareholders in Q Pty Ltd. Ms Glover was the sole director of that company. The parties, as directors of their respective corporate entities, entered into a shareholders’ agreement regarding the management of shareholdings in Q Pty Ltd.
Ms Glover argues that by reason of these business dealings with Mr Webster, Mr Webster evinced an intention not to be bound by clause 8 of the financial agreement because they purchased and became co-owners of property in a way or ways other than contemplated by clause 8.
However, the acquisition of the Queensland businesses via corporate vehicles is not inconsistent with clause 8 of the parties financial agreement because:
a)it is the corporate vehicles which have purchased the relevant property – the management rights and perhaps real estate attached to those rights;
b)the parties’ interests in those businesses are only indirect in the sense that they are shareholders in the corporate entities that conduct the businesses (where they are each shareholders); and
c)in most cases, however, the shareholders in the relevant companies are not the parties themselves, but corporate vehicles (that is to say separate legal entities) in which the parties directly or in directly have an interest.
Clause 8 is only engaged in the event that the parties acquired property jointly. Here the relevant property has not been acquired jointly.
I am not satisfied that Mr Webster repudiated the agreement as Ms Glover alleges and in those circumstances, there was no repudiation for Ms Glover to accept and thereby terminate (or to use her words rescind) the contract.
I find that the parties’ financial agreement has not been terminated.

Should the agreement be set aside?

Ms Glover argues that the agreement should be set aside by the Court pursuant to s.90UM of the Act for a number of reasons. I will deal with each of them seriatim.
First, she argues that the agreement was obtained by fraud because there was nondisclosure of material matter. I have dealt with the issue of nondisclosure and misrepresentation above. By reason of my findings about that matter, this ground cannot succeed.
Second, Ms Glover argues that the parties’ financial agreement ought to be found to be void, voidable or unenforceable because:
a)it is uncertain; or
b)enforcement of the agreement or reliance upon its terms by Mr Webster is unconscionable.
As to the issue of uncertainty, there is no doubt that ordinary contractual principles applied to the determination of whether a contract is void, enforceable, or effective: s.90UN of the Act. Ms Glover argues that, adopting the test set out in Meehan v Jones (1982) 149 CLR 571, I should conclude that the parties’ financial agreement is void for uncertainty because the language employed in the agreement is “so obscure and so incapable of any definite or precise meaning” that it is not possible to attribute any particular contractual intention to the parties. She makes that argument, however, in the context of the way in which “Mr Webster elected to disclose his wealth”. She contends that “a significant proportion of that “wealth” is not Mr Webster’ (sic) or that it is not yet Mr Webster’ (sic) or that it may to some extent become the wealth of Mr Webster or be distributed elsewhere and be lost to the pool”. She argues that the “absence of the Mr Webster Education Discretionary Trust is not an imprecision or a misdescription, it is something else entirely.” Because of that omission she argues that the parties’ financial agreement is imprecise and uncertain.
I reject that argument. As I have discussed above, schedule 2 to the parties’ financial agreement sets out Mr Webster’s assets and financial resources. It specifies those assets and financial resources with considerable precision and the absence of any reference to the education trust or NN Pty Ltd is immaterial.
As to the issue of unconscionability, Ms Glover argues that the “mis-described and un-described assets in Schedule two were such that it did not permit Ms Glover, nor her legal adviser, Ms II, to understand the true extent and nature of the holdings and interests that ought to have been on the schedule.” For the reasons I have given above, I reject that argument. In my view, there is no basis to find that the way in which Mr Webster’s assets and financial resources were described in schedule 2 to the parties’ financial agreement did not permit Ms Glover, nor her legal adviser, Ms II, to understand the true extent and nature of the holdings and interests.
Further, she argues that it is now unconscionable for Mr Webster to insist on the performance of the agreement when it is uncertain. But as I have already explained, the agreement is not uncertain in the way in which Ms Glover contends.
Finally, she argues that her contribution “to “after-acquired” property is so extensive (and so inconsistent with clause 8 of the A agreement) that it must be concluded that the parties have abandoned the Agreement, or that in any case it is unconscionable for Mr Webster now to insist upon the complete exclusion of Ms Glover from the pool of assets under his control.” However, this argument must be rejected. The parties’ financial agreement deals with two types of property acquired by the parties after the agreement was entered into. The first is property that either of the parties acquires “in [his/her] sole name with money accumulated from [his/her] sole earnings or other income received by [him/her] during the relationship (clauses 6 and 7 of the agreement). The other is property caught by clause 8 of the agreement (set out above).
If Ms Glover’s version of the facts about the acquisition development and improvement of the Queensland businesses is accepted by the Court then that property stands outside of the agreement. On Ms Glover’s case the Queensland businesses from which she argues Mr Webster is now trying to exclude her and in which he denies she has an interest, does not meet the description of the property specified in clauses 6 or 7 of the parties’ financial agreement. Neither is it property that is caught by clause 8 of the agreement because it was not property that was acquired by them. Indeed, even on Mr Webster’s view of the facts that is also so. It was property acquired by separate and distinct legal entities, albeit entities controlled by one or other of the parties.
Mr Webster’s submissions accept these propositions. Senior counsel for Mr Webster argued that clauses 6 and 7 of the parties’ financial agreement clearly provides that any property which either Mr Webster or Ms Glover acquired in his or her sole name with money accumulated from sole earnings or other income received by them during the relationship cannot be the subject of a claim in law or equity. However, to the extent that Mr Webster’s case seems to be that the relevant properties were purchased by him “in his sole name with money accumulated from sole earnings or other income received by him”, the evidence reveals the contrary. The relevant properties were not purchased by him in his sole name. They were purchased by other legal entities. He may have supplied the purchase price or some of it through borrowings, but that does not necessarily mean that he used money accumulated from sole earnings or other income received by him.
Both parties argue that a Part VIIIAB financial agreement does not have to deal with all of the parties’ property to be valid. It is sufficient for it to deal with any of the property of the parties or either of them: s.90UC(2)(a) of the Act. Moreover, both parties seem to be agreed that the effect of s.90SA(1) of the Act does not mean that a Part VIIIAB financial agreement that deals with only some of the property of the spouse parties to it thereby excludes either of them from recourse to the Family Law Act with respect to other property not dealt with by the agreement.
Thus, accepting Ms Glover’s argument that the Queensland businesses (and all that term encompasses) is not property dealt with by the parties’ financial agreement, that agreement is no bar to the Court making property adjustment orders in respect of it.
In my view, Ms Glover’s unconscionability argument fails.
Third, Ms Glover argues that the agreement has been frustrated because the parties conducted themselves and acquired property otherwise than in accordance with terms of the agreement and by doing so and in particular by entering into the shareholders agreement to which I have referred to above, Mr Webster thereby repudiated the agreement. I have dealt with that argument above. In my view he has not repudiated the agreement. In any event, on the facts contended for by Ms Glover she cannot succeed in an argument that the agreement has been frustrated.
The principles relating to the doctrine of frustration were recently collected in Berkley and Stanfield [2018] FCWA 119, where O’Brien J summarised the position (in respect of s.90KA of the Act) thus, which summary I gratefully adopt:
66.    Section 90KA provides that the question whether a financial agreement is “valid, enforceable or effective is to be determined… according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts”.
67.    Subsection 90K(1)(c) provides that if the Court is satisfied that in the circumstances that have arisen since the agreement was made, it is impracticable for the agreement or a part of the agreement to be carried out, the Court may make an order setting the agreement aside.
68.    The word “impracticable” is not defined in the Act and must be given its ordinary meaning. It does not mean “impossible”. By the same token, the proposition that an agreement is “impracticable to be carried out” is not the same as the proposition that it is impracticable to enforce the terms of the agreement.
69.    The concept of impracticability of carrying out an order (and, by analogy, the terms of an agreement) has been described as being “akin to the application of the doctrine of frustration in contractual matters”: In the Marriage of La Rocca (1991) FLC 92-222. It is not, however, identical to that doctrine.
70.    The most frequently cited definition of the doctrine of frustration is that by Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, at p 729:
“…frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract”.
71.    Along similar lines, Viscount Simon LC said in Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd [1945] AC 221 at p 228:
“Frustration may be defined as the premature determination of an agreement between parties, lawfully entered into and in course of operation at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by the law both as striking at the root of the agreement, and as entirely beyond what was contemplated by the parties when they entered into the agreement”.
72.    In Sanger & Sanger (2011) FLC 93-484, the Full Court reviewed the authorities and academic writings on the doctrine of frustration, noting with approval the following observations by the learned author of JW Carter, Carter on Contract, Lexis-Nexis Australia:
“It is not possible to define, except in general terms, what constitutes a frustrating event since, ultimately, this must depend on the terms of the contract and the circumstances of the particular case. However, it is clear that the event must have severe consequences, and not merely alter the circumstances in which performance is called for….. there must be a ‘radical’ change”.
73.    And later:
“Most cases of frustration involve an element of impossibility. Indeed, the scope of the doctrine has largely depended on the legal conception of ‘impossibility’. Apart from the obvious cases where performance by either (or both) of the parties is physically impossible, for example, because the subject matter of the contract has been destroyed, the legal concept of impossibility encompasses situation where performance is not literally impossible, but is ‘impracticable in a commercial sense’”.
74.    And further, in relation to foresight and contractual terms dealing with frustration:
“Whether or not a contractual provision deals with the event relied upon as frustrating the contract in such a way as to prevent the parties being discharged under the doctrine of frustration depends on the construction of the contract.
If the contract contains express provisions which indicates sufficiently the consequences which are to result from the occurrence of the event, the parties’ rights will be regulated by the express terms, and there will be no room for the operation of the doctrine”.

In my view Ms Glover’s contention that the parties’ financial agreement has been frustrated cannot be made good. The property upon which her evidence focuses is, as I have discussed above, property which stands outside of the parties’ financial agreement. The fact that they may have chosen to engage in business, howsoever described as Ms Glover alleges and thereby acquired H Pty Ltd or in H Pty Ltd interests in property is not an event which frustrates the operation of the parties’ financial agreement. In my view, that agreement is still capable of execution in respect of the matters with which it deals.

Conclusion

The agreement signed by the parties in November, 2010 which has effect from 1 July, 2010, is a Part VIIIAB financial agreement as defined in s.90UC of the Family Law Act 1975. No basis has been established for setting aside the agreement under s.90UM of the Act and it has not been otherwise terminated. The evidence demonstrates that the requirements of s.90UJ(1) of the Act are met.
I am satisfied that the Part VIIIAB financial agreement signed by the parties in November, 2010 is binding between them.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 16 November 2018