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WESTON & WESTON

Case [2015] FCCA 197 24 April 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WESTON & WESTON

[2015] FCCA 197

Catchwords:
FAMILY LAW – Application to set aside a financial agreement prepared pursuant to s.90C of the Act – alleged mistake of fact – impracticable to carry out the terms of the agreement – frustration of agreement – parole evidence as to common intention.

Legislation:

Family Law Act 1975

Family Law Rules 2004 No.375

Australian Estates Pty Ltd v Cairns City Council [2005] QCA 328
Black v Black (2008) 38 Fam LR 503
Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143
Chow & Harris & Anor [2010] FamCA 366
Codelfa Construction Pty Ltd v State Railway Authority of NSW (1982) 149 CLR 337
Cumber & Worswick [2014] FamCA 6
Davis Contractors Ltd v Fareham Urban district Council [1956] ACC 696
Equus Corp Pty Ltd & Anor v HGT Investments Pty Ltd [2004] HCA 55
Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679
Great Western Railway & Midland Railway v Bristol Corporation (Lord Atkinson and Lord Shaw) (1918) 87 LJ
Hamer v Hamer [2011] FamCA 1010
Jones v Dunkel (1959) 101 CLR 298
Kostres & Kostres [2009] FamCAFC 222
La Rocca & La Rocca (1991) FLC 92-222
Senior v Anderson (2011) FLC 93-470

Applicant:

MS WESTON

Respondent:

MR WESTON

File Number:

DGC 2113 of 2007

Judgment of:

Judge McGuire

Hearing dates:

14 August 2014

25 November 2014

29 January 2015

Date of Last Submission:

29 January 2015

Delivered at:

Melbourne

Delivered on:

24 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr Robinson

Solicitors for the Applicant:

J H Legal Pty Ltd

Counsel for the Respondent:

Mr Lewis

Solicitors for the Respondent:

Madgwicks

ORDERS

That the husband’s application to set aside the financial agreement dated 3 May 2007 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2113 of 2007

MS WESTON

Applicant

And

MR WESTON

Respondent

REASONS FOR JUDGMENT

Applications

The husband seeks to set aside a financial agreement made between the parties dated 3 May 2007.
The wife has a pending application for enforcement of the agreement. That application remains in abeyance until determination of the husband’s application which was raised by way of his Response.
The parties were married on (omitted) 1972 and separated on 1 February 2004. They divorced on 12 August 2007. There are two children of the marriage who are now adults.
The parties engaged in negotiations towards a financial agreement continuing from 2005 until the agreement was executed on 3 May 2007 pursuant to s.90C of the Family Law Act 1975 (Cth) (“the Act”).
The agreement provided inter alia at paragraph [14(i)]:
That the husband pay to the wife the sum of $1,100,000.00, within five years of the date of the Agreement (“the date”) in such amounts and at such times as may be agreed between the parties…

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 WESTON & WESTON

Details

AGLC: WESTON & WESTON [2015] FCCA 197
Case: [2015] FCCA 197
Decision Date: 24 April 2015

CaseChat Overview and Summary

In the matter of *Weston & Weston*, Judge McGuire of the Federal Circuit Court of Australia considered an application by the husband to set aside a financial agreement dated 3 May 2007. The wife opposed this application.

The central legal issue before the court was whether the financial agreement was valid and binding, or if it should be set aside on grounds that would render it void or unenforceable. This required the court to examine the circumstances surrounding the creation and execution of the agreement in light of the relevant provisions of the *Family Law Act 1975* (Cth).

Judge McGuire dismissed the husband's application to set aside the financial agreement. The reasoning for this decision, though not detailed in the provided text, would have involved a determination that the agreement met the statutory requirements for validity and that no grounds for setting it aside were established by the husband. The court found the agreement to be effective and binding on the parties.

Orders

Orders of the court

That the husband’s application to set aside the financial agreement dated 3 May 2007 be dismissed.

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.

Citations

AGLC Citation

WESTON & WESTON [2015] FCCA 197

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Kumber and Worswicke
[2014] FamCA 6 Para 2

…ying when one of the parties becomes suddenly poor, in normal business circumstances. [11] (1991) FLC 92-222 at p.78,538 [12] Cumber & Worswick [2014] FamCA 6 at [59]…
Anderson v Senior
[2013] HCASL 157

…8) 87 LJ Hamer v Hamer [2011] FamCA 1010 Jones v Dunkel (1959) 101 CLR 298 Kostres & Kostres [2009] FamCAFC 222 La Rocca & La Rocca (1991) FLC 92-222 Senior v Anderson (2011) FLC 93-470…
Black v Black
[2013] NSWSC 954

…Australian Estates Pty Ltd v Cairns City Counci l [2005] QCA 328 Black v Black (2008) 38 Fam LR 503 Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 Chow & Harris & Anor [2010] FamCA 366 Codelfa Construction Pty Ltd v State Railway Authority of NSW (1982) 149 CLR 337 Cumber & Worswick [2014] FamCA 6 Da…
Hamer and Hamer
[2011] FamCA 1010 Para 3

…ails fundamentally and again on the basis that I have not found any factual mistake. This argument consequently is also without merit. [13] [2011] FamCA 1010 at [17-19].…
Chow & Harris & Anor
[2010] FamCA 366 Para 2

…me to a decision of O’Reilly J at first instance in the Family Court dealing with the Parole Evidence Rule where her Honour in Chow & Harris & Anor [2010] FamCA 366 [8] at [36] said: Mr W made reference to the Parole Evidence Rule, citing Hoyts Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133 as disallowing evide…
Kostres & Kostres
[2009] FamCAFC 222 Para 4

…ld receive legal advice for the necessity of their intentions to be accurately and clearly reflected in the actual terms of the agreement. [2][2009] FamCAFC 222…
Australia Estates Pty Ltd v Cairns City Council
[2005] QCA 328 Para 1

…g out the same requirements as stated in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd.[4] The elements of common mistake are: [3] [2005] QCA 328 [4] [2003] QB 679 a) There must be a common assumption as to the existence of a state of affairs; b) There must be no warranty by either party that t…
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd
[2004] HCA 55 Para 1

…sion of the property). Counsel for the husband relies on a related decision of the High Court Equus Corp Pty Ltd & Anor v HGT Investments Pty Ltd [2004] HCA 55 [7] where their Honours at p 483 observed: The respondents each having executed a loan agreement, each is bound by it. Having executed the document and n…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
[1982] HCA 24 Para 2

…husband obliges consideration of the Parole Evidence Rule. Mason J in the High Court in Codelfa Construction Pty Ltd v State Railway Authority of NSW (1982) 149 CLR 337 [5] gives a helpful definition of the Rule as: The broad purpose of the Parole Evidence Rule is to exclude extrinsic evidence (except as to surroundi…
Brisbane City Council v Group Projects Pty Ltd
[1979] HCA 54 Para 1

…Counsel for the husband refers me to the judgment of Stephens J in the High Court in Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 [15] who also approved and adopted comments from the Court in Davis Constructions Pty Ltd and, in particular, Lord Reid at [25]: …The task for a Court, confronted with…
Jones v Dunkel
[1959] HCA 9 Para 12

…ed with something of a “scatter gun” approach, it is the issue of “factual mistake” which grounds each of his legal arguments. [10] Jones v Dunkel (1959) 101 CLR 298…
Jones v Dunkel
[1959] HCA 8 Para 12

…ng of a “scatter gun” approach, it is the issue of “factual mistake” which grounds each of his legal arguments. [10] Jones v Dunkel (1959) 101 CLR 298…
Hoyt's Pty Ltd v Spencer
[1919] HCA 64 Para 2

…r Honour in Chow & Harris & Anor [2010] FamCA 366 [8] at [36] said: Mr W made reference to the Parole Evidence Rule, citing Hoyts Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133 as disallowing evidence to alter or qualify a written agreement. The Parole Evidence Rule applies “unless it can be shown that the d…
[2003] QB 679
[2003] QB 679 Para 1

…irements as stated in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd.[4] The elements of common mistake are: [3] [2005] QCA 328 [4] [2003] QB 679 a) There must be a common assumption as to the existence of a state of affairs; b) There must be no warranty by either party that the state of affair…
Goss v Lord Nugent
110 ER 713 Para 2

…(except in cases of latent ambiguity) and antecedent negotiations to subtract from, add to, vary or contradict the language of a written instrument (Goss v Lord Nugent (1833) 110 ER 713 at p716.) [5] (1982) 149 CLR 337…
(1833) 110 ER 713
(1833) 110 ER 713 Para 2

…f latent ambiguity) and antecedent negotiations to subtract from, add to, vary or contradict the language of a written instrument (Goss v Lord Nugent (1833) 110 ER 713 at p716.) [5] (1982) 149 CLR 337…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention (from Para 4)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)