WESTON & WESTON
[2015] FCCA 197
•24 April 2015
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 from time to time.
It is not disputed that the husband has paid an amount of $233,000.00 but that the balance remains unpaid.
Procedural history
I borrow the relevant procedural history from the parties’ written submissions which does not seem in dispute.
On 14 May 2013 I ordered that the husband particularise his argument to set aside the financial agreement.
By letters of 20 February, 11 April and 9 July 2014 the wife’s solicitors sought compliance with the Order of 14 May 2013.
In his Response of 13 May 2013 the husband sought an Order that the agreement was set aside pursuant to s.90K(1)(c) of the Act. That section provides:
(c) 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 husband’s affidavit filed 13 May 2013 deposes at [40]:
[40] Prior to this application both I and my lawyers had advised JH Legal that I was struggling (sic) funds and could not pay the amount $866,943.20 as demanded by Ms Weston. At that time I had not instructed my lawyers to look into the BFA in any great detail.
In that same affidavit at [33] and [36] it is deposed:
[33] I first went to see Ms U of Ballards Lawyers in late 2005, however, the BFA was not signed until May 2007. This delay was not as a result of any lengthy investigations taking place, but rather because, Ms U was extremely busy with other files and other matters…
[36] By the time it came to signing the BFA, all the documents on which I had relied had become outdated. Now shown and produced to me marked “W-6” is examples of outdated statements. I have no idea as to what my true position was, financially, as at the time I signed the BFA.
Under a heading “Other Anomalies” the husband says in his affidavit at [25]-[32]:
[25] I have noted recently, that the figure stated as representing the value of shares that Ms Weston had at the time is merely an estimate. I understand now that Ms U has made no effort of investigating or verifying this figure.
[26] I understand that it may seem strange that I didn’t know what assets my wife had accumulated during our marriage. However, Ms Weston and my marriage had effectively ended in 1992 and we only remained together for the sake of our daughters. Thereafter, we had very little to do with each other and although I provided for the home in general, we lived our separate lives.
[27] Similarly, I had no idea if the figure stated representing Ms Weston’s superannuation is correct or incorrect, because the file from Ms U contains no documentation confirming this.
[28] In addition to this I have the strong suspicion that the figures representing the Futures Options ($40,415.00), FX ($3,453.00), and (omitted) Fund have been double counted. I have this suspicion because I recall that, in around 2006, I sold these options as they were not giving me a good return and instead deposited the cash that I realized from the sale in the (omitted) Bank account ($332,000.00) therefore, I am of the belief that the (omitted) Bank amount represents the value amounts of the futures and derivatives after I had sold them. I am currently trying to retrace the history of these accounts so that I can be sure of my position.
[29] There is also an item listed as “Offshore investment of inheritance…” values at $240,000.00. This was investment that carried a lot of risk. In fact I honestly believed that I was duped into this investment by some associates that I had at the time. The investment has not yet yielded me any money as yet and there is a very good chance that it never will. I am advised by current accountant that this item should never have been valued at $240,000.00 because of the high amount of risk involved. I did not receive this advice at the time.
[30] In addition to the above, my lawyers have noted that there is no evidence of any investigations carried out by Ms U regarding Ms Weston’s assets such as personal savings, ability to earn income and value to Ms Weston’s parent’s (sic) estate. I also note that my aluminium dingy has been noted as being worth $1,500.00 but there is no mention of any jewelry that Ms Weston had at the time.
[31] I have now spoken to (omitted), who have for the past few years managed my accounts. (omitted) has undertaken preliminary investigations of my financials as at 2005 through to 2007. They have reported their findings in a letter to my lawyers. Now shown and produced to me marked “W-5” is a true copy of their letter.
[32] I note that (omitted) have stated that this has been a very preliminary assessment and that further work would needed (sic) to occur in order to ascertain what the future value of the family pool was as at the time of the BFA.
Further, under the heading “Properties and Vehicles” at [17]-[20]:
[17] In, relation to the properties, Ms U firstly asked me to organize kerb-side valuations of the properties. I remember asking her whether I should organize sworn valuations. Ms U replied by saying that will not be necessary. Now shown and produced to me marked “W-2” are copies of the valuations concerning the properties.
[18] The valuations were all over the place, so Ms U and Ms P decided that the properties should act as a contra against each other and both properties were listed as $650,000.00 in all draft BFAs thereafter.
[19] I was not sure whether this was the correct method of doing things, however I was guided by my lawyer.
[20] Similarly, the values for the vehicles were not determined by sworn valuations, but rather through an estimation of what I thought they were worth. Again, I trusted Ms U to verify these but I now know that she didn’t. Now shown and produced to me marked “W-2” is a true copy of the final BFA.
The hearing date of 20 February 2014 was vacated on the husband’s application and the husband was given leave to file further material and ordered to pay the wife’s costs thrown away. No further affidavit material was immediately filed. The wife says that the costs Order remains unpaid.
Again on the husband’s application, the adjourned hearing date of 7 March 2014 was vacated and the husband was given leave to issue a subpoena to his former solicitor who acted for him in respect of the agreement. The husband was again ordered to pay the wife’s costs thrown away. The wife says the costs Order remains unpaid.
In his outline of case document filed 4 April 2014 the husband’s argument is summarised thus:
·The husband was not given the advice required by s90(1)(b) of the Family Law Act 1975 and accordingly the agreement is not binding.
·The agreement was entered into based on a mistake in relation to the assets and liabilities of the parties at the time of making the agreement and should be set aside.
S.90(1)(b) of the Act provides:
(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 the advice was provided, to that party of making the agreement.
Despite the above, it did not eventuate that the husband’s solicitor was called to give evidence and the first limb of the husband’s argument set out in paragraph 17 above was not vigorously presented, if at all. The second limb being the reliance of alleged mistake of fact was pursued and provided the premise for most, if not all, of the husband’s various legal arguments.
Yet again, the hearing date of 9 April 2014 was vacated with the husband given leave to file further material. A further costs Order was made against the husband of the adjournment. The wife says that the costs Order has not been paid.
The hearing of this issue was set and commenced on 14 August 2014. The husband swore a further affidavit on 13 August 2014 raising the following issues:
(i) That certain jointly owned property was not dealt with by the agreement;
(ii) That there had been no Order made for the agreement to be enforced as though it were an Order of the Court; and
(iii) That no separation declaration had been made since the signing of the agreement.
The wife’s enforcement proceedings are not currently prosecuted before me and I need not deal with any issue as to whether or not an Order has been made for the agreement to be enforced as though it were a Court Order.
During the various adjournments of the husband’s application, he commenced proceedings in the Supreme Court of Victoria seeking the removal of the caveat placed by the wife against the husband’s real property.
Following the filing of this application, the husband served a Notice to Admit Facts dated 17 September 2014. The only fact sought to be admitted was:
That in entering into a financial agreement dated 3 May 2007 pursuant to section 90(C) of the Family Law Act 1975 it was the mutual intention of Mr Weston (“the husband”) and Ms Weston (“the wife”) to divide the net pool of matrimonial property 60% to the husband and 40% to the wife.
The wife did not respond to the Notice to Admit Facts.
Both parties gave evidence on affidavit and were cross-examined.
Given the lengthy and convoluted procedural history set out above, the husband’s application to set aside the agreement can be summarised to the issues and as set out in the husband’s Counsel’s written submissions as:
a) The agreement did not cover or deal with all the property of the parties, but was intended to;
b) That the agreement double counts some assets;
c) The parties to the agreement were mistaken to the value of the assets nominated on the agreement, whether those assets were in fact jointly owned assets or in fact property of the parties, their interests in those assets, and whether the nominated assets were recoverable, actual property, or simply hopes and expectations for the giving of effect to the intention of the parties. It will be submitted that both common and mutual mistake were evident;
d) That the express intention of the parties (and admitted fact before court) was to divide the net assets of their relationship and marriage 60% to the husband and 40% to the wife;
e) The agreement did not provide any provision or mechanism, or any proper mechanism, to separate or transfer any joint assets or their undisputed equity in same in accordance with the admitted intention of the parties;
f) The agreement was uncertain and should be declared void for uncertainty;
g) The agreement was otherwise void and/or voidable and/or unenforceable;
h) In circumstance that have arisen since the agreement was executed it is now impracticable to carry it out in accordance with the admitted intention of the parties;
i) That the certificates of legal advice provided to the parties are invalid in that they did not receive proper advice, or that such advice demonstrated reckless disregard for facts which should then have been obvious after disclosure and investigation.
j) That there is no separation declaration in circumstances where the amending legislation did not provided any transitional provisions to oust the application of the previous legislation in relation to the effect of same at the time of the agreement; and
k) The agreement should be set aside.
The Relevant Law
“Financial agreement” is defined at s.4 of the Act as:
means an agreement that is a financial agreement under section 90B, 90C, and 90D, but does not include an ante-nuptial or post-nuptial settlement to which section 85A applies.
The husband concedes that the agreement here is a financial agreement pursuant to s.90C of the Act. A financial agreement is rendered or declared binding if it satisfies the provisions of s.90G of the Act as follows:
Section 90G- When Financial Agreements are Binding
90G(1) subject to subsection (1A) a financial agreement is binding on the parties to the agreement, if and only if:
(a) The agreement is signed by all parties;
(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 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.
90G(1A) a financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c), (ca) are not satisfied in relation to the agreement; and
(c) a Court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (this regarding any changes of circumstances from the time the agreement was made): and
(d) the Court makes an Order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a Court.
In Senior v Anderson[1] Strickland J sitting in the Full Court observed at [88]-[89]:
Despite its wide circulation as a term of convenience, the expression “binding financial agreement” is not defined in the Act. Rather, as can be seen, the Act refers to and defines a particular form of agreement called a “financial agreement”. Further, as s4 makes plain, a “financial agreement” has two essential components. It must first be an “agreement”, and it must also be an agreement that is made “under section 90B, 90Cor 90D.”
“Agreement” is also not defined and thus carries its ordinary and natural meaning. Accordingly, just as with any agreement, principles of law and equity will apply so as to vitiate the agreement if the relevant circumstances are made out. So it is, in my view, with an agreement that purports on its fact, to be a “financial agreement”. That interpretation is reinforced by s90KA, noting that this section refers to “financial agreements” as distinct from “agreements”
[1] (2011) FLC 93-470
Section 90K sets out the circumstances on which the Court may set aside a financial agreement as follows:
90K(1) a Court may make an Order setting aside a financial agreement or a termination agreement if, and only if, the Court is satisfied that:
…(b) the agreement is void, voidable or unenforceable; or
(c) in the circumstances that have arisen since the agreement was made it is impractical for the agreement or a part of the agreement to be carried out;…
Section 90KA addresses the validity, enforceability and effect of financial agreements and termination agreements as follows:
90KA the question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the Court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect that contracts and purported contracts, and, in proceedings relating to such a contract, the Court;
(a) subject to paragraph (b) has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts of purported contracts, being proceedings in which the High Court has original jurisdiction; and
(b) has power to make an Order for the payment, of a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time the amount came or becomes due and payable, at a rate not exceeding a rate prescribed by the applicable Rules of Court; and
(c) in addition to, or instead of, making an Order or Orders under paragraphs (a) or (b), may Order that the agreement, or a specified part of the agreement, be enforced as if it were an Order of the Court.
The Full Court in Kostres & Kostres[2] at [127-128] observed, in respect of setting aside an agreement (s.90K) or dealing with validity, enforcement or effect (s.90KA);
[127] We are of the view, that while common law principles of construction undoubtedly apply and can be used to avoid uncertainty, the terms of the agreement must accurately reflect the intention of the parties at the time of the making of the agreement, and be unambiguous. In other words, the meaning to be given to expressions used in the agreement must be clear and their meaning certain. We note in this regard the discussion of Mason and Brennan JJ in Calverley v Green of the meaning to be attributed to the word “acquire”. Any term which a reasonable person would imply should be uncontroversial. These requirements are particularly important when the financial agreement is one made, as in this case, in contemplation of marriage and deals with unidentified property or financial resources which may be acquired or contributed to by parties in the future and subsequently divided between them, or retained by one party, in the event their marriage breaks down irretrievably.
[128] We accept that in determining whether the agreement is valid, enforceable or effective, the general law relating to contracts, as well as principles of equity, are to be applied. That must be done to give effect to the parties’ intention at the time of making the agreement, and in the context of this statute. The legislature has been careful to include strict requirements if a financial agreement is to be binding, including the requirement of independent legal advice. In those circumstances it is clear the legislature envisaged, because of the nature of these agreements and the removal of the Court’s supervisory role, that parties would 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
Undoubtedly the primary argument before me is that of the husband to set aside the financial agreement and relying on sections 90K and 90KA of the Act. Nevertheless, submissions from both Counsel touch upon the issue of whether or not the agreement is binding pursuant to s.90G? For example, at [33i] of his written submissions, Counsel for the husband raises the argument:
That the certificates of legal advice provided to the parties are invalid in that they did not receive proper advice, or that such advice demonstrated reckless regard for facts which should then have been obvious after disclosure and investigation.
Similarly at [33j]:
That there is not separate declaration in circumstances where the amended legislation did not provide any transitional provisions to oust the application of the previous legislation in relation to the effect of same at the time of the agreement.
Clearly, if the financial agreement is set aside then it is not binding. However, Strickland J in Senior v Anderson (supra) noted the important distinctions at [94]-[97] as follows:
[94] The Act in effect draws a distinction between agreements which are financial agreements (s4, s90B, s90C, s90D) and those financial agreements which are binding (s90G). Financial agreements can, like any other agreement, govern the actions of the parties to them and bind the parties to obligations, but do not oust the jurisdiction to the Court. Parties to an agreement that satisfies the definition of “financial agreement” are bound by its terms (or not bound as the case may be), just as they would be bound (or not bound) by any other agreement (s90KA) (see generally Australian Securities and Investment Corporations v Rich & Anor (2003) FLC 93-171).
[95] Section 90G is irrelevant to the contractual rights and remedies to the parties to an agreement that satisfies the definition of “financial agreement”. That section only becomes relevant when the issue is whether an agreement that satisfies the definition of “financial agreement” is effective for a specific statutory purpose, mainly to offer a bar to claims by either party pursuant to Part VIII of the Act (s71A). It will be so, if and only if, it is “binding” within the meaning of s90G.
[96] If an agreement, including an agreement that satisfies the definition of “financial agreement” under the Act, fails to effectively bar Part VIII claims (because of its failure to comply with the requirements of 90G and, as a result is not “binding” within the meaning of that section) the financial agreement can nevertheless have an effect. However, an agreement’s failure to be “binding” in the s90G sense renders its use in Part VIII proceedings to be limited; specifically it does not operate as a bar to Orders made under that Part (see e.g. Woodland v Todd (2005) FLC 93-217 at [37]-[39]).
[97] I consider this distinction to be important to the issues in this appeal. In particular, the distinction is important with respect to the application of any remedies in contract or equity which might apply to a financial agreement, including, specifically rectification. I also consider the distinction important to any discussion of, or the application of, what the wife’s Counsel called the “strict compliance test”.
His Honour then summarised the above at [103] as:
[103] I consider that there is a distinction between on the one hand, the formation, validity and enforceability of an agreement that is a financial agreement, to which financial and equitable principles apply, and, on the other hand, the statutory precondition for making an agreement “binding” within the meaning of the Act.
Consequently, I proceed on the basis of the application before me being that of the husband to set aside the financial agreement. He argues inter alia that the agreement is void or voidable and in so doing he references a number of the requirements under s.90G including opening the case with an argument (see husband’s Counsel’s written submissions at [33j]) that there is no separation declaration. This argument was not otherwise pursued in the final written or later oral submissions. Nevertheless, it was not formally abandoned. s.90DA of the Act deals with the requirement for a separation declaration. Leaving aside any argument as to the transitional provisions, the husband’s argument is dealt with by s.90DA (1A) which provides that the requirement ceases to apply where the spouse parties divorce. These parties divorced on 12 August 2007 some three months after the execution of the Agreement. Although any argument as to transitional provision was not particularised or pursued, it is clear that the relevant 2008 amendments had retrospective operation so as to capture this agreement made 3 May 2007.
Intention/Mistake
The husband served the wife with a Notice to Admit Facts dated 17 September 2014 and in the terms set out earlier in these reasons. There was no response. Rule 11.08(2) of the Family Law Rules 2004 No.375 (“the Rules”) provides that if a party served with a Notice to Admit does not respond with a Notice Disputing the Fact or Document then that party is taken to admit, for the purposes of the case only, that the fact is true or the document is genuine.
The husband argues that the express intention of the parties was to divide the parties’ net property 60% to the husband and 40% to the wife as evidenced by the fact now taken to be admitted.
He says that the clause whereby the husband settled a cash payment upon the wife of $1,100,000 within five years does not reflect or achieve a 60/40 division because there is “significant factual error” or “mistake” in the recitals to the agreement at paragraph [H] as to, firstly, the value attributed to particular assets and, secondly, the inclusion of assets not properly the property of the parties. His argument continues that this results in “ambiguity” and that where there is ambiguity in terms of the contract, evidence of surrounding circumstances is admissible to resolve that ambiguity. He says that the contra preferendum rule applies in that where there is ambiguity in the terms of the contract such ambiguity is resolved against the parties seeking the protection of the contractual agreement being, in this case, the wife. Specifically the success of the husband’s arguments relied on findings of mistake with there being no specific or discrete argument mounted that the financial agreement, in its current form, does not achieve the intended 60/40 division. Notably, however, the financial agreement is silent as to any percentage division, but rather it specifies a particular lump sum cash payment as well as altering the interests in the assets.
It can be seen, therefore, that the husband argues that evidence of the common intention should be admissible and that there is hence ambiguity evidenced by the mistakes of fact and hence the financial agreement should be set aside. It follows that the limbs of the husband’s argument (common intention, common mistake, impracticability and ambiguity) are inherently intertwined and mutually dependent.
Specifically, the husband says that values attributed to particular assets in recital of paragraph [H] were in error; were not net values; or were, in some instances, assets that were not those of the parties at all.
Clause 11 of the financial agreement states:
Each party has sound personal knowledge of the financial affairs of the other. And each party has been given the opportunity to make any necessary enquiries that he or she wishes to make, that each party has declined to do so.
Despite clause 11, the husband says that the agreement was prepared on materials provided by accountant(s) and in consultation with the solicitors and including the provision of balance sheets. His affidavit material clearly seeks to distance himself from fault if the Court is to find mistake-of-fact.
Paragraph [H] of the recital to the agreement gives a total of $5,388,292 as the value of the “asset pool”. That recital notes the parties as having no liabilities. The husband says that this figure formed the basis of the calculations towards a payment of $1,100,000 by the husband to the wife in accordance with their mutual intention to divide the property pool as to 60% to the husband and 40% to the wife. As mentioned above, absent mistake in the value or content of the pool set out in the recital then simple arithmetic suggests the husband’s alleged “common intention” to be achieved by the cash payment.
Notably, the financial agreement is far broader in its terms than a simple cash adjustment from a husband to wife. It provides for the transfer of various real property. It deals with superannuation interests, shareholdings and cash at banks. Further, at paragraphs [9] and [15] of the operative part of the agreement there is provision for maintenance for the wife pursuant to s.90E of the Act in a sum of $250,000.
In an evidentiary sense the husband relies largely on his affidavit filed 13 May 2013 and, in particular, annexure “W-5” to that affidavit being an email letter from a Mr S to the husband’s current lawyers dated 7 May 2013. Paragraph [31] of the husband’s affidavit gives the genesis to this email as:
I have now spoken to (omitted), who have for the past few years managed my accounts. (omitted) has undertaken preliminary investigations as to my financials as at 2005 through to 2007. They have reported their findings to a letter to my lawyers, now shown and produced to me marked “W-5” is a true copy of the letter.
I note that (omitted) have stated that this has been a very preliminary assessment and that further work would needed (sic) to occur in order to ascertain what the true value that the family pool was as at the time of the BFA.
The annexure “W-5” was admitted and read into evidence as the annexure to the affidavit under objection from the wife’s Counsel but with the caveat that the weight to be accorded to such evidence would be a matter for submissions and ultimately the discretion of the Court.
The husband does not depose in his affidavit as to when the mutual agreement between the parties as to a 60/40 division of their assets occurred. In any event, he relies on the admission pursuant to Rule 11.08(2) of the Rules. However, the issue of collateral evidence as to common intention is not argued separately from that of “factual mistake” given that the financial agreement prima facie distributes the recited property at value as to 60/40 of the husband.
The husband in his affidavit at paragraph [17] confirms that “kerb-side valuations” were relied upon. He refers to agreement as to particular values for the purposes of certain property [18].
“Commercial Interest”
At [21] of his affidavit the husband refers to his interest in (business omitted) Pty Ltd. He confirms that the value attributed was obtained by his brother and from balance sheets. The husband then references his later advice and presumably from the author of the email at “W-5”. The husband makes reference at [21] as to general accounting principles in respect of partners’ or directors’ loans. The husband does not claim expertise in accounting. He makes similar comment in respect to (omitted) Pty Ltd at [22] in relation to the reference in the recitals to the agreement as “Joint Ventures” with a value attributed of $394,015.00. The husband says simply at [24]:
There is a further figure of $394,015.00 in the BFA which is described as “Joint Ventures”. I cannot recall what this figure represents. Further, I have now obtained my files from the previous solicitor Ms U and confirm that there is no documentation in that file which can verify what that figure represents.
As to the item in paragraph [H] “shares owned in the wife’s sole name valued at E $10,000”, the husband says at [25]:
I have noticed recently that the figure stated as representing the value of shares that Ms Weston had at the time is merely an estimate. I understand now that Ms U has made no effort of investigating or verifying the figures.
And at [27] of the affidavit the husband says in reference to superannuation:
Similarly, I have no idea if the figure stated as representing Ms Weston’s superannuation is correct or incorrect, because the file from Ms U contains no documentation confirming this.
At [28] of his affidavit in respect of the item noted as “Future Options, FX and (omitted) Fund” the husband says:
In addition to this I have the strong suspicion that the figures representing the Futures Options ($40,415.00), FX ($3,453.00) and (omitted) Fund have been double counted. I have this suspicion because I recall that in or around 2006, I sold these options as they were not giving me a good return and instead deposited the cash that I realized from the sale in the (omitted) Bank account ($332,000.00). Therefore, I am of the belief that the (omitted) Bank account represents the futures and derivatives after I have sold them. I am currently trying to retrace the history of these accounts so I can be sure of my position.
No evidence was properly given or adduced to corroborate or confirm the husband’s suspicions or speculations.
At [29] and in respect of an item in the recital listed as “Offshore investment of inheritance” the husband says:
There is also an item listed as “offshore investment of inheritance…” valued at $240,000.00. This was an investment that carried a lot of risk. In fact I honestly believe that I was duped into this investment by some associates that I had at the time. The investment has not yielded me any money as yet and there is a very good chance that it never will. I am advised by current accountant that this item should never have been valued at $240,000.00, because of the high amount of risk involved. I did not receive this advice at the time.
The husband’s affidavit frequently deflects blame onto his solicitors as for instance at [30] where he says:
In addition to the above my lawyers have noted that there is no evidence of any investigations carried out by Ms U regarding Ms Weston’s assets such as personal savings, ability to earn income and value of Ms Weston’s parents’ estate. I also note that my aluminium dingy has been noted as being worth $1, 500 but there is no mention of any jewelry that Ms Weston had at the time.
Despite the indulgence of an adjournment and leave to issue a subpoena, no evidence was adduced from that solicitor.
The husband swore a financial statement in the proceedings before me on 1 October 2013. The implication is that he asks the Court to rely on or place weight on that evidence of his assets and liabilities including annexed notes. That, of course, at its highest can only be evidence of the applicant’s financial position as at 1 October 2013 being some six years after the execution of the financial agreement.
At the recital paragraph [H] of the financial agreement there is reference to an asset as “partnership of Weston & (omitted)- $1, 554, 581.00.” The only reference to the partnership in the husband’s material is at paragraph [23] where he says:
In 2006/07 I was also a partner in the Weston & (omitted) which was partnership between my brother Mr N, my sister Ms D and myself. The Partnership did not trade.
As to the companies (business omitted) Pty Ltd and (business omitted) Pty Ltd, Counsel for the husband submits that a company is an entity separate from an independent group of shareholders and the value of the company being its assets and interest held by the company and not its shareholders. Counsel properly notes, however, that Courts can look behind the “corporate veil” to consider whether a company is the “alter ego” or “puppet” of a party with consideration of the control of the company. Counsel’s written submissions then purport to give evidence as to the history of the said companies and as to the control of such companies. Submissions from Counsel do not, of course, constitute evidence.
In summary, therefore, I understand the husband to argue that there are mistakes in the values attributed to assets in paragraph [H] being the recital to the agreement and also as to the contents of the asset pool. He says this is a common mistake made by both parties in the negotiations and recitals leading to the financial agreement. He then argues that the parties’ common intention (evidenced by the admitted fact) was for a 60/40 division of the net property in favour of the husband. He says that the cash adjustment of $1,100,000 no longer gives effect to that common intention where there is fundamental factual mistake in the recital.
Counsel for the husband correctly, in my view, submits that whist rectification would normally be the remedy for mistake, such remedy is not available here where section 90G of the Act provides a statutory requirement for the parties to receive certified legal advice in respect of the agreement in its settled form in order for such agreement to be binding. Consequently, and whilst rectification might be the expected remedy under contract law, such remedy not being available here, then the husband argues that the only proper remedy is to set aside the financial agreement.
Counsel for the wife argues that the financial agreement should not be set aside (and presumably that it is binding). He says that there is no evidence of mistake. He argues that the admitted fact of common intention is not admissible but that, in any event, the lack of evidence as to mistake in values or content of the property pool cannot leave a Court satisfied that the cash adjustment of $1,100,000 does not constitute a settlement in the terms of any such agreement between the parties.
Consideration of the Argument as to Mistake/Common Intention
Counsel for the husband helpfully provided the Court with the essential features of a finding of common mistake as set out in Australian Estates Pty Ltd v Cairns City Council[3] setting 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 the state of affairs existed;
c) The non-existence of the state of affairs must not be attributed to the fault of either party;
d) The non-existence of the state of affairs may render performance of the contract impossible; and
e) The state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual venture is to be possible.
The nature of the arguments mounted by the 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 surrounding circumstances), including direct statements of intention (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
It is generally accepted, however, that evidence of surrounding circumstances is admissible to resolve an ambiguity. Importantly, however, such evidence is not admissible to raise an ambiguity and in this sense, the intention of the parties is prima facie shown on the construction of the very words of the contract.
In the matter now before me, the husband would urge me to find that there is ambiguity by reason of mistake of the facts alleged. Conversely, Counsel for the wife (aside from arguing there being no mistake) says this merely raises an ambiguity and hence suffers under the Parole Evidence Rule.[6]
[6] Great Western Railway & Midland Railway v Bristol Corporation (Lord Atkinson and Lord Shaw) (1918) 87 LJ Ch at pp.418-419;424-425.
The wife, therefore, says that the Parole Evidence Rule operates to exclude purported evidence of intention of a 60/40 distribution of property. She says that there is no ambiguity in the relevant terms of the agreement which refer to an unambiguous lump sum payment within a set period of time.
Counsel for the husband responds and relies on the exception to the Parole Evidence Rule where there is fraud, mistake or misrepresentation and, in this case, specifically as to mistake. He then argues “Non est factum” in that the agreement does not reflect the intention of the parties (as to a 60/40 division 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 not having being induced to do so by fraud, mistake or misrepresentation, the respondents cannot now be heard to say that they are not bound by the agreement recoded in it [22]. The parole evidence rule [23], the limited operation of the defence of non est factum [24] and the development of the equitable remedy of rectification [25], all proceed from the premise that a party executing a written agreement is bound by it… having executed the agreement, each respondent is bound by it unless able to rely on a defence of non est factum or able to have it rectified.
[7] [2004] HCA 55 at 472
Counsel for the husband also refers 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 evidence to alter or qualify a written agreement. The Parole Evidence Rule applies “unless it can be shown that the document was not intended as the complete record of their bargain”:143 per Issacs J. The Rule has no application however where, as here, such was intended but there plainly wasn’t an admission of something either agreed or intended to be included namely a default interest rate to specify in the schedule. Put shortly the Parole Evidence Rule does not apply in rectification cases the gist of which is that a written agreement whist intending to record what the parties agreed or intended has failed to reflect that and failed thus to record their common intention such that all evidence, necessarily, is admissible as to what the parties actually agree or what was their common intention: Cadelfa (above) at 352.
[8] [2010] FamCA 366
The husband here relies on the admission of fact. He says that it is an admission in the proceeding as to the parties’ mutual intention in respect to their agreement. He says that there is a mistake in the recitals. He says there is mistake in the value of the pool such that the lump sum payment of $1,100,000 does not represent the mutual intention of the parties. It follows, therefore, that the husband must show mistake as to do otherwise will cause his argument to logically fail in that the premise is not proven.
I am not satisfied, however, that the husband has established “mistake” and I return to the five elements of mistake referred to above.
Firstly, I can be satisfied as to a common assumption with respect to a state of affairs in that both parties assumed and relied upon the values and the list of assets in paragraph [H] of the recital.
Secondly, I can be satisfied that there was no warranty by either party that the state of affairs existed. Both parties were represented. Both apparently relied on the accountant’s advice and the balance sheets in respect of assets and values. Both had the acknowledged capacity to independently investigate.
Nevertheless, I consider the husband fails under the third criteria being that the non-existence of the state of affairs not be attributable to the fault of either party. The state of affairs here is constituted by the list of assets and values. This material was gathered by the husband with the help of his accountant and the assistance of his solicitor. This is the husband’s evidence. He says that the process continued over a lengthy period. He does not at any stage argue duress or incompetency. It was the husband who put the material forward to be accepted or rejected by the wife. She accepted the husband’s accountant’s materials and hence the husband’s representations. If fault be extended in its meaning to include negligence then the husband, in my opinion, seems caught by these criteria. It was he who chose to rely on his own professional advice. It was he who determined the extent of his voluntary forensic investigation. It follows, in my view, that should there be a mistake then he must accept blame/fault for such factual mistakes being included in the agreement.
Fourthly, I am not satisfied that the non-existence of the state of affairs would render the performance of the contract impossible. The term of the contract is for a payment of a set sum of $1,100,000 and is part performed by $233,000 having been paid. There is no evidence before me that performance of the contract is impossible.
Fifthly, the state of affairs being the common assumption as to the assets and values is not, in my opinion, a vital attribute of the consideration to be provided or circumstances which must subsist if the performance of the contract venture is to be possible. Again, a clear reading of the contract provides for a lump sum cash payment and not for adjustment on a percentage basis.
Even so, but perhaps more fundamentally fatal to the husband’s argument, is that there is no evidence in proper form or of such probative value so as to satisfy me that there was any mistake in respect of the asset pool or the values set out in part [H] of the financial agreement as of 3 May 2007.
I am dealing here with a financial agreement and not an Order of the Court. Indeed, a financial agreement can be binding, whilst ousting the jurisdiction of the Court, with respect to its subject matter. Orders for property settlement under s.79 of the Act have strict and well established statutory boundaries. Contributions of the parties, be they financial, non-financial, direct or indirect and to any of the acquisition, improvement or conservation of the property together with other matters under s.79(4)(d), (e), (f), (g) are also to be considered before final Orders adjusting the property are made with an overall consideration for justice and equity permeating the process. The Full Court in Black v Black[9] thought that any provision for agreements which oust the jurisdiction of the Court should, as a matter of public policy, at least have strict requirements of compliance. Later amendments to the legislation removed, to a degree, such strict requirements. As such, I must be careful not to consider the evidence here against any background of the matters under s.79 of the Act. Rather, it is for the husband to give or adduce evidence to satisfy me on the balance of probabilities that there is factual mistake in the agreement itself, or more particularly, in its recitals such that it does not give effect to the parties’ intention.
[9] (2008) 38 Fam LR 503
The husband’s evidence is primarily his affidavit sworn 8 May 2013 and referred to in detail above. The husband gave evidence and was cross examined but seemingly relied on this affidavit. Despite the deflection of blame to his solicitor in the affidavit, he did not call that solicitor to give evidence. At the interlocutory stage of these proceedings there was a clear inclination of an intention to do so. It is open for me to infer, therefore, that the evidence of that solicitor would not have assisted the husband’s case. [10] However, it is not necessary for me to draw that inference where it seems to me that the husband did not in the end seriously prosecute a case of negligence or incompetence by the solicitor, but rather one of actual objective “mistake of fact”. That is, whilst the husband’s Counsel opened 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
On consideration, I cannot place any great weight on the husband’s affidavit. The husband himself is not an expert in accounting or valuation procedure. The husband’s evidence (including his financial statement) is, at best, evidence only of valuations as at the date of swearing that document. It does not therefore assist in establishing mistake as at the date of the agreement in May 2007. The husband’s evidence is often unparticularised, vague, and speculative (as would be expected of a lay person). The husband has not, except for that of Mr S, adduced evidence from an expert of any acceptable forensic investigation of the materials relied on for the recitals to the agreement. The husband has not given or adduced evidence of any probity in respect of the actual control of company entities. In summary, the husband’s affidavit sworn 8 May 2013 is of little or no assistance to his case as a forensic exercise or of evidence of any probity. It constitutes in the main unsubstantiated lay opinion, speculation and irrelevancies.
The husband relies on the annexure “W-5” to that affidavit. Frankly, it is difficult to understand why the husband and his advisors should, in a matter of such apparent importance to him, rely on material infected with such evidentiary deficiencies. Firstly, being an email from a Mr S dated 7 May 2013 annexed to the husband’s affidavit, it is not material on affidavit and not therefore subject to testing. There is no evidence as to the qualifications or experience of the author of the email. There is no evidence of the author’s methodology. There is no specific evidence as to Mr S’s instructions and the materials made available to him. Surprisingly, Mr S’s email itself recognises its own deficiencies where he says in the last paragraph:
Please note that this is only preliminary assessment of the position as we would require more time to conduct a more thorough analysis of the financial information of all relevant entities. We also have doubt as to whether the financial data that was relied upon as at 30 June 2005 was the relevant data that should have been relied upon to determine the parties financial position given that the agreement was executed near the end of the financial year ended 30 June 2007. From our preliminary view of the financial data we believe that there may have been a significant change in the financial position in the two year time frame between 30 June 2015 and 30 June 2007 which may have cause the parties financial positions to have significantly deteriorated in that time frame.
As an unqualified, imprecise and speculative hearsay document, I can place no real weight on annexure “W-5” to the husband’s affidavit.
Consequently, I am not satisfied that the husband has given or adduced any evidence that there was factual mistake in the content of the asset pool or in the valuations. As such, not being satisfied as to mistake, it is unnecessary for me to consider further, the issue of common intention or the admission of the “admitted fact”. Put simply, the financial agreement provides for a lump sum payment of $1,100,000. The material before me does not satisfy me, in any event, that such a payment does not constitute a 60/40 division of the property.
Husband’s Alternative Argument
The wide definition of property in s.4 of the Act includes all property of the parties or either of them as they may be entitled to, in possession or in reversion. This includes equitable interests. Therefore, for the purposes of the Family Law Act 1975 each of the husband and the wife prima facie hold an equitable interest in all of the property of either of them or the other.
Clause 16 of the financial agreement provides:
Unless otherwise specified in this Agreement and except for the purpose of enforcing its items:
a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;
b) each party forgoes any claim they may otherwise have to any superannuation benefit belonging to or earned by the other;
c) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Agreement;
d) any joint tenancy of the parties in any real or personal estate is hereby expressly served.
The husband says that paragraph [H] recites an asset being:
Account held with (omitted) Bank in the name of Weston Investments & Weston Investments Pty Ltd .
There is no other reference to this company or its assets in the recitals. The operative part of the agreement does not purport to deal with the company or its assets. The husband says that clause 16 does not transfer or endow either party with any property other than that dealt with in the specific terms of the agreement. It therefore leaves such property as it is. There is no transfer of what would be an equitable interest under the Act. The husband’s Counsel suggests that there was absence from the agreement of the usual catch/ clause such as:
… The wife hereby transfers all her right, title and interest, including any interest in equity to the husband of the following property, entities and companies for his sole use and benefit absolutely and to the exclusion of the wife…
The husband’s Counsel is correct in that any property of the parties not dealt with by the financial agreement falls to be considered under s.79 of the Act. The implications as I understand the argument are:
i) The parties intended to deal with all of their property (pursuant to clause 8 or the operative part of the agreement) on a division of 60/40% in favour of the husband (pursuant to the Admitted Facts);
ii) The agreement does not deal with all of the assets including those of the company, (business omitted) Pty Ltd, other than a particular bank account;
iii) Therefore, the common intention of the 60/40 division is not achieved;
iv) Therefore, the agreement should be set aside.
This argument fails for the same reason as the husband’s primary argument of “common mistake”. The husband’s affidavit sworn 8 May 2013 simply does not reference the company (business omitted) Pty Ltd. Annexure “W-5” being the email from Mr S that similarly does not reference that company. I therefore have no knowledge of, if any, other assets of that company. There is, simply, nothing before me to suggest any assets were omitted from the recital to the agreement. Indeed, the reference to the (omitted) Bank account suggests that the parties did, in fact, put their mind to this company and its assets when preparing the agreement. At [2-5] of his affidavit filed 13 August 2014 the husband deposes:
[2] I make this further affidavit to bring to the attention of the court further and ongoing disclosure made by me through my solicitors to Ms Weston’s solicitors and to update that information to the court.
[3]Over the last two weeks, I have disclosed a number of documents to Ms Weston and provided her solicitors with electronic copies. These documents are too voluminous to annex to this affidavit however I will produce them at the hearing of this matter.
[4] They are documents which relate to jointly owned property, assets and investments which were known to both of us at the time we entered into a financial agreement in 2007.
[5] they are referred to in the financial agreement in recital “H” of that agreement variously and generally under the following headings-
(omitted) Bank Account
(omitted) Bank Account
Future Options
FX
(omitted) Fund
Weston Trust Account
(omitted) Bank Account
Weston Investments Pty Ltd
As the husband says in his affidavit, the folder of documents is “voluminous”. I have no record of them, however, being tendered as evidence. In any event it is not for the Court to conduct a forensic accounting exercise. At its highest I have only the husband deposing the discovery of numerous documents. The bold statements at paragraph 5 and 6 of the affidavit could not of themselves lead to satisfy a Court of factual errors or assets omitted from the recital. Forensically there is no connect between the assets and the (untendered) documents. Consequently, I find no merit in this argument of the applicant.
Impracticability
Further, in the alternative, the husband argues that it is impracticable for the agreement to be carried out. He relies on s.90K(1)(c) which states:
…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;
Kay J in La Rocca & La Rocca (1991) FLC 92-222 [11] dealt with the notion of impracticability within a s.79A application. The principles are, however, the same in respect of the application now before me.[12] Kay J stated:
My own view is that the concept of impracticability, as referred to in this section, is akin to the application to the doctrine of frustration in contractual matters. What the Parliament is concerned with and what ought to be concerning to the Court is the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to.
…now, in my view, what the appropriate application of s79A(1)(b) ought to be is that circumstances what have arisen in that it becomes impracticable to carry out the orders are circumstances that could not reasonably have been contemplated and that in such circumstances, whilst impossibility is not the test and impracticability is, it may then become just and equitable to change the orders. The potential insolvency of one of the parties in the future is not such a matter, in my view. In every case before the Court property values may change, go up or down, business may flourish or not flourish, the vicissitudes of life may affect one of the parties…
…The commercial failure of one of the parties post the making of the orders which will lead to the orders not being capable of being fully implemented does not, in my view, amount to a basis to set the order aside. That situation leads to a problem with enforcement. It may be that the bankruptcy laws will have to take over, but it is not an appropriate basis for having the orders set aside and fresh orders being made at the hest of the party who has suffered the financial embarrassment. There is no provision in the legislation to have matters looked at a second time if one of the parties suddenly becomes wealthy and, in my view, I do not see that the legislation can be appropriately read as applying 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]
This, of course, is not an enforcement application. Enrichment or impoverishment of the parties subsequent to the agreement is not relevant. Current financial circumstances of a party are not reason to set aside the agreement. The husband here again argues “mistake” as to the pool and/or values which would make it unjust and/or inequitable to carry out the terms of the agreement. That is, circumstances have arisen such that it becomes impracticable to carry out the agreement in terms whereby the parties’ common intention is achieved by the lump sum payment to be made to the wife in that she would be unjustly enriched. In support of that proposition Counsel for the husband refers me to the decision of Cronin J in Hamer v Hamer.[13] The facts of that case are, in my view, easily distinguishable but arguably may have some relevance to “fundamental mistake”. In any event the argument fails 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].
Yet further, the husband argues that the agreement/contract here is frustrated. Mason J in Condelfa adopted Lord Radcliff’s description of “frustration” in Davis Contractors Ltd v Fareham Urban district Council [1956] ACC 696 [14] as follows:
…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 is undertaken by the contract… it was not this that I promised to do.
[14] [1956] ACC 696 at p.723
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 the parties’ contract, is to determine, on the true construction of the terms of the contract, read in the light of the nature of the contract and of the relevant surrounding circumstances when the parties made it, “whether the contract which they did make is, on its true construction, wide enough to apply to the new situation; if it is not, then it is at an end.” Frustration he describes as “the termination of the contract by operation of law on the emergence of fundamentally different situation” (1957) AC, at p 723. What I understand his Lordship’s approach to involve, is, then a comparison between the contemplated situation, as revealed by the terms of the contract at its true construction, and the situation in fact resulting from the frustrating event. If they be fundamentally different “the contract is frustrated subject, of course, to the frustrating event not being the fault of the parties seeking to rely upon the document (at p160)”.
[15] (1979) 145 CLR 143
The husband’s argument yet again relies on factual mistake as to the value of the assets or the contents of the pool and hence, he says, in respect to the parties’ mutual agreement to a 60/40 division of the net property pool. I have not found any such mistake. I cannot be satisfied as to any “fundamentally different situation”. The argument therefore fails.
Conclusion
I therefore make the following specific findings in respect to the husband’s submissions:
i) The agreement is not void or voidable by reason of common mistake;
ii) I am not satisfied on the evidence as to any factual mistake in paragraph [H] of the financial agreement;
iii) I find no ambiguity in the terms of the contract and it is therefore not void or voidable by reason of uncertainty;
iv) I am not satisfied that the agreement does not reflect the intention of the parties. Not being satisfied as to mistake, I am not satisfied that this agreement does not, in fact, provide for a 60/40% distribution of the property pool as set out in the recitals in paragraph [H] then distributed pursuant to the terms of the agreement;
v) The agreement is not frustrated by reason of factual mistake or otherwise; and
vi) I am not satisfied that carrying out the terms of the contract is impracticable in achieving the common intention of the parties or that such terms would unjustly enrich the wife.
The application to set aside the financial agreement is dismissed.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 24 April 2015
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