FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Where the parties entered into a Domestic Relationship Agreement under Part IV of the Property (Relationships) Act 1989 (NSW) – Where the Court finds the parties entered into a binding financial agreement for the purposes of section 90UJ of the Family Law Act 1975 (Cth) – Where the applicant seeks to have the Agreement set aside under sub-sections 90UM(1)(e) and 90UM(1)(h) – Where the respondent alleges that the parties entered into a verbal agreement which ultimately became the executed Agreement – Where the respondent argues that the applicant is precluded by principles of estoppel from seeking to have the Agreement set aside – Where the Court finds the parties did not enter into an agreement until they executed the Domestic Relationship Agreement – Where the Court finds the applicant cannot be estopped from seeking to have the Agreement set aside – Whether the respondent was under duress when executing the Agreement – Whether the respondent procured the Agreement by exercising undue influence over the applicant – Whether the respondent procured the Agreement by way of unconscionable conduct – Where the Court finds the respondent procured the Agreement by way of unconscionable conduct – Where the Court finds the respondent has failed to discharge his onus of establishing that the Agreement was fair, just and reasonable – Agreement set aside.
Contracts Review Act 1980 (NSW) s 7 Family Law Act 1975 (Cth) ss 90UJ, 90UM, 90UN Family Law Amendment (De Facto Financial Matters and Other Measures)Act 2008 (No.115 of 2008) (Cth) s 88 Property (Relationships)Act 1989 (NSW) ss 45, 46, 47
Pursuant to sections 90UM(1)(e) and 90UM(1)(h) of the Family Law Act 1975 (Cth), the Domestic Relationship Agreement dated 7 October 2005 between the parties be set…
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.
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AGLC
ZAGAR & HELLNER [2016] FamCA 224
Case
[2016] FamCA 224
Decision Date
CaseChat Overview and Summary
In the matter of *Zagar & Hellner*, heard by McClelland J, the applicant sought to set aside a Domestic Relationship Agreement entered into by the parties on 7 October 2005. The respondent contended that the agreement was binding under section 90UJ of the *Family Law Act 1975* (Cth) and argued that the applicant was precluded by principles of estoppel from seeking to have it set aside, asserting that a verbal agreement had preceded the executed document.
The central legal issues before the Court were whether the executed Domestic Relationship Agreement constituted a binding financial agreement for the purposes of the *Family Law Act 1975*, whether the applicant was estopped from seeking to set aside the agreement, and whether the agreement should be set aside under subsections 90UM(1)(e) and 90UM(1)(h) on grounds of duress, undue influence, or unconscionable conduct. The Court was also required to determine whether the respondent had discharged the onus of establishing that the agreement was fair, just, and reasonable.
McClelland J found that the parties did not enter into an agreement until the execution of the Domestic Relationship Agreement, thereby rejecting the respondent's submission regarding a prior verbal agreement and the application of estoppel. The Court further determined that the respondent had procured the agreement through unconscionable conduct and had failed to discharge the onus of proving the agreement was fair, just, and reasonable. Consequently, the Court found that the agreement should be set aside.
The Court ordered that the Domestic Relationship Agreement dated 7 October 2005 be set aside pursuant to sections 90UM(1)(e) and 90UM(1)(h) of the *Family Law Act 1975*. Pending further order, existing consent orders made on 9 April 2014 concerning property were to continue in effect.
Orders
Orders of the court
1.
Pursuant to sections 90UM(1)(e) and 90UM(1)(h) of the Family Law Act 1975 (Cth), the Domestic Relationship Agreement dated 7 October 2005 between the parties be set aside.
2.
Pending further order of the Court, the consent orders made by Senior Registrar Campbell on 9 April 2014 in respect of property are to continue.