ZAGAR & HELLNER

Case [2016] FamCA 224


FAMILY COURT OF AUSTRALIA

ZAGAR & HELLNER [2016] FamCA 224

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

Aboody v Ryan [2012] NSWCA 395
Australia and New Zealand Banking Group Limited v Karam (2005) 64 NSWLR 149
Black & Black (2008) FLC 93-357
Blomley v Ryan (1956) 99 CLR 362
Carmel-Fevia & Fevia(No. 3) [2012] FamCA 631
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Fevia & Carmel-Fevia (2009) FLC 93-411
Hoult & Hoult (2011) FLC 93-489
Hoult & Hoult (2013) FLC 93-546
Hyman v Hyman [1929] AC 601
Raleigh & Raleigh [2015] FamCA 625
Saintclaire & Saintclaire [2015] FamCAFC 245
Scammell & Nephew Ltd. v Ouston [1941] AC 251
Selen & Selen and Ors [2011] FamCA 310
Senior & Anderson (2011) FLC 93-470
Tulloch (deceased) v Braybon & Ors(No. 2) [2010] NSWSC 650

APPLICANT: Ms Zagar
RESPONDENT: Mr Hellner
FILE NUMBER: SYC 6187 of 2013
DATE DELIVERED: 8 April 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: McClelland J
HEARING DATE: 16 - 17 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Petrie
SOLICITOR FOR THE APPLICANT: Court Legal
COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC with

Ms Giacomo

SOLICITOR FOR THE RESPONDENT: Manning Lawyers

Orders

  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…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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