Fink v Fink [1946] HCA 54

Fink v Fink [1946] HCA 54

By majority (Starke, Dixon, McTiernan JJ.), the plaintiff could not recover substantial damages for loss of the opportunity of reconciliation or consortium, as the claimed loss was dependent on contingencies and the volition of the defendant, and not a pecuniary loss flowing from the breach. No such loss was promised by the agreement. The pleadings seeking such damages were properly struck out. Only nominal damages for breach might be recoverable if actual temporal loss is proven. The assignment of chattels raised an arguable point as to being a void bill of sale, but the subsequent agreement may give independent title; this is not determined on the pleadings.

Parties
Appellant/plaintiff: Sima Fink; Respondent/defendant: Sydney Fink
Jurisdiction
Australia
Procedural Posture
Appeal / On Appeal From Interlocutory Orders of the Supreme Court of Victoria (full Court), Striking Out Parts of a Statement of Claim
Outcome
Appeal dismissed (by majority); Order of Full Court varied to restore order of Herring C.J.; leave to amend statement of claim granted.
Legal Topics
Breach of Contract, Assessment of Damages, Assignment of Chattels, Bills of Sale, Public Policy—separation Agreements, Implied Contractual Terms
Contract Law Family Law Damages Property Law Breach of Contract Assessment of Damages Assignment of Chattels Bills of Sale +2 more

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Parties

Sima Fink

Appellant/plaintiff

Sydney Fink

Respondent/defendant

Procedural Posture

Appeal / On Appeal From Interlocutory Orders of the Supreme Court of Victoria (full Court), Striking Out Parts of a Statement of Claim

Legal Issues

  1. 1 Whether damages for loss of opportunity for reconciliation and consortium are recoverable for breach of a separation agreement between spouses.
  2. 2 Whether damages are recoverable for early commencement of divorce proceedings in breach of agreement.
  3. 3 Whether the assignment of chattels constituted a void bill of sale for want of registration under the Instruments Act 1928 (Vict.).

Ratio Decidendi

By majority (Starke, Dixon, McTiernan JJ.), the plaintiff could not recover substantial damages for loss of the opportunity of reconciliation or consortium, as the claimed loss was dependent on contingencies and the volition of the defendant, and not a pecuniary loss flowing from the breach. No such loss was promised by the agreement. The pleadings seeking such damages were properly struck out. Only nominal damages for breach might be recoverable if actual temporal loss is proven. The assignment of chattels raised an arguable point as to being a void bill of sale, but the subsequent agreement may give independent title; this is not determined on the pleadings.

Court Disposition

Appeal dismissed (by majority); Order of Full Court varied to restore order of Herring C.J.; leave to amend statement of claim granted.

Orders

  • Order of Supreme Court set aside; order of Herring C.J. reinstated striking out paragraphs 3, 4, 5, 8, and 10.
  • Plaintiff granted leave to amend statement of claim before 7 February 1947.