Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725

Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725

The heads of agreement was an immediately binding settlement within the first category in Masters v Cameron: clause 15 referred in the present tense to an existing full and final settlement, and the contemplated deed was to reflect that agreement rather than create binding obligations for the first time. The alleged non-disclosure of the lease did not disentitle Mrs Grant because the property could be sold subject to the tenancy and vacant possession could be provided if required. The heads of agreement was not a financial agreement under s 90C because it had immediate effect after the marriage had broken down and was not expressed to be made under that section. To the extent s 86A was...

Jurisdiction
Australia
Judgment Date
28 June 2012
Procedural Posture
Equity Division Proceedings Concerning Settlement of Matrimonial Property Disputes / Application by Mrs Grant for Orders Giving Effect to a Settlement Agreement Reached at Mediation
Outcome
Mrs Grant was entitled to specific performance of the heads of agreement and to relief giving effect to the mediation settlement.
Legal Topics
['breakdown of Marriage' 'matrimonial Property Settlement' 'specific Performance' 'mediation Settlement' 'heads of Agreement' 'masters V Cameron Categories' 'maintenance Agreement' 'financial Agreement' 'family Law Act 1975 (cth)' 'civil Procedure Act 2005 S 29(1)' 'equity Will Not Allow a Statute to Be Used as a Cloak for Fraud']
['family Law' 'equity' 'civil Procedure' 'contract Law'] ['breakdown of Marriage' 'matrimonial Property Settlement' 'specific Performance' 'mediation Settlement' 'heads of Agreement' 'masters V Cameron Categories' 'maintenance Agreement' 'financial Agreement' 'family Law Act 1975 (cth)' 'civil Procedure Act 2005 S 29(1)' 'equity Will Not Allow a Statute to Be Used as a Cloak for Fraud']

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Procedural Posture

Equity Division Proceedings Concerning Settlement of Matrimonial Property Disputes / Application by Mrs Grant for Orders Giving Effect to a Settlement Agreement Reached at Mediation

Legal Issues

  1. 1 ["Whether the heads of agreement signed by the parties' legal representatives at mediation was immediately binding or merely an agreement to agree within the third category in Masters v Cameron." 'Whether alleged non-disclosure of a lease by Mrs Grant constituted disentitling conduct excusing Dr Grant from executing a deed formalising the heads of agreement.' 'Whether the heads of agreement was unenforceable because it did not comply with Part VIIIA of the Family Law Act 1975 (Cth).' 'Whether the heads of agreement was a financial agreement under s 90C of the Family Law Act 1975 (Cth).' 'Whether the heads of agreement was a maintenance agreement rendered unenforceable by s 86A of the Family Law Act 1975 (Cth).' 'Whether s 29(1) of the Civil Procedure Act 2005 empowered the Court to make orders giving effect to the mediation agreement.' 'Whether equity would prevent Dr Grant from relying on the Family Law Act 1975 (Cth) as a defence to specific performance.']

Ratio Decidendi

The heads of agreement was an immediately binding settlement within the first category in Masters v Cameron: clause 15 referred in the present tense to an existing full and final settlement, and the contemplated deed was to reflect that agreement rather than create binding obligations for the first time. The alleged non-disclosure of the lease did not disentitle Mrs Grant because the property could be sold subject to the tenancy and vacant possession could be provided if required. The heads of agreement was not a financial agreement under s 90C because it had immediate effect after the marriage had broken down and was not expressed to be made under that section. To the extent s 86A was...

Court Disposition

Mrs Grant was entitled to specific performance of the heads of agreement and to relief giving effect to the mediation settlement.

Orders

  • ['Wife entitled to specific performance of heads of agreement.']