PANGAS v NEWJUR PTY LTD AND ORS [1995] NSWCA 356

PANGAS v NEWJUR PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and POWELL JJA 22 May 1995, 6 June 1995 [1995] NSWCA 356

FAMILY LAW — ENFORCEMENT OF APPROVED MAINTENANCE AGREEMENT — NO QUESTION OF PRINCIPLE On 2 May 1986 the Family Court approved a maintenance agreement between the appellant and his former wife, the second respondent, pursuant to s87 of the Family Law Act. The agreement involved the appellant transferring his half interest in a property to his former wife, together with the other half interest which he had contracted to purchase from the first respondent, which was a trustee for the children of the marriage. The appellant failed to complete the transfers, and the former wife took proceedings in the Family Court to enforce the agreement. The proceedings were cross-vested to the Equity Division to be heard with proceedings commenced by the trustee against the appellant. The appellant cross-claimed alleging that the maintenance agreement had been rescinded by the parties.

The trial judge accepted the evidence of the former wife, in preference to that of the appellant and ordered specific performance. On appeal Held: Dismissing the appeal (1) The Court can only disturb credibility based findings by a trial judge in limited circumstance, none of which were established in this case, Devries v Australian National Railways Commission (1993) 177 CLR 472. (2) The appellant has failed to establish that the judge's findings were factually incorrect or legally erroneous.

Priestley JA I agree with Handley JA.

Handley JA This is an appeal by Mr Pangas from orders made by Santow J in the Equity Division disposing of an application by the second respondent, the appellant's former wife, for the enforcement of a maintenance agreement approved by the Family Court on 2 May, 1985 pursuant to s87 of the Family Law Act as if it were an order of that court and his own cross application. The proceedings were cross-vested to the Equity Division to be heard with a summons by the first respondent, Newjur Pty Ltd, as plaintiff inter alia for specific performance by the appellant of a contract for sale dated 1 May 1985 relating to its half interest in 10 Milson Road, Cremorne. That plaintiff (the trustee) was the trustee of three settlements for the benefit of the children of the marriage.