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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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47 B A L A N C E M A R C H 2 0 1 8 F A M I LY L A W Pre and post-nuptial agreements Undue influence and unconscionable conduct In Thorne v Kennedy [2017] HCA 49 (8 November 2017) the High Court held that pre and post-nuptial agreements in substantially identical terms should be set aside. The appellant was an Eastern European woman with almost no assets. The respondent was an Australian property developer with assets of between $18 and 24m. The couple met online and the appellant came to Australia to be with the respondent. The respondent told the appellant that he would marry her if he liked her, but she would have to sign paper. The appellant did not see the content of the pre-nuptial agreement until about ten days before the wedding. She obtained independent advice to the effect that the agreement should not be signed and protected only the interests of the respondent. By this time, the wedding arrangements were made, including guests having flown in from overseas. There was also evidence that the appellant believed she had no choice but to sign the agreement, which she did four days before the wedding. The post-nuptial agreement in the same terms was signed shortly after the wedding. The couple separated approximately four years later. The appellant sought to have the agreements set aside as void for duress, undue influence or unconscionable conduct. The Federal Circuit Court at first instance set the agreements aside; those orders were overturned by the Full Family Court. The High Court reinstated the original orders. The Court upheld the factual findings of the primary judge and overturned a ruling of the Full Court that there was a fair and reasonable outcome available. The Court said that the vitiating factors were better described as undue influence than duress, so there was no need to assess the extent to which the pressure came from the respondent, nor whether the pressure exerted was improper or illegitimate. It was open to the judge to find that the appellant considered that she had no choice or was powerless other than to enter the agreements. Kiefel CJ, Bell, Gageler, Keane and Edelman JJ held that the agreements were void for undue influence and unconscionable conduct. Nettle J concurred. Gordon J held that the agreements were vitiated by unconscionable conduct only. Appeal from the Full Family Court allowed. A D M I N I S T R A T I V E L A W Appeal from Supreme Court of Nauru Migratione In HMF045 v The Republic of Nauru [2017] HCA 50 (15 November 2017) the High Court held that the Nauru Review Status Review Tribunal (Tribunal) failed to accord the appellant procedural fairness. The appellant is a Nepalese citizen who sought refugee status in Nauru after being transferred there under regional processing arrangements. The application was refused by the Secretary of the Department of Justice and Border Control of Nauru. An appeal to the Tribunal was dismissed. An appeal to the Supreme Court was also dismissed. In coming to its conclusion, the Tribunal referred to a report published on the website of the Nepalese army. The appellant argued that he had been denied procedural fairness because the report had not been put to him. He also argued that the Tribunal had applied the wrong test in determining his complementary protection claim. The Court held that the Tribunal had erred by not putting the appellant on notice of the significance that it proposed to attach to aspects of the report and giving him the opportunity to address the issue. The Court rejected the argument that the wrong test had been applied. There was no reason to decline relief. The decision was quashed and sent back to the Tribunal for reconsideration. Bell, Keane and Nettle JJ jointly. Appeal from the Supreme Court (Nauru) allowed. Andrew Yuile is a Victorian barrister, telephone (03) 9225 7222, email ayuile@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. mailto:ayuile%40vicbar.com.au?subject= http://www.austlii.edu.au