Abikhair v Ali
[2018] VSC 93
•2 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2017 04555
| RAYMOND LESLIE ABIKHAIR | First Plaintiff |
| - and - | |
| RLA INVESTMENTS PTY LTD (ACN 120 432 939) | Second Plaintiff |
| - v - | |
| IMAN ALI | Defendant |
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JUDGE: | DERHAM AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2018 |
DATE OF JUDGMENT: | 2 March 2018 |
CASE MAY BE CITED AS: | Abikhair & Anor v Ali |
MEDIUM NEUTRAL CITATION: | [2018] VSC 93 |
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PRACTICE AND PROCEDURE – Application to stay execution of a warrant of possession – Applicable considerations – Judgment given to plaintiffs to recover possession of land pursuant to summary procedure – Stay of execution given – Application made in Family Court of Australia to set aside Deed of Settlement pursuant to which defendant agreed to give possession of the land to plaintiffs – Stay refused – Supreme Court (General Civil Procedure) Rules 2015, r 66.16 – The inherent jurisdiction of the Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr L Glick QC with Mr C Juebner | SBA Law |
| For the Defendant | Ms V Plain | Australian Family Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
The proceeding................................................................................................................................... 1
Stay application.................................................................................................................................. 4
Applicable law.................................................................................................................................... 7
Affidavit in opposition...................................................................................................................... 8
Analysis................................................................................................................................................ 9
Conclusion......................................................................................................................................... 14
HIS HONOUR:
Introduction
This is an application by the defendant pursuant to r 66.16 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), or the inherent jurisdiction of the Court, to stay the operation of orders of the Court made on 30 November 2017.[1] The order was that the plaintiffs recover possession of the property at 8 Meridian Close, Sanctuary Lakes, Victoria (‘the Land’).[2] A stay of execution of that order for 60 days was made.
[1]Summons of the defendant filed 23 February 2018. The order of 30 November 2017 was amended, pursuant to r 36.07 of the Rules, by Order made on 25 January 2018 to correct errors.
[2]The land described in Certificate of Title Volume 10852 Folio 751.
The proceeding
By originating motion filed 13 November 2017, the plaintiffs made application pursuant to O 53 of the Rules to recover possession of the Land.[3] The application was supported by the affidavit of the first plaintiff, Raymond Leslie Abikhair (‘Abikhair’) sworn 10 November 2017. Abikhair is the sole director and shareholder of the second plaintiff (‘RLA’). RLA became registered proprietor of the Land on about 24 October 2011. Shortly afterwards, according to the evidence of Abikhair, he allowed the defendant Iman Ali (‘Ms Ali’) to reside on the Land with her two school aged children, whilst he continued to live in Geelong, but stayed at the property from time to time and had what he describes as an infrequent relationship with the defendant.
[3]Being the land more particularly described in Certificate of Title Volume 4832 Folio 263.
On or about 23 June 2016, Ms Ali commenced family law proceedings against Abikhair in the Federal Circuit Court of Australia. The proceedings were subsequently transferred to the Family Court.[4] The evidence she gave in the affidavit sworn in support of that application (which was an Initiating Application for property orders and spousal maintenance filed contemporaneously) included claims that she was Abikhair’s de facto wife, that he purchased the Land for her and her children and that he lived with her and her children at the Land from October 2011 to March 2014, and perhaps longer.[5]
[4]Family Court Proceeding 5895/16 commenced on 28 June 2016.
[5]Affidavit of Iman Ali made 27 June 2016 in the Family Law proceeding, at [7]-[13], being exhibit IA-3 to the affidavit of Iman Ali made 23 February 2018 in this proceeding (‘Ali Affidavit’). The Ali Affidavit was made through the interpretation of an interpreter who spoke both the English language and the Amharic language, as was the affidavit in the family court proceedings.
On 5 May 2017 Ms Ali and Abikhair entered into a Deed of Settlement of the family law proceedings (‘the Deed’). The firm Kenna Teasdale acted for Ms Ali throughout that proceeding and in the negotiation for entry into the Deed. Under the Deed Abikhair agreed, amongst other things, to pay to Ms Ali the sum of $170,000.00 and Ms Ali agreed to deliver vacant possession of the Land on or before 31 October 2017. There are other extensive terms of the Deed that are not presently relevant. There is no indication that the Deed was translated or interpreted to Ms Ali by an interpreter, but it does contain a certificate of the solicitor acting for Ms Ali.
By that certificate the solicitor certified that:
(a) she had independently advised Ms Ali of the effect of the Deed;
(b) she had explained to Ms Ali her obligations under the Deed;
(c) Ms Ali had told the solicitor that she understood the nature and effect of the Deed and the obligations and benefits of signing it;
(d) it appeared to the solicitor that Ms Ali had such an understanding;
(e) Ms Ali stated to her that she signed the document freely, voluntarily and without pressure from any person.
In addition to signing the Deed, Ms Ali also signed a minute of consent order on 5 May 2017 which recited that she and Abikhair had reached a confidential settlement, that Abikhair denied that he was in a de facto relationship and that the Family Court had jurisdiction to determine the dispute, and Ms Ali maintained that she and Abikhair were in a genuine de facto relationship but had agreed to a settlement on a commercial basis to avoid the expense and stress of proceeding to a contested hearing, having had the benefit of legal advice about the nature and effect of the obligations and benefits flowing from the settlement and having agreed to settle freely, voluntarily and without pressure from any person. The order was made on 29 May 2017 at which time, I was informed by Counsel for the plaintiffs, both parties were required to attend at Court.
The application by Abikhair to recover possession of the Land came on before me on 22 November 2017. At that time Counsel appeared for the plaintiff and Ms Ali appeared in person with the assistance of a solicitor from Frenkel Partners as amicus curiae, a Mr J Edgar.
In the course of that hearing I was satisfied that, by his affidavit, Abikhair had established that RLA is and was the registered proprietor of the Land, that Ms Ali was in occupation of it, and that the second and third defendants, Ms Ali’s children, being minors, were not necessary parties and, in any event, had not been served with the originating motion or supporting affidavit in accordance with r 6.04(b) of the Rules.
I also found that, so far as could be told in the course of the hearing, Ms Ali spoke little of the English language and had indicated she did not understand that by the Deed she had agreed to give up possession of the Land. Having regard to the Court’s duty to a self-represented litigant, I adjourned the further hearing of the application to 30 November 2017 so as to ensure that the proceeding was conducted fairly and Ms Ali had appropriate assistance of an interpreter to understand what was happening and also, if possible, a lawyer. I also ordered that the second and third defendants be removed as defendants in the proceeding and the title of the proceeding be amended accordingly.
The proceeding came back before me on 30 November 2017. Ms Ali attended and was assisted by a Mr A Nega, a McKenzie Friend, who was able to interpret for her.
Through the interpretation of Mr Nega, Ms Ali made clear that although she was represented in the Family Court proceedings and in relation to the entry into the Deed, she did not understand that she had to give up possession of the Land under the terms of the Deed. She said she believed that she had been gifted the Land and that payments under the Deed were compensation for assaults she alleged Abikhair had committed against her and in consequence of the domestic relationship she alleged she had with Abikhair. Ms Ali acknowledged that she had received payment under the Deed, but stated that the sum received was $150,000.00 which may be explained by the retention by her solicitors of a part of the $170,000.00. The money was spent on paying debts and some business to support herself, but, she said with the assistance of Mr Nega, ‘I have lost the money’.[6]
[6]Transcript 30 November 2017, p.6.
I found that the Deed was a valid and binding agreement under which, unless it were set aside, the Court was bound to give effect. There had been no prior claim by Ms Ali that she had any proprietary interest in the Land, so far as was revealed to the Court, and the evidence before the Court established that she was given appropriate warning that she must vacate the Land by letter dated 26 October 2017 and by service upon her personally of the originating motion and affidavit in support.
However, having regard to the time of the year, and the impending Christmas and New Year shutdown, and the consequent unlikelihood of Ms Ali finding alternative accommodation, or successfully moving the Family Court, or another appropriate Court, to set aside the Deed, within the period before Christmas, I ordered a stay of execution of 60 days ‘to enable Ms Ali to find alternate accommodation for herself and her children or to obtain appropriate orders of a Court of competent jurisdiction suspending the operation of the Deed. For that purpose liberty to apply will be reserved.’[7]
[7]Order 30 November 2017, Other Matters, Para G.
Stay application
Ms Ali, in her affidavit in support of the application for a stay of execution, swears that she arrived in Australia in 1995 as a refugee from Ethiopia. She is 37 years of age according to the Ethiopian calendar and 45 years of age in accordance with the European calendar. Her native language is the Amharic language. Her understanding of spoken English language is poor and her ability to read and write English is very poor. When she appeared before me on 30 November 2017 she had the assistance of Mr Nega, who was able to interpret for her so that she understood what was being said in Court. She has had the orders made that day translated to her and she understands what they say.
In relation to the Deed, she says that she was advised by Kenna Teasdale, her former lawyers, that she should sign it to finalise the Family Court proceedings that she had initiated against Abikhair. In those proceedings she sought orders, amongst others, for a financial settlement following the breakdown of what she alleged was her de facto relationship with Abikhair.
She swears that the Deed was not translated to her in the Amharic language and that she did not understand that the Deed required her to vacate the Land. Had she known that fact she would not have signed the Deed. She thought that the Deed provided for monetary compensation from Abikhair for alleged sexual assaults committed by him against her. She had sworn an affidavit in the Family Court proceedings on 27 June 2016 which had been translated for her and she says she does not know why her former solicitors did not arrange for a translation of the Deed before she signed it.
Having regard to the matters that I referred to in the order of 30 November 2017, she engaged new solicitors, Australian Family Lawyers, and on 18 January 2018 an Initiating Application in the Family Court of Australia against the plaintiffs was signed. Its filing date was 23 January 2018. In that proceeding Ms Ali claims final relief as follows:
(a) a declaration that a de facto relationship existed between Abikhair and her from about 24 October 2011 until 21 May 2016, but in any event for a period in excess of two years;
(b) that the ‘Agreement entered into by the parties in May 2017’ (being a reference to the Deed) is not a binding financial agreement and in any event be set aside;
(c) that the consent order made 29 May 2017 be discharged;
(d) that Abikhair pay to Ms Ali for her maintenance the sum of $1000 per week, the first payment to be made 1 January 2018;
(e) that pursuant to s 90SM of the Family Law Act 1975 (Cth) Abikhair pay to the applicant by way of final property settlement the sum of $2,000,000.00; and
(f) such other orders as the Court deems fit.
The interim or procedural orders sought included:
(a) that the hearing time for the first return date be abridged and the matter be listed urgently;
(b) a declaration that a de facto relationship existed between Abikhair and Ms Ali from on or about 24 October 2011 until 21 May 2016, but in any event for a period in excess of two years, the parties during that period being ordinarily resident in the State of Victoria, the participating jurisdiction;
(c) the agreement entered into by the parties in May 2017 is not a binding financial agreement and in any event be set aside;
(d) that the consent orders made 29 May 2017, be discharged;
(e) that Abikhair pay to Ms Ali for her maintenance the sum of $1,000 per week, the first payment to be made by 1 January 2018;
(f) that until further Order pursuant to ss 114, 90AF and 90JA of the Family Law Act 1975 (Cth), Ms Ali be granted sole use and occupation to (sic) all the land and improvements situate and known as 8 Meridian Close, Sanctuary Lakes in the State of Victoria to the exclusion of Abikhair and RLA;
(g) that Abikhair and RLA pay all instalments as and when required pursuant to the mortgage over the property at 8 Meridian Close, Sanctuary Lakes;
(h) that Abikhair and RLA be restrained from taking any steps to enforce the Order of the Supreme Court dated 30 November 2017.
The application for the first return date to be listed urgently was refused on 19 January 2018 by a Registrar of the Court. Notes on the ‘Application to Abridge Time to an Urgent Hearing’ state that there was:
- no evidence to support short-listings on basis of affidavit material.
- Matter will be listed by 29 -1-18 then can seek extension of stay of execution.
- Jurisdiction of the Court in light of Supreme Court action.
The Family Court proceeding has been listed for a case assessment conference on 17 April 2018. The Family Court application was served on Abikhair’s solicitors on 25 January 2018 together with a letter requesting an extension of the stay of execution previously ordered. The plaintiffs refused to extend the stay of execution.[8]
[8]Exhibit IA-8 to the affidavit of Iman Ali sworn 23 February 2018 (‘Iman Ali affidavit’).
On 2 February 2017 the plaintiff obtained a warrant of possession directed to the Sheriff requesting him to enter the Land and cause the plaintiff to have possession of it.[9]
[9]Exhibit IA-9 to the Iman Ali affidavit.
Applicable law
The legal principles applicable to an application of this kind are not in dispute. Pursuant to r 66.16 of the Rules and the inherent jurisdiction, the Court has a discretionary power to stay execution of a judgment, but only on grounds which are relevant to a stay of enforcement of proceedings. The jurisdiction does not extend to grounds which are matters of defence, which ought to have been raised in the proceeding itself.[10] The Court is required to take into account all the circumstances of the case and is not bound by decisions on other sets of facts.[11]
[10]TC Trustee Ltd v JS Darwen (Successors) Ltd [1969] 2 QB 295; London Permanent Benefit Building Society v de Baer [1969] 1 Ch 321, 332; State Bank of Victoria v Parry [1989] WAR 240, 244; Re S&D International Pty Ltd (in liq) No 6 [2011] VSC 119 [122] (‘Re S & D International’)
[11]Joskovitz v Bonnick [1964] VR 654, 656 (Herring CJ); Sami v Roads Corp [2009] VSCA 44 [24] (Williams AJA); Reading Entertainment Australia v Burstone Victoria (No 2) [2005] VSC 137 [43]; Re S & D International [2011] VSC 119 [123].
The Court has a wide discretion, is required to take into account all the circumstances of the case and the discretion is not circumscribed by rigid rules.[12] The circumstances that will justify a stay of execution are special circumstances which go to the enforcement of the judgment. Prima facie a successful party is entitled to the benefit of the judgment obtained and the presumption that the judgment is correct.[13] It is in those circumstance that the applicant bears the onus of establishing special circumstances warranting the stay of that right.[14]
[12]Maher v Commonwealth Bank of Australia [2008] VSCA 122 [19]-[27] (Dodds-Streeton JA) (‘Maher’).
[13]State Bank of Victoria v Parry [1989] WAR 240, 244 (Malcolm CJ); Re Middle Harbour Investments Ltd (In Liq) (Unreported, Supreme Court of New South Wales, Court of Appeal, Mahoney JA, 15 December 1976, 2); Sami v Roads Corp [2009] VSCA 44 [25] (Williams AJA);
[14]Re SD International Pty Ltd [2011] VSC 119 [130] (Robson J).
The most common circumstance in which special circumstances are found to exist is where, for whatever reason, there is a real risk that it will not be possible for a successful appellant from a judgment of the Court to be restored substantially to her former position if the judgment is executed. In other words, in the appeal context, whether the appeal will be rendered nugatory because, for example, the successful party below has removed the proceeds of the judgment from the jurisdiction or where, for example, although the successful party below is solvent but the subject matter of the appeal in substance is irreplaceable.[15]
[15]Maher [2008] VSCA 122 [26].
The prospect that the appeal or other relevant application may be rendered nugatory has to be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.[16]
[16]Ibid.
Affidavit in opposition
The plaintiffs have filed an affidavit of their solicitor, Mr Andrew Schnaider, in opposition to the application.[17] In that affidavit Mr Schnaider deposes that he has been informed by Abikhair that sometime in August or September 2017 Ms Ali was married in Ethiopia. Mr Schnaider was told that Ms Ali posted a large number of photographs of her wedding on her Facebook page around that time. Mr Schnaider undertook a search of the Facebook page of one Lilly Jakob, which is an open page that does not require one to be a Facebook friend in order to see the photographs posted. Mr Schnaider observed a large number of photographs of Ms Jakob’s wedding. He has viewed the photographs and identifies Ms Ali as the person described as Ms Jakob. He is informed by Abikhair that he also identifies Ms Jakob to be Ms Ali. The photographs bear posting dates between 30 August 2017 and 19 September 2017. Ms Jakob’s Facebook profile describes her as self-employed in Melbourne, married since 24 August 2017 and lists English as a language she speaks.
[17]Affidavit of Andrew Schnaider made 26 February 2018 (‘Schnaider affidavit’).
Counsel for Ms Ali did not dispute, and indeed accepted, that Ms Jakob is in fact Ms Ali and proceeded to proffer an explanation from the Bar table of the circumstances facing Ms Ali which were said to necessitate the wedding. Objection was naturally taken to evidence being given from the Bar table. The Schnaider affidavit had been circulated by email on 26 February 2018 (at 12.59 pm). Counsel for Ms Ali explained that an interpreter had been arranged for the hearing but had not arrived. I offered, without objection from the plaintiffs, that if Ms Ali wished to give evidence, the hearing could be stood over until 2.15 pm to facilitate the arrival of an interpreter, but that there was a likelihood that leave would be given to cross-examine Ms Ali should she give evidence, or file a late affidavit. The offer was not taken up.
Analysis
The starting point for any analysis of the application in this case is that the plaintiff is entitled to the fruits of its judgment. That is, possession of the Land. Ms Ali bears a substantial onus that requires her to show special circumstances that justify the staying of execution of that order.
Ms Ali swears that she is unable to rent a property because she cannot afford to do so. She is unemployed, solely reliant on a Centrelink pension to make ends meet and has the care of her two children.[18] However, under the Deed she was paid $170,000.00 in May 2017.[19] Save for what Ms Ali said through the good offices of Mr Nega on 30 November 2018, there has been no explanation of what has happened to that money nor has Ms Ali offered to refund that money, notwithstanding that she seeks to set aside the Deed under which it was paid.
[18]Iman Ali affidavit [15].
[19]Ms Ali concedes she received $150,000.00.
When I made the order that the plaintiffs’ recover possession of the Land I allowed a stay of 60 days. I did so to enable her to obtain other accommodation or to make application to set aside the Deed if that is what she desired to do. There is no explanation of why it took two and a half months before the application was made to the Family Court. There is no evidence as to what steps Ms Ali has taken to find alternative accommodation, including any enquiries she has made with Centrelink or other agencies that might be able to assist her in that regard. In this regard, it is remarkable that from 5 May 2017, the date of the Deed, to 31 October 2017, Ms Ali seemed to have made no effort to understand the terms of the Deed and to discover, if she truly did not know, that it required her to vacate by 31 October 2017, a period of over 6 months after the settlement.
Critically, to refuse a stay in the current circumstances will not stultify or render nugatory any of the final orders which Ms Ali seeks in the Family Court. She does not, no doubt on advice, seek any final order for the transfer of the Land to her. She only seeks orders for the payment of money. The only order relating to the occupation of the Land is an interim order, as referred to above (see [18(f)]).
Counsel for the plaintiffs submitted that such an interim order cannot be made, and relied on the decision of the Full Court of the Family Court of Australia in Norton & Locke,[20] where an initiating proceeding was filed by the respondent to the appeal that she and the appellant were in a de facto relationship, which was denied by the appellant. The issue had not been determined. The primary judge granted the respondent an interlocutory injunction which prevented the appellant from interfering with the respondent’s continued exclusive occupancy of a home unit owned by the appellant. The Court concluded:[21]
This Court does not have power to have make an interlocutory injunction of the type sought pursuant to s 114(2A) of the Act. That relief is dependent upon the establishment of a ‘de facto financial cause’ which, in this case, is dependent upon the establishment of facts central to jurisdiction which are bona fide in dispute and which have not been established. The power to grant such an injunction pursuant to s 114(3) or s 90SS of the Act is subject to the same limitation because each is dependent upon proceedings under the Act (and the other preconditions contained within each section) and those proceedings cannot be brought or continued without satisfaction of the relevant jurisdictional facts.
[20][2013] FamCAFC 202.
[21]Ibid [42].
There was no submission from Counsel for Ms Ali that this proposition was incorrect, nor was there any authority put to contradict it. In those circumstances, Ms Ali cannot at an interim stage of the Family Court proceeding obtain orders of the kind she seeks before establishing the jurisdiction of the Court to deal with her application. Having regard to the business of the Family Court and the Federal Circuit Court, and the delays in both jurisdictions, this could take years.
Translating the appellate situation, where applications for a stay are made pending appeal, to the current situation does not enable a precise parallel to be drawn. However, the appropriate approximate parallel is to assume that in the Federal Circuit Court proceedings the Deed is set aside, or that, as seems to be common ground, it is not binding in the new Family Court proceeding because it is not a binding financial agreement within the meaning of the Family Law Act 1975 (Cth). What would then be the position? It is apparent from the description I have given of the relief that is sought in the Family Court that no claim is made for the Land as in some way the subject of a matrimonial property settlement.
Insofar as the application to stay the order is based upon Ms Ali’s contention that she and her children have nowhere else to live and she is unable to afford to rent a property, she would need to explain what has happened to the $170,000.00 (or $150,000.00) paid to her pursuant to the Deed. She has not done so adequately, despite the plaintiffs’ outline of submissions clearly identifying the need to explain what has happened to these monies before the application came on for hearing, and despite the matter being discussed on 30 November 2017.
Moreover, the evidence before the Court strongly supports the proposition that Ms Ali was married in August 2017. The photos of that wedding show that it may have been an expensive event. The wedding was not disclosed by her in her affidavit material.[22] It tends to contradict her solicitor’s assertion that she is an ‘impoverished, unemployed, barely literate single mother of two minor children who are solely reliant on her for their welfare’.[23]
[22]Although she referred in passing during the hearing on 30 November 2017, through Mr Nega that her ‘mother forced her to get married, knowing that she was living with a man’, Transcript 30 November 2017 p. 22.
[23]Defendant’s outline of submissions [9(e)].
In addition to these matters, as I have pointed out, there has been no offer on the part of Ms Ali to repay the monies paid by the first plaintiff under the Deed, which she now seeks to set aside or overcome. There have now been 9 months since the Deed was entered into and 4 months since possession of the Land by Ms Ali was to be relinquished pursuant to the Deed.
Counsel for Ms Ali sought to draw an analogy between the reasoning of Whelan J in Reading Entertainment Australia v Burstone Victoria (No 2)[24] and the current case. In that matter there were three separate proceedings being heard together. For reasons of convenience, the hearing of one of the proceedings was completed and judgment delivered. A stay was sought on the execution of that judgment pending the completion of the other two related proceedings. Whelan J granted the stay, and in doing so confirmed that the starting point must be that a party entitled to a judgment ought ordinarily to be entitled immediately to enforce it. However, he granted the stay because all three proceedings were intimately connected and being tried partly together and partly in effect, immediately after each other. The separation of the trials of the proceedings only came late in the hearing and the trial of the related proceedings would resume before too long.
[24][2005] VSC 137.
There is no true parallel between that decision and this case. Counsel for Ms Ali submitted that the parties in this proceeding and the parties in the Family Court proceeding are identical, that in the Family Court proceedings Ms Ali seeks, amongst other things, a declaration that the Deed which gives rise to the plaintiffs’ entitlement to possession of the Land ought to be set aside[25] and that Ms Ali seeks an order that she be entitled to sole use and occupation of the Land until further order of the Family Court. The critical element is the last, and it has been established to my satisfaction that an interim order entitling Ms Ali to occupy the Land cannot be obtained.
[25]On the basis that her grasp of the English language is very poor and she did not understand what she signed, it not having been translated to her in her native tongue.
It was also submitted for Ms Ali that the stay would not be unduly long as the Family Court had listed the matter for a Case Assessment Conference on 18 April 2018, that Ms Ali brought her application in this Court promptly and there is little prejudice to the plaintiffs when compared with the prejudice to Ms Ali.
It is critical, as I have already said, that in the Family Court proceedings Ms Ali does not claim, except on an interim basis, any entitlement to remain in occupation of the Land. It is tolerably clear that until the jurisdiction of the Family Court to deal with her application is established she cannot obtain an interim order entitling her to remain in possession of the Land. A Case Assessment Conference is most unlikely to come to any concluded decision that could determine that the Deed be set aside, or is unenforceable, or give Ms Ali the right to occupy the Land by some other order. Any proper determination of the rights of Ms Ali will take a considerable time and cannot, in the final analysis, as her claim is presently formulated, result in her being entitled to the Land or to occupy it.
In any event, in my view Ms Ali has not brought her application in the Family Court promptly and nor has she brought the application in this Court promptly. Indeed it was only after the warrant was issued out of this Court that the application for a stay was brought.
Conclusion
For all these reasons this is not an appropriate case to grant a stay of execution of the Order of the Court made on 30 November 2017.[26]
[26]The order was amended, pursuant to r 36.07 of the Rules, by Order made on 25 January 2018 to correct errors.
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