Abikhair v Ali - [2018] VSC 93

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abikhair v Ali

Details

AGLC: Abikhair v Ali [2018] VSC 93
Case: [2018] VSC 93
Decision Date: 2 March 2018

CaseChat Overview and Summary

The case of Abikhair v Ali arose in the Supreme Court of Victoria, where the plaintiffs sought to enforce a judgment obtained through summary procedure for the recovery of possession of a parcel of land. The defendants, in turn, applied to set aside a Deed of Settlement which they had signed, agreeing to hand over possession of the land. The dispute escalated to the Supreme Court, which was tasked with deciding whether the execution of the warrant of possession should be stayed.

The central legal issue before the court was whether to exercise its inherent jurisdiction to stay the execution of a warrant of possession. The court was required to balance the plaintiffs' right to enforce the judgment against the defendants' application to set aside the Deed of Settlement. The court needed to consider the principles governing the exercise of the inherent jurisdiction, as well as the provisions of the Supreme Court (General Civil Procedure) Rules 2015, particularly rule 66.16, which pertains to the conditions under which a stay of execution may be granted.

In addressing the matter, the court meticulously evaluated the circumstances surrounding the Deed of Settlement and the subsequent application to set it aside. The court found that the defendants had not demonstrated any grounds that would warrant a stay of the execution of the warrant of possession. The court emphasised the importance of finality in judgments and the need to protect the rights of the prevailing party. The court concluded that there were no exceptional circumstances present that would justify staying the execution of the warrant, thereby refusing the application to set aside the Deed of Settlement.

The final orders of the court were to refuse the application to stay the execution of the warrant of possession. The court held that the plaintiffs were entitled to enforce the judgment as per the terms of the Deed of Settlement, and the defendants were directed to comply with the terms of the warrant of possession. This decision underscores the court's reluctance to interfere with the enforcement of judgments unless there are compelling reasons to do so.

Orders