Ahmad v Mohamed - [2022] NSWSC 1445

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ahmad v Mohamed [2022] NSWSC 1445
Hearing dates: 21 October 2022
Decision date: 24 October 2022
Jurisdiction: Equity
Before: Peden J
Decision:
1) These proceedings are stayed until further order of the Court.
2) Unless either party makes an application for a different costs order to the Associate to Peden J by 4pm 26 October 2022, the respondents are to pay the applicant’s costs of the motion as agreed or assessed.
3) Should an application for a different costs order be made pursuant to Order 2:
a. That application should include submissions of not more than 2 pages and any necessary evidence;
b. The other party may serve and provide to the Associate to Peden J responsive submissions of not more than 2 pages and any necessary evidence by 4pm 28 October 2022.

Catchwords:
CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Circuit and Family Court of Australia — Stay of Supreme Court of New South Wales proceedings because parenting and related property dispute in the Federal Circuit and Family Court of Australia — Substantive proceedings concerning trust claims over a property — Relevant factors — Whether in the interests of justice — Where risk of delay and costs would impact third party children in the relationship

Legislation Cited:
Family Law Act 1975 (Cth) ss 90ST, 106B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 52
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(1)(b)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5(1)(b)

Cases Cited:
Burman v Zillman [2017] NSWSC 229
Valceski v Valceski (2007) 70 NSWLR 36
Vaughan v Frost [2010] NSWSC 492
Yu v Wang [2021] NSWSC 1280

Category: Procedural rulings
Parties: Gulmaki Ahmad (First Plaintiff/First Respondent)
Mustafah Ahmad (Second Plaintiff/Second Respondent)
Sharihan Mohamed (Defendant/Applicant)
Representation:
Counsel:
M Condon SC (Applicant/Defendant)
G McNally SC (Respondents/Plaintiffs)
Solicitors:
Dorter Family Lawyers (Applicant/Defendant)
Breene & Breene Solicitors (Respondents/Plaintiffs)

File Number(s): 2022/175209
Publication restriction: Nil

Judgment

On 30 September 2022 the defendant/applicant filed a motion to transfer these proceedings to the Federal Circuit and Family Court of Australia (FCFCOA) pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (JCVA), or alternatively permanently stay them until final determination of the Federal Circuit and Family Court of Australia (FCFCOA) proceedings. The transfer was opposed by the plaintiffs/respondents.
The background to the proceedings is as follows.
The applicant and the second respondent were a de facto couple, who had three children during their relationship. They permanently separated in late 2020.
The first respondent is the second respondent’s mother.
In the statement of claim in these proceedings the respondents seek declarations as to the beneficial ownership of a property at Castle Hill (the Property). The respondents’ primary position is that the Property is held by the second respondent on trust for the first respondent and the Property therefore is not part of the assets of the de facto relationship. While that relief does not require any positive action…

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 Ahmad v Mohamed

Details

AGLC: Ahmad v Mohamed [2022] NSWSC 1445
Case: [2022] NSWSC 1445
Decision Date: 24 October 2022

CaseChat Overview and Summary

The case of Ahmad v Mohamed involved a dispute between the parties over a property, with the matter initially filed in the Supreme Court of New South Wales. The case was subsequently cross-vested to the Federal Circuit and Family Court of Australia due to the parenting and related property dispute between the parties. The case concerned substantive proceedings related to trust claims over the property, and the Supreme Court was required to decide whether the proceedings should be stayed in favour of the Federal Circuit and Family Court of Australia.

The legal issue before the court was whether it was in the interests of justice to stay the proceedings in the Supreme Court and transfer them to the Federal Circuit and Family Court of Australia. The court considered the relevant factors in making its decision, including the risk of delay and costs impacting the third party children in the relationship. The court also considered the potential for prejudice to either party if the proceedings were not stayed.

The court found that it was in the interests of justice to stay the proceedings in the Supreme Court and transfer them to the Federal Circuit and Family Court of Australia. The court noted that the risk of delay and costs would impact the third party children in the relationship, and that there was a potential for prejudice to either party if the proceedings were not stayed. The court was satisfied that the Federal Circuit and Family Court of Australia was the more appropriate forum to deal with the substantive proceedings concerning the trust claims over the property. The court also noted that the parties had not raised any significant impediments to the transfer of the proceedings.

The Supreme Court of New South Wales stayed the proceedings and transferred them to the Federal Circuit and Family Court of Australia. The court's decision was based on the relevant factors considered, including the risk of delay and costs impacting the third party children in the relationship, and the potential for prejudice to either party if the proceedings were not stayed. The court was satisfied that the Federal Circuit and Family Court of Australia was the more appropriate forum to deal with the substantive proceedings concerning the trust claims over the property.

Orders