Ajam and Asfour & Anor - [2019] FamCA 401

FAMILY COURT OF AUSTRALIA

AJAM & ASFOUR AND ANOR

[2019] FamCA 401

FAMILY LAW – PRACTICE AND PROCEDURE – Consideration of rule 11.02 and 11.03 of the Family Law Rules 2004 – An Application for “special costs” – Orders made permitting the applicant to file an Amended Application and pay the Respondents’ costs in accordance with Schedule 3 of the Rules – Prior to the registry accepting the filing of Amended Application – Failure to comply results in a self-executing order to dismiss the Application.

Family Law Act 1975 (Cth) ss.117
Family Law Rules 2004 (Cth) rr.11.02, 11.03

Sfakianakis and Sfakianakis [2019] FamCAFC 54
In the Marriage of I (No 2) (1995) FLC 92-625
Akbar & Mali and Anor [2015] FamCAFC 244

APPLICANT:

Ms Ajam

FIRST RESPONDENT:

Mr Asfour

SECOND RESPONDENT:

B Pty Ltd

FILE NUMBER:

MLC

5895

2016

DATE DELIVERED:

2 July 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

30 & 31 May 2019

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENTS:

Mr Glick of Queen's Counsel with Mr Dunlop of Counsel

SOLICITOR FOR THE RESPONDENTS:

SBA Law

Orders

The applicant pay the respondent’s costs of and incidental to the proceedings fixed in the sum of $ 13,936 and such sum to be paid on or before 4.00 PM on 2 September 2019.
Subject to compliance with paragraph 1 hereof, the applicant be at liberty to file and serve an Amended Application setting out precisely the orders she seeks on a final basis, such application to be filed on or before 2 September 2019, and such application not to be filed or accepted in the registry, unless the applicant has paid the costs referred to in paragraph 1;
If the applicant fails to file an Amended Application as referred to in paragraph 2, then her Initiating Application filed 23 January 2018 is dismissed and removed from the pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ajam & Asfour has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5895 of 2016

Ms Ajam

Applicant

And

Mr Asfour & B Pty Ltd

Respondents

REASONS FOR JUDGMENT

INTRODUCTION

On 8 March 2019, I made orders listing the matter for a two-day trial commencing 30 May 2019. The applicant failed to comply with procedural orders made on 8 March 2019.
On 30 May 2019, the first day of the trial, the applicant made an oral application to be granted a further period of…

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 Ajam and Asfour & Anor

Details

AGLC: Ajam and Asfour & Anor [2019] FamCA 401
Case: [2019] FamCA 401
Decision Date: 2 July 2019

CaseChat Overview and Summary

In the matter of *Ajam and Asfour & Anor*, Williams J of the Family Court of Australia considered an application for "special costs" and the consequences of non-compliance with court orders. The dispute concerned the applicant's failure to comply with previous orders, which had led to a situation where her Initiating Application was subject to dismissal if certain conditions were not met.

The central legal issues before the court were the interpretation and application of rules 11.02 and 11.03 of the *Family Law Rules 2004* concerning the filing of an amended application and the payment of costs. Specifically, the court had to determine whether the applicant could proceed with filing an Amended Application and what the consequences would be if she failed to comply with the conditions attached to that liberty.

Williams J reasoned that the applicant was granted liberty to file an Amended Application, but this liberty was expressly conditional upon her paying the respondents' costs fixed at $13,936 by a specified date. The court made it clear that the Amended Application would not be accepted for filing by the registry unless these costs were paid. The court further ordered that if the applicant failed to file the Amended Application by the stipulated deadline, her original Initiating Application would be automatically dismissed.

Orders

Orders of the court

The applicant pay the respondent’s costs of and incidental to the proceedings fixed in the sum of $ 13,936 and such sum to be paid on or before 4.00 PM on 2 September 2019.

Subject to compliance with paragraph 1 hereof, the applicant be at liberty to file and serve an Amended Application setting out precisely the orders she seeks on a final basis, such application to be filed on or before 2 September 2019, and such application not to be filed or accepted in the registry, unless the applicant has paid the costs referred to in paragraph 1;

If the applicant fails to file an Amended Application as referred to in paragraph 2, then her Initiating Application filed 23 January 2018 is dismissed and removed from the pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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