Baghti and Baghti

[2013] FamCA 734

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI [2013] FamCA 734

FAMILY LAW – PRACTICE AND PROCEDURE - Amendment under slip-rule

Family Law Act 1975 (Cth)

In the Marriage of Russell (1999) 25 Fam LR 629

APPLICANT: Ms Baghti

RESPONDENT: Mr Baghti

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 20 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 20 September 2013 in Chambers on the papers in the absence of the parties

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lawson

SOLICITOR FOR THE APPLICANT: Swaab Attorneys

COUNSEL FOR THE RESPONDENT: Ms Kaya

SOLICITOR FOR THE RESPONDENT: Demir Legal

Orders

1. The husband’s Response to an Application in a Case filed 19 September 2013 is dismissed.

2. Pursuant to Rule 17.02 of the Family Law Rules, the words “the parties” contained at line 2 in Order 7(1)(b) of the Orders dated 27 November 2012 be deleted and replaced with the words “the wife and [Ms B]”, as set out hereunder:

   “7.Orders and notations are made in terms of paragraphs 1 to 5 of a document titled “Amended Form of Orders sought by the wife and Ms B Bouras” dated 29 August 2012 (as amended), as set out hereunder:

   “1.That the wife do all acts and things necessary so as to cause a sale of the business known as “[D Business]” (“the business”) with her sister, [Ms B] (“[Ms B]”) for the best price reasonably obtainable in the following manner:

   a.list the business for sale with a business broker as she and [Ms B] may agree to appoint and in default of agreement within 14 days as to a business broker then, at the request of either of the wife or [Ms B], the proper officer of the Australian Institute of Business Brokers (New South Wales) will appoint (“the broker”) the cost of and incidental to such appointment to be borne equally by the wife and [Ms B] as and when they are payable

   b.the sale price at which the business is listed shall be mutually agreed upon by the wife and [Ms B] or, in the absence of agreement within 14 days of the business being listed then, at the request of either of the wife or [Ms B], the proper officer of Australian Institute of Business Brokers (New South Wales) (“the valuer”), shall nominate a valuer to determine the fair market value, the costs of and incidental to such appointment and the valuation to be borne equally by the wife and [Ms B] as and when they payable

   c.the wife and [Ms] B shall co-operate in every way with the broker including (without limiting the generality of the foregoing):

   i.making keys available to the broker

   ii.allowing inspection of the business at all reasonable times requested by the broker and

   iii.signing all documents requested by the broker relating to the listing for sale of the business except a contract or agreement for sale which has not been authorised by the solicitor acting on the sale

   d.the wife and [Ms B] shall execute a contract for sale in the form prepared by the solicitors having conduct of the sale at a price agreed on by the wife and [Ms B] or, in the absence of agreement, at or above the price nominated by the valuer in accordance with sub-orders (a) and (b) of these Orders.

3. The costs of the wife’s Application in a Case filed 11 September 2013 are reserved to the Appeal.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2145  of 2009

Ms Baghti

Applicant

And

Mr Baghti

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are proceedings brought by the wife on an Application in a Case filed on 11 September 2013.

2. The proceedings are ones in which the wife seeks an amendment of an order pursuant to Rule 17.02 of the Family Law Rules.

3. The order was made on 27 November 2012 and reads as follows:

   7.Orders and notations are made in terms of paragraphs 1 to 5 of a document titled “Amended Form of Orders sought by the wife and Ms B Bouras” dated 29 August 2012 (as amended), as set out hereunder:

   1.That the wife do all acts and things necessary so as to cause a sale of the business known as “[D Business]” (“the business”) with her sister, [Ms B] (“[Ms B]”) for the best price reasonably obtainable in the following manner:

   a.list the business for sale with a business broker as she and [Ms B] may agree to appoint and in default of agreement within 14 days as to a business broker then, at the request of either of the wife or [Ms B], the proper officer of the Australian Institute of Business Brokers (New South Wales) will appoint (“the broker”) the cost of and incidental to such appointment to be borne equally by the wife and [Ms B] as and when they are payable

   b.the sale price at which the business is listed shall be mutually agreed upon by the parties or, in the absence of agreement within 14 days of the business being listed then, at the request of either of the wife or [Ms B], the proper officer of Australian Institute of Business Brokers (New South Wales) (“the valuer”), shall nominate a valuer to determine the fair market value, the costs of and incidental to such appointment and the valuation to be borne equally by the wife and Ms B as and when they payable

   c.the wife and [Ms B] shall co-operate in every way with the broker including (without limiting the generality of the foregoing):

   i.making keys available to the broker

   ii.allowing inspection of the business at all reasonable times requested by the broker and

   iii.signing all documents requested by the broker relating to the listing for sale of the business except a contract or agreement for sale which has not been authorised by the solicitor acting on the sale

   d.the wife and [Ms B] shall execute a contract for sale in the form prepared by the solicitors having conduct of the sale at a price agreed on by the wife and [Ms B] or, in the absence of agreement, at or above the price nominated by the valuer in accordance with sub-orders (a) and (b) of these Orders.

1. The business referred to is a retail business which was owned and operated by a partnership of the wife and her sister.

2. It is clear that the relevant order was designed to effect a sale of the business.

3. In the proceedings [Ms B] had indicated her willingness to join in such an order as is made clear by the opening words of Order 7.

4. It is clear that the whole of the order refers to the requirements of the Court in relation to the sale of the business by the partnership and the process of dealing with any disputes in relation to that sale that might arise between the parties to the partnership namely the wife and her sister.

5. The reference in 7(1)(b) is apparently being sought to be read by the husband as meant to refer to the parties to the proceedings rather than the parties to the partnership; the owners of the business.

6. This is not what was intended to be referred to.

7. It is clear that neither the wife’s parents nor the Independent Children’s Lawyer who were parties to the proceedings, nor indeed the husband was intended to have anything to do with the sale of the business which was to be the undertaking of the wife and her partner sister, the owners of the business.

8. The case is made out for more abundant clarity for an amendment of the order under the relevant rules given the husband’s unsustainable and wrong interpretation of the order and so the words “by the parties” will be deleted and replaced with the words “the wife and [Ms B]”.

9. The husband lodged a Response in which he sought the dismissal of the wife’s application or alternately to the present situation where the matter was to be dealt with in chambers on the papers pursuant to an order of the Registrar that it be dealt with in open court.

10. The application to an open court hearing is rejected.

11. The respondent husband has had an opportunity of filing and did in fact file a detailed response to the application and identified matters of argument.

12. He has raised in his response his belief that the wife and not the wife and her sister are the owners of the business. This was a matter in issue in the proceedings and has already been determined.

13. He asserts that the order is to be taken as requiring the sale price to be subject to his consent. This is rejected and is inconsistent with the order which was made; the tenor of that order which when read as a whole is limited to the obligations of the parties to the partnership namely the wife and her sister.

14. The Court notes that Ms B consented to the orders being made.

15. The husband in his response seeks the dismissal of the application and an order for costs.

16. The Response is dismissed.

17. The costs of this application are reserved to the Appeal.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 20 September 2013.

Associate:

Date:  20 September 2013