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

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

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

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 Baghti and Baghti

Details

AGLC: Baghti and Baghti [2013] FamCA 734
Case: [2013] FamCA 734
Decision Date: 20 September 2013

CaseChat Overview and Summary

In the matter of *Baghti and Baghti*, Fowler J of the Family Court of Australia considered an application by the husband seeking to dismiss his Response to an Application in a Case. The wife and Ms B Bouras sought orders to amend existing orders made on 27 November 2012, specifically concerning the sale of a business known as "[D Business]". The dispute centred on the wording of the original orders and the extent to which Ms B Bouras, who was not a party to the original proceedings, was to be involved in the sale process.

The primary legal issues before the court were whether the husband's Response should be dismissed and, crucially, whether the existing orders could be amended to reflect the involvement of Ms B Bouras in the sale of the business. This involved determining the court's power to vary or clarify its previous orders, particularly when a third party, not originally a party to the proceedings, was to be directly involved in the execution of those orders. The court also had to consider the appropriate mechanism for amending the orders under the Family Law Rules.

Fowler J reasoned that the husband's Response was without merit and should be dismissed. The court found that the original orders, while referring to "the parties", implicitly contemplated the involvement of Ms B Bouras in the sale of the business, as evidenced by the detailed provisions for her agreement and co-operation in the sale process. To give full effect to the original intention and to clarify the roles of the parties involved in the sale, the court exercised its power under Rule 17.02 of the Family Law Rules to amend the wording of the existing orders. The court ordered that the words "the parties" in a specific clause of the 27 November 2012 orders be deleted and replaced with "the wife and [Ms B]". The costs of the wife's application were reserved to the Appeal.

Orders

Orders of the court

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

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.

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

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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