Barakat and Barakat and Ors

[2015] FamCA 728

FAMILY COURT OF AUSTRALIA

BARAKAT & BARAKAT AND ORS [2015] FamCA 728

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Oral application made by the second and third respondents on the first day of the final hearing – Where it was argued the applicant wife has not produced any evidence as to the existence of and value of an alleged partnership involving the respondent husband and the second and third respondents – Summary dismissal rarely and sparingly ordered - No orders for summary dismissal made.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Beck & Beck (2004) FLC 93-181

APPLICANT: Ms Barakat

FIRST RESPONDENT: Mr Barakat

SECOND RESPONDENT: B Pty Ltd ACN …

THIRD RESPONDENT: Mr Sisley

FILE NUMBER: SYC 3117 of 2012

DATE DELIVERED: 31 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 31 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levet

SOLICITOR FOR THE APPLICANT: Cambridge Law

COUNSEL FOR THE FIRST RESPONDENT: Mr Johnston

SOLICITOR FOR THE FIRST

 RESPONDENT:

Armstrong Legal

COUNSEL FOR THE SECOND

AND THIRD RESPONDENTS:

Mr Wong

SOLICITOR FOR THE SECOND AND

THIRD RESPONDENTS:

Watts McCray Lawyers

Orders

1. The second and third respondents’ oral application for summary dismissal of the applicant wife’s Amended Initiating Application in so far as it relates to the second and third respondents is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barakat & Barakat and Ors 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 3117 of 2012

Ms Barakat

Applicant

And

Mr Barakat

First Respondent

And

B Pty Ltd ACN …

Second Respondent

And

Mr Sisley

Third Respondent

REASONS FOR JUDGMENT

1. In this matter, the applicant wife has sought the following orders in her Amended Initiating Application against the second and third respondents:

   (3)Declaration that the Husband is in partnership with Mr Sisley in relation to a property development in respect of land known as and situate at C Street, Suburb D in the State of New South Wales being more particular described as Lots …, … and … in Deposited Plans …, … and ...

   (4)Declaration that B Pty Limited ACN … as Trustee for C Unit Trust is an “instrument” of such partnership as that term is described in Walker v Wimborne (1976) 137 CLR 1.

   (5)In the alternative to Orders (3) and (4) above declaration that the Husband is in partnership with B Pty Limited as Trustee for C Unit Trust in respect of a property development in respect of land known as and situate at C Street, Suburb D in the State of New South Wales being more particular described as Lots …, … and … in Deposited Plans …, … and ...

   (6)Declaration that the Husband’s share of the asset of any partnership referred to in Orders (3) and (5) form part of the matrimonial asset pool of the Husband and Wife in these proceedings.

2. Counsel for the second and third respondents, Mr Wong, has applied for the proceedings brought against his clients to be summarily dismissed. Mr Wong has correctly referred to the authority of Beck & Beck (2004) FLC 93-181 where the Full Court said that, while summary dismissal is rarely and sparingly ordered, the Court nonetheless has the power to summarily dismiss a matter. In order to summarily dismiss a matter, however, the authorities, and they are numerous in many jurisdictions, establish that the Court must essentially conclude that the action is effectively doomed to fail.

3. On the basis of the material that has been provided to the Court, the wife has an extremely difficult case to establish that the Court should make the orders sought against the second and third respondents.  Mr Wong argued that the Court could not do so because there is no evidence of the partnership that is alleged to exist, no valuation of the partnership even if it is established, and indeed there is evidence, by way of a financial statement (Exhibit 6) that suggests the value of the partnership is minus $477.53.

4. It is submitted by Mr Wong that if, contrary to that which he has argued, the Court were to find that there is in fact a partnership, there has been no dollar value put on the partnership, nor even a percentage value put on the partnership, from the point of view of the husband’s entitlement to a distribution from the partnership.  Mr Wong has further suggested that, as a result of the absence of particulars being provided to his client regarding those and other matters, his clients have been denied procedural fairness and, on that further basis, the matter should also be dismissed.

5. Mr Johnston, appearing for the husband, supported Mr Wong’s application for summary dismissal, saying that there is no evidence of a partnership and no evidence of the value of the partnership. He argued that, insofar as some evidence has been presented that the value of the partnership is the deposit paid by the family business, there is no evidence of the deposit being returned to the husband or to E Pty Ltd, a company associated with the husband.  Mr Johnston summarised by saying that the wife must point to his client having an interest before there can be either a value attached to it, or a potential value attached to it, and that has not been done.

6. Mr Levet, counsel for the wife, indicated that he objected to the fact that the application for summary dismissal was brought on without an application in a case and supporting affidavit.  Mr Levet referred to the fact that his client has provided what is at least an estimate of her value of the partnership, or potential value of the partnership, in paragraph 213 of her trial affidavit.  Mr Levet has also assured the Court that, with information contained in his brief and information produced under subpoena, that he has material to cross-examine potential witnesses called on behalf of the respondents to establish the existence of a partnership and to establish a value, and/or potential value, of that partnership.

7. Mr Johnston argued that, if there are such documents to be put to witnesses, they should have been disclosed under Chapter 13 of the Family Law Rules 2004 (Cth), and that has not occurred. In response, Mr Levet said that, in circumstances where the documents he will be referring to have been produced under subpoena and there has been general access granted to all parties, he is entitled to put those matters and those documents to the witnesses.

8. Without pre-empting any applications that may be made after that course of action is undertaken by Mr Levet, I note his assurance that, on the basis of material he has, he regards the issue as being a viable issue to argue.

9. In those circumstances, while Mr Levet is going to have difficulty in establishing his client’s entitlement to the orders as sought against the second and third respondents, at this point I am not going to exercise my discretion so as to lock Mr Levet out of that possibility.

10. Accordingly at this stage of the proceedings, the oral application for summary dismissal is dismissed. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 31 August 2015.

Associate: 

Date:  04.09.2015