Bechara v Bechara
[2014] NSWSC 25
•24 January 2014
Supreme Court
New South Wales
Medium Neutral Citation: Bechara v Bechara [2014] NSWSC 25 Hearing dates: 24/01/2014 Decision date: 24 January 2014 Jurisdiction: Equity Division Before: McDougall J Decision: Restrain defendants from paying out surplus proceeds of sale.
Catchwords: PROCEDURE - Interlocutory orders - Injunctions - whether grounds to grant interlocutory injunctive relief freezing amount of proceeds of sale Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Cases Cited: Schibaia v Elias [2013] NSWSC 1485 Category: Procedural and other rulings Parties: Maria Bechara (Plaintiff)
Cameel Anthony Bechara (First Defendant)
Australia and New Zealand Banking Group Limited (Second Defendant)Representation: Counsel:
A E Maroya (Plaintiff)
Solicitors:
Bechara & Co (Plaintiff)
File Number(s): 2014/24272
Judgment (ex tempore - revised 24 January 2014)
HIS HONOUR: The plaintiff, a solicitor of this court, seeks an injunction restraining the second defendant (ANZ) from paying out the surplus proceeds of sale of a property at Hunters Hill.
The property in question was the matrimonial home of the plaintiff's brother (the first defendant) and his then wife. That marriage broke down, and has been dissolved. The Family Court of Australia has made orders including orders by way of property settlement. The effect of the orders (if they stand) is that the first defendant will receive 45% of the net proceeds of sale and an amount of $91,080 out of his former wife's 55% of those net proceeds.
The plaintiff for some time acted as her brother's solicitor. For reasons that do not need to be canvassed, she was unable to continue acting. She has money owing to her in respect of her own professional costs. In addition, she has advanced money to her brother for his costs and disbursements incurred to other legal practitioners, and has guaranteed payments to those practitioners.
It seems fairly safe to say that the plaintiff's likely obligations, added to the amounts owed to her, will exceed significantly whatever her brother may ultimately receive out of the proceeds of sale.
It is the plaintiff's case that on 6 October 2011 she and her brother entered into a written agreement for mortgage whereby, among other things, the brother agreed to pay to her, out of his interest in the proceeds of sale of the property, amounts owing including the acknowledged principal sum of $150,000 and further advances.
The proceeding in the Family Court has become extremely complex. It appears that the former wife's parents intervened. They have obtained costs orders in their favour. On Tuesday next, 28 January 2014, they propose to seek from the Family Court, apparently by way of interim order, an order that any amount otherwise payable to the first defendant in these proceedings from the net proceeds of sale be paid to their solicitors who thereafter are authorised to deal with the funds by payment, among other things, of the parents' costs. Quite how that could be regarded as an interlocutory order (which, from the words "pending determination of any issue in this application" which prefaced it, it appears to be) I have no idea. Fortunately, that is a matter for the Family Court to decide.
From the plaintiff's affidavit in these proceedings, it appeared that the agreement for mortgage on which she relied was unstamped. That deficiency apparently came to the plaintiff's attention shortly before the matter was called for hearing, and she has, I am assured, procured it to be stamped. Accordingly there is no impediment to the court's receiving it in evidence and giving it effect, taking into account the duty considerations discussed in a number of cases including my own decision in Schibaia v Elias [2013] NSWSC 1485.
There is nothing to suggest that the interveners in the Family Court proceeding (I repeat, the former wife's parents) have any legal or equitable interest in the proceeds of sale save for what interest, if any, they may obtain if the Family Court accedes to their application to which I have referred, or in some other way makes orders which might have the effect of charging the first defendant's interest in the net proceeds of sale with costs payable to them.
Accordingly, I proceed on the basis that the plaintiff in these proceedings is an equitable second mortgagee of the property, and that, to the extent that there is a surplus on the mortgagee sale by ANZ, she is prima facie entitled to receive it to the extent that it is sufficient to satisfy the amounts secured by her equitable mortgage.
The plaintiff is not a party to the Family Court proceeding. She does not appear to have any standing to intervene in that proceeding. Thus, it might appear, she has no entitlement to be heard when the matter comes before the Family Court on Tuesday next in respect of the intervenor's application.
In those circumstances, it seems to me that some limited form of ex parte injunctive relief is warranted.
I am satisfied, on the evidence to date, that there is a serious question to be tried as to whether the plaintiff does indeed have an equitable mortgage in respect of the property or the interest of her brother, the first defendant, in it. It is at least arguable that that interest extends not only to his 45% interest as declared by the Family Court but also to the sum of $91,080 which in substance (I express no view as to whether or not in law) stands charged against the wife's 55% interest.
So far as the balance of convenience is concerned, it seems to me to be all one way. The relief sought is for a short period of time. It may have some impact on the interveners in the Family Court proceeding. But if that is so, there are a number of steps that they can take. One is to seek to become joined as parties in these proceedings. It is very difficult to see why they would not be. Another is, as parties, to request the transfer of these proceedings to the Family Court under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).
Either way, it seems to me, the interveners can very simply put themselves in a position to contest the plaintiff's claimed entitlement to an equitable second mortgage should they wish to do so. Since, so far as the evidence goes, they have no present legal or equitable interest in the net proceeds of sale, the grant of injunctive relief which has the effect of freezing, for the time being, those net proceeds can hardly cause them detriment.
For those reasons I am satisfied that it is appropriate to grant some form of injunctive relief.
In the course of argument I suggested a form of order. I will now hear counsel on whether or not that suggested form of order is sufficient to meet the exigencies of the present case.
[Counsel addressed.]
On the undertaking of the plaintiff to pay the necessary filing fee, I grant the plaintiff leave to file in court the summons initialled by me and dated today's date. I make that summons returnable forthwith before me. I grant the plaintiff leave to file in court her affidavit sworn today's date. I note that the plaintiff, by counsel, gives to the Court the usual undertaking as to damages. I make the order earlier indicated in draft. I stand the proceedings over for further hearing before the vacation judge on 29 January 2014. I direct that the summons affidavit in support and these orders be served on the defendants by 5.30pm today. I direct that these orders be entered forthwith.
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Decision last updated: 05 February 2014
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