Diab and Nye and Ors

[2018] FamCA 1144

FAMILY COURT OF AUSTRALIA

DIAB & NYE AND ORS [2018] FamCA 1144

FAMILY LAW – INJUNCTION – litigant in person – wife seeks injunction against the trustee of her husband’s bankrupt estate from settling a sale of the parties’ home – No basis for injunction – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Diab

RESPONDENT: Mr Nye and Mr Knox Joint and Several Trustees of the Bankrupt Estate of Mr Edris

FILE NUMBER: MLC 3564 of 2018

DATE DELIVERED: 11 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 April 2018

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Miller

SOLICITOR FOR THE RESPONDENT: Williams Winter

MR EDRIS In person

Orders

1. That the application for interim orders contained in the application filed 4 April 2018 is dismissed.

2. That the application for final relief of the applicant is adjourned to the registrar’s list at 9.30am on 16 May 2018.

3. That the reasons this day be transcribed and be made available to the parties.

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 Diab & Nye and Ors 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 3564 of 2018

MS DIAB

Applicant

And

MR NYE

Respondent

REASONS FOR JUDGMENT

1. The application before the Court today is by Ms Diab.  It was filed on 4 April 2018.  In that application she names Mr Nye as a respondent.  Williams Winter, Solicitors, in a letter that has been placed before me of 10 April addressed to Ms Diab, a person by the name of Mr P had been named as the second respondent.  There is no doubt that the affidavit of Ms Diab names Mr P as a respondent.  However, that is irrelevant because it is the application that matters and he is not named as a respondent to that application at all.  I am treating him as not a party to the proceedings.

2. The genesis of this application lies in the fact that Ms Diab is married to Mr Edris.  Mr Edris was made bankrupt pursuant to a sequestration order of the Federal Circuit Court on 27 February 2018.  It seems that the major asset that Mr Edris had was the legal interest in a home which the trustee, it seems to me quite properly, has now taken control of and, indeed, has sold pursuant to a contract on 13 March. 

3. The settlement of the sale of that property is to occur on 20 April 2018.  It is said that after a mortgage to C Bank has been repaid, there may be somewhere in the vicinity of $160,000 left over which, on the normal progression of a bankruptcy, will be in the hands of the trustee.  As was quite properly conceded by Mr Miller on behalf of the trustee, the entitlement of the trustee to disperse the proceeds in the bankruptcy is also subject to any equitable claims made by someone such as Ms Diab.

4. That brings me back to her application filed on 4 April.  The final order that she seeks is that she be awarded 80 per cent of the total equity once the home has been sold. 

5. I have read the affidavit that supports the application today, although the application is not really what I have just referred to, but rather an interlocutory application.  The interlocutory application actually seeks what could only be described as an injunction precluding the trustee from settling the home pursuant to the contract, and to use the words of Ms Diab:

   In order to grant me and my daughters enough time to find appropriate accommodations.

6. There is also an application before the Supreme Court of Victoria by the trustee which seeks to not only remove the caveat, but also to obtain vacant possession.

7. On the face of what I have read, and to which I am about to refer, is hard to see how the trustee will not be successful.  The affidavit which supports what I interpolate to be the injunction, runs to 18 paragraphs.  Ms Diab, through an interpreter, indicated to me that she had help in its preparation, but, interestingly, it was sworn without any reference to an interpreter. 

8. The affidavit is largely unhelpful if it was intended to be directed specifically to injunctive relief. The injunctive relief here could only lie in s 114 of the Family Law Act 1975 (Cth) (“the Act”). That sort of injunction could only be granted if the Court were satisfied that it was proper in circumstances. There is presently the pending application before the Supreme Court for the trustee to proceed to fulfil his task. It is hard to see how much of the affidavit is of any relevance.

9. To the extent that Ms Diab may have an equitable claim, a number of statements have been made in the affidavit. First, she refers to the fact that, as part of her cultural custom, the house was placed in her husband’s name. Whether or not that is the case, seems to me, to be irrelevant for the purposes of an application under s 79 of the Act. At the moment, it is hard to understand what the basis of her claim is. At its highest, she refers to the fact that there are precedents in this Court where women “from low asset marriages generally receive a majority share of any assets jointly owned.” The difficulty with that assertion is that it is not evidence, and even if it was, it is meaningless without some form of indication as to what precedents she is talking about, and how, more importantly, the asset to which she is directing the Court’s attention, is jointly owned.

10. What she then concludes is that based upon her understanding of these precedents, she would get 80 per cent of the value of the home. As I said, it is hard to understand how that is a claim under the Act. I have urged Ms Diab to get some legal advice, notwithstanding what seems to be the modest nature of the dispute.

11. In her affidavit, she directed attention to the fact that she, and indeed one or more of the daughters, has made contributions to the mortgage.  That is hardly a contribution to the property other than in the form of protecting it from being recovered by the mortgagee by the payment of the mortgage payments. 

12. There is no evidence that would justify the Court interfering with the role that the trustee is obliged to fulfil.  The house is in the husband’s name and he is a bankrupt.  As such, he has no standing before the Court on the basis that that is the only asset that the parties have.  Any interest he might have in it would rest in the trustee in any event.  I can only urge the parties to seriously endeavour to negotiate a resolution because if the trustee is right, that there is only $160,000 here, then, whatever is the entitlement of Ms Diab, if any, it will be a modest sum which will, undoubtedly, be lost in legal fees if the issue is not resolved quickly.

13. The logical step therefore, is to adjourn the proceedings until after the Supreme Court has sorted out what should happen.  I propose to adjourn the matter to 16 May 2018 at 9.30 am before Registrar Jenkins, who sent the matter here in the first place this morning, to see what steps should be taken hereafter, including the real prospect, I suspect, of the matter being transferred to the Federal Circuit Court. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 April 2018.

Associate: 

Date:  24 April 2018