El Saeid and Masih and Anor - [2019] FamCA 766

FAMILY COURT OF AUSTRALIA

EL SAEID & MASIH AND ANOR

[2019] FamCA 766

FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks a payment from the husband as part of interim property distribution – Where the wife seeks to apply those funds to legal fees for her current legal representation – Where there are existing orders in place dictating that any funds received by the wife as part of property settlement be first applied to the legal fees owed to her former solicitor – Where the wife seeks to vary those orders – Where the wife’s former solicitor opposes the application – Where the husband opposes the application and seeks indemnity costs for the hearing of the application – Where there is no available source of funds to meet the order – Where the Court is not satisfied that the wife’s application would leave the former solicitor “in no worse position” than he would be under the existing orders – Application dismissed – Costs reserved.

Family Law Act 1975 (Cth) s 79

Gabel & Yardley (2008) 40 Fam LR 66; [2008] FamCAFC 162
Harris & Harris (1993) 16 Fam LR 569; [1993] FamCA 49
Strahan & Strahan (Interim Property Orders) (2009) 42 Fam LR 203; [2009] FamCAFC 166
Zschokke & Zschokke (1996) 20 Fam LR 766; [1996] FamCA 79

APPLICANT:

Ms El Saeid

RESPONDENT:

Mr A Masih

INTERVENOR:

JJ Lawyers

FILE NUMBER:

SYC

2986

2012

DATE DELIVERED:

23 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

3 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Raphael

SOLICITOR FOR THE APPLICANT:

Sharah & Associates Solicitors and Conveyancers

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Diamond Conway Lawyers

SOLICITOR FOR THE SECOND, THIRD AND FOURTH RESPONDENTS:

York Law

COUNSEL FOR THE INTERVENOR:

Mr Levett

SOLICITOR FOR THE INTERVENOR:

JJ Lawyers & Public Notaries

Orders

The Amended Application in a Case filed by the wife on 30 September 2019 is dismissed.
The issue of costs is reserved with leave to all parties to restore the proceedings to the list by arrangement with each other and the Associate to Loughnan J.

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 El-Saeid & Masih 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 SYDNEY

FILE NUMBER: SYC2986 of 2019

Ms El Saeid

Applicant

And

Mr A Masih

Respondent

REASONS FOR JUDGMENT

Introduction

There are proceedings for settlement of property between Ms El Saeid (“the wife”) and Mr…

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.

Keep reading for free

Create a free CaseChat account to read El Saeid and Masih and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FamCA 766
Decision Date: 23 October 2019

CaseChat Overview and Summary

In *El Saeid and Masih*, Loughnan J of the Federal Court of Australia considered an application by the wife. The precise nature of the dispute is not detailed in the provided text, beyond the fact that it was initiated by the wife's Amended Application in a Case filed on 30 September 2019.

The primary legal issue before the court was whether the wife's application should be dismissed. The court was required to determine the merits of the application and make a consequential order.

Loughnan J dismissed the wife's Amended Application in a Case. The court reserved the issue of costs, granting leave for all parties to restore the proceedings to the list by arrangement with each other and the Associate to Loughnan J.

Orders

Orders of the court

The Amended Application in a Case filed by the wife on 30 September 2019 is dismissed.

The issue of costs is reserved with leave to all parties to restore the proceedings to the list by arrangement with each other and the Associate to Loughnan J.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.