EL SAEID & MASIH

Case [2019] FamCA 497

FAMILY COURT OF AUSTRALIA

EL SAEID & MASIH [2019] FamCA 497

FAMILY LAW – PROPERTY SETTLEMENT – Threshold issue to identify and determine the value of the asset pool – Where the wife contends that the husband was, at all relevant times, in control of a company and trust accounts established by his family – Where that finding is not available on the evidence – Where the wife contends that the husband’s actions pertaining to these assets were attempts to deny the wife her entitlement to them – Where both the company and trust accounts were established prior to the husband meeting the wife – Points of claim dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband and wife each seek to re-open the case for the purpose of tendering fresh evidence while judgment is reserved – Where the evidence could not have been discovered prior to the end of the hearing – Where there would have been no prejudice to either party by way of the late admission of the evidence – Where the evidence to be considered is in relation to findings about the credit of the wife and husband – Where that evidence would not affect the outcome of the proceedings - Where that evidence is not so material that the interests of justice require its admission– Both applications dismissed.
Evidence Act 1995 (Cth) ss 118, 122, 125
Family Law Act 1975 (Cth) ss 75, 29, 85A, 90AC, 90AE, 106B
Family Law Rules 2004 r 17.04
Atkins & Hunt and Ors [2017] FamCAFC 79
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
F.Y.D. Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097
Inspector General in Bankruptcy v Bradshaw [2006] FCA 22
Kennon & Spry (2008) 238 CLR 366
Sharrment Pty Ltd and Ors v The Official Trustee in Bankruptcy (1988) 82 ALR 530
AA v New South Wales Bar Association(1992) 176 CLR 256
Stephens & Stephens and Ors [2005] FamCA 1181
Zau & Uong (No. 2) [2015] FamCA 56
APPLICANT: Ms El Saeid
FIRST RESPONDENT: Mr A Masih
SECOND RESPONDENT:

E Pty Limited
THIRD RESPONDENT: Mr B Masih ATF D Family Trust
FOURTH RESPONDENT: C Unit Trust
FILE NUMBER: SYC 2986 of 2012
DATE DELIVERED: 25 July 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATE: 12, 13, 14, 15, 16 & 21 March 2018 and 23 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Leggat SC with Mr Friedlander and Mr D Raphael (23 July 2019)
SOLICITOR FOR THE APPLICANT: Sharah & Associates Solicitors & Conveyancers
COUNSEL FOR THE FIRST RESPONDENT: Mr Schonell SC
SOLICITOR FOR THE FIRST RESPONDENT: Diamond Conway Lawyers
COUNSEL FOR THE SECOND TO FOURTH RESPONDENTS: Mr Campton SC
SOLICITOR FOR THE SECOND TO FOURTH RESPONDENTS: York Law Family Law Specialists

Orders

  1. The husband’s application to re-open filed on 19 June 2019 and the wife’s application to re-open filed on 19 July 2019 are dismissed.

  2. The wife’s applications for orders and findings in…

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AGLC
EL SAEID & MASIH [2019] FamCA 497
Case
[2019] FamCA 497
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Loughnan J considered applications by both the husband and wife in property settlement proceedings. The wife contended that the husband controlled company and trust accounts established by his family, and that his actions concerning these assets were intended to deny her entitlement to them. However, the court found that the evidence did not support the wife's contention that the husband was in control of these accounts, which were established prior to the marriage.

The primary legal issues before the court were whether the wife's claims regarding the husband's control and disposition of the company and trust accounts should be dismissed, and whether either party should be permitted to re-open the case to tender fresh evidence after judgment had been reserved. The wife sought various orders and findings in her Points of Claim, which were largely based on her assertions about the husband's control of these family-derived assets.

Loughnan J dismissed the wife's applications for orders and findings related to the company and trust accounts, finding that the evidence did not establish the husband's control over them. The court also dismissed both the husband's and wife's applications to re-open the case to adduce fresh evidence. The court reasoned that even if the evidence could not have been discovered earlier and would not cause prejudice, it was not sufficiently material to affect the outcome of the proceedings or so compelling that the interests of justice required its admission. The court also addressed submissions regarding the loss of legal professional privilege over a letter written by the husband, concluding that the letter did not suggest an intention to defraud the wife, but rather sought advice on the proper treatment of assets in a short marriage.

Consequently, the court ordered that the husband's and wife's applications to re-open the case be dismissed. The wife's applications for orders and findings in accordance with specific paragraphs of her Points of Claim were also dismissed. The property settlement proceedings were adjourned to a date to be fixed by arrangement with the parties.

Orders

Orders of the court

1.

The husband’s application to re-open filed on 19 June 2019 and the wife’s application to re-open filed on 19 July 2019 are dismissed.

2.

The wife’s applications for orders and findings in accordance with paragraphs 2, 3, 4, 22, 23, 24, 25, 26, 27, 28, 31, 32, 51, 53, 54 & 56 of her Points of Claim (exhibit X) are dismissed.

3.

The property settlement proceedings are adjourned to a date to be fixed by arrangement with the parties.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is scope for the correction of the Court record under a procedure referred to as “the slip rule”. Aspects of that rule are incorporated into rule 17.02 of the Family Law Rules 2004, which deals with the correction of court orders. As at mid-2015 there was no legislative acknowledgment of such a provision for this Court, in respect of reasons for judgment. However, the Family Law Amendment (Arbitration and Other Measures) Rules 2015 introduced rule 17.02A which had operation from 1 January 2016. That rule provides as follows:Varying or setting aside reasons for judgmentThe court may, at any time:(a)vary or set aside reasons for judgment if the reasons were issued by mistake; or(b)correct a clerical mistake in reasons for judgment, or an error arising in reasons for judgment from any accidental slip or omission. As I have suggested above, the power to correct the record is probably an implied power of superior courts and not one dependent on a court rule. Rule 17.02A was not available to the husband in the middle of 2015 but an application could have been made to correct the record, in any event. However, in my view the failure of the husband to seek to have the privileged material removed from the reasons for judgment does not amount to the husband knowingly and voluntarily disclosing the substance of the letter to another person or that disclosure occurring with his express or implied consent. Finally, it is submitted on behalf of the wife that the privileged status was lost because of circumstances falling within s 125 of the Evidence Act. It is submitted that the document was prepared in furtherance of the commission of a fraud. I have been referred to a number of authorities, or more correctly, decisions dealing with similar issues. The gravamen of the argument made on behalf of the wife is that in the letter of 30 January 2006, the husband was seeking advice from solicitors as to how he could improperly defeat a claim by the wife to his assets. In my view, that is not an accurate characterisation of the terms of the letter. There is no suggestion that the husband was thereby seeking advice about defrauding his wife. Indeed, I would imagine that a question like the one posed in the passage quoted in the judgment of Aldridge J is commonly and properly posed to family lawyers. It speaks of no necessary impropriety. Such a question would elicit a response directed to the approach to be advocated for the treatment of certain assets in the preliminary stages of the s 79(4) enquiry, such as the isolation of assets from the relevant net pool of assets or at least the separation of assets into separate pools for the purposes of assessing contributions, making adjustments and the formulation of operative orders. The question is all the more understandable in the circumstances that applied at the time of this letter, relating to a marriage of less than six months duration. In any event, in my opinion there is not a necessary suggestion of a fraud on the wife in the letter of 30 January 2006.

Ratio Decidendi

Legal Principle Established

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