El Saeid & Masih and Ors - [2015] FamCA 516

FAMILY COURT OF AUSTRALIA

EL SAEID & MASIH AND ORS

[2015] FamCA 516

FAMILY LAW – PROPERTY SETTLEMENT – Interim Application – Where the wife sought the joinder of several parties to the proceedings – Where no relief is being sought against some of those parties – Where it is alleged the husband has an interest in a company – Where that company is joined to the proceedings.

FAMILY LAW – COSTS – Where the respondents seek indemnity costs – Where none of the parties was wholly unsuccessful – Where the wife’s conduct warrants a costs order in favour of the husband and the respondents – Where impecuniosity is no bar to a costs order – Where costs ordered on a party/party basis.

Family Law Act 1975 (Cth) s 90AE, s 106B, s 117(2A)
Family Law Rules 2004 (Cth) r 6.02(1), r 6.03, r 10.12

Ebner & Pappas [2014] FamCAFC 229
Colgate-PalmoliveCo and Anor v Cussons Pty Ltd (1993) 118 ALR 248
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms El Saeid

FIRST RESPONDENT:

Mr A Masih

PROPOSED SECOND RESPONDENT:

Mr B Masih

PROPOSED THIRD RESPONDENT:	Mr A Masih and Mr B Masih as trustees of the Ms C Unit Trust
PROPOSED FOURTH RESPONDENT:	Mr A Masih as trustee of the D Family Trust
PROPOSED FIFTH RESPONDENT:	Mr B Masih in his capacity as a director of E Pty Limited and as an executor and/or trustee of the estate of the late Mr F Masih and also in his capacity as trustee of the D Family Trust

FILE NUMBER:

SYC

2986

2012

DATE DELIVERED:

6 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

9 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Friedlander

SOLICITOR FOR THE APPLICANT:

Sharah & Associates Solicitors and Conveyancers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE FIRST

RESPONDENT:

Cameron Gillingham Boyd

COUNSEL FOR THE PROPOSED

2^ND, 3^RD, 4^TH AND 5^TH RESPONDENTS:

Ms Campton SC

SOLICITOR FOR THE PROPOSED

2^ND, 3^RD, 4^TH AND 5^TH RESPONDENTS:

York Law Family Law Specialists

Orders

Pursuant to r 10.12 of the Family Law Rules 2004 (Cth) paragraphs 5, 6, 7 and 8 of the relief sought and paragraphs 14 – 26 inclusive of the Statement of Claim dated 7 May 2015 be struck out.
That leave for the wife to amend her Application in a Case filed 17 June 2014 to add a claim to join Mr B Masih in his capacity as a director of E Pty Limited and as an executor and/or trustee of the estate of the late Mr F Masih and also in his capacity as trustee of the D Family Trust to these proceedings is refused.
That the wife pay the costs of the husband and Mr B Masih of the Application in a Case filed on 17 June 2014 on a party and party basis as agreed, or in default…

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.

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Details

Case: [2015] FamCA 516
Decision Date: 6 July 2015

CaseChat Overview and Summary

In the matter of *El Saeid & Masih and Ors*, Aldridge J of the Federal Circuit Court of Australia considered an application by the respondent husband and a third party, Mr B Masih, to strike out certain paragraphs of the wife's Statement of Claim and to refuse her leave to join Mr Masih and E Pty Limited as parties to the proceedings. The wife sought to join Mr Masih in his various capacities as director of E Pty Limited, executor and/or trustee of the estate of the late Mr F Masih, and trustee of the D Family Trust, and also to join E Pty Limited itself as a party.

The primary legal issues before the court were whether the wife's claims against Mr Masih and E Pty Limited, as pleaded in paragraphs 14-26 of her Statement of Claim, were properly brought within the existing proceedings and whether it was appropriate to join these parties. Specifically, the court had to determine if the claims disclosed a cause of action and if the joinder of these parties and the proposed amendments were permissible under the Family Law Rules 2004 (Cth).

Aldridge J reasoned that paragraphs 5, 6, 7 and 8 of the relief sought and paragraphs 14-26 of the Statement of Claim should be struck out as they did not disclose a cause of action against Mr Masih in his personal capacity or against E Pty Limited. The court also refused the wife leave to amend her application to join Mr Masih in his various capacities and E Pty Limited as parties, finding that the proposed joinder and amendments were not appropriate in the context of the family law proceedings. However, the court ordered that E Pty Limited be joined as a party to the proceedings, likely to address issues related to the company's assets or liabilities that were relevant to the overall property settlement.

Consequently, the court ordered that paragraphs 5, 6, 7 and 8 of the relief sought and paragraphs 14-26 of the Statement of Claim be struck out. Leave to amend the application to join Mr Masih in his various capacities was refused. The wife was ordered to pay the costs of the husband and Mr Masih. In contrast, E Pty Limited was ordered to be joined as a party to the proceedings.

Orders

Orders of the court

Pursuant to r 10.12 of the Family Law Rules 2004 (Cth) paragraphs 5, 6, 7 and 8 of the relief sought and paragraphs 14 – 26 inclusive of the Statement of Claim dated 7 May 2015 be struck out.

That leave for the wife to amend her Application in a Case filed 17 June 2014 to add a claim to join Mr B Masih in his capacity as a director of E Pty Limited and as an executor and/or trustee of the estate of the late Mr F Masih and also in his capacity as trustee of the D Family Trust to these proceedings is refused.

That the wife pay the costs of the husband and Mr B Masih of the Application in a Case filed on 17 June 2014 on a party and party basis as agreed, or in default as assessed. Such costs to be payable upon the determination of these proceedings.

That E Pty Limited be joined as a party to these proceedings and served with all relevant documents within twenty eight (28) days of these Orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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