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 | of | 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 2ND, 3RD, 4TH AND 5TH RESPONDENTS: | Ms Campton SC |
| SOLICITOR FOR THE PROPOSED 2ND, 3RD, 4TH AND 5TH 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…
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- Case
- [2015] FamCA 516
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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.
3.
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.
4.
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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