Elkhouri & Amatullah - [2017] FamCA 688

FAMILY COURT OF AUSTRALIA

ELKHOURI & AMATULLAH AND ANOR

[2017] FamCA 688

FAMILY LAW – PROPERTY – property of unknown value – contracts with third-parties to the relationship

Briese and Briese (1986) FLC ¶91-713
Chang, J v Su, S (2002) FLC ¶93-117
Fraser & Moedt (Unreported, Family Court of Australia, Nicholson CJ, Lindenmayer & May JJ, 13 June 1997)
In theMarriage ofBlack and Kellner (1992) FLC ¶92-287
Stanford v Stanford (2012) FLC ¶93-518
Stein, CM v Stein, M (2000) FLC ¶93-004
Weir and Weir (1993) FLC ¶92-338

Child Support (Assessment) Act 1989 (Cth) ss 5, 123A
Family Law Act 1975 (Cth) ss 75, 79

APPLICANT:

Ms Elkhouri

RESPONDENT:

Mr A Amatullah

SECOND RESPONDENT:

Ms B Amatullah

FILE NUMBER:

DATE DELIVERED:

PAC 5098 of 2013

6 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Gill J

HEARING DATE:

5, 6 and 7 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cairns

SOLICITOR FOR THE APPLICANT:

Farah Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Lawson

SOLICITOR FOR THE RESPONDENT:

Turner Freeman Lawyers

COUNSEL FOR THE SECOND RESPONDENT:	Mr Tockar
SOLICITOR FOR THE SECOND RESPONDENT:	John R Quinn & Co. \|

Orders

The parties shall do all such acts and things and sign all such documents as may be necessary to authorise and direct C Lawyers to disperse the moneys held on trust by the solicitors in their controlled money account in relation to the proceeds of sale of the Suburb D property, as follows:
(a)Firstly, payment of 44.4 per cent of the moneys held to the solicitors of the wife on her behalf;
(b)Secondly, the payment of the balance there remaining, being 55.6 per cent of the moneys held in that account, to the solicitors on behalf of the second respondent;
The husband shall indemnify and keep indemnified the wife in respect of any and all liabilities arising in respect of any loan of moneys received by him from the second respondent.
The husband and wife shall be the sole legal and beneficial owners (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed to be in the possession of the worker.
The husband shall pay to the wife a further sum of $221,000 AUD within a period of six months from the making of these orders, with interest to accrue on the amount in accordance with the Family Law scale from a date 28 days from the date of the making of these orders.
Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names.
In the event of any party neglecting or refusing to sign within seven days of a written request to do so, any document necessary…

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.

Continue reading Elkhouri & Amatullah

Details

AGLC: Elkhouri & Amatullah [2017] FamCA 688
Case: [2017] FamCA 688
Decision Date: 6 September 2017

CaseChat Overview and Summary

In *Elkhouri & Amatullah*, heard by Gill J, the dispute concerned the division of property between a husband and wife. A key element of the dispute involved funds held by third-party solicitors in relation to the proceeds of sale of a property.

The court was required to determine how to distribute the proceeds of sale of the Suburb D property, which were held in a controlled money account by solicitors. The court also had to consider the husband's liabilities arising from loans received from a third party, and how to treat other assets and debts in the possession of each party.

Gill J ordered that the solicitors disperse the moneys held on trust. The wife was to receive 44.4 per cent of these funds, with the husband receiving the remaining 55.6 per cent. The husband was also ordered to indemnify the wife against any liabilities arising from loans he received from the second respondent. The court further declared that each party would be the sole legal and beneficial owner of other assets in their respective possession, with bank accounts and superannuation entitlements deemed to be in the possession of the respective account holder or worker. The husband was ordered to pay the wife a further sum of $221,000 AUD within six months, with interest accruing. Each party was to be solely liable for and indemnify the other against debts relating to property in their respective possession or in their sole names. The Registrar of the Family Court was empowered to execute documents if a party neglected to do so. All outstanding applications were dismissed.

Orders

Orders of the court

1.The parties shall do all such acts and things and sign all such documents as may be necessary to authorise and direct C Lawyers to disperse the moneys held on trust by the solicitors in their controlled money account in relation to the proceeds of sale of the Suburb D property, as follows:

(a) Firstly, payment of 44.4 per cent of the moneys held to the solicitors of the wife on her behalf;

(b) Secondly, the payment of the balance there remaining, being 55.6 per cent of the moneys held in that account, to the solicitors on behalf of the second respondent;

2.The husband shall indemnify and keep indemnified the wife in respect of any and all liabilities arising in respect of any loan of moneys received by him from the second respondent.

3.The husband and wife shall be the sole legal and beneficial owners (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed to be in the possession of the worker.

4.The husband shall pay to the wife a further sum of $221,000 AUD within a period of six months from the making of these orders, with interest to accrue on the amount in accordance with the Family Law scale from a date 28 days from the date of the making of these orders.

5.Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names.

6.In the event of any party neglecting or refusing to sign within seven days of a written request to do so, any document necessary to implement the terms of these orders, the Registrar of the Family Court of Australia at Parramatta is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act 1975.

7.All outstanding applications are dismissed.

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.