Entezam & Devi (No. 3)

Case [2021] FamCA 549

FAMILY COURT OF AUSTRALIA

Entezam & Devi (No. 3) [2021] FamCA 549

File number(s): SYC 2844 of 2018
Judgment of: WILSON J
Date of judgment: 28 July 2021
Catchwords:

ARBITRATION – application to review arbitral award under s 13J of the Family Law Act.

ARBITRATION – application for an order reversing, varying or setting aside arbitral award under s 13K of the Family Law Act.

BIAS – unparticularised allegation of bias by respondent – allegations not differentiated between actual bias or apprehended bias – no bias by arbitrator demonstrated.

PROCEDURAL FAIRNESS – unparticularised allegation that arbitrator denied respondent procedural fairness – no denial of procedural fairness demonstrated.

QUESTION OF LAW – costs award – arbitrator ordering scale costs yet not identifying the relevant scale and instead ordering a lump sum of costs in excess of $64,000 – no treatment given to the justice of an award being made in that amount – no treatment given to manner in which that sum was made up – error demonstrated – costs to be assessed by a registrar of this court.

Legislation:

Evidence Act 1995 (Cth) s 41

Family Law Act 1975 (Cth) ss 13E, 13H, 13J, 13K, 117

Family Law Regulations 1984 (Cth) regs 67H, 67Q

Property (Relationships) Act1984 (NSW)
Cases cited:

AK v Western Australia (2008) 232 CLR 438

Australian Timber Workers' Union v Monaro Sawmills Pty Ltd (1980) 42 FLR 369

AYX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 99

Belding & Belding [2020] FamCA 1027

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364

Briginshaw v Briginshaw (1938) 60 CLR 336

Campbelltown City Council v Vegan (2006) 67 NSWLR 372

Cantwell v Beitzel (2014) 87 NSWLR 103

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Entezam & Devi (2021) 62 Fam LR 637

Entezam & Devi (No. 2) [2021] FamCA 122

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

In the Marriage of Hogan (1986) 10 Fam LR 681

Isbester v Knox City Council (2015) 255 CLR 135

Johnson v Johnson (2000) 201 CLR 488

McCarroll v Fitzmaurice [1979] 2 NSWLR 100

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Mifsud v Campbell (1991) 21 NSWLR 725

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507

NRMA Insurance Ltd v Tatt (1989) 94 FLR 339

Pettitt v Dunkley [1971] 1 NSWLR 376

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

R v Immigration Appeal Tribunal; ex parte Khan [1983] QB 790

Re JRL; ex parte CJL (1986) 161 CLR 342

Resi Corporation v Munzer [2016] SASCFC 15

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72

Stead v State Government Insurance Commission (1986) 161 CLR 141

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Transport Accident Commission v Kamel [2011] VSCA…

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Details
AGLC
Entezam & Devi (No. 3) [2021] FamCA 549
Case
[2021] FamCA 549
Decision Date

CaseChat Overview and Summary

In the matter of *Entezam & Devi (No. 3)*, heard by Wilson J, the respondent sought to review and set aside a substantive arbitral award and a costs award made by an arbitrator. The respondent's contentions included that the de facto relationship was governed by New South Wales legislation, not the *Family Law Act*, that the substantive award should not be registered, and that the arbitration was affected by bias or a lack of procedural fairness. The respondent also argued that the applicant should not profit from alleged illegal acts in obtaining Centrelink benefits.

The court was required to determine whether to dismiss the respondent's applications to review and set aside the substantive arbitral award under sections 13J and 13K of the *Family Law Act*. Specifically, the court had to consider the grounds for review under section 13K(2), including allegations of fraud, voidness or unenforceability of the award, impracticability of carrying out the award, or bias and lack of procedural fairness in the arbitration process. The court also had to consider the validity of the arbitrator's costs award.

Wilson J dismissed the respondent's applications to review and set aside the substantive arbitral award, finding no evidence of bias or denial of procedural fairness. The court also found that the substantive award was not obtained by fraud, was not void or unenforceable, and that it remained practicable to carry out. However, the court reviewed the costs award, finding an error in the arbitrator's determination of a lump sum exceeding $64,000 without adequately justifying the amount or the scale of costs.

Consequently, the court varied the costs award, ordering that the costs be assessed by a registrar of the court, with the assessed sum to be less than the original $64,423.56. The registrar was directed to complete the assessment by 29 September 2021, and the assessed costs were to be paid by 29 October 2021.

Orders

Orders of the court

SYC 2844 of 2018

BETWEEN:

MR ENTEZAM

Applicant

AND:

MS DEVI

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

28 JULY 2021

THE COURT ORDERS THAT:

1. In relation to the substantive award I dismiss the respondent’s application to review the award under s 13J of the Family Law Act and I dismiss the respondent’s application for an order reversing or varying the substantive award under s 13K of the Family Law Act.

2. In relation to the costs award, I order the review of the costs award and vary the costs award by substituting for the sum ordered by the arbitrator of $64,423.56 such sum, less than $64,423.56, as is assessed by a registrar.

3. The registrar must assess those costs by 4pm on 29 September 2021.

4. The costs assessed by the registrar pursuant to paragraph 2 hereof must be paid by 4pm on 29 October 2021.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The respondent advanced a collection of propositions in support of the relief she sought under s 13K and s 13J of the Family Law Act.[8] Relevantly paraphrased she contended that – (a)the subject matter of the litigation was governed by the Property (Relationships) Act 1984 (NSW) rather than it being governed by the Family Law Act having regard to the duration of the parties’ de facto relationship;(b)the substantive award should not be registered under s 13K;[9](c)the arbitration was affected by bias;(d)or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted; and(e)the arbitration should not be registered under s 13J of the Family Law Act because “the applicant should not be allowed to profit from his own illegal acts in obtaining Centrelink benefits and then being able to come back against the respondent later”.[10][8] She relied on an undated document styled “statement of facts and contentions with orders”.[9] On 12 February 2021 the substantive award was registered under Regulation 67Q(5) of the Family Law Regulations and s 13H of the Family Law Act so that contention, erroneously relying on s 13K of the Family Law Act should have sought affirmation, variation or reversal of the award.[10] The quoted portion emerged from contention four of the respondent’s facts and contentions document.STATEMENT OF AGREED FACTS Counsel for the respondent and counsel for the applicant prepared a document entitled “agreed facts,” comprised of 31 paragraphs. Most of the facts set out in the agreed facts document related to issues the arbitrator was required to determine in order to resolve a threshold issue in the litigation, namely whether a de facto relationship existed between the parties and if so the duration of that relationship including its commencement and conclusion dates. The arbitrator determined that a de facto relationship existed between the parties in the period from 1 July 1991 and 31 August 2016, a little over 25 years. The seven issues styled “disputed facts” and set out in the respondent’s statement of facts and contentions went to the factual matrix in relation to the fact and duration of the de facto relationship between the parties. The statement of agreed facts and of disputed facts was of little utility on the return of these applications having regard to the arbitrator already having made factual findings that underpinned his conclusions about the phenomenon of and duration of the de facto relationship.SECTION 13K OF THE FAMILY LAW ACT Once the arbitral award is registered, s 13K of the Family Law Act empowers this court to make a decree affirming, reversing or varying the arbitral award. The power conferred by s 13K(1) is not at large. It is significantly circumscribed by s 13K(2) which provides that an order under s 13K(1) may only be made if the court is satisfied that one of the elements exists as are stipulated in the four alphabetical subsections of s 13K(2). Relevantly paraphrased, the court has power to affirm, vary or reverse an arbitral award only if satisfied that – (a)the award was obtained by fraud including material non-disclosure;[11] or(b)the award is void, voidable or unenforceable;[12] or(c)in the circumstances that have arisen since the award was made it is impracticable for some or all of it to be carried out;[13] or(d)the arbitration was affected by bias or there was a lack of procedural fairness in the way the agreed arbitral process was conducted.[14][11] Section 13K(2)(a).[12] Section 13K(2)(b).[13] Section 13K(2)(c). See also Belding & Belding [2020] FamCA 1027.[14] Section 13K(2)(d).

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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