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Hadid v Sabouh

Hadid v Sabouh

Case [2023] NSWSC 483 10 May 2023

Jurisdiction

Statutory Construction

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Hadid v Sabouh [2023] NSWSC 483
Hearing dates: 5 May 2023
Date of orders: 10 May 2023
Decision date: 10 May 2023
Jurisdiction: Equity
Before: Meek J
Decision:
Order made for transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1)

Catchwords:
JURISDICTION — Equity proceedings brought by applicant (the former wife of the second respondent) involving claims of a trust over a property held by a third party (the first respondent), and allegations of a sham transfer of the property involving the second respondent in arranging with the third defendant for transfer of the property to the first respondent — Applicant’s claims are disputed by the respondents raising various statutory defences including indefeasibility of title, lack of writing and limitation period provisions — Responses by the applicant seeking to circumvent the statutory defences by equitable principles — Applicant seeks transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1) — Transfer opposed
JURISDICTION — Transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1) sought pursuant to s 5(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (NSW Act) and/or s 5(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cth Act) — Transfer determined by reference to s 5(1)(b)(ii) of the NSW Act and whether it is more appropriate that the equity proceedings be determined by the Federal Circuit and Family Court of Australia (Division 1) — Discussion regarding considerations relevant to the “interests of justice” in determining whether it is more appropriate that the equity proceedings be determined by the Federal Circuit and Family Court of Australia (Division 1)
STATUTORY CONSTRUCTION — Analysis of s 5(1)(b)(ii) of the NSW Act — The reference to the “Family Court” is a reference to the “Federal Circuit and Family Court of Australia (Division 1)” — Analysis of the construction of the provisions which the Court has regard to in s 5(1)(b)(ii)(A),(B),(C) — The “interests of justice” provision in s 5(1)(b)(ii) of the NSW Act is not a “residual provision” in the same terms as the expression “otherwise in the interests of justice” in s 5(1)(b)(iii) of the Cth Act.
LAW REFORM — Law reform agencies should give consideration to amendment of s 5(1)(b)(ii) of the NSW Act to update the reference to the “Family Court” to be a reference to the “Federal Circuit and Family Court of Australia (Division 1)”
COSTS — Orders made addressing costs of the transfer motion and the costs of the equity proceedings

Legislation Cited:
Acts Interpretation Act 1901 (Cth)
Conveyancing Act1919 (NSW)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)
Federal Courts (Consequential Provisions) Act 2000 (NSW)
Interpretation Act 1987 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Limitation Act1969 (NSW)
Real Property Act1900 (NSW)
Supreme Court Act1970 (NSW)
Trade Practices…

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 Hadid v Sabouh

Details

AGLC: Hadid v Sabouh [2023] NSWSC 483
Case: [2023] NSWSC 483
Decision Date: 10 May 2023

CaseChat Overview and Summary

In the case of Hadid v Sabouh, the applicant, the former wife of the second respondent, filed equity proceedings against the first and second respondents. The central dispute revolves around claims of a trust over a property held by the first respondent, with allegations that the transfer of the property from the second respondent to the first respondent was a sham. The respondents contested the applicant's claims, asserting various statutory defences, including indefeasibility of title, lack of writing, and limitation periods. The applicant sought to circumvent these defences through equitable principles, requesting a transfer of the proceedings to the Federal Circuit and Family Court of Australia (Division 1). The respondents opposed the transfer.

The court was required to decide whether the application for transfer of the equity proceedings to the Federal Circuit and Family Court of Australia (Division 1) was appropriate under the relevant provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987. Specifically, the court considered whether the proceedings should be transferred under section 5(1)(b)(ii) of the NSW Act, which refers to the "interests of justice," and whether it was more appropriate for the equity proceedings to be determined by the Federal Circuit and Family Court of Australia (Division 1). The court also examined the construction of section 5(1)(b)(ii) of the NSW Act and its distinction from the "otherwise in the interests of justice" provision in section 5(1)(b)(iii) of the Cth Act.

The court concluded that the reference to the "Family Court" in section 5(1)(b)(ii) of the NSW Act should be updated to refer to the "Federal Circuit and Family Court of Australia (Division 1)". It determined that the "interests of justice" provision in section 5(1)(b)(ii) of the NSW Act was not a residual provision like the expression "otherwise in the interests of justice" in section 5(1)(b)(iii) of the Cth Act. Consequently, the court held that the equity proceedings should not be transferred to the Federal Circuit and Family Court of Australia (Division 1). Additionally, the court made orders addressing the costs of the transfer motion and the costs of the equity proceedings.

Orders