Haseeb & Haseeb

Case [2021] FCCA 2000

FEDERAL CIRCUIT COURT OF AUSTRALIA

Haseeb & Haseeb [2021] FCCA 2000

File number(s): PAC 1927 of 2017
Judgment of: JUDGE OBRADOVIC
Date of judgment: 26 August 2021
Catchwords: FAMILY LAW – wife’s application to join husband’s father as second respondent – wife’s application for injunctive orders – where outstanding debts will affect the pool of assets – proceedings transferred to the Family Court of Australia – husband’s father joined as second respondents – husband restrained from disposing or further encumbering the real estate assets
Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit Court Rules2001 r 11.01
Cases cited: Benjamin v Endeavour Industries Pty Ltd [2012] FMCA 488
TheState of Victoria v Sutton [1998] HCA 56
Tsiang & Wu and Ors [2019] FamCAFC 128
Wayne & Dillon & Dillon [2008] FamCAFC 204
Number of paragraphs: 65
Date of hearing: 10 August 2021
Place: Parramatta
Counsel for the Applicant:  Mr Singh
Solicitors for the Applicant:  Opal Legal
Counsel for the Respondent:  Mr Campton SC
Solicitors for the Respondent:  Matthews Folbigg Pty Ltd
Counsel for the proposed Second Respondent: Mr Heath
Solicitors for the proposed Second Respondent: McLaughlin & Riordan

ORDERS

PAC 1927 of 2017
BETWEEN:

MS HASEEB
Applicant
AND:

MR HASEEB
Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

26 AUGUST 2021

THE COURT ORDERS THAT:

(1)Mr B is joined to these proceedings as the Second Respondent.

(2)The Applicant is granted leave to file and serve a further Amended Initiating Application within 14 days, setting out with sufficient particulars, the relief sought.

(3)Pursuant to s.114(3) of the Family Law Act 1975 (Cth), the First Respondent, Mr Haseeb, be restrained from selling, transferring, assigning, further encumbering or otherwise disposing of any real estate assets in his sole or joint name, unless agreed to in writing by the parties or until further order of the Court.

(4)Costs of the Applicant, First Respondent and Second Respondent of this application be reserved.

(5)The proceedings are transferred to the Parramatta Registry of the Family Court of Australia to be listed on a date to be advised.

NOTATION:

(a)The Court notes and accepts the undertakings provided to the Court by the Second Respondent on 10 August 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Haseeb & Haseeb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

  1. These are reasons for judgment in respect of the orders sought in an Application in a Case filed 26 July 2021 by Ms Haseeb, the applicant in the substantive proceedings (“wife”). The respondents to that interim application are the respondent in the substantive proceedings (“husband”) and the husband’s father, Mr B.

  2. The husband is the sole legal owner of five properties:

    (a)C Street, Suburb D (“Suburb D property”);

    (b)1 E Road,…

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Details
AGLC
Haseeb & Haseeb [2021] FCCA 2000
Case
[2021] FCCA 2000
Decision Date

CaseChat Overview and Summary

This matter concerned proceedings between Ms Haseeb (the Applicant wife) and Mr Haseeb (the Respondent husband) in the Family Court of Australia. The wife sought property adjustment orders, and the proceedings had been ongoing for over four years, involving complex issues of disclosure and parenting arrangements for the parties' four children. A significant development in the case was the wife's application to join Mr B, the husband's father, as a second respondent and to seek interlocutory relief restraining the husband from dealing with his assets.

The court was required to determine whether to join Mr B as a party to the proceedings and whether to grant the wife leave to file an amended application seeking specific relief. Furthermore, the court needed to consider the application for an interlocutory injunction to restrain the husband from disposing of his real estate assets, pursuant to section 114(3) of the *Family Law Act 1975* (Cth). The court also had to address the transfer of the proceedings to the Parramatta Registry.

In its reasoning, the court ordered that Mr B be joined as the Second Respondent, acknowledging undertakings he had provided. Leave was granted to the Applicant to file and serve a further Amended Initiating Application within 14 days, requiring her to set out the relief sought with sufficient particulars. Crucially, the court made orders restraining the First Respondent, Mr Haseeb, from selling, transferring, assigning, further encumbering, or otherwise disposing of any real estate assets in his sole or joint name, unless agreed to in writing by the parties or until further order. The costs of the application were reserved for all parties. The proceedings were subsequently transferred to the Parramatta Registry of the Family Court of Australia.

Orders

Orders of the court

PAC 1927 of 2017

BETWEEN:

MS HASEEB

Applicant

AND:

MR HASEEB

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

26 AUGUST 2021

THE COURT ORDERS THAT:

(1) Mr B is joined to these proceedings as the Second Respondent.

(2) The Applicant is granted leave to file and serve a further Amended Initiating Application within 14 days, setting out with sufficient particulars, the relief sought.

(3) Pursuant to s.114(3) of the Family Law Act 1975 (Cth), the First Respondent, Mr Haseeb, be restrained from selling, transferring, assigning, further encumbering or otherwise disposing of any real estate assets in his sole or joint name, unless agreed to in writing by the parties or until further order of the Court.

(4) Costs of the Applicant, First Respondent and Second Respondent of this application be reserved.

(5) The proceedings are transferred to the Parramatta Registry of the Family Court of Australia to be listed on a date to be advised.

NOTATION:

(a) The Court notes and accepts the undertakings provided to the Court by the Second Respondent on 10 August 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Those proceedings are next before Court N in August 2021. Background The husband and wife have been embroiled in family law proceedings for over 4 years. The parties were married in 2002, and they separated in December 2014. The parties have four children together, aged between 16 and 12 years old. All four girls live with their mother and spend limited time with their father. The wife commenced proceedings seeking property adjustment orders in April 2017. In January 2018, the husband filed his Response to the wife’s Initiating Application for property adjustment orders, but also sought orders in respect of parenting of the parties’ four children. Between the commencement of the proceedings and the hearing of the interim application presently before the Court, there have been many Court events and many procedural and interim orders. For periods of time neither party was represented. Issues of disclosure have been one of the recurring themes in these proceedings. It is probably the case that the primary focus of the parties’ many appearances before this Court to date have been on the parenting proceedings, but the property adjustment proceedings have been bubbling along the way and from time to time procedural orders have been made in respect of that aspect of the proceedings. The parties have attended mediation. It is apparent from the Court record that many subpoenas have been issued, and there have been numerous objections to subpoenas, some of which have required determination by the Court. On 24 February 2021, the Court made a number interim property orders, interim parenting orders and procedural orders, including setting the matter down for final hearing in early August 2021. On 14 July 2021, the wife filed an Application in a Case seeking to join Mr B, the husband’s father, to the proceedings as second respondent, and restraints against the husband from dealing with any assets. The application was supported by a lengthy affidavit of the wife filed on 9 July 2021. On 22 July 2021, the Court made orders by consent in chambers as follows:1. That the final hearing listed 10-12 August 2021 (first reserve) be vacated.2. That the application in a case filed by the Wife on 14 July 2021 remain listed on 10 August 2021.3. That on the determination of the Application in a Case filed by the Wife on 14 July 2021, that the proceedings be transferred to the Family Court of Australia, Parramatta Registry.4. That the Wife have leave to issue a subpoena to National Australia Bank in the form of that annexed hereto and marked A.5. That the Husband will comply with his disclosure obligations and in particular provide the documents in his possession that were last requested by the Wife's solicitors on 21 July 2021 by 12pm on 28 July 2021.NotationsThat parties acknowledge the following:A. The Wife contends that she became aware in 2021 that Mr B (father of the Husband) had obtained default judgement against the Husband in Court N on 8 February 2016 for the sum of $2,604,400.95 and that Mr B has not enforced this judgement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 8 February 2016, Mr Haseeb obtained default judgment against the husband in the sum of $2,604,400.95. The judgment sum includes the principal amount of $1,000,000 plus interests and costs. To date, Mr Haseeb has not sought to enforce this judgment. Judgment for $708,987.18 The husband claims that in 2013, Mr Haseeb lent him a further $266,000 pursuant to a written agreement dated 23 August 2010. In 2021, Mr Haseeb filed a Statement of Claim in Court M, being a claim for a liquidated amount of $708,987.18 (which included $442,220.18 of interest). Mr Haseeb relied upon the loan agreement dated 23 August 2010. Mr Haseeb claimed that on 18 June 2021, he made a demand for the repayment of the loan agreement, and that the husband failed to comply with the demand. In 2021, Mr Haseeb filed a Notice of Motion for Default Judgment pursuant to Rule 13.1(1) of the Uniform Civil Procedural Rules 2005, supported by an affidavit of Mr Haseeb of 25 June 2021, where he deposed as to his belief that the husband had no defence to his claim, or any part of it. In 2021, orders were made in Court M for judgment in favour of Mr Haseeb, in the amount of $708,987.18.Suburb D Property The Suburb D property was purchased in the husband’s sole name in 1992. It is the husband’s evidence that Mr Haseeb paid $40,000 towards the purchase of the Suburb D property in 1992 and that it was bought for the benefit of Mr Haseeb. The property was subject to a mortgage in the husband’s name, and there has been subsequent refinancing of the property. The property is presently subject to a mortgage with the National Australia Bank in the amount of approximately $400,000. The husband is the mortgagor. Until recently, the lender was not aware of Mr Haseeb’s claim. The claim made by Mr Haseeb is not a matter which has been disclosed to any financial institution by the husband, notwithstanding the 3 mortgages which have been held over the property since it was purchased in 1992. In 2021, Mr Haseeb commenced proceedings in the Court N seeking orders that the Suburb D property be transferred to him, on the basis that the property was held in trust for him by the husband. The husband does not oppose the making of those orders. Those proceedings are next before Court N in August 2021. Background The husband and wife have been embroiled in family law proceedings for over 4 years. The parties were married in 2002, and they separated in December 2014. The parties have four children together, aged between 16 and 12 years old. All four girls live with their mother and spend limited time with their father. The wife commenced proceedings seeking property adjustment orders in April 2017. In January 2018, the husband filed his Response to the wife’s Initiating Application for property adjustment orders, but also sought orders in respect of parenting of the parties’ four children. Between the commencement of the proceedings and the hearing of the interim application presently before the Court, there have been many Court events and many procedural and interim orders. For periods of time neither party was represented. Issues of disclosure have been one of the recurring themes in these proceedings.

Ratio Decidendi

Legal Principle Established

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