Hassani v Alimi
[2014] SADC 32
•26 February 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HASSANI v ALIMI
[2014] SADC 32
Judgment of His Honour Judge Slattery
26 February 2014
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSIDERATION - WHAT AMOUNTS TO CONSIDERATION - GENERAL
EQUITY - GENERAL PRINCIPLES - GENERALLY
FAMILY LAW AND CHILD WELFARE - MARRIAGE AND ITS EFFECT - VOID MARRIAGES - GENERALLY
Minor civil review - dispute between parties concerning an alleged agreement arising out of a traditional Afghani “divorce” ceremony - question of the whether or not the alleged agreement constituted a contract - whether a rebuttable presumption of resulting trust arose in respect of property delivered in accordance with the alleged agreement - whether any other equitable interest exists in relation to that property - what constitutes a marriage pursuant to the Marriage Act 1961 (Cth).
Magistrates Court Act sub-s38(1), (6) and (7) ; District Court Rules 6R R199-201; The Marriage Act 1961 (Cth) Subdivision C of Division 1 of Part IV, s11, s23, s41, s42; Family Law Act 1975 (Cth) Generally; Jacobs Law of Trust in Australia 7th Ed. (J.D. Heydon, M. J. Leeming) at page 234, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Napier v Public Trustee (WA) (1980) 32 ALR 153 ; Re Vandervell’s Trust (No.2) [1974] Ch 269 ; DKLR Holding Co (No.2) Pty Ltd v Commission of Stamp Duties (1982) 149 CLR 431, applied.
HASSANI v ALIMI
[2014] SADC 32
Minor civil review of a decision made by Mr S Milazzo SM dated 2 August 2013.
This is a minor civil review pursuant to sub-s38(6) and (7) of the Magistrates Court Act.[1] These subsections came into operation on 1 October 2000 and their operation is now well settled.[2][3] In hearing this minor civil review, it is necessary for me as the presiding Judge to control the hearing of the matter and I am entitled to conduct an enquiry as contemplated under s38(1) of the Magistrates Court Act.[4]
[1] 38—Minor civil actions
[2] Harradine v District Court of South Australia [2012] SASC 96.
[4] 38—Minor civil actions
(1)The following provisions are applicable to the trial of a minor civil action:
(a)the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c) the Court may itself call and examine witnesses;
(d) the parties are not bound by written pleadings;
(e) the Court is not bound by the rules of evidence;
(f)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The dispute between the parties concerns an agreement that allegedly occurred between the applicant Raof Hassani (the appellant) and the respondent Maria Alimi (the respondent) arising out of their relationship which existed between October 2012 and December 2012. In his judgment, the learned Magistrate rejected the contention of the appellant that he was not bound by an agreement in writing made with the respondent dated 29 December 2012 (exhibit D3) and signed by him, that such agreement should be set aside and that a declaration should be made as to his entitlement to ownership of property previously in the joint possession of himself and the respondent. Those assets largely consist of furniture and effects previously purchased and connected with the cohabitation of the appellant and the respondent in that four month period. The appellant claims that those goods were purchased by him, they belonged to him and he remains liable in respect of the debt incurred flowing from the purchase of those items of furniture and personal effects. The position of the respondent is that she denies the contentions of the appellant and submits that the appellant is bound by the agreement that he made voluntarily on 29 December 2012 (exhibit D3) which has now been implemented. Implicit in that contention is that the agreement is an enforceable contract under the law of Australia and that it has been executed (it is no longer executory).
The “Notice of Appeal”
The appellant in a Notice of Appeal set out the following matter:-
“The grounds of appeal are:
Absence of an enforceable agreement
1. The learned Magistrate erred in not deciding the document Exhibit D3 was an unenforceable agreement between the Plaintiff and the Defendant. There was an absence of consideration passing from the Defendant to the Plaintiff and thus no contractual relationship arose.
Plaintiff entitled to an equitable interest in the property
2. The learned Magistrate erred in deciding that because the terms of the agreement had been carried into effect, there was no basis in law for the granting of relief to the Plaintiff. The Plaintiff voluntarily transferred the property to the Defendant for no consideration, and thus a rebuttable presumption of resulting trust arises. There is no basis to rebut the presumption. Neither the agreement itself which is tainted with illegality and contrary to public policy or the apparent willingness of the Plaintiff to enter into the agreement are sufficient to rebut the presumption of a resulting trust.
3. The learned Magistrate erred in deciding there is no basis in law for the granting of relief when the Defendant has disposed of some of the furniture believing the Plaintiff accepted the terms of the agreement. While an equitable interest may be extinguished if the legal estate passes to a bona fide purchaser for value without notice of the equitable interest, there was no such purchaser to extinguish the Plaintiff’s equitable interest.
Costs on a Minor Civil Action
4. The learned Magistrate erred in exercising his discretion to order an excessive award of costs against the Plaintiff.”
The matters raised in item 4 complain about the exercise of the Magistrate’s discretion concerning costs. By an Order made on 8 August 2013 the learned Magistrate made an Order that the appellant was to pay the respondent’s costs of the action assessed at $4,005.50. No submissions were made to me on the question of costs and I will not consider that matter further.
The issues for decision
Considering the Notice of Appeal, the position now is that the following questions fall for further consideration:-
1. The question of the existence or not of a contract made on or about 29 December 2012;
2. Whether a rebuttable presumption of resulting trust arises in favour of the appellant in respect of the property delivered to the respondent following the agreement of 29 December 2012; and
3. Whether any equitable interest in favour of the appellant exists in the relevant furniture.
The parties’ pleadings
In the claim made by the appellant dated 26 February 2013 and filed at Court, the appellant stated the following under his particulars of claim:-
“Particulars of Claim
Me and my partner, Maria Alimi, started living together at 12 Brampton Court Elizabeth North from 12 of October 2012. On 29th of December 2012, we had an argument and the Police was called to resolve the issue. I was taken to the police station and released on bail. Under the bail conditions I was not allowed to return back to my house. A few days after the incident, Maria Alimi’s dad and other friends contacted me and presented me with a written document, written in a different language and threatened/forced me to sign the document.
I was alone during this conversation and the constant pressure and verbal abuse from Maria Alimi’s dad and eight other friends, left me with no choice but to sign the document. Had I not signed that document, they threatened to physically me [sic] and press extra charges against me. Since this is the first time I have been involved in an argument involving police, I was scared, mentally unstable and scared that I might be physically abused; therefore I signed the document and left the scene. A few days after later, on 2nd of January, I found out that all the household items were removed from the property and taken to Maria’s parents house.
All of the household items that were taken from the property were mine and I have purchase receipts to proof it [sic]. I have contacted Maria Alimi through my lawyer and requested to negotiate this matter but she has denied my request. The household items are worth a significant amount of money and since I have solely purchased all, I want to negotiate and hopefully get most of the items back.”
The respondent filed a Defence. The terms of her Defence, dated 15 March 2013, were as follows:-
“PARTICULARS OF DEFENCE
I deny all the Plaintiff’s claims and say the following:
I married the Plaintiff in October 2012. During our engagement period and throughout the marital relationship the Plaintiff and I purchased furniture (the goods in dispute) for the marital home. Both of us financially contributed to the purchases.
The Plaintiff physically assaulted me on 27 December 2012 as a result the police was called and the Plaintiff was taken away. The Police pressed charges and I gave a statement.
On 29 December 2012 the Plaintiff gathered a few of the Afghani community respected elders and brought them to my parents’ house to convince me to retract my police statement.
Upon negotiations I agreed that I will retract my statement provided the Plaintiff gives me a religious divorce and that I receive all my dowry entitlements, which included all the household goods.
The Plaintiff agreed without any duress or pressure from the community members he invited. The Plaintiff was not harmed, threatened or abused in any way. He was eager to finalise his criminal matter. Therefore, in accordance with my dowry entitlements and the agreement I removed the household items of the marital home and retracted my police statement. I deny the Plaintiff’s claim that the items were removed unlawfully. The goods removed are my legal entitlements.
The Plaintiff’s claim should be dismissed because:
1. The Magistrate Court has no jurisdiction to hear this matter. The dispute is regarding matrimonial property and under s39 of the Family Law Act 1975 matrimonial causes fall under Federal jurisdiction. Therefore, the Plaintiff initiated proceedings in the wrong jurisdiction.
2. The Plaintiff has no cause of action, as I have contributed to the purchase of the goods and retained the goods based on my dowry entitlements which were re-affirmed by an agreement signed by the Plaintiff and witnessed by a number of people. Since then I have acted on the agreement in good faith by retracing my police statement and removing the goods.”
The appellant then filed further and better particulars of claim on 19 April 2013 in the following terms:-
“PARTICULARS OF CLAIM – HASSANI RAOF
1. The plaintiff, Hassani Raof was born on the 1 January 1989.
2. The plaintiff is currently 24 years of age.
3. The plaintiff is currently employed fulltime and has been doing so since September 2012.
4. The plaintiff does not understand Arabic or Persian. Nor can he read or write Arabic or Persian.
5. The plaintiff met the defendant Maria Alimi around October 2011 whereby the plaintiff drove to Renmark to meet with the defendant.
6. The relationship between the plaintiff and the defendant began once the plaintiff met the defendant and the parties communicated via internet and mobile phone text messaging.
7. Towards the end of 2011 the defendant moved to Devon Park Adelaide.
8. On or about May 2012 the plaintiff purchased several items overseas namely cutlery and a carpet to be delivered to Australia.
9. On 8 May 2012 the plaintiff took out a loan with ANZ Bank in the sum of $10,150.00.
10. On 8 June 2012 the plaintiff took out another loan with ANZ Bank in the sum of $10,150.00
11. The plaintiff used the loan money to purchase household properties (the subject matter in dispute – Annexure “RH1”).
12. On 12 October 2012 the plaintiff and the defendant began cohabitation at 12 Brampton Court, Elizabeth North SA 5113.
13. During the short period of cohabitation (12 October 2012 to 27 December 2012) the plaintiff paid for all expenses as he was the only working party in the relationship.
14. On 27 December 2012 the plaintiff and the defendant had an altercation which resulted in the police attending the premises and an Intervention Order was issued upon the plaintiff.
15. While in custody the defendant transferred $1,000.00 from the plaintiff’s account into the defendant’s account at around 4:00 am in the morning.
16. As a result of the intervention the plaintiff could not return to 12 Brampton Court, Elizabeth North SA 5113 and resided at 14 Caston Street Pooraka SA 5095 with his family.
17. As a result of the altercation on 27 December 2012 the plaintiff was charged with Assault and the plaintiff sort [sic] legal representation to resolve the criminal matter.
18. On or around 29 December 2012 a group of people (unknown to the plaintiff) arrived at 14 Caston Street Pooraka SA 5095 and forced the plaintiff to sign a piece of paper written in Persian.
19. On or about 30 December 2012 the defendant was notified by the real-estate agent of 12 Brampton Court, Elizabeth North SA 5113 that all furniture from the property had been removed.
20. The plaintiff was subject to threats and verbal abuse until the paper was signed and the group left the premises.
21. On 30 January 2012 upon the resolution of the plaintiff’s criminal proceedings and in good faith, the plaintiff’s criminal solicitor sent a letter to the defendant seeking to resolve the property issue between the plaintiff and the defendant through the spirit of negotiation to which the defendant rejected.
22. The plaintiff confirms that there was no defector relationship as cohabitation did not amount to 2 years.
23. The plaintiff confirms that no marriage took place.”
The Court file does not disclose whether any further Defence was filed for and on behalf of the respondent.
Reference is made to paragraphs 17, 18, 19, 20 and 21 of the amended particulars of claim. The pleading in paragraph 18 actually or implicitly suggests that a person or persons unknown to the appellant overbore the appellant’s judgment and forced him to sign a piece of paper written in the Persian language concerning the settlement on 29 December 2012 (exhibit D3). It is apparent from an ordinary reading of the pleadings that the appellant intended to convey that his hand was forced to the document and that he did not willingly sign the agreement. For the reasons that follow, in my view, that assertion is quite untenable.
The material facts
The appellant and the respondent are members of the expatriate Afghan community in South Australia. They met sometime in 2011 and a romance developed between them. In 2012, the appellant proposed marriage to the respondent. This proposal and the respondent’s agreement to the proposal were not in accordance with the usual arrangements under the Afghani tradition. On 20 July 2011, an Imam who is said to be a Holy Man[5] performed a form of “marriage” ceremony under the Afghani tradition. It was called a Mehria and was an arrangement in the nature of a dowry in the amount of a bond of $14.00 and one copy of the Quran. A form of a Marriage Certificate was produced. It was written in the Persian language.[6] The English translation says that the “marriage” was to be permanent, the conditions of the marriage were that the dowry and house appliances had to be provided by the groom to his ability and that according to the tradition, the engagement and wedding expenses had to be provided by the groom. There were then four witnesses. It was signed and dated by the Marriage Executor Said Ali Mortazawi on 30 July 2011.[7]
[5] Mr Said Ali Mortazawi.
[6] Exhibit D1.
[7] For reasons that are set out, the arrangement made was not a marriage for the purposes of the Marriage Act 1961 (Cth).
Soon after this ceremony, the relationship broke down. It became verbally and physically abusive. It reached a point where the respondent obtained an Intervention Order preventing the appellant from behaving in unspecified ways towards her but also preventing him from being at or in the vicinity of the home at which the respondent was present.
A decision was made to end the “marriage” and under an agreement dated 29 December 2012, there was some form of religious separation under the Afghani tradition which was Islamic (exhibit D2). The parties then separated. It is necessary to set out in full the text of the document of 29 December 2012, exhibit D3. It reads as follows:-
“In The Name of GOD
Date: 29.Dec.2012
In the presence of: Mr. Sheikh Tavasolli, Mr. Hanif Rahimi, Mr. Haji Norouzali Ahmadi, Mr. Haji Laal Mohammad Alami, Mr. Haji Tavoos Alami, Mr. Haji Abdolhamid Alami, Mr. Haji Sultan Ali & Mr. Mohammad Ali; necessary conversations and consults were communicated with both parties: Mr. Raof Hassani & Mrs. Maria Alimi and at the end we agreed to execute the divorce while Mr. Haj Tavasolli was representing both parties to do so. Also, Mr. Haji Tavasolli & Mr. Hanif Rahimi were the representatives to finalise the matter and as the result, all the house appliances were given to Mrs. Maria so that she can take them all or she can just leave them. Also, if any gold and jewelleries were in place, they will be given to Mrs. Maria and Mr. Raoof doesn’t deserve the right to interfere. Also, both parties will not harass each other and will not interfere with each other’s life anymore. Mrs. Maria is obliged to withdraw her complaint to the police.
Signed by witnesses:
Raof Hassani/Signed
Maria Alami/Signed
Haj Agha Tavasolli/Signed
Hanif Rahimi/Signed
Haj Abdolhamid/Signed
Haj Sultan/Signed
Haj Laal Mohammad/Signed
Haj Norouzali/Signed
Haj Tavoos/Signed
Mohammad Ali/Signed
Witness to the divorce procedure Mohammmad Reza Hakimi Signed
Witness to the divorce procedure Gullam Nabi Signed
In the name of GOD
Hereby, I: Sheikh Tavasolli Representing Mr. Raoof, executed the divorce of Mrs. Maria in “Imam Ali Mosque” in the presence of a group of Faithful Prayers and witnesses.
29.Dec.2012 / Signed”
A person called sheikh Tavasolli who signed this document as the representative of the appellant was called as a witness before Mr Milazzo SM. Mr Tavasolli confirmed that the ceremony had taken place and he was authorised to perform a ceremony called a “divorce”.
It is apparent that the document is signed by twelve persons including the appellant and the respondent. Following the execution of that document, the respondent took possession of all of the household goods referred to in the document (dated 29 December 2012) and removed them from the home formerly cohabited with the appellant.
The learned Magistrate found that the appellant signed exhibits D1, D2 and D3 concerning the “marriage” ceremony, the “divorce” and the separation between the appellant and the respondent. Before me, the appellant confirmed his signature on those documents.[8] It appears from the judgment of the learned Magistrate that in evidence before him the appellant was somewhat evasive on that topic but ultimately confirmed his signature. He also confirmed that he knew and understood that the respondent would not move in with him and live with him as his wife if the parties were not “married”, he behaved at all times as if the parties were married and there was a form of engagement ceremony and a form of wedding ceremony sometime in October 2012. The wedding gifts accepted by the appellant and the respondent are contained in photograph stored on a disc that is exhibit D5.
[8] Exhibit D1 is the signed marraige certificate. Exhibit D2 is the document of 29 December 2012 recording the religious divorce of the parties.
At one level there is an extremely concerning feature of this matter. The respondent lived with the appellant in a relationship as if they were husband and wife. They were not legally married. In order to be legally married in Australia, a man and woman must undergo a ceremony in which their marriage is solemnised by or in the presence of an authorised Celebrant.[9] An authorised Celebrant means:-
a) A Minister of Religion registered under subdivision A of Division 1 of Part IV (Marriage Act); or
b) A person authorised to solemnise marriages by virtue of subdivision B of Division 1 of Part IV; or
c) A Marriage Celebrant.
[9] Marriage Act 1961 (Cth) s41.
The term “marriage celebrant” is defined to mean a person registered under subdivision C of Division 1 of Part IV of the Marriage Act 1961 (Cth). It is not in contest between the parties that the ceremony of marriage purportedly conducted was conducted by a person who was not an authorised celebrant because he was not a Minister of Religion, he was not a person authorised to solemnise marriages and he was not a marriage celebrant.
A marriage in Australia must be solemnised by an authorised celebrant and the persons marrying must: not be married to somebody else;[10] not be marrying a parent, grandparent, child, grandchild, brother or sister;[11] be at least 18 years old;[12] understand what marriage means and freely consent to becoming husband and wife;[13] use specific words during the ceremony;[14] and they must give written notice of their intention to marry to an authorised celebrant at least one month before the wedding.[15]
[10] Marriage Act 1961 (Cth) s23(1)(a).
[11] Marriage Act 1961 (Cth) s23(1)(b) and sub-s23(2)-(6).
[12] Marriage Act 1961 (Cth) s11 and s23(1)(e).
[13] Marriage Act 1961 (Cth) sub-s23(d)(i)-(iii).
[14] Marriage Act 1961 (Cth) s23(1)(c) and s45(2).
[15] Marriage Act 1961 (Cth) s42.
None of these requirements of the Marriage Act (the Act) of Australia have been complied with. The person who purported to conduct the “marriage” between the appellant and the respondent was not an authorised celebrant, was not a Minister of Religion registered in accordance with the Act and was not a person authorised to solemnise marriages for the purposes of the Act. In those circumstances, the ceremony was never a marriage ceremony, rather it was a gathering of the members of the Afghan community in Adelaide whereat friends and family and associates of the parties witnessed the appellant and the respondent committing to each other as if they were married. That commitment is only personal in nature. It is not a marriage for the purposes of the Marriage Act. In the circumstances of modern Australian society this is a very disappointing and concerning feature of this matter.
If there was a valid marriage under the Marriage Act and there was a breakdown of the marriage, then the question of the position of the parties under that marriage is governed by the terms of the Family Law Act 1975 (Cth). Because there was no marriage and because of the duration of the defacto relationship, the Family Law Act has no application to the matter and the question of the relationship between the parties and its resolution is one that falls to be determined as a question of the application of legal and equitable principles. That is my task in this matter.
Therefore, the arrangement between the appellant and the respondent is commonly called a defacto relationship. This is despite the fact that the parties participated in a ceremony that apparently was religious in nature and it was called a “wedding”. But that ceremony was not sufficient to solemnise a marriage between the appellant and the respondent under Australian law.
In his evidence before me, the appellant confirmed that he had entered into a form of “marriage” ceremony with the respondent at 11 Henry Street Payneham on 12 October 2012. This “wedding” ceremony followed an engagement which was entered into in the previous year. Following the ceremony, the appellant and the respondent lived together. At the time of the ceremony the respondent was a virgin: this was a matter of great importance under the Afghan tradition. The appellant informed me that after the wedding ceremony, the relationship between the appellant and the respondent soured very quickly. The respondent alleged that the appellant was violent towards her. The position was eventually reached that the police were called to the home shared by the appellant and the respondent and a Domestic Abuse Report was provided to the police by the respondent concerning an alleged aggravated assault. At that time, an intervention order was made against the appellant on 27 December 2012. The respondent became a protected person. That order prevented the appellant from entering or remaining in the vicinity of the respondent’s place of residence, place of employment or any other place at which the respondent was staying or working. Two days later a meeting took place which led to the document of 29 December 2012. It is the circumstances surrounding the arrangements at this meeting that will determine my decision in this matter.
The evidence of the appellant before me was that he now agreed with the evidence given before Mr Milazzo SM by Mr Rahimi and Mr Tavasolli that the appellant was the person who requested the meeting which is now called the “divorce ceremony”. He now also agreed that he had contacted all of the people who attended at the place occupied by the respondent on that evening. They attended at that place because he had informed them that he wanted them to come around to that home and arrange a “divorce” between himself and the respondent. He said to me in evidence[16] that all he really wanted was to ensure that the relationship ended. He then asserted that the “property stuff” came out of nowhere and was a shock. He said that they (the parents and other elders whom he had gathered) forced him to write the agreement which became the document of 29 December 2012 and to sign it. He wanted the “divorce” because he had been humiliated as a result of the police actions. He said that as a result of the document he signed, he has lost all of the furniture and personal effects that he paid for and for which he still continues to pay.
[16] T10.30.
Contrary to the version of facts that he put to Mr Milazzo SM, the appellant agreed that he contacted Mr Rahimi and he knew that the divorce could only be done by a sheikh. Mr Tavasolli was the appropriate sheikh. He says that as a result of what was discussed between the elders of the Afghan community who attended including Mr Rahimi and Mr Tavasolli, the documents exhibit D2 and D3 were prepared and he signed them. He said in evidence that he did not agree that the appellant would be given any particular thing from the house. He says that he signed the exhibit D3 because he was pressured by the eight or nine people at the home on that evening.[17] However, after saying that, he confirmed that his father was present as was the father of the respondent. He agreed that it was the Afghan tradition that the parents and elders would gather and resolve matters for their children. He confirmed that his father gathered with the father of the respondent and the other elders. And in accordance with the same tradition, none of their mothers were present. This was the process that he had initiated and it proceeded in accordance with his expectations of the tradition that he understood.
[17] T13.2-4.
During the discussion, he waited outside of the house. He could not enter the house as a result of the police orders. In accordance with Afghan tradition, the elders of the community met and they settled upon a resolution of the issues that were to lead to the “divorce” (exhibit D2). The resolution agreed to by the elders was then put to the appellant and he was told that this was the way the matter was going to be settled and that the document should be signed. Under it, he was left with the requirement to go on paying for the property that was given to the respondent.
In answer to further questioning from me, the appellant agreed that in terms of the Afghan society, the position of the respondent, who is a “divorced” woman,[18] was very shameful and that split between them was a cause of real embarrassment. He said that there was also shame associated with his position and although I have real doubts about this, I do not need to resolve that issue. The appellant confirmed that this position of the respondent (the shame aspect as a “divorced” woman) was something that he knew about at the time that he signed exhibits D2 and D3. The appellant suggested that there would be a bad reputation for both the appellant and the respondent however, the appellant did not particularly press that view and I am not prepared to accept it. The appellant said that he was not present when exhibit D3, the agreement of 29 December 2012 was written, he was told to sign it, he did sign it and that was the end of the relationship with the respondent.
[18] Not under the Family Law Act but under the contractual arrangements made within the community.
It is necessary to observe that as part of the arrangements made under the agreement of 29 December 2012, the respondent, referred to as “Mrs Maria”, was obliged to withdraw her complaint to the police. The respondent did this by a notice to the police dated 3 January 2013 when she notified the police that:
“Our relatives have sorted out the problem. He (the appellant) has promised through our relatives that he is not going to harm me anymore. We have got a “divorce” and I have an intervention order protecting me from him.”
This document was entitled “supplementary police incident report domestic abuse – no police action”. It follows that in terms of the document exhibit D3 dated 29 December 2012, the respondent complied with her obligations and withdrew her complaint.
The respondent pointed out, as was the case, that different from the position taken by the appellant before Mr Milazzo SM, he now agreed that as between he and the respondent, there was an “engagement”, there was a “marriage” and that there was a “divorce”. The respondent gave evidence that it was the appellant who gathered all of the people for the purposes of the “divorce” ceremony. His particular concern at the time was that the police had been called, an intervention order had been made and the police were involved. The respondent explained that under Afghan culture, if a person wanted to “divorce” they used a gathering such as the gathering which happened on 29 December 2012. These gatherings usually include the fathers of the bride and groom as well as other elders of the Afghan community and a Holy Person. In this circumstance, the Holy Person was sheikh Tavasolli who was, in his role, representing the appellant. In that role, the sheikh acting as the Holy Person, executed the “divorce” in “Imam Ali Mosque in the presence of a group of faithful prayers and witnesses…” (exhibit D2). Prior to going through with the divorce ceremony, the respondent said that she was warned by her family and the elders that no one would want to marry her because she has been divorced. She said that she lost her reputation, she had lost her virginity. She said that her virginity was the most important thing to her as a Muslim woman. Also, she said that in the Afghan tradition, whenever there is a breakdown of a relationship between a man and a woman, the woman “always gets the blame”. She explained that in terms of her tradition, she gave up the prospects of having some relationships in the future by virtue of the divorce because of the way she would be perceived in the Afghan tradition. She had also lost contact with her family and this was particularly exacerbated because the appellant and the respondent had chosen each other for marriage and had not gone through the usual Afghan arrangements whereby there would be an introduction of a suitor offering to ask for her hand in marriage. In the usual Afghan tradition, the elders organised the marriage. That has exacerbated the breakdown in the respondent’s relationship with her family. When she signed exhibit D3, the respondent accepted that she was giving up all rights as against the appellant arising out of her “marriage”, her “engagement” and that she would accept that she would, as a Muslim woman, carry shame for the rest of her life. She said that she was carrying far more of the burden of the shame of the event than the appellant. She said the following:-
“Yes yes, that’s why as I mentioned before that in our tradition, when the lady gets divorced, no matter who has the right, even if the lady has the right, it is always the man who has the right and the lady’s fault that “oh she got divorced”. So that’s why in the future you will have no difficulty finding another girl and marrying because and especially… I’m the one who will be suffering…”[19]
[19] T32.26-34.
In his judgment, Mr Milazzo SM made adverse findings of credit against the appellant. I agree with those findings and in particular I also emphasise that the matters that were initially denied before Mr Milazzo by the appellant were in fact agreed to by the appellant before me. I refer to the question of the “engagement”, the “marriage” and the “divorce” under the Afghan tradition. The appellant said that it was necessary for him to obtain a “divorce” under the Afghan tradition in order to enable him to move on in his life. This was the finding made by Mr Milazzo SM with which I agree.
The settlement agreement of 29 December 2012 (exhibit D3) was negotiated in the circumstances created by the appellant. As a member of the Afghan community and being keenly aware of his own personal circumstances, he gathered his own father, the father of the respondent and the elders of the Afghan community to one place in order for them to resolve the “divorce” (exhibit D2) issue. The process that the appellant put in place observed the traditional arrangements made within the Afghan community. It is not a matter for decision about whether that was a correct thing to do: this was the arrangement put in place by the appellant.
In accordance with the same tradition, the appellant then left it to the respective fathers and the elders to resolve upon the terms of the resolution of the “divorce” issue as between he and the respondent and in order to free himself of the arrangement that he had entered into with the respondent.
Thus, when the appellant’s particulars of claim of 19 April 2013 and of 26 April 2013 are reviewed, they provide only a limited survey of the relevant facts. In the particulars of claim of 26 February 2013 the appellant refers to the respondent as his partner. Whilst that is the position under Australian law, that was not the position under the Afghan tradition. In the same particulars of claim the allegation is made that, without any input from the appellant, the respective fathers and other friends gathered, contacted him, presented him with a document written in a different language and threatened/forced him to sign the document. That was not the position at all. He then alleges that he was threatened physically and that if he did not sign the document, extra police charges would be pressed against him. It goes on to suggest that the respondent has unlawfully removed from the property at 12 Brampton Court Elizabeth North to the home of the parents of the respondent.
In my opinion, on the facts of this matter as they exist, those assertions are untenable. So also are the assertions within the amended Statement of Claim of 19 April 2013 which suggests that paragraph 18 that on 29 December 2012 a group of people unknown to the appellant arrived at 14 Caston Street Pooraka and forced the appellant to sign a piece of paper written in Persian. That is not and was never the case. The group of people who gathered at that address on that date did so at the request of the appellant in circumstances where the appellant wished to end his “marriage” to the respondent as quickly as possible so as to remove the difficulties with the intervention order imposed by the police and any other issues concerning the police.
In my opinion the agreement of 29 December 2012 (exhibit D3) was executed as an agreement between the appellant and the respondent. Its terms were agreed between them and binds them. I am unable to accept the assertion by the appellant that he did not expect there to be any aspect of “property” resolved at the meeting on 29 December 2012. Rather, he expected that, in accordance with tradition, the parents (the fathers) and the elders would meet, would agree upon a resolution of the matter, that there would be a “divorce” that would be blessed and executed under the Islamic tradition of the Afghan community (exhibit D2) and that there would be a separation between he and the respondent. In that separation, he and the respondent would be bound to the terms as agreed between those parties whom the appellant had appointed. It was the appellant who initiated the divorce settlement. It was the appellant who bound himself to that settlement.
The settlement was achieved in the background of the faith aspects observed by both the appellant and the respondent. Part of those faith aspects included the effect upon the respondent of a “divorce”, the traditional way that the “community” dealt with a person such as the respondent; the opportunities for remarriage that may be available to her in the future; and the shame inflicted upon her arising from the circumstances of the “divorce”.
It was in the whole of that background that the appellant and the respondent entered into the agreement of 29 December 2012. That agreement binds them both. Although no marriage took place under Australian law, the appellant purported to represent to his community (and to all the world) that he was married to the respondent. As no marriage ceremony for the purposes of the Act took place, the arrangements made between the appellant and the respondent was therefore personal in nature. Those arrangements were to be viewed in the whole of the background of the faith aspects of the lives of the appellant and the respondent. In my opinion the decision of Mr Milazzo SM was correct.
I now consider the second question raised for my consideration about an alleged rebuttable presumption of a resulting trust arising in favour of the appellant. It is well settled that a resulting trust (which can also be described as an implied trust) arises by a presumption of law. These forms of trust usually arise in two main circumstances (although there is no confined list of circumstances in which a resulting trust can arise).
The first such circumstance is not applicable to this case and it arises where a settlor has transferred property to trustees but has not wholly disposed of the beneficial interest in the property to those trustees. The trustees would not then be enabled to hold the property legally and beneficially for the beneficiaries of the trust in accordance with the purposes of the trust. That circumstance does not arise in this case.
The second circumstance where a resulting trust arises is when a purchaser purchases property and that property is transferred into the name of a third party but in circumstances where there is no indication of an intention by the purchaser to convey the legal and beneficial interest in the property to the third party (usually where the third party has made no payment for the property). In those circumstances a presumption arises at law that the purchaser of the property will have intended to retain the beneficial interest in the property and that there has been no disposition of that beneficial interest in the property to the third party. That is the type of circumstance that the appellant contends arises under this case because he contends that the property of the appellant has been transferred to the respondent but in circumstances where there is no intention that the respondent should take any legal and beneficial interest in the property and, where the appellant had no intention of conveying that legal and beneficial interest in the property to the respondent. In those circumstances, the appellant contends that the property must come back to him.[20]
[20] Re Vandervell’s Trust (No.2) [1974] Ch 269 at 289; DKLR Holding Co (No.2) Pty Ltd v Commission of Stamp Duties (1982) 149 CLR 431 at 459-60; see generally Jacobs Law of Trust in Australia 7th Ed. (J.D. Heydon, M. J. Leeming) at page 234.
The hallmarks of the resulting trust are that it is implied, it arises by a presumption of law and where there is demonstrably no intention (arising from the whole of the facts of the matter) for the settlor (here the appellant) to convey any legal or beneficial interest in the property to the third party (here the respondent).
In Napier v Public Trustee (WA),[21] Aickin J (with whom Stephen, Mason and Murphy JJ concurred) said:-
The law with respect to resulting trust is not in doubt. Where property is transferred by one person into the name of another without consideration, and where a purchaser pays the vendor and directs him to transfer the property into the name of another without consideration passing from that person, there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the case may be. The proposition is subject to the exception that in the case of transfers to a wife or child (including someone with respect to whom the transferor or purchaser stands in loco parentis) there is a presumption of advancement so that the beneficial as well as the legal interest will pass. Each of the presumptions will be rebutted by evidence. (My emphasis).
[21] (1980) 32 ALR 153 at 158
It is not necessary for me to consider the issue of the presumption of advancement. In this case, it is not the situation that the property has been transferred by the appellant into the name of the respondent without consideration. In the view that I have formed, consideration has passed from the promisor (the appellant) to the promisee (the respondent) because the property was transferred from the appellant to the respondent in consideration of the respondent entering into the arrangements for the termination of the “marriage” under the “divorce” contract. By the respondent entering into that arrangement and thereby giving up any other right that she might have against the appellant and by the respondent withdrawing the complaint that she had previously made, as she was bound to do under the terms of the contract and in consideration of its terms, the contract has been fulfilled. It could not be said that the transfer has occurred without consideration.
In those circumstances, there is no basis to suggest that a rebuttable presumption of resulting trust arises in favour of the appellant in respect of that property. In my opinion, the appellant freely entered into the contract of 29 December 2012, he executed the contract in circumstances where he was desirous of achieving its ends, namely the termination of the involvement with the police, the procurement of the “divorce” (exhibit D2) and for him to be freed and released from that relationship. The respondent would then be left in the circumstances of being a Muslim woman in the Afghan tradition who must suffer the shame of the separation. In my opinion, the termination of the personal “marriage” arrangement was to be analysed upon contractual principles. It was freely and voluntarily terminated based upon contractual principles. In those circumstances, no rebuttable presumption of a resulting trust arises.
For the same reasons, the third question proposed by the appellant is answered in the negative. No equitable interest in favour of the appellant exists in the furniture. The contract was freely entered into, it was unconditional and it has been implemented and executed. No residual interest arises in favour of the appellant in equity.
I reject the application of the appellant. I confirm that decision of Mr Milazzo SM.
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)The following provisions apply to such a review by the District Court:
(a)the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b) the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c) the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d) in determining the matter, the Court may—
(i) affirm the judgment; or
(ii) rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A) substitute a judgment that the Court considers appropriate; or
(B) remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
[3] See 6R R199-201.
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