In the matter of Australia and New Zealand Banking Group Ltd

[2020] NSWSC 1744

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Australia and New Zealand Banking Group Ltd [2020] NSWSC 1744

Hearing dates:

4 December 2020

Date of orders:

4 December 2020

Decision date:

07 December 2020

Jurisdiction:

Equity - Applications List

Before:

Williams J

Decision:

The sum of $156,341.75 paid into court by the Australia and New Zealand Banking Group Ltd on 11 July 2019 is to be paid out to the Applicant on the Amended Notice of Motion filed on 12 November 2020, including any interest accrued thereon. Suppression orders made prohibiting publication or disclosure of information contained in the Applicant’s affidavit sworn on 14 October 2020 and Exhibit 1 on the Amended Notice of Motion which would reveal the Applicant’s present name and information concerning her children.

Catchwords:

PRACTICE AND PROCEDURE – application – payment out of court – no issue of principle

PRACTICE AND PROCEDURE – application – suppression and non-publication orders – no issue of principle

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7 and 8

Family Law Act 1975 (Cth), ss 44, 90SL and 90SM

Trustee Act 1925 (NSW), ss 95 and 98

Uniform Civil Procedure Rules 2005 (NSW), rr 55.10 and 55.11

Cases Cited:

Eldsure Pty Ltd v Sheridan Legal Pty Ltd [2020] NSWSC 1616

Re: Application of Ellis and Lucey [2020] NSWSC 567

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Category:

Procedural and other rulings

Parties:

Australia and New Zealand Banking Group Ltd (Plaintiff)
Leyla Aboucham (a pseudonym) (Applicant)

Representation:

Counsel:
Ms K Morris (Applicant)

Solicitors:
Clayton Utz (Applicant)

File Number(s):

2019/215434

Publication restriction:

On 4 December 2020, the Court made a suppression order which prohibits publication or disclosure of information contained in the Applicant’s affidavit sworn on 14 October 2020 and Exhibit 1 on the Amended Notice of Motion which would reveal the Applicant’s present name and information concerning her children.

Judgment

1. By summons filed on 11 July 2019, Australia and New Zealand Banking Group Limited (ANZ) commenced this proceeding and paid into court pursuant to ss 95 and 98 of the Trustee Act 1925 (NSW) the sum of $156,341.75.

2. The sum paid into court represented the net proceeds of sale of the land in folio identifier 19/262184, being the property known as 326 Roberts Road, Greenacre, New South Wales (the Property) after payment of the amount owing to ANZ and secured against the Property by registered mortgage AI213926 (the Mortgage). That sale occurred in October 2016.

3. Leyla Aboucham was the registered proprietor of the Property at the time of that sale. She took that title by registered transfer dated 15 November 2011. A copy of that transfer was in evidence and there is nothing to suggest that she took the transfer of the Property as trustee for any other person or entity. The only other interests registered on the title to the Property at the time it was sold by ANZ were the Mortgage and a caveat lodged in May 2014 by Leyla Aboucham’s former de facto partner, Mohamed Aboucham.

4. Mohamed Aboucham described his caveatable interest as an equitable interest in the Property pursuant to the Family Law Act 1975 (Cth) on the basis that the Property was the principal place of residence of Leyla and Mohamed Aboucham during their de facto relationship and Mohamed Aboucham claimed to have made significant contributions to the Property.

5. In June 2017, ANZ sought directions from Leyla Aboucham (as the former registered proprietor of the Property) and Mohamed Aboucham (as the former caveator) as to the payment of the net sale proceeds of the Property. ANZ paid the net sale proceeds into court after Leyla and Mohamed Aboucham were unable to agree on the directions to be given to ANZ more than two years later.

6. The summons filed by ANZ commencing the proceeding was accompanied by an affidavit sworn by ANZ’s solicitor on 9 July 2019 deposing that, to the best of ANZ’s knowledge, Leyla Aboucham and Mohamed Aboucham were the parties who may have a claim on the net proceeds of sale of the Property (see Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 55.10(c)).

7. By Amended Notice of Motion filed on 12 November 2020, the person previously known as Leyla Aboucham (the Applicant) sought orders pursuant to UCPR r 55.11 for the release to her of the monies paid into court by ANZ and suppression orders under s 7 and s 8(1)(c) of the Court Suppression and Non-Publication Orders Act2010 (NSW) in respect of certain information and evidence in this proceeding.

8. The Amended Notice of Motion was heard on 4 December 2012. Ms Morris of counsel appeared for the Applicant and I was assisted by her written submissions provided prior to the hearing and by her supplementary oral submissions during the hearing.

9. At an early stage during the hearing, I was satisfied that it was appropriate to make suppression orders. At the conclusion of that hearing, I determined that the order under UCPR r 55.11 should be made. I indicated that my reasons for both sets of orders would be published as soon as possible. These are those reasons.

10. The Applicant adduced affidavit and documentary evidence (Exhibit 1) that she is the same person as Leyla Aboucham.

11. In an affidavit sworn on 14 October 2020, the Applicant set out the matters to which I have referred above concerning the sale of the Property by ANZ as mortgagee and the payment of the net sale proceeds into court. In addition, the Applicant deposed that:

1. she commenced a de facto relationship with Mohamed Aboucham in about 2004, and there are four children of that relationship;

2. her relationship with Mohamed Aboucham ended in April 2014 after a number of domestic violence related incidents;

3. she commenced proceedings in the Federal Circuit Court on 22 July 2014 seeking a parenting order in respect of her four children. Mohamed Aboucham was a respondent to those proceedings. The proceedings were transferred to the Family Court of Australia in about May 2016;

4. Mohamed Aboucham was arrested in about September 2017 and subsequently convicted of criminal offences and is currently imprisoned. The Applicant understands that his earliest release date is May 2023; and

5. due to the domestic violence that Mohamed Aboucham has inflicted on her in the past, the Applicant fears for her safety and for the safety of her children after his release.

12. The Applicant also deposed that, on 15 November 2019, the Family Court of Australia had granted leave to the Applicant to seek property orders out of time pursuant to s 44(6) of the Family Law Act and had listed the matter for hearing on 16 December 2019.

13. The Applicant annexed to her affidavit a sealed copy of orders made by the Family Court of Australia in proceeding (P)SYC4525/2014 between Leyla Aboucham as Applicant and Mohamed Aboucham as Respondent in the following terms:

“UPON APPLICATION made to the Court AND UPON HEARING Ms Adams for the Applicant and no appearance for the Respondent.

IT IS ORDERED ON A FINAL AND UNDEFENDED BASIS THAT:

1.   By way of property orders, forthwith, the Registrar of the Supreme Court of New South Wales release to Leyla Aboucham the funds previously paid into the Court and held by that Court on trust on behalf of the parties in proceeding number 2019/215434.

2.   The Orders made on 15 November 2019 are to be removed from the Court file, placed in a sealed envelope and are not to be inspected by any party without an order of a Judge of this Court.

3.   In the event Order 1 is unable to be complied with, the wife is to do all acts and sign all documents necessary to cause the funds previously paid into the Court and held by that Court on trust on behalf of the parties in proceedings number 2019/215434 to be paid to her, and a Registrar of this Court, pursuant to section 106A of the Family Law Act 1975 (Cth), shall be and is hereby authorised and directed forthwith, upon presentation to them, to sign in the place of Mr Mohamed Aboucham, and to thereafter do all acts and things necessary to give full force, effect and operation to, any document required to be signed by Mr Mohamed Aboucham pursuant to any Order contained herein and so as to cause release of funds held by the Supreme Court of New South Wales to Ms Leyla Aboucham and without any need or requirement for Ms Leyla Aboucham to demonstrate to the Registrar that she has requested that Mr Mohamad [sic] Aboucham sign the document prior to the presentation of that document to the Registrar for their signature.

4.   Each party is thereby declared to have the sole right, title and interest in:

a.   Any chattels, goods, furnishings and other property which is, at the date hereof, in their possession respectively.

b.   Any moneys, shares, debentures, investments and superannuation entitlements which stand in their sole name.

5.   The father is to pay the Independent Children’s Lawyer’s costs of $4,180 within 28 days.”

14. Counsel for the Applicant informed me that neither the Applicant nor her solicitors have been notified of any appeal from those orders by Mohamed Aboucham.

15. Mohamed Aboucham is not named as a respondent to the Amended Notice of Motion in which the Applicant seeks payment to her of the monies paid into court by ANZ (the Motion).

16. On 24 November 2020, the Court made an order dispensing with the need for service of the Motion and accompanying affidavit, but directed the Applicant to notify Mohamed Aboucham that the application for release of the funds paid into court was listed for hearing at 2:00pm on 4 December 2012 and notify him that he must advise my Associate if he wishes to participate in that hearing so that arrangements can be made for him to appear by audio visual link.

17. Mr Lonsdale is a solicitor employed by the solicitor on the record for the Applicant in this proceeding. In affidavits affirmed on 23 November 2020 and 2 December 2020, Mr Lonsdale deposed that:

1. he contacted Corrective Services NSW on 12 November 2020 and ascertained that Mohamed Aboucham is currently imprisoned at Goulbourn Correctional Centre;

2. he caused a letter to be sent to Mohamed Aboucham on 13 November 2020 by express post to the address for Goulbourn Correctional Centre published on the Corrective Services NSW website in the following terms, and had ascertained using the express post tracking number that the letter was delivered on 16 November 2020:

“We act for Leyla Aboucham

As you know, on 16 December 2019, Justice Henderson of the Family Court made orders (Orders) that all of the funds paid into Court in the above mentioned proceeding be released to Leyla Aboucham. A copy of the Orders is attached.

In view of the orders, our client contends that you have no entitlement to or, any credible claim on the Funds. In consequence, an application was filed with the Supreme Court of New South Wales to have the Funds released to our client. If you contend otherwise, please contact us by no later than 20 November 2020 or alternatively you may write to the Registrar of the Supreme Court of NSW and set out why orders ought not be made for the release of the Funds to our client. The address of the Supreme Court is:

Supreme Court of NSW, GPO Box 3, Sydney NSW 2001 Australia, DX 829, Sydney

Finally, we note that the matter is listed before the Application List Judge on 24 November 2020.”

3. he caused a further letter in the following terms to be sent to Mohamed Aboucham on 24 November 2020 to the same address and by the same means, and had ascertained using the express tracking number that the letter was delivered on 25 November 2020:

“We refer to our previous letter dated 13 November 2020 (Letter).

As notified in the Letter, the above matter came before Justice Ward on 24 November 2020. On the same day, Justice Ward made orders listing the matter for hearing before Justice Williams at 2 pm on 4 December 2020 (Orders). Please find a copy of the Orders attached.

If you wish to participate in the hearing, please notify the associate of Justice Williams of your intention to do so to ensure that an audio visual link can be arranged. Please also copy us into any correspondence with the Court. The contact details of the associate of Justice Williams are as follows:

Supreme Court of NSW, GPO Box 3, Sydney NSW 2001 Australia, DX 829, Sydney

[email protected] [phone]”

4. he had not received any response to either letter.

18. At the time of the commencement of the hearing at 2:00pm on 4 December 2020, my chambers had not received any communication from or on behalf of Mohamed Abouchman (either directly or through the Registry of the Court).

19. Immediately after the commencement of the hearing at 2:00pm on 4 December 2012, a call was made outside the courtroom for any appearance on behalf of Mohamed Aboucham. There was no appearance on his behalf.

20. Counsel for the Applicant submitted, and I accept, that an applicant for payment out of moneys that have been paid into court must satisfy the Court of the following matters:

1. that the applicant is entitled to the funds paid into court, and the nature of their entitlement;

2. the identity of any other persons who may be beneficially interested in the funds and the nature of their interest or entitlement;

3. that all potential claimants on the funds have been notified for the application for payment of the funds to the applicant, and that those potential claimants either consent to the payment or that the applicant has a prior beneficial entitlement to those other claimants.

See, for example, Re: Application of Ellis and Lucey [2020] NSWSC 567 at [4].

21. I accept Ms Morris’ submission that the Applicant, as the sole registered proprietor of the Property at the time of the mortgagee sale, is prima facie entitled to any net proceeds of the mortgagee sale paid into court: Real Property Act 1900 (NSW), s 58(3); Re: Application of Ellis and Lucey (supra) at [16]; Eldsure Pty Ltd v Sheridan Legal Pty Ltd [2020] NSWSC 1616 at [15].

22. Mohamed Aboucham is the only other person who has claimed to have any other beneficial interest in the net sale proceeds of the Property. His claim relied on the provisions of the Family Law Act, his status as the previous de facto partner of the Applicant and his alleged significant contributions to the Property, which was their principal place of residence. However, Mr Aboucham did not defend the proceedings Family Court proceedings in which the orders set out above were made on 16 December 2019 and he has not appealed from those orders.

23. I was initially concerned that the orders made by the Family Court did not expressly state the source of power pursuant to which they were made and that there may therefore be some uncertainty about the effect of orders 1 and 3 on any interest that Mr Aboucham may have had in the Property or the net proceeds of sale of the Property.

24. However, Ms Morris referred me to the opening words of order 1 – “By way of property order” – and submitted that it is tolerably clear from those words that the orders were made pursuant to s 90SL and/or s 90SM of the Family Law Act. Ms Morris submitted that, when the orders made on 16 December 2019 are read as a whole, order 1 is in substance a declaration pursuant to s 90SL as to the rights of the Applicant and Mr Aboucham to the net sale proceeds of the Property, or alternatively an an order pursuant to s 90M adjusting their respective property rights with the effect that, if and to the extent that Mr Aboucham previously had any interest in the Property or its net sale proceeds (which the Applicant denies), the parties’ respective interests were adjusted so that the Applicant is now entitled to the whole of the sale proceeds. I accept the alternative submission that the order was made pursuant to s 90SM and has the effect that the Applicant is now the sole person with an interest in the monies paid into court.

25. Ms Morris acknowledged that the orders made by the Family Court are not necessarily determinative of the Court’s assessment for the purpose of UCPR r 55.11 of whether Mr Aboucham has any interest in the net sale proceeds and, if so, the nature of that interest. It was submitted, however, that considerations of comity are relevant. I accept that submission.

26. In the circumstances of this case, where the only evidence of Mr Aboucham claiming any interest in the Property (or its net sale proceeds) is the claim in his caveat, and where Mr Aboucham did not pursue that claim in the family law proceedings, the effect of the orders made by the Family Court is that the Applicant is entitled to the whole of the net sale proceeds, and Mr Aboucham has been notified of the application for release of the net sale proceeds paid into court to the Applicant and has taken no steps to pursue any claim to those monies in this Court, I am satisfied that he no longer claims any beneficial interest in the Property or its net sale proceeds.

27. For those reasons, I was satisfied that it was appropriate to make orders under UCPR r 55.11 for the release to the Applicant of the monies paid into court by ANZ in this proceeding, including any interest accrued thereon.

28. It is necessary to say something further about the suppression orders.

29. The Applicant applied for a suppression order under s 7 of the Court Suppression and Non-Publication Orders Act in respect of information tending to reveal her present name and the evidence concerning her children in paragraphs 4 and 5 and part of paragraph 26 of her affidavit sworn on 14 October 2020 in support of the Amended Notice of Motion. The whole of Exhibit 1 reveals the Applicant’s name.

30. Under s 7 of that Act, the Court has power to make the order on one or more of the grounds specified in s 8.

31. In deciding whether to make the order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

32. As Bathurst CJ and McColl JA emphasised in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [32]:

“The principle of open justice is one of the most fundamental aspects of the system of justice in Australia: John Fairfax Publications Pty Ltd v District Court of New South Wales at [18] (Spigelman CJ; Handley JA and MW Campbell AJA agreeing). Open justice ensures public confidence in the administration of justice: see Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [100] (Heydon J); Hogan v Hinch at [20] (French CJ); R v Tait (1979) 46 FLR 386 at 401–403 (Brennan, Deane and Gallop JJ).”

33. The Applicant submitted that the suppression order was necessary in this case to protect the safety of herself and her children: s 8(1)(c) of the Act.

34. The word “necessary” is a strong word. An order is not “necessary” in the sense required by s 8 of the Act if it appears to be merely convenient, reasonable or sensible. The order must be “necessary” to secure the proper administration of justice in these proceedings, in the sense that the conduct of the proceedings in open court free of any restriction would frustrate the administration of justice: Rinehart v Welker (supra) at [27]–[31].

35. On the basis of that evidence referred to in [11] above, which I accept, I am satisfied that the order sought is necessary to protect the safety of the Applicant and her children. The Applicant should not have to put her safety and her children’s safety at risk by making this application for the release of the net proceeds of the sale of her property. Having regard to the basis of the Applicant’s fears (domestic violence) and the ages of the children concerned, I was satisfied that it was appropriate that the order should apply for a period of 10 years.

36. For all of the reasons above, I made the following orders on 4 December 2020:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act2010 (NSW), order that the following information not be published or disclosed without the leave of the Court by reason of s 8(1)(c) of that Act:

1. the present name of the person named as the Applicant in the Amended Notice of Motion filed in this proceeding on 12 November 2020 (the Applicant);

2. the information in paragraphs 4 and 5 of the Applicant’s affidavit sworn on 14 October 2020 and filed in this proceeding;

3. the information in paragraph 26 of the Applicant’s affidavit sworn on 14 October 2020 from the words “and particularly” in the last sentence until the end of the paragraph; and

4. Exhibit 1 on the hearing of the Amended Notice of Motion filed in this proceeding on 12 November 2020.

2. Order that Order 1 applies throughout the Commonwealth of Australia.

3. Order that Order 1 applies for 10 years.

4. Order that the Applicant be known and continue to be known in this proceeding by the pseudonym “Leyla Aboucham”.

5. Order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 55.11 that the monies paid into court in this proceeding by Australia and New Zealand Banking Group Ltd in the sum of $156,341.75, plus any interest accrued on that sum, be paid out to the Applicant.

6. Direct that the Applicant provide to the Supreme Court of New South Wales Finance Department her bank account details to facilitate the payment out of court of the sum referred to in Order 5 above.

7. Order that there be no order as to costs.

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Decision last updated: 07 December 2020