Jalal & Malki

[2021] FamCA 29

FAMILY COURT OF AUSTRALIA

Jalal & Malki [2021] FamCA 29

File number(s):	BRC 2053 of 2016
Judgment of:	HOGAN J
Date of judgment:	19 January 2021
Catchwords:	FAMILY LAW – PROPERTY – Consent Orders
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	8
Date of hearing:	19 January 2021
Place:	Brisbane
Applicant:	In person
Solicitor for the Respondent:	Mr Edwards, Stuart Percy & Associates

ORDERS

BRC 2053 of 2016
BETWEEN:	MS MALKI Applicant
AND:	MR JALAL Respondent

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	19 JANUARY 2021

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

1.The husband shall be solely responsible and liable for meeting all payments on time, any outstanding outgoings, expenses and liabilities in relation to B Street, C Town, in the State of Queensland, more particularly described as Lot 1 on RP … (“the B Street property”) and indemnify the wife in relation to those expenses, including but not limited to the following outgoings:

(a)instalments and money due under the Westpac mortgage;  and

(b)rates;  and

(c)property insurance;  and

(d)any other statutory charges.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT

2.The husband is restrained by injunction from doing anything that may cause the B Street property to be transferred, leased or further encumbered without the written consent of the wife.

3.Save as is provided for above, the Application in a Case sealed 14 December 2020 is dismissed.

4.The costs of and incidental to the Application heard today are reserved.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jalal & Malki has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HOGAN J

1. I intend to make an order at this stage restraining Mr Jalal from doing anything that may cause the B Street property either to be transferred, leased or further encumbered without the written consent of Ms Malki.  I do so in circumstances where the evidence before me suggests that the position of Westpac Bank, the current mortgage holder, is to the effect that they would not entertain an application for refinance of the existing facility, in essence, until these parties’ property and financial circumstances are separate: so it seems to have no utility to make an order to permit attempts to refinance the existing facility with Westpac Bank Corporation, given that particular piece of evidence before me.

2. I also have taken into account Ms Malki’s submissions in relation to the fact that she remains a guarantor in relation to that bank facility, but is, no longer, it seems, on the evidence before me, a director.  I note the evidence contained in exhibits to Mr Jalal’s affidavit to the effect that a meeting was called and various resolutions passed on various occasions in relation to the issue of the directorship of the corporate entity which is the legal owner, on trust, of the B Street property.  I take into account Ms Malki’s submissions that she is no longer, on the face of those documents, a director of the entity, but remains a guarantor.

3. I also take into account that, at this stage, the matter remains listed for final hearing before me for a number of days commencing on 1 March 2021.

4. In those circumstances, I am persuaded that the balance of convenience is such and that the circumstances justify the making of an order to ensure that there is no further encumbrance incurred in relation to the B Street property and, therefore, that the equity available to the parties via the control of the corporate entity and the trust of which they are, as I understand it, at this stage at least, each beneficiaries, is not changed, pending the final hearing listed to commence on 1 March. 

5. I otherwise intend to dismiss the Application in a Case sealed 14 December 2020.

6. Whilst it is, I suspect, apparent from my discourse with Ms Malki, the reasons underpinning this decision – they are, in short form:

   (a)that the trial remains listed before me commencing 1 March 2021;  and

   (b)that, on the evidence before me, as accepted by Ms Malki, Mr Jalal has, since about the end of September 2020, arrived at an arrangement with Westpac Banking Corporation for him to pay $1,500.00 per month by way of payment for the repayments of the business banking loan secured by a mortgage held by the bank over the B Street property and that provided that that arrangement continues, the bank does not intend to take any further action in relation to enforcing its rights associated with that mortgage;  and

   (c)thirdly, that Ms Malki accepts that Mr Jalal has made those payments since the end of September 2020, albeit that she raises concerns and/or an issue about his asserted capacity to do so; and

   (d)fourthly, that Mr Jalal seeks to retain the B Street property in the final orders to be made in these proceedings.

7. I have also noted – although, not placed significant weight upon it, because Ms Malki tells me in her submissions that things have changed since she filed her Initiating Application in 2017 – that included in the relief she proposed in that document was that Mr Jalal in fact receive the B Street property, either directly (in the sense of personally) or by his control of an entity into which its ownership would be transferred.

8. So, for those reasons, noting in particular that the trial remains listed to commence on 1 March 2021, I have determined to dismiss all aspects of the Application in a Case sealed 14 December 2020, other than those in respect of which I have announced the orders that shall be made.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate:       

Dated:       19 January 2021