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Khalif & Khalif (No 2)

Khalif & Khalif (No 2)

Case [2021] FedCFamC1F 308 16 December 2021

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Khalif & Khalif (No 2) [2021] FedCFamC1F 308

File number(s): SYC 6144 of 2016

Judgment of: WATTS J

Date of judgment: 16 December 2021

Catchwords:
FAMILY LAW – STAY APPLICATION – Whether the husband’s brother has established that there are exceptional or special circumstances to grant a stay pending the conclusion of the proceedings he has commenced in the High Court of Australia – Where no exceptional or special circumstances exist – Whether there are other discretionary factors that would have led to an exercise of discretion had the husband’s brother met the threshold test – Where other discretionary factors would not have led to an order granting the stay.

FAMILY LAW – ENFORCEMENT – Whether an order should be made enforcing the husband’s brother’s compliance with the order that has not been stayed – Where there are currently apparent difficulties with the form of order sought by the wife by way of enforcement – Where the wife is given liberty, upon giving 7 days’ notice, to seek further orders in respect to enforcement.

FAMLY LAW – COSTS – Where the wife seeks a reiteration of the costs order made by the Full Court on 23 July 2021 – Where the husband’s brother seeks a condition be placed upon that costs order – Where both applications are dismissed.

FAMILY LAW – CAVEAT – Where the wife seeks an order that she be entitled to lodge a caveat on the title of a property which is vested bankruptcy property – Where no order has yet been in the wife’s favour made pursuant to s 79 of the Act – Where the wife has not otherwise asserted any equitable interest in that property – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 33, 34, 78, 79, 80, 90AE, 123

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44

Real Property Amendment (Certificates of Title) Act 2021(NSW)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 13.12

Cases cited:
Clemett and Clemett (1981) FLC 91-013

Commissioner of Taxation (Cth) of Australia v The Myer Emporium Ltd [No. 1] (1986) 160 CLR 220

Fencott v Muller (1983) 152 CLR 570

Jackson & Balen [2009] FamCAFC 131

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681

Khalif & Khalif and Anor [2020] FamCA 39

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457

Re Wakim: Ex parte McNally (1999) 198 CLR 511

Rizeq v Western Australia (2017) 262 CLR 1

Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261

Stanford v Stanford (2012) 247 CLR 108

Stephens & Stephens (Stay Application) (2010) FLC 93-429

Valceski v Valceski (2007) 70 NSWLR 36

Division: Division 1 First Instance

Number of paragraphs: 73

Date of hearing: 29November 2021

Place: Sydney (via video-link)

Counsel for the Applicant: Mr Lange with Ms Bartley

Solicitor for the Applicant: Aquila…

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 Khalif & Khalif (No 2)

Details

AGLC: Khalif & Khalif (No 2) [2021] FedCFamC1F 308
Case: [2021] FedCFamC1F 308
Decision Date

CaseChat Overview and Summary

In the case of Khalif & Khalif (No 2), the wife sought an order enforcing a previous ruling that the husband's brother should deliver a transfer of his interest in certain property to her. The husband's brother, in turn, sought a stay of the wife's application pending the outcome of his application for special leave to appeal and any subsequent appeal to the High Court. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the husband's brother had established exceptional or special circumstances that warranted a stay of the wife's application and whether the husband's brother's recent changes to conveyancing practices in New South Wales could be considered a legitimate "practical difficulty" that required further time to comply with the order. The court had to balance the interests of both parties and determine the appropriate course of action.

The court found that the husband's brother had not demonstrated exceptional or special circumstances that would warrant a stay of the wife's application. The court also found that the husband's brother's argument regarding recent changes to conveyancing practices in New South Wales was not substantiated by any evidence and was, therefore, insufficient to warrant a stay. The court concluded that the husband's brother should comply with the previous order as soon as practicable and transfer his interest in the property electronically in accordance with the new regulations.

The court dismissed the husband's brother's application for a stay and ordered him to comply with the previous order within seven days. The wife's application for the delivery of a duly executed transfer was granted, with the understanding that the transfer would be completed electronically in accordance with the new conveyancing regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In relation to where the balance of convenience lies, the husband’s brother repeats arguments as to how the Trustee may seek to deal with the property and how Rees J may take the property into account in the pool of assets in a future property settlement hearing and determination which takes place prior to the High Court proceedings. I have already found those arguments to be without substance.Conclusion in respect to the stay Ultimately, the central question is whether or not the husband’s brother has established exceptional or special circumstances because the failure to grant a stay would render his application for special leave and his appeal to the High Court nugatory. I find it will not. In any event, the discretionary factors would not move me to grant the stay. Accordingly, I shall dismiss the husband’s brother’s application for a stay. Consequently, the husband’s brother should comply with Order 2 as soon as is practicable.THE WIFE’S APPLICATION FOR THE DELIVERY OF A DULY EXECUTED TRANSFER By way of enforcement of Order 2 made 31 January 2020, the wife seeks an order that the husband’s brother cause to be delivered to the solicitor for the wife, a duly executed transfer of such interest in registerable form in partial compliance with Order 2 within seven days. In the event that that order was not made without more, in the alternative, the wife offers an undertaking by the wife’s solicitor that he shall hold the transfer pending disposal of the High Court proceedings and in the event that the husband’s brother is successful, shall within seven days return the transfer to the husband’s brother’s solicitors but in the event that the appeal is unsuccessful, he would register the transfer within seven days of the dismissal of the special leave application or any High Court appeal. It is reasonable to assume that the wife’s application refers to a paper transfer. On the morning of the hearing, the husband’s brother raised as a “practical difficulty” as to the form of the enforcement order sought by the wife because of very recent changes to conveyancing practices in New South Wales which has abolished the use of paper Certificates of Title. The written submissions in reply refer to the Real Property Amendment (Certificates of Title) Act 2021(NSW) and the Registrar’s Declaration that, from 11 October 2021, all dealings must be effected electronically. During submissions I pointed out that no document had been provided to support that submission. An undertaking was given to provide documents. After the hearing, the solicitor for the husband’s brother provided a copy of the legislation but no other document. Assessing the publicly available link to the website of the Office of the Registrar-General (Absolution of Certificates of Title | Registrar-General (nsw.gov.au)) it seems to indicate that from 11 October 2021 all dealings must be effected electronically. The wife’s solicitor has not had any proper opportunity to comment upon the very recent changes in conveyancing practices but it seems that what now needs to happen is for the husband’s brother to complete various tasks and give the necessary authorities to his lawyers to ensure that legal title is transferred to his brother electronically in accordance with Order 2.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Khalif & Khalif (No 2) [2021] FedCFamC1F 308

Most Recent Citation

Frederic & Brisset [2023] FedCFamC2F 1291

Cases citing this decision · 9 of 9 shown

Berfield & Berfield (No 2)
[2024] FedCFamC1F 573 Para 7

…prietary interests arising from an institutional constructive trust involving the interests of a third party ( Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]; Valceski v Valceski (2007) 70 NSWLR 36 at [30]–[36]). If a declaration is made pursuant to s 78(1) of the Act, s 78(2) is available to make consequential or…
Genesalio & Genesalio (No 5)
[2024] FedCFamC1F 450 Para 3

…scretion in s 79 or s 106B to set aside dispositions: Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [31]–[33]; Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]. Clearly, according to these principles, the existence of claims for orders affecting the rights or interests of third parties proposed to be j…
Yong & Weng
[2024] FedCFamC1F 440 Para 26

…e exercise of discretion in s 79 or s 106B to set aside dispositions: Valceski v Valceski (2007) 70 NSWLR 36 at [31]–[33]; Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]. Clearly, according to these principles, the existence of claims for orders affecting the rights or interests of third parties proposed to be joi…
Kayce & Wilda (No 2)
[2024] FedCFamC1F 405 Para 23

…e exercise of discretion in s 79 or s 106B to set aside dispositions: Valceski v Valceski (2007) 70 NSWLR 36 at [31]–[33]; Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]. Clearly, according to these principles, the existence of claims for orders affecting the rights or interests of third parties proposed to be joi…
Abano & Abano
[2024] FedCFamC1F 331 Para 28

…h to declare proprietary interests arising from an institutional constructive trust involving the interests of a third party ( Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]; Valceski v Valceski (2007) 70 NSWLR 36 at [30]–[36]). If a declaration is made pursuant to s 78(1) of the Act, s 78(2) is available to make…
Nicotra & Nicotra
[2023] FedCFamC2F 1548 Para 21

…the exercise of discretion in s.79 or s 106B to set aside dispositions: Valceski v Valceski (2007) 70 NSWLR 36 at [31]–[33]; Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]. Clearly, according to these principles, the existence of claims for orders affecting the rights or interests of third parties proposed to be j…
Frederic & Brisset
[2023] FedCFamC2F 1291 Para 10

…on in s 79 or s 106B to set aside dispositions: Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [31]–[33]; Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]. Clearly, according to these principles, the existence of claims for orders affecting the rights or interests of third parties proposed to be joined…
Toma & Doyle (No 2)
[2023] FedCFamC1F 477 Para 6

…e exercise of discretion in s 79 or s 106B to set aside dispositions: Valceski v Valceski (2007) 70 NSWLR 36 at [31]–[33]; Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]. Clearly, according to these principles, the existence of claims for orders affecting the rights or interests of third parties proposed to be joi…
Jordan & Sutton (No 2)
[2022] FedCFamC1F 850 Para 18

…the exercise of discretion in s 79 or s 106B to set aside dispositions: Valceski v Valceski (2007) 70 NSWLR 36 at [31]–[33]; Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]. Clearly, according to these principles, the existence of claims for orders affecting the rights or interests of third parties proposed to be j…

View all 9 citing cases →

Cases cited in this decision · 19 of 19 shown

Khalif & Khalif
[2020] FamCA 39 Para 1

…ces is that he was a highly successful entrepreneur with gross assets of $21,750,000 and net assets of $10,340,000 ( Khalif & Khalif and Anor [2020] FamCA 39 (“ Khalif & Khalif ”) at [156]; see also [42] and [45]). The husband’s brother has not sought to provide updated evidence as to his financial circumstances i…
Rizeq v Western Australia
[2017] HCA 23 Para 8

…I acknowledge at the outset that the High Court in Rizeq v Western Australia (2017) 262 CLR 1 said: 55. Thus, it is commonplace that resolution of a matter within federal jurisdiction may involve application both of Commonwealth law and of State law. Indeed it can happen that a matter in federal jurisdiction is res…
Stanford v Stanford
[2012] HCA 52 Para 13

…ding to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property ( Stanford v Stanford (2012) 247 CLR 108 at [37]). When the interests of third parties are involved, there are two usual basis of jurisdiction and power to deal with this first step. Most co…
Jackson & Balen
[2009] FamCAFC 131 Para 19

…27 October 2021, at paragraph 18, and in his written submission in reply at paragraph 6, he relies on the Full Court decision of Jackson & Balen [2009] FamCAFC 131 at [28] to suggest that it was not necessary for him to demonstrate “exceptional” or “special” circumstances. However, as discussed during oral submissio…
Valceski v Valceski
[2007] NSWSC 440 Para 14

…lter the interests of the spouse’s property or vested bankruptcy property pursuant to s 79 (see the discussion by Brereton J in Valceski v Valceski (2007) 70 NSWLR 36 at [30]–[36]). This power includes the ability to bind third parties.…
Tate & Tate
[2003] FamCA 113 Para 16

…n to stay should be made: Fauna Holdings Pty Ltd and McGillivray v Mitchell [2000] FamCA 548; (2000) FLC 93-024; Tate and Tate (No 4) [2003] FamCA 113; (2003) FLC 93-139. As such, it is not controversial that this Court has the power to grant such a stay…
Parsons v McBain
[2001] FCA 376 Para 28

…e proceedings determined to date. The husband’s interest in the C Street property arose at the time of the transactions ( Parsons and Anor v McBain (2001) 109 FCR 120 at [11]–[13]). The declaration sought by the wife against the husband’s brother did not “alter” rights he had in the C Street property but “declared” w…
Fauna Holding Pty Ltd & Ors & Mitchell
[2000] FamCA 548 Para 16

…and which is familiar with the matter) that an application to stay should be made: Fauna Holdings Pty Ltd and McGillivray v Mitchell [2000] FamCA 548; (2000) FLC 93-024; Tate and Tate (No 4) [2003] FamCA 113; (2003) FLC 93-139. As such, it is not controversial that this Court has the power to grant such a stay…
Re Wakim; Ex parte McNally
[1999] HCA 27 Para 13

…81) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261; and Re Wakim: Ex parte McNally (1999) 198 CLR 511).…
Edelsten v Ward
[1994] NSWCA 87 Para 18

…is a question of the preservation of the rights of the parties without disregard of the balance of convenience.” 81. In Edelsten v Ward [No. 2] (1988) 63 ALJR 346, Brennan J, emphasising the “exceptional” character of the Court’s inherent jurisdiction to preserve the subject matter of litigation pending the making of…
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd
[1986] HCA 84 Para 18

…The relevant test is discussed in Stephens at [80]–[82]: 80. However, the jurisdiction to grant a stay pending an application for special leave to appeal to the High Court is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. In Jennings Const…
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)
[1986] HCA 13 Para 18

…fore that jurisdiction is exercised. 82. In The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Ltd [No. 1] (1986) 160 CLR 220, Dawson J noted at 222 that the High Court Rules (see now O 70 r 8(1)) provide that, unless otherwise ordered, neither an application for special leave nor an ap…
Fencott v Muller
[1983] HCA 12 Para 13

…d to as the court exercising “accrued jurisdiction” ( Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261; and Re Wakim: Ex parte McNally (1999) 198 CLR 511).…
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd
[1981] HCA 7 Para 13

…eady mentioned, this has been referred to as the court exercising “accrued jurisdiction” ( Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261; and Re Wakim: Ex parte McNally (1999) 198 CLR 511).…
McBride v Sandland (No 2)
[1918] HCA 59 Para 18

…appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v. Sandland [No. 2] [(1918) 25 CLR 369]. ……
Marconi's Wireless Telegraph Co Ltd v Commonwealth (No 3)
[1913] HCA 23 Para 18

…for special leave to appeal. That was the situation to which this court adverted in Marconi's Wireless Telegraph Co. Ltd. v The Commonwealth [No 3] (1913) 16 CLR 384]. There the Court granted an order staying the operation of one of its own orders pending the hearing of an application to the Privy Council for specia…
House v R
[1936] HCA 40 Para 19

…sion of a primary judge, by way of rehearing, applying principles applicable to appeals from discretionary judgments ( House v The King (1936) 55 CLR 499). I am of the view that that statement does not represent the test in respect of an application for a stay pending an application for special leave to the High Cou…
Stack v Coast Securities (No 9) Pty Ltd
[1983] HCA 36 Para 13

…Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261; and Re Wakim: Ex parte McNally (1999) 198 CLR 511).…
House v The King
63 WN 176 Para 19

…it from the decision of a primary judge, by way of rehearing, applying principles applicable to appeals from discretionary judgments ( House v The King (1936) 55 CLR 499). I am of the view that that statement does not represent the test in respect of an application for a stay pending an application for special leave to t…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
123, 33, 34, 78, 79, 80, 90AE 8 mentions (from Para 7)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
44 2 mentions (from Para 19)
Real Property Amendment (Certificates of Title) Act 2021 (NSW)
1 mention (from Para 40)

File number(s):	SYC 6144 of 2016
Judgment of:	WATTS J
Date of judgment:	16 December 2021
Catchwords:	FAMILY LAW – STAY APPLICATION – Whether the husband’s brother has established that there are exceptional or special circumstances to grant a stay pending the conclusion of the proceedings he has commenced in the High Court of Australia – Where no exceptional or special circumstances exist – Whether there are other discretionary factors that would have led to an exercise of discretion had the husband’s brother met the threshold test – Where other discretionary factors would not have led to an order granting the stay. FAMILY LAW – ENFORCEMENT – Whether an order should be made enforcing the husband’s brother’s compliance with the order that has not been stayed – Where there are currently apparent difficulties with the form of order sought by the wife by way of enforcement – Where the wife is given liberty, upon giving 7 days’ notice, to seek further orders in respect to enforcement. FAMLY LAW – COSTS – Where the wife seeks a reiteration of the costs order made by the Full Court on 23 July 2021 – Where the husband’s brother seeks a condition be placed upon that costs order – Where both applications are dismissed. FAMILY LAW – CAVEAT – Where the wife seeks an order that she be entitled to lodge a caveat on the title of a property which is vested bankruptcy property – Where no order has yet been in the wife’s favour made pursuant to s 79 of the Act – Where the wife has not otherwise asserted any equitable interest in that property – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 33, 34, 78, 79, 80, 90AE, 123 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44 Real Property Amendment (Certificates of Title) Act 2021(NSW) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 13.12
Cases cited:	Clemett and Clemett (1981) FLC 91-013 Commissioner of Taxation (Cth) of Australia v The Myer Emporium Ltd [No. 1] (1986) 160 CLR 220 Fencott v Muller (1983) 152 CLR 570 Jackson & Balen [2009] FamCAFC 131 Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 Khalif & Khalif and Anor [2020] FamCA 39 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Re Wakim: Ex parte McNally (1999) 198 CLR 511 Rizeq v Western Australia (2017) 262 CLR 1 Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 Stanford v Stanford (2012) 247 CLR 108 Stephens & Stephens (Stay Application) (2010) FLC 93-429 Valceski v Valceski (2007) 70 NSWLR 36
Division:	Division 1 First Instance
Number of paragraphs:	73
Date of hearing:	29November 2021
Place:	Sydney (via video-link)
Counsel for the Applicant:	Mr Lange with Ms Bartley
Solicitor for the Applicant:	Aquila…