Khalif & Khalif (No 3) - [2022] FedCFamC1F 900

Federal Circuit and Family Court of Australia
(DIVISION 1)
Khalif & Khalif (No 3) [2022] FedCFamC1F 900

File number(s): SYC 6144 of 2016

Judgment of: REES J

Date of judgment: 16 November 2022

Catchwords: FAMILY LAW – INTERIM PROPERTY – Where the wife seeks an order that the second respondent pay the costs of the trustee for sale – Where the wife seeks an order for interim property settlement – Where the wife seeks the payment of arrears of child support from the husband – Where the second respondent did not agree to the proposed orders for the sale of property until the day of the hearing – Orders made for the costs of the trustee for sale be paid from the gross proceeds of the sale before apportioning the balance of funds to the husband and the second respondent – Orders for the wife to receive by way of interim property settlement 33.5 per cent of the husband’s share of the net proceeds of the sale – Orders for the second respondent to pay for the costs of this application

Legislation: Family Law Act 1975 s 117(2A)

Cases cited: Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589

Division: Division 1 First Instance

Number of paragraphs: 34

Date of hearing: 14 November 2022

Place: Sydney

Counsel for the Applicant: Mr Todd

Solicitor for the Applicant: Jordan Djundja Lawyers

First Respondent: Litigant in person

Counsel for the Second Respondent: Mr Schonell

Solicitor for the Second Respondent: KF Lawyers Australia

Counsel for the Third Respondent: Mr Robertson

Solicitor for the Third Respondent: Harris Carlson Lawyers
ORDERS

SYC 6144 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KHALIF

Applicant

AND:
MR KHALIF

First Respondent

MR B KHALIF

Second Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Third Respondent

order made by:

REES J

DATE OF ORDER:

16 NOVEMBER 2022

THE COURT ORDERS:
1.That the response of the husband filed 10 November 2022 be dismissed and the husband removed as a respondent in the property settlement proceedings.
2.That the costs of the trustee for sale in the sum of $30,000 be paid from the gross proceeds of sale of the property at C Street, Suburb D before apportioning the balance of the funds to the husband and the second respondent.
3.That, from the proceeds of sale of the property at C Street, Suburb D the solicitors for the wife and the second respondent cause to be paid to the wife, by way of interim property settlement, a sum equivalent to 33.5 per cent of the sum referred to as “the First Respondent’s share” in Order 3(b) made on 14 November 2022.
4.That, from the proceeds of sale of the property at C Street, Suburb D the solicitors for the wife and the second respondent cause to be paid to the wife, from the sum referred to as “the Second Respondent’s share” in Order 3(a) made 14 November 2022, the sum of $25,600 being the costs of this application.

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 3)

Details

AGLC: Khalif & Khalif (No 3) [2022] FedCFamC1F 900
Case: [2022] FedCFamC1F 900
Decision Date

CaseChat Overview and Summary

The case involves Ms Khalif, who is seeking an order that the second respondent, Mr B Khalif, pay the costs of the trustee for sale, an interim property settlement, and arrears of child support. The husband, Mr Khalif, and the second respondent are involved in substantive proceedings concerning the division of assets. The third respondent is the husband's trustee in bankruptcy. The key legal issues before the court were whether the costs of the trustee for sale should be paid by the second respondent, what interim property settlement should be awarded to Ms Khalif, and whether the second respondent should pay the costs of the application. The court found that the costs of the trustee for sale should be paid from the gross proceeds of the sale, before apportioning the balance of funds to the husband and the second respondent. The court ordered that Ms Khalif receive 33.5 per cent of the husband's share of the net proceeds of the sale by way of interim property settlement. The court also ordered that the second respondent pay the costs of the application, which were estimated to be $25,600.

In conclusion, the court dismissed the husband's response and removed him as a respondent in the property settlement proceedings. The court ordered that the costs of the trustee for sale be paid from the gross proceeds of sale of the property before apportioning the balance of funds to the husband and the second respondent. The court also ordered that Ms Khalif receive 33.5 per cent of the husband's share of the net proceeds of the sale by way of interim property settlement, and that the second respondent pay the costs of the application, which were estimated to be $25,600.

Orders