Khalifeh v Rahme - [2009] NSWSC 1332

CITATION: Khalifeh v Rahme & Anor [2009] NSWSC 1332

HEARING DATE(S): 26 June 2009; 1-2 July 2009; 28 October 2009

JUDGMENT DATE :
1 October 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: Short minutes of order made on 28 October 2009:
1. The first and second defendants pay the sum of $16714.50 to their solicitor
Champion Legal
forthwith on account of legal fees.
2. Both parties to exchange a proposal to allow the business of the second defendant to be reactivated by 3 November 2009.
3. The Defendant to file and serve any further affidavit upon which he intends to rely upon by 20 November 2009.
4. The Defendant to serve and provide to the associate any further submission in support by 24 November 2009.
5. The Plaintiff to serve and provide to the associate any submission in reply by 30 November 2009.
6. The matter to be stood over to 2 December 2009 for further hearing before Slattery J.
7. Liberty to apply on 1 days notice.
8. This order may be taken out forthwith.

CATCHWORDS: EQUITY - equitable remedies - freezing orders - application to amend existing freezing orders to permit payment of defendant's legal expenses and business expenses - proven legal fees reasonable and freezing orders varied - insufficient material available to provide for variation to freezing orders to allow payment of the defendant's business expenses

CATEGORY: Principal judgment

CASES CITED: Cretanor Maritime Co Limited v Irish Marina Limited (1978) 1 WLR 966
Dumas v Macintosh (2002) NSWSC 713
Frigo v Culhaci [1998] NSWCA 88
Galaxia Maritime SA v Mineral Import Export (VT “Eleftherios”) (1982) 1 WLR 539
Jackson v Sterling Industries Limited (1987) 64 CLR 612
PCW (Underwriting Agencies) Limited v Dixon (1986) 69 ALR 92
Riley McKay Pty Limited v McKay (1982) 1 NSWLR 264

PARTIES: Plaintiff: Adele Khalifeh
First Defendant: Marwan Michael Rahme
Second Defendant: Mida Trading Pty Limited (ACN 130 714 199)

FILE NUMBER(S): SC 2197/09

COUNSEL: Plaintiff: Ms I Ryan
Defendants: Mr A Iuliano (Solicitor)

SOLICITORS: Plaintiff: Benjamin & Khoury Solicitors
Defendants: Champion Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

1 OCTOBER 2009

2197/09 ADELE KHALIFEH v MARWAN MICHAEL RAHME & MIDA TRADING PTY LIMITED (ACN 130 714 199)

JUDGMENT

1 HIS HONOUR: Adele Khalifeh and Marwan Rahme entered into a series of financial transactions during the period 2004 to 2008 which have become the subject of disputes between them. Ms Khalifeh says she formed a friendship with Mr Rahme during that period. He says they were in a de facto relationship. Whatever the nature of their relationship they cannot now agree on the resolution of the financial obligations that arose between them or the disposal of property acquired jointly by them during the period.

2 Ms Khalifeh commenced these proceedings by statement of claim seeking declarations as to her entitlement to certain property and the repayment of certain moneys she says were advanced to Mr Rahme between December 2004…

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 Khalifeh v Rahme

Details

AGLC: Khalifeh v Rahme [2009] NSWSC 1332
Case: [2009] NSWSC 1332
Decision Date: 1 October 2009

CaseChat Overview and Summary

The case of Khalifeh v Rahme involved the plaintiff, Khalifeh, seeking to amend existing freezing orders against the defendant, Rahme. The dispute centred on the application to modify the freezing orders to permit the defendant to pay certain legal and business expenses. The matter was heard in the Federal Court of Australia. The primary concern was whether the freezing orders should be amended to allow the defendant to use the frozen funds for the payment of his reasonable legal fees and ongoing business expenses.

The court was tasked with determining the admissibility of the defendant's application to amend the freezing orders. Specifically, it needed to assess the reasonableness of the legal fees claimed by the defendant and whether there was sufficient evidence to justify the payment of business expenses from the frozen funds. The court considered the nature of the expenses and whether they were necessary to maintain the status quo pending the resolution of the underlying dispute.

In its decision, the court found that the legal fees claimed by the defendant were reasonable and thus warranted inclusion within the scope of the amended freezing orders. However, the court did not have sufficient information to determine the necessity of the defendant's business expenses. Consequently, the court varied the freezing orders to permit payment of the defendant's legal fees but declined to vary the orders to cover business expenses. The court reasoned that the evidence provided was insufficient to justify such a variation.

The final orders of the court allowed the defendant to utilise the frozen funds to pay for reasonable legal fees while maintaining the prohibition on using the funds for business expenses. This decision balanced the need for the defendant to manage his legal defence with the overarching objective of preserving the status quo of the disputed assets.

Orders