Majeda Aslan (Plaintiff) v Suroor Bin Mohamed Al Nahyan (Defendant)

[2012] NSWSC 57

Supreme Court

New South Wales

Medium Neutral Citation:	Majeda Aslan (Plaintiff) v Suroor Bin Mohamed AL Nahyan (Defendant) [2012] NSWSC 57
Hearing dates:	10 February 2012
Decision date:	10 February 2012
Jurisdiction:	Equity Division
Before:	Black J
Decision:	No jurisdiction to make order under Property (Relationships) Act established - Default judgment not granted
Catchwords:	PRACTICE AND PROCEDURE - Default judgment
Legislation Cited:	- Family Law Act 1975 (Cth) s 90SB, 90SM - Family Court Act 1997 (WA) s 205ZG(4) - Property (Relationships) Act 1984 (NSW) s 15, s 15(1)(a), s 15(1)(b)(i), s 15(1)(b)(ii), s 27 - Uniform Civil Procedure Rules 2005 (NSW) Pt 16
Cases Cited:	- Miller and Trent [2011] FMCAfam 324 - V and K (2005) FCWA 80 - Wentworth v Wentworth (1995) 37 NSWLR 703
Category:	Interlocutory applications
Parties:	Majeda Aslan (Plaintiff) Suroor Bin Mohamed AL Nahyan (Defendant)
Representation:	Solicitors: S Reeves (Plaintiff) No appearance (Defendant)
File Number(s):	08/278340

Judgment

1. By Statement of Claim filed on 22 April 2008, the Plaintiff ("Ms Aslan") claimed a property settlement from the Defendant (who appears to be resident in Abu Dhabi) pursuant to Property (Relationships) Act 1984 (NSW). Ms Aslan also claimed maintenance from the Defendant pursuant to s 27 of that Act. The Statement of Claim pleaded that Ms Aslan was domiciled in Australia, the Defendant had substantial property interests in New South Wales, the duration of the relationship was a period of about 30 years and Ms Aslan made a substantial contribution to the Defendant's present assets.

1. By order made on 15 September 2010, the Court dispensed with the requirement for personal service of the Statement of Claim on the Defendant and authorised service of the Statement of Claim by way of registered post international parcels service to a specified address. There is evidence that the Statement of Claim has been served in that manner. There has been no appearance by the Defendant.

1. By motion dated 14 April 2011, Ms Aslan applied for default judgment pursuant to UCPR Pt 16. That application for was heard before Macready AsJ on 29 April 2011. Macready AsJ dismissed that application on the basis that the jurisdictional prerequisites to the making of an order under the Property (Relationships) Act 1984 were not satisfied. Those requirements, so far as residence within the State is concerned, are set out in section 15 of the Act, which provides that:

(1)   A Court shall not make an order under this Part unless it is satisfied:

(a) that the parties to the application were or either of them was resident within New South Wales on the date on which the application was made, and

(b) that:

(i) both parties were resident within New South Wales for a substantial period of their domestic relationship, or

(ii) substantial contributions of the kind referred to in section 20(1)(a) or (b) have been made in New South Wales by the applicant (emphasis added).

(2)   For the purposes of sub-section (1)(b)(i), the parties to an application shall be taken to have been resident within New South Wales for a substantial period of their domestic relationship if they have lived together in the State or a period equivalent to at least one-third of the duration of their relationship.

1. Macready AsJ noted that the evidence before him was that Ms Aslan and the Defendant lived together in a de facto relationship from 1980 until recently, initially in London and then in Abu Dhabi. Macready AsJ also noted that it was apparent from Ms Aslan's evidence that she and the Defendant lived together overseas and only rarely came to Australia and, in the whole of that period, there were three or four visits of a week or two at a time. Macready AsJ held that the requirement in s 15(1)(a) of the Act was satisfied as Ms Aslan was resident in New South Wales at the time of the application; the requirement in s 15(1)(b)(i) of the Act was not satisfied as the parties did not live in New South Wales for a substantial period of the relationship; and the requirement in s 15(1)(b)(ii) of the Act was also not satisfied as Ms Aslan's evidence did not establish either substantial contributions by her to property or substantial non-financial contributions made in New South Wales. Macready AsJ therefore held that the Court did not have jurisdiction to make an order under the Act.

1. By Notice of Motion filed on 20 June 2011, Ms Aslan sought an order re-opening the matter. The matter was listed before me on 21 September 2011, when it was adjourned after Counsel became unavailable at short notice and on the basis that Ms Aslan wished to rely on a psychologist's report which was not then available to support re-opening the matter, in particular, by explaining the difficulties which she faced in giving evidence when the matter was heard before Macready AsJ.

1. When the matter was again listed before me today, Ms Aslan was represented by Mr S Reeves, solicitor. Ms Aslan did not rely on a psychologist's report of the kind which had been foreshadowed when the matter was listed before me in September 2011. In support of the application to reopen and the application for default judgment, Ms Aslan relied on her further affidavit dated 16 July 2011, in which she gave further evidence to support the jurisdictional requirements of the Act. In summary, that evidence was that:

(a) She began to reside with the Defendant in April 1980 and they continued to live as husband and wife in a de facto relationship until March 2006 in the United Arab Emirates;

(b) Between December 1980 and the end of January 1981, she visited New South Wales to assist the Defendant with the purchase of a shopping centre and sheep property as well as to acquire residential premises for them in New South Wales. Ms Aslan's evidence as to the nature of that assistance was that she "spoke with at least ten real estate agents and studied all the material that they provided for me in relation to the properties". She gave evidence that she passed this information on to the Defendant and conferred with him at length on her return (presumably, in Abu Dhabi) as to the sources of the information and their importance, and that she personally inspected at least five properties in New South Wales.

(c) Between March 1983 and May 1983, she came to New South Wales to make inquiries in relation to the purchase of a large shopping centre and a residence in New South Wales. No evidence is given as to the nature of the inquiries made. Ms Aslan reported to the Defendant that she had inspected an office building in Elizabeth Street Sydney, although there is no evidence that report was made in New South Wales rather than Abu Dhabi.

(d) Between 18 May 1985 and 29 July 1985, Ms Aslan inspected about twenty properties for the Defendant, including shopping centres and a commercial building and met with representatives of a developer in New South Wales.

(e) Between 20 June 1990 and 4 July 1990, the Defendant instructed Ms Aslan to visit New South Wales with a view to living in Australia and going into business here and she inspected many properties including a residential villa and a large sheep property in rural New South Wales. I assume that the two week period referred to here is the period of Ms Aslan's presence in New South Wales.

1. In summary, Ms Aslan gives evidence of spending about five weeks in New South Wales in 1980, six weeks in 1983, six weeks in 1985 and two weeks in 1990, and of activity on her part in respect of the inspection of properties in those periods.

1. Ms Aslan also gives evidence of a visit by the Defendant to New South Wales in July 2007 and of significant activities in Abu Dhabi and elsewhere, including supervising the Defendant's household in the areas of cooking, cleaning, washing and gardening; generally assisting him with his business; working in Abu Dhabi and contributing her salary to the relationship; conducting a business in Abu Dhabi and later working as a consultant; and later conducting another business in the United Arab Emirates and Switzerland.

1. The question of "substantial contribution", for the purposes of provisions in the Family Provision Act 1982 (NSW), Family Law Act 1997 (Cth) and Family Court Act 1997 (WA) has been considered in the case law. A useful starting point is the dictionary definition of the concept of "substantial", which is referred to in the Oxford Dictionary as "of ample or considerable amount, quality or dimensions". In Wentworth v Wentworth (1995) 37 NSWLR 703 at 752, in considering Family Provision Act 1982 (NSW) s 8, Giles A-JA observed that, although the word "substantial" is an imprecise word and takes its colour from the context in which it is used and the purpose, one of its primary meanings is considerable or large, judged according to the circumstances of the particular case. In V and K (2005) FCWA 80 at [21], the Family Court of Western Australia considered the wording of Family Court Act 1997 (WA) which referred to "substantial contributions" of the kind referred to in s 205ZG(4), which were financial or non-financial contributions made by a de facto partner, and observed that "substantial means something more than usual or ordinary" and that contribution to domestic duties where there were no dependent children and over a short period of time ought not to be seen as substantial. In Miller and Trent [2011] FMCAfam 324, Coates FM followed these decisions in respect of Family Law Act 1975 (Cth) ss 90SB and 90SM.

1. In my opinion, there is no basis for a finding that several inspections of properties in New South Wales over several relatively short periods over 10 years amounted to a contribution that was either considerable or large or something more than usual or ordinary. I would reach that finding even if it were the case, as the evidence suggests, that the properties were valuable residential or commercial assets.

1. Accordingly, the additional evidence now led by Ms Aslan does not establish that she made substantial contributions of the kind made in s 20(1)(a) or (b) of the Property (Relationships) Act in New South Wales, for the purposes of s 15 of the Act. Although that evidence demonstrates that she made substantial contributions in Abu Dhabi, that is not sufficient to establish jurisdiction under the Act, since the jurisdictional requirement for the making of orders under the Act is that substantial contributions of the relevant kind have been made by Ms Aslan in New South Wales and not elsewhere.

1. I am therefore not satisfied that there is jurisdiction to make orders under Pt 3 of the Act. In these circumstances, there is no utility in granting leave to reopen the application for default judgment and I do not grant that leave. I also do not make an order for default judgment.

1. I asked Mr Reeves, in the course of his submissions, to indicate what steps Ms Aslan will seek to take in the proceedings if default judgment were not granted. Mr Reeves indicated that Ms Aslan may seek to lead further evidence and will then proceed to a final hearing. It is difficult to see the utility of Ms Aslan proceeding to a final hearing and incurring further costs in doing so unless evidence is available to establish jurisdiction of a kind which was not available before Macready AsJ or before me and I would urge Ms Aslan and her advisers to give careful consideration to that matter. I otherwise relist the matter before the Registrar in Equity for directions on 20 February 2012.

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Decision last updated: 14 February 2012