Mohamed v Mohamed

[2013] NSWCA 65

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohamed v Mohamed [2013] NSWCA 65

Hearing dates:

27 March 2013

Decision date:

27 March 2013

Before:

Barrett JA (at [1] and [15]); Ward JA (at [14]).

Decision:

The application for leave to appeal is dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal - CONTRACTS - public policy - contract between cohabiting unmarried parties that one will make a payment to the other in defined event of separation - held that no defence based on public policy arguable

Legislation Cited:

Property (Relationships) Act 1984, Part 4

Category:

Interlocutory applications

Parties:

Mostafa Mohamed - Applicant
Neima Mohamed - Respondent

Representation:

J Cohen - Applicant
P D Lange - Respondent
E James Lawyers - Applicant
Farah Lawyers - Respondent

File Number(s):

2012/308300

 Decision under appeal 

Citation:

[2012] NSWSC 852

Date of Decision:

2012-07-31 00:00:00

Before:

Harrison AsJ

File Number(s):

2010/332875

Judgment

1. BARRETT JA: This application for leave to appeal concerns a decision of an Associate Judge of the Common Law Division on appeal from the Local Court in a case in which a woman successfully sued a man for $50,000 claimed by her to be due under a contract.

1. The parties are Muslim and the contract began by reciting that they had been living in a relationship "blessed by Islamic Sharia" and "comprehended by the Property (Relationships) Act 1984". They were not married according to law.

1. The relevant term of the contract was to the effect that if the man initiated separation, he would pay the woman $50,000 which was referred to as "Moackar Sadak" or "Dowry".

1. The woman claimed that the specified event had happened and that the $50,000 was payable accordingly. That claim on the woman's part was upheld by the magistrate and judgment for $50,000 plus costs was ordered against the man and in favour of the woman in the Local Court. Upon appeal to the Supreme Court, Harrison AsJ ordered that the appeal be dismissed.

1. In seeking now to appeal to the Court of Appeal, the man puts forward several alleged errors on the part of the Associate Judge. Counsel for the applicant also canvassed a number of matters in a discursive way, apparently unrelated to the grounds of appeal stated in the draft notice of appeal and ranging beyond the boundaries of the case in both the Local Court and the Common Law Division.

1. With one possible exception, the grounds stated in the draft notice of appeal do not raise any question of principle or provide any basis for thinking that, in the interests of justice, the Court of Appeal should consider a matter in which decisions at two levels of the judicial process have produced a single and consistent answer.

1. The possible exception is the contention that, to the extent that it required payment of $50,000 if the man initiated separation, the contract was void because contrary to public policy. Counsel for the applicant said that the particular head of public policy is one that has not so far been recognised by the courts.

1. The first thing to be said about this aspect is that, as the contract itself recognised by referring to the relationship as of the kind covered by the Property (Relationships) Act, this was not a case of marriage in the legal sense, so that there is no scope for the operation of such principles as there may be today about contracts prejudicial to the status of marriage.

1. When it is recognised that the case was, as a matter of legal classification, one of de facto relationship, it is seen to involve a subject matter in relation to which legislation has specifically sanctioned contracts as to financial rights and obligations of the parties including in case of separation or termination. I refer to the provisions in Part 4 of the Property (Relationships) Act concerning domestic relationship agreements and termination agreements.

1. It is not, in my opinion, to the point for the man to say, as his counsel submits, that the contract provides an impediment to a party leaving a relationship of cohabitation. Contracts of the kind sanctioned by the legislation I have mentioned may indirectly and incidentally have that effect. Nor is it correct to say that the contract is such as to compel a court to make findings about the subjective morality of the parties (although precisely how that would be so is not clear to me).

1. The contract terms were premised on well defined events: if the man "initiates separation" in the words of cl 11, if the woman "initiated separation" in the words of cl 12 or if "both parties mutually agree to separation" also in terms of cl 12. These criteria involve matters of fact. No moral judgment is involved.

1. Nor is it to the point to emphasise, as counsel for the applicant sought to do, that the sum of $50,000 to be paid in the specified event was given a definitional label employing words that have a particular significance in Islamic culture.

1. On the basis that the grounds of appeal other than that based on public policy raise no question of principle or general important and that the so-called public policy ground is untenable, I propose that leave to appeal be refused with costs.

1. WARD JA: I agree with Barrett JA for the reasons his Honour has given.

1. BARRETT JA: The order therefore is that the application for leave to appeal is dismissed with costs.

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Decision last updated: 03 April 2013