Sattar v Goodwin - [2024] NSWSC 1290

Supreme Court

New South Wales

Medium Neutral Citation: Sattar v Goodwin [2024] NSWSC 1290
Hearing dates: 1 and 10 October 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Jurisdiction: Equity - Duty List
Before: Hmelnitsky J
Decision:
Dismiss the notice of motion filed 27 September 2024

Catchwords:
CIVIL PROCEDURE – Interlocutory applications – Whether plaintiff is entitled to a declaration that the second defendant’s wife is not permitted to enter, stay at, or reside at Punchbowl house – Where plaintiff and second defendant were married from 2003 until 2022 – Where plaintiff’s late mother had bequeathed Punchbowl house to her under Will

Legislation Cited:
Succession Act2006 (NSW), ss 59, 66.

Cases Cited:
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45

Category: Procedural rulings
Parties:
Saqiba Mehar Sattar (Plaintiff)
Tamara Jayne Goodwin, in her capacity as Independent Administrator of the deceased estate of the late Qamar Jahan Sattar (First Defendant)
Muhammad Mahmud Alam (Second Defendant)
Representation:
Counsel:

Mr P Bates for the Plaintiff
Mr N Bilinsky for the First Defendant
Mr D Yazdani for the Second Defendant

Solicitors:
City Lawyers (Plaintiff)
Glass Goodwin (First Defendant)
Thurlow Fisher Lawyers (Second Defendant)

File Number(s): 2023/00086003

JUDGMENT

By notice of motion filed on 27 September 2024, the plaintiff seeks urgent interlocutory relief, the substance of which is as follows:

“Declare that the Second Defendant is not permitted to invite or arrange for the Second Defendant’s new wife from Bangladesh (Bangladesh wife) to enter, stay at, nor reside at the Punchbowl premises; noting and finding that the Bangladesh wife does not presently reside in Australia nor presently have a right to enter nor live in Australia and that she presently remains overseas since the Second Defendant married her in 2022, but also noting and finding that the Second Defendant has informed the Plaintiff of his intention to bring the Second Defendant’s new Bangladesh wife to Australia to live with him at the Punchbowl premises.”

The nub of the matter is this. The plaintiff and the second defendant both live at a house on Punchbowl Rd, Punchbowl (the Punchbowl house). They were married on 29 September 2003 and divorced in February or March 2022. The plaintiff and second defendant have four children, aged 6, 15, 17 and 19, all of whom live with them at the Punchbowl house.
The plaintiff has, from birth, suffered from cerebral palsy. She is restricted to a wheelchair and communicates with the assistance of a computer. She receives full-time in-home care which is funded by the NDIS.
The Punchbowl house is a large, two-story ten-bedroom residence that accommodates the plaintiff’s special needs. There are five bedrooms upstairs and five downstairs.
In 2022, after the divorce was finalised, the second defendant travelled to Bangladesh where he married Rifat Jasmine, before returning to Australia alone. The second defendant has referred to his new wife as Rifat in…

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.

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Details

Case: [2024] NSWSC 1290
Decision Date: 15 October 2024

CaseChat Overview and Summary

The case of Sattar v Goodwin involved the plaintiff seeking an interlocutory declaration that the second defendant's wife is not permitted to enter, stay at, or reside at a property known as Punchbowl House. The plaintiff and the second defendant were married from 2003 until 2022. The property in question was bequeathed to the plaintiff by her late mother under a will. The legal dispute centred on the interpretation of the will and the rights of the parties in relation to the property. The plaintiff argued that the terms of the will excluded the second defendant's wife from occupying the property, while the defendants contended that the will did not expressly exclude her and that there was no legal basis for such a restriction.

The primary legal issue before the court was whether the will's terms could be interpreted to exclude the second defendant's wife from the property. The court had to determine the meaning and effect of the relevant provisions in the will and whether they applied to the situation at hand. Additionally, the court considered whether there were any equitable principles or common law rules that might support the plaintiff's claim, even if not explicitly stated in the will. The court also had to weigh the interests of the parties and decide whether granting the declaration would be just and equitable in the circumstances.

The court concluded that the terms of the will did not explicitly exclude the second defendant's wife from the property. While the will contained provisions that restricted the occupation of the property by certain individuals, these did not include the second defendant's wife. The court found that the will did not provide a clear and unambiguous direction to exclude her. Furthermore, the court held that there were no equitable principles or common law rules that would support the plaintiff's claim in the absence of clear and express terms in the will. The court ultimately decided that the plaintiff was not entitled to the declaration sought. The court emphasised that the will's terms had to be strictly adhered to, and there were no grounds to impose additional restrictions beyond those expressly stated.

In light of the court's findings, the plaintiff's application for the interlocutory declaration was dismissed. The court ordered that the plaintiff pay the second defendants' costs of the application.

Orders