Sharkey v Mayahi-Nissi - [2015] NSWSC 104

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sharkey v Mayahi-Nissi [2015] NSWSC 104
Hearing dates: 18 February 2015
Decision date: 18 February 2015
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Order that plaintiff be restrained from leaving the country and that he deliver up his passports

Catchwords: PROCEDURE - interlocutory issues - injunctions - order in the nature of a writ of ne exeat colonia - whether to restrain plaintiff from leaving the country - where plaintiff may be required to recompense defendant in satisfaction of an equitable demand if successful in related proceedings - where plaintiff has no significant assets in Australia - risk of absconding from jurisdiction without giving security - where plaintiff has engaged in conduct that could be regarded as deceptive
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Beach Petrolem NL v Johnson (1992) 9 ACSR 404
Cardile v LED Builders (1999) 198 CLR 380
Glover v Walters (1950) 80 CLR 172
Talacko v Talacko (No 2) (2009) 25 VR 613
Category: Procedural and other rulings
Parties: Donya Mayahi-Nissi (Applicant/Defendant/Cross Claimant)
Christopher James Sharkey (First Respondent/Plaintiff/First Cross-Defendant)
Sharkey Family Pty Ltd (Second Respondent/Second Plaintiff/Second Cross-Defendant)
Representation:
Counsel:
J Hyde
Solicitors:
Eakin McCaffery Cox (Applicant/Defendant/Cross Claimant)

File Number(s): 2013/383023

Judgment (ex tempore – revised 18 february 2015)

HIS HONOUR: The first plaintiff (Mr Sharkey) and the defendant (Ms Nissi) are presently embroiled in litigation that is being heard by Robb J as I speak. The issue between them is the entitlement of one or the other to a property, 98 Denison Street, Camperdown (the property). As I understand it, Mr Sharkey (or his family trust company, the second defendant) and Ms Nissi own both that property and the adjacent property 96 Denison Street, Camperdown.
Mr Sharkey and Ms Nissi were in a de facto relationship. Upon the break-up of that relationship, they made what on any view was an agreement as to the two properties. In essence, Mr Sharkey ceded ownership of the property to Ms Nissi and Ms Nissi agreed that Mr Sharkey could have the proceeds of sale of the adjacent property.
Mr Sharkey has commenced these proceedings asserting that, despite the agreement, he is in equity the owner of the property. As I understand it, he wishes to assert that his entitlement arises by reason of his contributions to the acquisition of the property. In respect of the agreement on which Ms Nissi relies, Mr Sharkey says as I understand it that it was signed in circumstances of duress, and that he is entitled in equity to set it aside.
It is necessary to note that the property was mortgaged to St George Bank. After the parties' relationship terminated, Ms Nissi continued to pay amounts owing in respect of that mortgage. However, the mortgage fell into arrears. Ultimately Ms Nissi arranged for the mortgage to be refinanced, and on any view is liable personally for the amount due under the second mortgage.
Ms Nissi applies ex parte before…

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 Sharkey v Mayahi-Nissi

Details

AGLC: Sharkey v Mayahi-Nissi [2015] NSWSC 104
Case: [2015] NSWSC 104
Decision Date: 18 February 2015

CaseChat Overview and Summary

The case of Sharkey v Mayahi-Nissi involved an application by the defendant, Mayahi-Nissi, for an interlocutory injunction to prevent the plaintiff, Sharkey, from leaving Australia. The matter was heard in the Federal Court of Australia. The defendant sought an order in the nature of a writ of ne exeat colonia, aimed at restraining the plaintiff from departing the country due to concerns that, if successful in related proceedings, the plaintiff might abscond from the jurisdiction without satisfying an equitable demand for restitution to the defendant.

The court was required to determine whether the risk of the plaintiff leaving the country without compensating the defendant, coupled with the plaintiff's lack of significant assets in Australia and conduct that could be considered deceptive, justified issuing the injunction. The key issue was whether the risk of the plaintiff absconding from the jurisdiction outweighed the plaintiff's right to freedom of movement.

The court found that the risk of the plaintiff leaving the country without compensating the defendant was sufficiently high to justify issuing the injunction. The court noted the plaintiff's lack of assets in Australia and the deceptive conduct as factors supporting the defendant's application. The court concluded that the risk of the plaintiff absconding from the jurisdiction without providing security for the potential liability was significant enough to warrant the issuance of the injunction. Consequently, the court granted the defendant's application for an order in the nature of a writ of ne exeat colonia, restraining the plaintiff from leaving Australia.

Orders