Sharkey v Mayahi-Nissi (No.2) - [2015] NSWSC 132

Supreme Court

New South Wales

Medium Neutral Citation: Sharkey v Mayahi-Nissi (No.2) [2015] NSWSC 132
Hearing dates: 25 February 2015
Decision date: 25 February 2015
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Discharge orders made ex parte on 18 February 2015.

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Sharkey v Mayahi-Nissi [2015] NSWSC 104
Texts Cited: Macquarie Dictionary (online)
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 J Hyde (Applicant)
A F Fernon (Respondents)
Solicitors:
Eakin McCaffery Cox (Applicant)
Swaab Attorneys (Respondents)

File Number(s): 2013/383023

Judgment (ex tempore – revised 25 february 2015)

HIS HONOUR: On 18 February 2015, at the suit of the defendant (Ms Nissi), I made orders to the effect that the plaintiff (Mr Sharkey) should be restrained from leaving the country until further order, and that he should deliver up his passports until further order. The application was made before me ex parte, in circumstances where the suit between Mr Sharkey and Ms Nissi was being heard by Robb J.
The reasons that I gave ([2015] NSWSC 104) show that the application was made either on the basis of the Court's general power to make such orders or on the basis of UCPR r 25.14. In the case of the rule, the particular power relied upon was one to make a freezing order or ancillary order or both. In this case, what was sought was described as an "ancillary order".
Mr Sharkey moves today for the discharge of the orders that were made. There are a number of points taken. The first was that the general power to make orders restraining people from leaving the jurisdiction (by analogy with the old writ of ne exeat colonia) has been abolished. The next point taken was that there is no power to make a purely ancillary order under r 25.14 except one that is, as r 25.12 says, ancillary to a freezing order or prospective freezing order; in this case, no freezing order was sought or made.
Next, it was submitted, there was no evidence of any intention to "abscond" in the sense of "depart in a sudden and secret manner, especially to avoid legal process" (the definition was taken from the Macquarie Dictionary online). The only evidence that Mr Sharkey intended to lead was, it was submitted, that he was travelling back to America in the ordinary course of his affairs, in circumstances where he has travelled between that country and this on many occasions in the past.
Next, it was said, there was no need to make the order in terms where, if Ms Nissi were entitled to the relief she claimed in the hypothetical circumstances under consideration, the amount of her claim in respect of the mortgage over the property in dispute was less than half the agreed minimum value of that property. In those circumstances, it was submitted,…

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: [2015] NSWSC 132
Decision Date: 25 February 2015

CaseChat Overview and Summary

In the case of Sharkey v Mayahi-Nissi (No.2), Donya Mayahi-Nissi applied for discharge of ex parte orders made by McDougall J on 18 February 2015, restraining Christopher James Sharkey from leaving Australia and requiring him to surrender his passports. The ex parte orders were made in the context of an ongoing dispute between the parties, with the application being heard by Robb J. The legal issues before McDougall J concerned the validity and appropriateness of the ex parte orders, given the absence of certain conditions and evidence that were presented during the initial application.

McDougall J found that the orders should be set aside for several reasons. Firstly, there was a material misstatement regarding Sharkey's intention to leave the country immediately after his evidence was completed, which was not the case. Secondly, Sharkey's frequent travel between the United States and Australia diminished the likelihood of his departure being intended to avoid legal process. Thirdly, the value of the property and the amount of Mayahi-Nissi's claim could be accommodated by appropriately moulded relief, if Sharkey were to make out a case for relief. Finally, there was significant evidence of prejudice to Sharkey's business interests in the United States if he were prevented from leaving the country.

McDougall J discharged the ex parte orders made on 18 February 2015 and directed that Sharkey's passport be returned to him. The court also ordered Mayahi-Nissi to pay Sharkey's costs of the application on an indemnity basis.

This case highlights the importance of accurate and complete information when making ex parte orders, as well as the need to consider the potential consequences of such orders on all parties involved.

Orders