Taouk v El Khoury
[2016] ACTSC 74
•1 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Taouk v El Khoury |
Citation: | [2016] ACTSC 74 |
Hearing Date(s): | 1 April 2016 |
DecisionDate: | 1 April 2016 |
Before: | Murrell CJ |
Decision: | Enforcement proceedings stayed until further order or finalisation of proceedings in the Federal Circuit Court. |
Catchwords: | PRACTICE AND PROCEDURE – Applications – Interlocutory application – application seeking stay of enforcement proceedings – separate proceedings on foot in the Federal Circuit Court – stay order granted |
Legislation cited: | Family Law Act 1975 (Cth) s 79 |
Parties: | Jackline El Khoury (Applicant) Joseph Taouk (Enforcement Creditor) Dany El Khoury (Enforcement Debtor) |
Representation: | Counsel Mr G Stretton SC (Applicant) Mr D Kozaric (Enforcement Creditor) Ms Huang (Enforcement Debtor) |
| Solicitors Farrar Gesini Dunn (Applicant) Gardner Ekes Lawyers (Enforcement Creditor) Avondale Lawyers (Enforcement Debtor) | |
File Number(s): | SCC 390 of 2015 |
MURRELL CJ:
The applicant is the former wife of the enforcement debtor, Mr El Khoury. The enforcement creditor, Joseph Taouk, is a relative of Mr El Khoury. The applicant seeks an order that all actions by the enforcement creditor against the enforcement debtor be stayed pending the determination of proceedings under the Family Law Act 1975 (Cth) (Family Law Act) in the Federal Circuit Court. The applicant is concerned that, if enforcement action is not stayed, she may be forced from her home and prejudiced in relation to the family law proceedings.
The application was filed on 30 March 2016, and it was only recently served on the judgment creditor and the judgment debtor.
The Court is informed that, among other assets, two houses are the subject of property proceedings in the Federal Circuit Court: the house at Crace, which is currently occupied by the applicant and her three children, and a house at Kaleen, which is currently occupied by Mr El Khoury. The three children are aged between approximately 10 and 15 years. The middle child, who is severely disabled, requires full assistance with all the tasks of daily living. Most of that assistance is provided by Mrs El Khoury. She assists to a very high level, enhancing the life of the child.
The parties are awaiting the allocation of a hearing date for their property dispute in the Federal Circuit Court.
On about 2 December 2014, Mr El Khoury entered into an agreement with the enforcement creditor. The agreement refers to three loans allegedly made by the enforcement creditor to the enforcement debtor. Two loans were allegedly made in 2008 and one loan was made in 2009, in the total sum of approximately $102,200. Pursuant to the document dated 2 December 2014, Mr El Khoury agreed to pay interest on those loans at the rate of 30% p.a. from the time of the loans. As a consequence, interest escalated to the extent that, on 29 September 2015, Mr Taouk was able to obtain default judgment against Mr El Khoury in the sum of $746,904.48. Most of that sum was attributable to interest.
The judgment was registered in the ACT on 20 October 2015. It is the subject of the enforcement proceedings that Mrs El Khoury seeks to stay.
In the family law proceedings, Mrs El Khoury will say that she had no knowledge of the agreement of December 2014 and she may seek to challenge the agreement. I do not know whether she says that she knew about the principal debt of $102,200, but that is less important. In the family law proceedings, she will allege that, pursuant to s 79(10) of the Family Law Act, liability for the interest component, and perhaps for the entire sum of $746,904.48, should rest with Mr El Khoury and be deducted from what would otherwise be his portion of the joint matrimonial assets. The Court does not know the total sum of the joint assets, but is informed that it is substantial.
The judgment creditor and the judgment debtor should be permitted adequate time to respond to the application, which is underpinned by very serious allegations.
There is a serious question to be tried. Mr Taouk sought an undertaking as to damages, and this was given by the applicant. The balance of convenience favours the granting of a stay until the matter can be fully ventilated.
I make the following directions:
(a)The matter is fixed for hearing before me at 10:15 am on Wednesday, 25 May 2016, with a one-day estimate.
(b)The enforcement creditor (Mr Taouk) is to file any affidavit upon which he intends to rely by 22 April 2016;
(c)The enforcement debtor (Mr El Khoury) is to file any affidavit upon which he intends to rely by 6 May 2016; and
(d)The applicant is to file any affidavit in response by 13 May 2016.
I note that, through his counsel, Mr Taouk offered an undertaking to the Court that he would not enforce the debt pending the hearing of the matter. However, given the allegations made by the applicant, I make the following order:
(e)All orders, proceedings, suits and other actions by the enforcement creditor against the enforcement debtor are stayed pending the determination of proceedings in the Federal Circuit Court at Canberra pursuant to the Family Law Act between the applicant and the enforcement debtor (proceeding number CAC 1125/2015) or further order of this Court.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell Associate: Date: 15 April 2016 |
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