Wasem & Nasser (No 5)

Case [2024] FedCFamC2F 1063


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Wasem & Nasser (No 5) [2024] FedCFamC2F 1063

File number(s): PAC 6078 of 2020
Judgment of: JUDGE STREET
Date of judgment: 1 August 2024
Catchwords: FAMILY LAW – PROPERTY – s 106B claim by wife against incoming mortgagee- claim by wife against certifier under Australian Consumer Law for loss from alleged misleading conduct – husband dissipates equity in only real property that would have been in property pool – wife would have received alteration of property interest- absence of caveat facilitated husband fraudulent encumbrance and dissipation of equity – husband encumbers property in breach of injunction – contravention application filed – cross claim by incoming mortgagee against certifier and husband- judgment for incoming mortgagee against husband in sum of $8,242,144.97- wife’s – wife’s claims dismissed – urgent law reform needed to permit caveat for proceedings under Part VIII, Part VIIIAA and Part VIIIAB
Legislation:

Competition and Consumer Act 2010 (Cth) Schedule 2 (“ACL”)

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Cases cited:

Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142; (2021) 392 ALR 205

Australian Competition and Consumer Commission v Master Wealth Control Pty Ltd [2024] FCA 344

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640

Board of Fire Commissioner (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592

Campbell v Backoffice Investments Pty Ltd [2009] HCA 25

Cun & Zhihui (No 4) [2023] FedCFamC1F 581

Eric Preston Pty Limited and Euros Securities Pty Ltd [2011] FCAFC 11

Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604

Jess & Jess (No 4) [2023] FedCFamC1A 189

Jones & Dunkel [1959] HCA 8; (1959) 101 CLR 298

Porter & Porter [2022] FedCFamC1F 102

Ryder and Brooks [2024] FedCFamC2F 503

Self Care IP Holdings Pty v Allergan Australia Pty Ltd [2023] HCA 8; (2023) 408 ALR 195; (2023) 97 ALJR 388

Tesseract Internation Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24

Valder & Saklani (No 3) [2023] FedCFamC1F 98

Wei v Xia (No 5) [2023] FedCFamC1F 679

Division: Division 2 Family Law
Number of paragraphs: 164
Date of hearing: 13 September 2023, 14 September 2023, 30 July 2024, 31 July 2024, 1 August 2024
Place: Parramatta
Counsel for the Applicant: Mr P Connor, from day 3
Solicitor for the Applicant: Ark Law Lawyers
Solicitor for the First Respondent: Mr T Reeve of Marsdens Law Group
Counsel for the Second Respondent: Mr B Geddes KC for first two days ; for remainer of the hearing Mr M Young
Solicitor for the Second Respondent: Bransgrove Lawyers
Third Respondent: No appearance
Counsel for the Fourth Respondent:

Mr J Neal

Solicitor for the Fourth Respondent  Lander & Rogers
Counsel…

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AGLC
Wasem & Nasser (No 5) [2024] FedCFamC2F 1063
Case
[2024] FedCFamC2F 1063
Decision Date

CaseChat Overview and Summary

In the case of Wasem & Nasser (No 5), the parties involved were Mr Wasem, Ms Nasser, and several companies. The dispute centred around the dissipation of equity in a property that was intended to be part of the property pool in the family law proceedings. Ms Nasser sought an alteration of property interests under section 106B of the Family Law Act 1975 (Cth) and filed a claim against the incoming mortgagee for loss from alleged misleading conduct under the Australian Consumer Law. Mr Wasem had encumbered the property in breach of an injunction, leading to a contravention application being filed. The incoming mortgagee cross-claimed against the certifier and Mr Wasem. The court had to determine whether Ms Nasser's claims against the incoming mortgagee and certifier were valid, and whether Mr Wasem's breach of the injunction warranted any consequences.

The court examined whether Ms Nasser's claims under section 106B of the Family Law Act and the Australian Consumer Law were substantiated. It found that Mr Wasem had dissipated the equity in the property by encumbering it in breach of the injunction. The court held that the absence of a caveat on the property facilitated this dissipation of equity. However, the court dismissed Ms Nasser's claims, finding that they were not supported by the evidence presented. The court also addressed the contravention application, ruling in favour of the incoming mortgagee against Mr Wasem. The court ordered Mr Wasem to pay a substantial sum to the incoming mortgagee and mandated that he cover all costs associated with the proceedings.

The court's judgment highlighted the urgent need for law reform to allow for caveats to be lodged in family law proceedings under Part VIII, Part VIIIAA, and Part VIIIAB of the Family Law Act. The court dismissed the application for the alteration of property interests and all of Ms Nasser's claims. Mr Wasem was ordered to pay $8,242,144.97 to the incoming mortgagee within 28 days and was also responsible for paying the costs of the proceedings as per the Family Law Act. This case underscores the complexities in family law property disputes and the importance of safeguarding property interests during legal proceedings.

Orders

Orders of the court

PAC 6078 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR WASEM

Applicant

AND:

MS NASSER

First Respondent

B PTY LTD

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

1 AUGUST 2024

THE COURT ORDERS THAT:

1. The application for the alteration of property interests under s 79 of the Family Law Act 1975 (Cth) between the applicant and first respondent is dismissed.

2. The s 106B of the Family Law Act 1975 (Cth) claim of the first respondent against the second respondent is dismissed.

3. The claim of the first respondent against the fourth respondent and fifth respondent is dismissed.

4. Judgment in favour for the second respondent against the applicant in the sum of $8,242,144.97 to be paid by the applicant within 28 days of the date of these orders.

5. Interest is to accrue on the said judgment under s 212 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) as of today’s date, if not paid within 28 days by the applicant.

6. Pursuant to s 117 of the Family Law Act 1975 (Cth), the applicant to pay the first respondent’s costs of the whole these property proceedings, including the whole of the costs of these property proceedings against the second respondent, fourth respondent and fifth respondent, as agreed or assessed.

7. Pursuant to s 117 of the Family Law Act 1975 (Cth), the applicant to pay the second respondent’s costs of the whole of these property proceedings as agreed or assessed.

8. Pursuant to s 117 of the Family Law Act 1975 (Cth), the applicant, by way of Bullock Order, is to pay the fourth respondent’s and fifth respondent’s costs of the whole these property proceedings as agreed or assessed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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