Yazdi and Sayed
[2018] FamCA 166
•20 March 2018
FAMILY COURT OF AUSTRALIA
| YAZDI & SAYED | [2018] FamCA 166 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – Where the respondent seeks that the applicant’s case be summarily dismissed – Where the applicant is seeking that previous orders be set aside on the basis of s 90SN(1)(a) – Where the respondent seeks that the orders be varied – Where summarily dismissing the application will have little to no effect as a final hearing is requested by the respondent – Where the application is not summarily dismissed. |
| Family Law Act 1975 (Cth) ss 79A, 90SN(1)(a) |
| Pelerman & Pelerman (2000) FLC 93-037 Zhai & Juan [2014] FamCAFC 234 |
| APPLICANT: | Ms Yazdi |
| RESPONDENT: | Mr Sayed |
| FILE NUMBER: | SYC | 380 | of | 2015 |
| DATE DELIVERED: | 20 March 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 15 March 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Alexanders Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Johnston |
| SOLICITOR FOR THE RESPONDENT: | John R Quinn & Co |
Orders
That the application for summary dismissal of the amended application filed 11 August 2017 be dismissed.
That the matter be placed in a call-over for the allocation of trial dates on 16 April 2018 at 10.00 am.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yazdi & Sayed has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 380 of 2015
| Ms Yazdi |
Applicant
And
| Mr Sayed |
Respondent
REASONS FOR JUDGMENT
On 23 January 2015, Mr Sayed (“the respondent”) filed an application in the Federal Circuit Court seeking a distribution of property arising out of a de facto relationship with Ms Yazdi (“the applicant”).
That application was ultimately listed for an ex parte hearing before Judge Scarlett on 15 June 2015.
In his reasons, the learned trial judge noted that the applicant had been served with the Initiating Application on 9 February 2015, that she did not appear in Court on the return date of 20 April 2015, and that she did not file documents even though an order was made on 20 April 2015 that she file a Financial Statement and an affidavit within 21 days and she was warned that the matter may proceed in her absence.
Orders were made which had the effect of requiring the sale of a unit at Suburb B (“the unit”) and the division of the net proceeds of sale as to 60 per cent to the respondent and 40 per cent to the applicant.
No appeal was filed against those orders.
On 31 August 2015, the applicant filed an application to set aside the orders made by Judge Scarlett. On 20 October 2015, Judge Scarlett stayed the operation of his orders, pending further order.
The respondent lodged a caveat against the title of the unit.
The applicant proceeded to sell the unit. On settlement of the sale, the net proceeds of sale, after deduction of the mortgage and other expenses, were paid into the trust account of the respondent’s solicitor where they remain.
The application filed by the applicant on 31 August 2015 sought an order in the following terms:
That the Orders made on 15 June 2015 be set aside. The parties were not in a de facto relationship and thus there has been a miscarriage of justice pursuant to s 90SN of the Family Law Act 1975.
The proceedings were transferred to the Family Court.
The application filed 31 August 2015 has subsequently been amended twice. The most recent iteration of the application, filed on 11 August 2017, seeks an order in the following terms:
That the Orders made on 15 June 2015 be set aside. The parties were not in a de facto relationship and thus there has been a miscarriage of justice pursuant to s 90SN of the Family Law Act 1975. The respondent gave false evidence by declaring: (i) that he and the applicant were in an exclusive relationship from February 2007 until August 2014; (ii) that in June 2007 he and the applicant purchased in the sole name of the applicant [the unit]; and (iii) that from July 2007 the respondent paid all regular installments (sic) in respect of the mortgage, statutory rates and charges, utilities, house and contents insuarance (sic), and the outgoings including water rates, council rates and the like in respect of [the unit].
The application then sets out the orders which the applicant seeks in the event that the orders made 15 June 2015 are set aside.
I note that the respondent did not give evidence that he and the applicant were in an exclusive relationship and that assertion was withdrawn.
By an Amended Response filed 16 February 2018 the respondent seeks to vary the orders made 15 June 2015 so as to increase the amount he would receive over and above that provided for in the orders.
The respondent sought summary dismissal of the application and directions were made on 22 February 2018 that the applicant file and serve any material on which she sought to rely. The applicant filed, although late.
When the matter came before me for hearing on 15 March 2018, the applicant relied on affidavits sworn by her on 26 August 2015 and 14 March 2018 and on affidavits by two witnesses, Ms C and Ms D. Formal objections were taken to material in those affidavits and some of the material was struck out.
The lawyer for the applicant was asked to indicate specifically what contentions were relied upon in relation to the application to set aside the orders of 15 June 2015. As I understood the contentions, they are set out below:
· That at no point in time was there a shared residence;
· That the respondent made no contribution towards mortgage payments or utilities;
· That for the whole of the period of the relationship the sexual relationship was a business relationship;
· That no de facto relationship existed; and
· That the respondent ought to have disclosed that there was no de facto relationship.
THE LAW
The Full Court in Zhai & Juan [2014] FamCAFC 234 (“Zhai & Juan”) stated:
13. Section 79A of the Act relevantly provides (emphasis added):
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
14. Section 118 of the Act relevantly provides:
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings; …
15.Rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
…
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
I note that the provisions of s 79A(1) largely reflect the provisions of s 90SN(1) which applies to de facto relationships.
The Full Court in Zhai & Juan continued:
Relevant legal principles
16.In the course of giving her reasons, Stevenson J cited from Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 255‑256, where Kirby J said:
The approach to be taken by the court to the Commonwealth’s application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand an apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim.
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit. [emphasis added]
17.Stevenson J also cited from Friar and Friar [2011] FamCAFC 71, where the Full Court said:
49.Rules 10.12(c) and (d) of the Family Law Rules 2004 (“the Rules”) relevantly provide that a respondent may apply for “summary orders” in relation to an application on the basis that it is “frivolous, vexatious or an abuse of process” or has “no reasonable likelihood of success”.
50.The Rules are properly read as supplementing the power of the Court to dismiss frivolous or vexatious proceedings pursuant to s 118(1) of the Act. The Rules are also to be read in the context of the many cases confirming the Court’s inherent power to dismiss or permanently stay an application which cannot succeed, as to which see the authorities discussed in Bigg v Suzi (1998) FLC 92-799 at 84,974.
The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman & Pelerman (2000) FLC 93-037, [46]).
What the Court is being asked to do here is to dismiss the applicant’s claim pursuant to s 90SN but to allow the respondent to proceed with his response to that claim.
It is difficult to see how such an approach is just. It does not “relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit”, nor does it protect the respondent “from being further troubled.”
There will be a hearing of the substantive issues between these parties.
I decline to summarily dismiss the application.
The matter will be listed for hearing.
COSTS
The amount in the trust account, which is the subject of the proceedings, is $343,338.
The respondent, if successful, will receive an additional amount of some $23,600 over and above the amount he would receive pursuant to the orders of 15 June 2015.
Between them, the parties have spent or incurred costs totalling almost $130,000. That amount does not take into account the costs that each of them will incur in proceeding to hearing.
The parties may wish to reflect upon whether their funds could be more usefully applied.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 March 2018.
Associate:
Date: 20 March 2018
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