Younes v Younes - [2023] NSWSC 456

Supreme Court

New South Wales

Medium Neutral Citation: Younes v Younes [2023] NSWSC 456
Hearing dates: 21 April 2023
Date of orders: 3 May 2023
Decision date: 03 May 2023
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
Application for stay of proceedings dismissed.

Catchwords:
PRACTICE AND PROCEDURE – proceedings commenced by plaintiff in this Court for specific performance of agreement pursuant to which defendants promised to transfer certain real property to the plaintiff – where that agreement included an agreement to submit to exclusive jurisdiction of the courts of New South Wales - where defendants are former husband and wife engaged in ongoing adjustive property proceedings under the Family Law Act 1975 (Cth) in the Federal Circuit and Family Court of Australia (Division 1) – where plaintiff is not a party to the family law proceedings – where defendant wife has filed points of claim in the family law proceedings seeking to set aside the agreement that is the subject of the proceedings in this Court and has applied to join the plaintiff as a respondent to the family law proceedings – where the plaintiff had foreshadowed the commencement of proceedings in this Court before the defendant wife filed the points of claim and joinder application in the family law proceedings on 6 and 7 October 2022 – where joinder application had still not been heard by the time the plaintiff commenced the proceedings in this Court on 13 February 2023 – where the defendant wife applied to stay the proceedings in this Court pending the determination of joinder application in the family law proceedings on the basis that the proceedings in this Court were an abuse of process or, alternatively, on the basis of forum non conveniens – where the evidence adduced on the stay application did not disclose a proper basis for joinder of the plaintiff to the family law proceedings – application for stay refused.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 73
Family Law Act 1975 (Cth), ss 79,106B
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 8(1)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), sch 1, item 229
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021, r 7
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(1)

Cases Cited:
Aviani v Loh (No 2) [2022] NSWSC 1148
Elias & Elias Pty Ltd atf the Elias Family Trust v Chidiac [2010] NSWSC 1364
In the matter of PJL Group Pty Ltd [2018] NSWSC 756
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; (2010) 84 ALJR 446; (2010) 266 ALR 462; (2010) 2 ASTLR 553; (2010) 4 BFRA 701; [2010] HCA 19
Puttick v Tenon Ltd (2008) 238 CLR 263; (2008) 83 AJLR 93; (2008) 250 ALR 582; [2008] Aust Torts Reports 81-980; [2008] HCA 54
Voth v Manildra Flour Mills Pty Ltd (1990)…

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 Younes v Younes

Details

AGLC: Younes v Younes [2023] NSWSC 456
Case: [2023] NSWSC 456
Decision Date: 03 May 2023

CaseChat Overview and Summary

In the case of Younes v Younes, the plaintiff sought specific performance of an agreement whereby the defendants, his former wife and husband, had promised to transfer certain real property to him. The agreement included a clause that the parties would submit to the exclusive jurisdiction of the courts of New South Wales. The defendants were engaged in ongoing property settlement proceedings under the Family Law Act 1975 (Cth) in the Federal Circuit and Family Court of Australia (Division 1). The plaintiff was not a party to the family law proceedings, but the defendant wife sought to set aside the agreement in those proceedings and applied to join the plaintiff as a respondent. The plaintiff had notified the defendants of his intention to commence proceedings in the Supreme Court before the joinder application was filed on 6 October 2022. The joinder application had not been heard by the time the plaintiff commenced proceedings on 13 February 2023. The defendant wife applied to stay the proceedings on the basis that they constituted an abuse of process or, alternatively, on the basis of forum non conveniens.

The court considered whether there was a proper basis for joinder of the plaintiff in the family law proceedings. The evidence did not demonstrate that there was a proper basis for joinder. The court determined that the plaintiff's decision to commence proceedings in the Supreme Court was not an abuse of process, as he had notified the defendants of his intention to do so before the joinder application was filed. The court also held that the exclusive jurisdiction clause in the agreement was binding and that there was no basis for staying the proceedings on the ground of forum non conveniens. The application for a stay was refused.

The court's reasoning was that the plaintiff had acted reasonably in commencing the proceedings in the Supreme Court, and there was no proper basis for joinder of the plaintiff in the family law proceedings. The exclusive jurisdiction clause in the agreement was binding, and the proceedings in the Supreme Court were not an abuse of process or contrary to the interests of justice. The application for a stay was accordingly refused. The court did not make any orders regarding the final outcome of the specific performance claim, as the stay application was the primary issue before the court.

Orders