Hadid v Sabouh [2023] NSWSC 483

Supreme Court New South Wales

Medium Neutral Citation: Hadid v Sabouh [2023] NSWSC 483 Hearing dates: 5 May 2023 Date of orders: 10 May 2023 Decision date: 10 May 2023 Jurisdiction: Equity Before: Meek J Decision: Order made for transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1) Catchwords: JURISDICTION — Equity proceedings brought by applicant (the former wife of the second respondent) involving claims of a trust over a property held by a third party (the first respondent), and allegations of a sham transfer of the property involving the second respondent in arranging with the third defendant for transfer of the property to the first respondent — Applicant's claims are disputed by the respondents raising various statutory defences including indefeasibility of title, lack of writing and limitation period provisions — Responses by the applicant seeking to circumvent the statutory defences by equitable principles — Applicant seeks transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1) — Transfer opposed JURISDICTION — Transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1) sought pursuant to s 5(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (NSW Act) and/or s 5(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cth Act) — Transfer determined by reference to s 5(1)(b)(ii) of the NSW Act and whether it is more appropriate that the equity proceedings be determined by the Federal Circuit and Family Court of Australia (Division 1) — Discussion regarding considerations relevant to the "interests of justice" in determining whether it is more appropriate that the equity proceedings be determined by the Federal Circuit and Family Court of Australia (Division 1) STATUTORY CONSTRUCTION — Analysis of s 5(1)(b)(ii) of the NSW Act — The reference to the "Family Court" is a reference to the "Federal Circuit and Family Court of Australia (Division 1)" — Analysis of the construction of the provisions which the Court has regard to in s 5(1)(b)(ii)(A),(B),(C) — The "interests of justice" provision in s 5(1)(b)(ii) of the NSW Act is not a "residual provision" in the same terms as the expression "otherwise in the interests of justice" in s 5(1)(b)(iii) of the Cth Act. LAW REFORM — Law reform agencies should give consideration to amendment of s 5(1)(b)(ii) of the NSW Act to update the reference to the "Family Court" to be a reference to the "Federal Circuit and Family Court of Australia (Division 1)" COSTS — Orders made addressing costs of the transfer motion and the costs of the equity proceedings Legislation Cited: Acts Interpretation Act 1901 (Cth) Conveyancing Act 1919 (NSW) Federal Circuit and Family Court of Australia Act 2021 (Cth) Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Federal Courts (Consequential Provisions) Act 2000 (NSW) Interpretation Act 1987 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Application of Doolan [2023] NSWSC 320 Aviani v Loh (No 2) [2022] NSWSC 1148; (2022) 405 ALR 337 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Barnes v Addy (1874) LR 9 Ch App 244 BHP Billiton Ltd v Shultz (2004) 221 CLR 400; [2004] HCA 61 British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 Brown v Anstis (No 2) [2013] NSWSC 1488 Chaudhary v Chaudhary [2017] NSWCA 222 Comino v Kremetis [2023] NSWSC 32 ECC Lighting Ltd v McGurk (Supreme Court (NSW), Santow J, 15 June 1995, unrep) Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 Goyal v Chandra (2006) 68 NSWLR 313; [2006] NSWSC 239 James Hardie & Company Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 Kurzyp v Kurzyp [2021] NSWSC 851 Lamshed v Lamshed (1992) 35 FCR 111 Lewis v Condon; Condon v Lewis (2013) 85 NSWLR 99; [2013] NSWCA 204 Mallitt v Gow [2022] NSWSC 1012 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Olliver v Olliver (1978) 4 Fam LR 360 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 Scott v Briggs (1991) 14 Fam LR 661 Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) [1987] AC 460 Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 Wurz bht NSW Trustee & Guardian v Elawaad [2022] NSWSC 1404 Wurz bht NSW Trustee & Guardian v Elawaad (No 2) [2022] NSWSC 1486 Xue v Xue; Xue v Xue [2020] NSWSC 501 Texts Cited: Federal Courts (Consequential Provisions) Bill 2000 (NSW) New South Wales Legislative Assembly, Parliamentary Debates (Hansard) Category: Principal judgment Parties: Awsaf Hadid (Plaintiff / Applicant) Yehia Sabouh (First Defendant / First Respondent) Ibrahim Sabouh (Second Defendant / Second Respondent) Mahmoud Abouschmiess (Third Defendant / Third Respondent) Representation: Counsel: Self-represented (Plaintiff / Applicant) A Jordan (First and Second Defendants / First and Second Respondents)