Younes v Younes

Younes v Younes [2023] NSWSC 456
Supreme Court of New South Wales
Williams J
Family law – in 2017, a wife commenced property proceedings under s79 of the Family Law Act 1975 (Cth) in the then Family Court of Australia, which continue in Division 1 of the Federal Circuit and Family Court of Australia – in 2018, the husband’s sister commenced proceedings in the Supreme Court against the husband and wife arising out of a joint venture for the purchase and development of townhouses on land in Wentworthville – in 2020, the parties to the Supreme Court proceedings settled those proceedings by heads of agreement – the sister later contended that the husband and wife were in breach of the heads of agreement – the wife sought to amend her family law claim to add the sister as a respondent – that application was dismissed, and then re-agitated, and the re-agitated application has not yet been determined – in 2023, the sister commenced the current proceedings in the Supreme Court against the husband and wife, seeking a declaration that the heads of agreement are enforceable, specific performance, an injunction restraining the wife from pursuing claims in the family law proceedings to set aside the heads of agreement or to join the sister as a party, and damages – the wife filed an application in the family law proceedings for an order that the sister be restrained from further prosecuting the Supreme Court proceedings and that the sister be joined to the family law proceedings “forthwith” – the evidence before the Supreme Court was silent as to the present status of that application – the wife then filed a notice of motion in the Supreme Court proceedings seeking that those proceedings be stayed pending the resolution of the wife’s applications in the family law proceedings – held: it had not been an abuse of process for the sister to commence the Supreme Court proceedings – the sister had foreshadowed such proceedings at a time when there was no application to re-agitate joining her to the family law proceedings – the sister’s solicitors had sought to engage with the wife’s solicitors regarding manifest deficiencies in the wife’s claims against the sister in the family law proceedings and the wife’s solicitors had failed to respond – the hearing of the wife’s re-agitated application to join the sister in the family law proceedings had been deferred twice and had not been allocated a hearing date – the sister had invoked the Supreme Court’s jurisdiction to resolve a contractual dispute, and the husband and wife had agreed in the contract to submit to the exclusive jurisdiction of the Supreme Court – the only alternative course for the sister would be to waiting for an unknown period of time until the joinder application had been listed for hearing, heard, and determined, leaving the sister in the unenviable position of having arranged and paid for work to be undertaken in part performance of the heads of agreement, yet being delayed indefinitely in taking steps to enforce the obligations she claimed she was owed under the heads of agreement – the Supreme Court was not forum non conveniens – wife’s notice of motion dismissed and Supreme Court proceedings not stayed.
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