FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAGALA & SACCO | [2013] FCCA 1330 |
| Catchwords: FAMILY LAW – Stay – application for stay pending appeal – property Orders – where orders amended under the slip rule. |
| Legislation: Family Law Act 1975 (Cth) Family Law Rules 2004, r.22.11 |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Bevan & Bevan [2013] FamCAFC 116 Jackson & Balen [2009] FamCAFC 131 Kelly & Kelly (1981) 6 Fam LR 741; FLC 91-007 Senior & Anderson (No 2) [2012] FamCA 880 Sacco & Bagala [2013] FCCA 972 Stone & Stone [2013] FamCA 479 |
| Applicant: | MS BAGALA |
| Respondent: | MS SACCO |
| File Number: | SYC 6603 of 2008 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 23 August 2013 |
| Date of Last Submission: | 23 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lawrence |
| Solicitors for the Applicant: | Byrnes & Cox Lawyers |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
ORDERS
In accordance with the Slip Rule Order 7 of the Orders made by this Court on 28 June 2013 is to be altered to provide that in the event that the Wife has not paid to the Husband the sum of $380,306.00 within three (3) months of the date of these Orders interest will accrue on that sum or the remaining balance at the rate prescribed under Rule 22.01 from time to time.
Enforcement of Orders (6), (7), (8), (10) and (13) of the Orders made on 28 June 2013 is stayed pending the hearing of the Appeal filed by the Applicant on 24 July 2013.
IT IS NOTED that publication of this judgment under the pseudonym Bagala & Sacco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6603 of 2008
| MS BAGALA |
Applicant
And
| MS SACCO |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the wife for a stay of certain property orders pending the hearing and determination of an appeal. The Orders sought to be stayed were made on 28th June 2013 (Sacco & Bagala[1]). Counsel for the Applicant told the Court that the particular orders sought to be stayed are Orders (6), (7), (8), (10) and (13).
[1] [2013] FCCA 972
It was put to the Court by Counsel for the Respondent that a mathematical error had been made by the Court in the original judgment. The submission, which I accept, is that:
a)At paragraph [63] of the judgment I found that the parties’ liabilities amounted to $995,764.00;
b)It follows that in paragraph [64] the amount of the non-superannuation asset pool including the add backs after the deduction of the total of the liabilities should be altered to $2,172,403.00;
c)It then follows that in paragraph [66] of the judgment after adding the value of the superannuation assets to the net total, the net value of the assets should be altered to $2,664,100.00.
As…
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- AGLC
- BAGALA & SACCO [2013] FCCA 1330
- Case
- [2013] FCCA 1330
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the Slip Rule was applicable to permit the alteration of the previous orders to include an interest provision, and whether the Court had the power to grant a stay of enforcement of certain orders pending an appeal. The Court was required to consider the scope and application of the Slip Rule, which allows for the correction of clerical mistakes or errors arising from an accidental slip or omission in judgments or orders. Furthermore, the Court had to assess the criteria for granting a stay of execution, particularly in the context of an ongoing appeal.
Judge Scarlett applied the principles of the Slip Rule, finding that the omission of an interest provision was an accidental slip or omission that could be rectified. The Court reasoned that it was just and equitable to include such a provision to ensure the Husband was not prejudiced by any delay in payment. Regarding the stay of enforcement, the Court considered the grounds for granting such relief, which typically involve demonstrating a strong case on appeal and that the applicant would suffer irreparable harm if the stay were not granted. The Court found that the circumstances warranted a stay of the specified orders pending the appeal.
The Court ordered that Order 7 of the 28 June 2013 Orders be altered to include a provision for interest to accrue on the sum of $380,306.00, or the remaining balance, at the rate prescribed under Rule 22.01 from time to time, should the Wife fail to pay the sum within three months. Furthermore, the Court ordered that the enforcement of Orders (6), (7), (8), (10), and (13) of the 28 June 2013 Orders be stayed pending the hearing of the Appeal filed by the Applicant on 24 July 2013.
Orders
Orders of the court
1.
In accordance with the Slip Rule Order 7 of the Orders made by this Court on 28 June 2013 is to be altered to provide that in the event that the Wife has not paid to the Husband the sum of $380,306.00 within three (3) months of the date of these Orders interest will accrue on that sum or the remaining balance at the rate prescribed under Rule 22.01 from time to time.
2.
Enforcement of Orders (6), (7), (8), (10) and (13) of the Orders made on 28 June 2013 is stayed pending the hearing of the Appeal filed by the Applicant on 24 July 2013.
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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