Bagala and Sacco - [2013] FCCA 1330

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
Federal Circuit Court Rules 2001, r.22.01

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 28^th 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…

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 Bagala and Sacco

Details

AGLC: BAGALA & SACCO [2013] FCCA 1330
Case: [2013] FCCA 1330
Decision Date: 3 September 2013

CaseChat Overview and Summary

In the matter of *Bagala and Sacco*, heard before Judge Scarlett, the dispute concerned an application to alter previous orders made by the Court on 28 June 2013, pursuant to the Slip Rule. The application sought to introduce a provision for interest to accrue on a sum of $380,306.00 if it was not paid by the Wife to the Husband within three months of the date of the new orders. Additionally, the application sought a stay of enforcement of several specific orders made on 28 June 2013, pending the determination of an appeal filed by the Applicant.

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

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.

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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