(1) The appellant's application be dismissed with costs to be paid on an indemnity basis. (2) The Court orders that the respondent be given six months as from 27 April 2006 to pay the amounts she was ordered to pay the appellant by this Court in [2006] NSWCA 38, without incurring any interest over and above the sum of $10,930 that she has already paid the appellant.
2 IPP JA: These reasons relate to two applications, one by the appellant (Mr Bilous) and the other by the respondent (Dr Mudaliar) made in chambers after delivery of this Court’s reasons in [2006] NSWCA 38 on 27 April 2006.
3 The appellant’s application relies on the slip rule to seek a variation of the orders the Court made in [2006] NSWCA 38. The respondent’s application is for an extension of time to pay the judgment sum.
4 The appellant’s application is based on the contention that, in adjusting the respective property interests of the parties, the Court made inadvertent errors in regard to the appellant’s superannuation entitlements, a motor vehicle and interest. He argues that these errors trigger the slip rule. There is, however, no substance in the appellant’s submissions.
5 As the respondent correctly points out, the Court’s findings in [2006] NSWCA 38 were based on the unchallenged net value of the assets of the parties at the date of the trial. At that date (as the trial judge held, this Court accepted, and the appellant did not challenge) the net value of the appellant’s assets was $224,690 while those of the respondent amounted to $1,468,312; this resulted in a total net pool of $1,693,002 (see [18], [22], [189], [191] and [196] of [2006] NSWCA 38). In my reasons at [189] I described the net pool of $1,693,002 as the “starting point” of the discretionary adjusting exercise that the Court was required to undertake.
6 I stated at [192] that I intended to adopt a “holistic value judgment” and concluded at [194]: “Orders should be made having the effect that an additional…
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.
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Details
AGLC
Bilous v Mudaliar (No 2) [2006] NSWCA 239
Case
[2006] NSWCA 239
Decision Date
CaseChat Overview and Summary
The case of *Bilous v Mudaliar (No 2)* concerned an application brought by the appellant against the respondent. The specific nature of the dispute leading to this application is not detailed in the provided text, but it arose in the context of prior proceedings between the parties, specifically a decision of the New South Wales Court of Appeal in [2006] NSWCA 38. The judgment was delivered by Giles JA, Ipp JA, and McColl JA.
The primary legal issue before the Court was whether to grant the appellant's application. Ancillary to this, the Court was required to determine the terms upon which any outstanding payments by the respondent to the appellant should be made, including considerations of interest and the basis for costs.
The Court dismissed the appellant's application. In reaching this decision, the Court ordered that the respondent pay the appellant's costs on an indemnity basis. Furthermore, the Court granted the respondent an extension of six months from 27 April 2006 to pay the amounts previously ordered by the Court in [2006] NSWCA 38. Crucially, during this extended period, no interest was to accrue on the outstanding sum beyond the $10,930 already paid by the respondent to the appellant.
Orders
Orders of the court
(1) The appellant's application be dismissed with costs to be paid on an indemnity basis. (2) The Court orders that the respondent be given six months as from 27 April 2006 to pay the amounts she was ordered to pay the appellant by this Court in [2006] NSWCA 38, without incurring any interest over and above the sum of $10,930 that she has already paid the appellant.