Brangus and Brangus (No 2)

[2010] FamCA 621

FAMILY COURT OF AUSTRALIA

BRANGUS & BRANGUS (NO. 2) [2010] FamCA 621

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – s 106A order

HUSBAND: Mr Brangus

WIFE: Ms Brangus

FILE NUMBER: PAC 3957 of 2007

DATE DELIVERED: 13 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 13 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moss

SOLICITOR FOR THE APPLICANT: Lexington Law Group

SOLICITOR FOR THE RESPONDENT:

Ms Stevenson,

Watts McCray Lawyers

Orders

1. That the Application in a Case filed by the husband on 9 April 2010 is hereby dismissed.

2. That the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the husband and do all acts and things necessary to give validity and operation to the Orders made by this Honourable Court on 5 February 2010 in the event that the husband does not execute such documents within 14 days of the date of these Orders.

3. That leave is granted to the wife to approach a Registrar of this Court for the purpose of Order 2 if the husband does not execute the said documents within the 14 day period.

Notation:

A.That the wife is in the position to have the documents executed today.

B.That the wife has undertaken to the Court not to dispose of her interest in the former matrimonial home except as provided for by the Orders of the Court made 5 February 2010 pending determination of the husband’s appeal from those Orders.

IT IS NOTED that publication of this judgment under pseudonym Brangus & Brangus is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3957 of 2007

MR BRANGUS

Husband

And

MS BRANGUS

Wife

REASONS FOR JUDGMENT

1. In this matter, the husband seeks a stay of a decision that was made on 5 February 2009.  The wife was ordered to pay him 30 per cent of the value of the former matrimonial home and in return the husband was ordered to transfer the home to the wife.  The husband has appealed within time from that order.  He seeks a stay because he claims, in his appeal, that the wife should pay him 49 per cent of the value of the property. 

2. In the circumstances, although he may well have reasonable prospects of appeal, he cannot be harmed by the refusal of a stay.  All that can happen is that he gets a part payment earlier than he would otherwise get, and surely that would benefit him.  The wife, however, can be harmed by a stay.  Her concern is that she has arranged for the finance which would allow her to pay him 30 per cent of the value of the home, but that before the appeal is heard and determined, those arrangements or the time for undertaking those arrangements will expire and she will lose her opportunity to borrow the money. 

3. It seems to me that, in any event, she would have to borrow more money if the husband succeeds on his appeal, but it also is the case that if the wife wishes to finance payment of 30 per cent to the husband, it cannot harm the husband that she does so. If it harms her, that is a risk that she is prepared to take. The court should not intervene in circumstances where the wife has said that she will make a written undertaking to the Court in the appropriate form not to dispose of the property or any interest in it. 

4. In the meantime, the wife will maintain her security over the property.  If the husband succeeds on appeal, it will not be difficult for the Court to make orders that she pay the additional money or sell the property.  In those circumstances, in that there is absolutely no harm to be done to husband by the refusal of a stay, and some harm might occur to the wife, I should refuse the stay and I shall do so.

5. The next thing is the 106A order the wife seeks.  The evidence before me suggests very strongly that the husband will simply refuse to sign any transfer of the property on payment by the wife.  There is no reason for him to do this.  The wife seeks from the court that it make an order pursuant to section 106, appointing a deputy registrar of this court to sign the transfer if the husband has failed to sign the transfer within 14 days of the wife indicating to the husband that she is in a position to pay the 30 per cent of the value as ordered by the court to the husband. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              23 July 2010