Dmitrieff and Shaw and Ors (No. 2)
[2008] FamCA 992
•19 November 2008
FAMILY COURT OF AUSTRALIA
| DMITRIEFF & SHAW AND ORS (NO. 2) | [2008] FamCA 992 |
| FAMILY LAW - APPLICATION FOR A STAY OF ORDERS – Where applicant had filed an application for leave to appeal interlocutory orders of practice & procedure – Principles to be considered when staying interlocutory orders – Where grounds justifying grant of stay not established – Application dismissed. |
| Family Law Act 1975 (Cth) – s 75(2), s 79, s 79A, s 94AA Family Law Rules 2004 (Cth) – r 22.12, r 22.46 |
| Alexander v Cambridge Credit Corporation 91985) 2 NSWLR 685 |
| APPLICANT: | Ms Dmitrieff |
| FIRST RESPONDENT: | Mr Shaw |
| SECOND RESPONDENT: | Mr P |
| THIRD RESPONDENT: | L Pty Ltd |
| FOURTH RESPONDENT: | D Pty Ltd |
| FIFTH RESPONDENT: | Ms E |
| SIXTH RESPONDENT: | Mr G |
| SEVENTH RESPONDENT: | Mr A |
| EIGHTH RESPONDENT: | Ms J |
| NINTH RESPONDENT: | Ms S |
| TENTH RESPONDENT: | Ms T |
| FILE NUMBER: | SYF | 5191 | of | 1993 |
| DATE DELIVERED: | 19 November 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 19 November 2008 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Ms Dmitrieff In Person |
| SOLICITOR FOR THE 1ST RESPONDENT: | Mr McDonnell |
Orders
That paragraph 3 of the wife’s application filed 12 November 2008 in which she seeks a stay of Orders 1, 2, 3(ii), 4 and 5 of the orders of the Honourable Justice Boland of 15 October 2008 is dismissed.
That the relief sought in paragraph 2 of the wife’s application filed 12 November 2008 is stood over for hearing before the docket Judge, the Honourable Justice Fowler, on 16 December 2008 at 2.15 pm.
That the costs of this application be reserved until the conclusion of the hearing of the wife’s application for leave to appeal. Any party may thereafter re-list the matter by arrangement with the listing co-ordinator at a date and time to be notified for determination of the reserved costs.
IT IS NOTED that publication of this judgment under the pseudonym Dmitrieff v Shaw & Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 5191 of 1993
| Ms Dmitrieff |
Applicant
And
| Mr Shaw |
First Respondent
| Mr P |
Second Respondent
| L Pty Ltd |
Third Respondent
| D Pty Ltd |
Fourth Respondent
| Ms E |
Fifth Respondent
| Mr G |
Sixth Respondent
| Mr A |
Seventh Respondent
| Ms J |
Eighth Respondent
| Ms S |
Ninth Respondent
| Ms T |
Tenth Respondent
REASONS FOR JUDGMENT
Introduction
Ms Dmitrieff, (“the wife”) is the applicant in proceedings for property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”). The other parties to the proceedings are Mr Shaw (“the husband”), Mr P (“[Mr P]”) the second respondent, two companies of which Mr P is a director and shareholder and six other named persons. The wife is currently an undischarged bankrupt. The wife’s trustee in bankruptcy has elected not to participate in the s 79 proceedings.
The property proceedings were commenced by the wife on 7 May 1998. I have been case managing the proceedings for several years. On 3 September 2008 I made orders designed to prepare the matter for allocation to a trial Judge’s docket for hearing. I made further orders on 15 October 2008 which essentially varied dates for filing of up-dating material prior to the first listing day before the docket Judge, Fowler J which I was advised was to occur on 16 December 2008. The wife has sought leave to appeal the procedural orders made on 15 October 2008 and by application filed 12 November 2008 the wife seeks, inter alia, to stay Orders 1, 2, 3(ii), 4 and 5 of those orders.
The husband’s solicitor was granted leave to make an oral application today to oppose the application for a stay.
There was no appearance by or on behalf of any other respondent. I was satisfied having read the Affidavits of Service of the wife filed in Court today that Mr P and the other respondents had been served. There was no appearance by or on behalf of Mr P today when the matter was called.
Background
I set out brief background facts in my judgment published 17 August 2007. Paragraphs 5 to 14 of those reasons include salient historical matters. They are as follows:
5.The husband was born on … September 1948 in New Zealand. He is engaged in full-time employment as a teacher.
6.The wife was born on … April 1943 in Australia. The wife is currently in receipt of social security benefits.
7.The husband and wife were married on … January 1971 [in Sydney], NSW.
8.There were three children of the marriage. The children [B] and [M] are over the age of 18 years. The child [Z] is deceased.
9.The proceedings first commenced in this Court in June 1993 when the wife filed an application for divorce (dissolution of marriage). At the time of filing of that application the husband and wife were living separately and apart under the one roof. A decree nisi of dissolution of the marriage was pronounced on 9 July 1993. No proceedings were filed by either party until 7 May 1998 when the wife filed, out of time, an application for final orders.
10.On 8 July 1998 the wife filed an application for leave to commence out of time proceedings for spousal maintenance. On the same day she filed an application for urgent maintenance.
11.On 10 July 1998, by consent, the wife was granted leave to commence proceedings for property settlement and spousal maintenance out of time.
12.Notwithstanding the orders of 10 July 1998, on 18 September 1998 the husband, who was legally represented, filed a response in which he opposed the wife’s applications for leave to commence proceedings out of time and sought that the proceedings for property settlement be stood over generally.
13.On 2 November 1998 the wife filed an amended application for final orders in which she named Mr [P] as second respondent.
14.On 12 March 1999 Brian Muir & Company, solicitors, filed a notice of address for service on behalf of Mr [P]. Mr Muir of that firm acted on behalf of Mr [P], [L Pty Ltd] and [D Pty Ltd] until recently. Mr [P] and the companies are now self-represented.
In the same judgment under the heading “Chronology” in paragraphs 36 to 107, I set out a chronology of the litigation between the parties with emphasis on litigation in this Court. For convenience I have annexed to these reasons as Annexure “A” those paragraphs of my reasons published 17 August 2007. I incorporate those paragraphs into these reasons.
During the course of my case management of this matter the solicitor for the trustee of the wife’s bankrupt estate has provided me, without objection by any party, with copies of judgments in the Federal Magistrates Court and the Federal Court of Australia (“the Federal Court”) up to 8 August 2007.
The judgments provided by the solicitor for the trustee were:
[Judgment of McInnis FM, citation omitted]
[Judgment of Lloyd-Jones FM, citation omitted]
[Federal Court judgment of Stone J, citation omitted]
[Federal Court judgment of Wilcox J, citation omitted]
The wife acknowledged today those were proceedings before the Federal Magistrates Court and the Federal Court in which she challenged the bankruptcy notice, and sought to have her bankruptcy annulled unsuccessfully.
Relevant rule and principles – application for a stay
Rule 22.12 of the Family Law Rules 2004 deals with a stay pending the hearing of an appeal. It provides as follows:
(1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2) If an appeal has been started, or a party has applied for permission to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must be made to the Judge, Federal Magistrate or Magistrate who made the order under appeal.
Note 1 Under subsection 55 (3) of the Act, a divorce order is stayed until after an appeal against it is determined or discontinued.
Note 2 An application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable (see rule 1.13).
As the orders made on 15 October 2008 are interlocutory orders leave to appeal is necessary (s 94AA(1)) of the Act Rule 22.46 provides the time limits for filing an application to leave to appeal (in the rules referred to as “permission” to appeal). No specific rule provides for an application for a stay pending the hearing of an application for leave to appeal.
I accept that the wife has filed her application for leave to appeal my orders of 15 October 2008 within the time limits provided in r 22.46.
The principles to be applied in hearing a stay application pending an appeal are well settled. (I do not propose to refer to stays in parenting proceedings where different considerations apply) (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681. Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles to be applied include the following:
· the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· the person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to ground a stay;
· a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a court must consider the risks if a stay is granted that assets of the applicant may be dissipated;
· a stay may be granted on conditions (including payment of part of the judgment to the judgment creditor);
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay; and
· some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case.
Whilst these principles have been enunciated by courts dealing with commercial matters, they have resonance in determining a stay in property proceedings under the Act.
The principles referred to in the authorities, and summarised by me above, are applicable to the granting of a stay pending an appeal from a final order or decree. In this case the wife seeks a stay of an interlocutory order pending an application for leave to appeal. It appears to me in those circumstances the wife in this case has a higher onus to satisfy.
In Nikolaidis v Legal Services Commissioner [2005] NSWCA 91, Bryson JA dealing with an application for a stay of an interlocutory order pending an application for leave to appeal, said:
[18] …The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy, or otherwise so adversely severe in its impact, that intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration.
[19] …but it is not and cannot be a matter of course to bring proceedings under challenge to a halt while some interlocutory appeal is contemplated. Unless there is some appropriately strong claim for the protection of the effectual exercise of this court’s powers on appeal there should not be such an intervention.
[20] Although the convenience of an intervention, whether from the point of view of the interest of the party applying or from other points of view, is a relevant matter, the question for consideration is a test of necessity, not simply a balance of convenience. Some disadvantage or inconvenience to the applicant will not ground a stay merely because a stay would produce a less adverse impact or no adverse impact on other parties whose interests are also involved. ...
Those remarks appear to me to be apposite in this case.
The orders in respect of which a stay is sought
The wife seeks in her application to stay Orders 1, 2, 3(ii), (4) and (5) of my orders of 15 October 2008. Those orders are as follows:
1.That pursuant to the slip rule order 1 of the orders made 3 September 2008 is varied by deleting the words “and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court”.
2.That paragraph 1 of the wife’s application filed 8 September 2008 is dismissed.
3.That the orders made on 3 September 2008 be varied as follows:
…
ii.by deleting from Orders 7, 8, 9, 10 and 13 the date 5 November 2008 and substituting in lieu 5 December 2008.
4.That the wife pay the husband’s costs of and incidental to the application of 8 September 2008 as agreed and failing agreement as assessed pursuant to Chapter 19 of the Family Law Rules 2004.
5.That the costs order (Order 4) be stayed pending determination of the proceedings under Section 79 between the husband and wife and the other parties.
In order to more readily comprehend the effect of the orders the subject of the proposed stay I also set out Orders 1, 7, 8, 9, 10 and 13 of my orders made 3 September 2008:
1.That the wife’s application for settlement of property and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court be referred to the Court Services Manager for allocation to a Judge’s docket other than Cohen J for hearing.
…
7.The husband shall file and serve an amended response on or before 4.00 pm, 5 November 2008.
8.The husband shall file and serve one affidavit of his evidence in chief on or before 4.00 pm, 5 November 2008.
9.The husband shall file and serve an affidavit of any witness on or before 4.00 pm, 5 November 2008.
10.The husband shall file and serve a financial statement on or before 4.00 pm, 5 November 2008.
…
13.In the event that the husband does not agree the Balance Sheet to be filed by the wife accurately sets out the parties’ assets, liabilities and financial resources he shall file and serve on or before 4.00 pm, 5 November 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties for which he contends as at 15 October 2008.
I discern however that the wife has made an error in her application and rather than to seek to stay Order 3(ii) of my orders that what she intends is that Order 3(i) should be stayed. Accordingly, bearing in mind the wife is a self represented litigant, I will treat this application as if one to stay Order (3)(i). That order is in the following terms:
3.That the orders made on 3 September 2008 be varied as follows:
i)by deleting from Orders 2, 4, 5, 6 and 12 the date 15 October 2008 and substituting in lieu 15 November 2008.
Those were the orders which required the wife to do certain things originally by 15 October 2008.
In order to fully understand the effect of order 3(i) it is necessary I set out Orders 2, 4, 5, 6 and 12 of my orders made 3 September 2008:
2.That the wife file and serve on or before 4.00 pm, 15 October 2008 any amended application for property settlement and/or spousal maintenance or other relief.
…
4.The wife shall file and serve one affidavit of evidence in chief to be relied on by her at the trial on or before 4.00 pm, 15 October 2008.
5.The wife shall file and serve an affidavit of any witness on or before 4.00 pm, 15 October 2008.
6.The wife shall file and serve a financial statement on or before 4.00 pm, 15 October 2008.
…
12.The wife shall file and serve on or before 4.00 pm, 15 October 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties as at that date.
As I noted in my reasons of 15 October 2008 no application was filed by the wife in the time prescribed by the rules to seek leave to appeal my orders made 3 September 2008, nor has she filed any application for an extension of time to do so.
The evidence in support of the application for a stay
The wife relies on her affidavit in support of the application for a stay. It is brief. It does not set out any evidence in support of the application for a stay. I will set out the matters deposed to in full:
1.I am seeking to withdraw my consent orders there [sic] were given in relation seeking “leave” to file all my applications in this Court. This has proved to be a very unsatisfactory exercise.
2.On 11.11.08 my Leave to Appeal application was filed. Attached hereto and marked as Annexure “A” is the front page of an Application in a Case and the front page of the copy of the Affidavit that was filed. The date of the hearing of the leave application is to be advised.
3.The Orders and Decision of Justice Boland of 15 October 2008 are the objects of the appeal. In this Application I am seeking to stay all proceedings in the Family Court pending the outcome of the Leave to Appeal Application. The stay orders are applicable to the Orders of Justice Boland of 15 October 2008, Orders 1, 2, 3(ii), 4 and 5. I am seeking to set aside the hearing date of 16 December 2008 which is to be held before Justice Fowler at 10.00am.
The proposed notice of appeal
The wife’s proposed Notice of Appeal contains 8 grounds of appeal with numerous sub-grounds. Ground 1 which comprises five sub-grounds asserts error of law. Whilst it is always difficult for a trial Judge to realistically assess the merits of proposed grounds of appeal, nothing I can discern in Grounds 1.1 to 1.5 are directed to any error of law said to have been made by me in my reasons of 15 October 2008, rather ground 1.4 appears to assert that an order made by me on 17 August 2007 discharging an injunction made by Judicial Registrar Knibbs on 21 April 1999 was, in some manner, an error of law.
Ground 2 asserts a denial of natural justice to the wife and the husband not having their matrimonial property returned to them by Mr P. It does not appear the wife asserts that my orders of 15 October 2008 in some manner denied her natural justice.
Ground 3 which is headed “Bias and predetermination of issues” in three sub-grounds (the third divided into a further two grounds) refers to the wife’s assertion that I failed “to recognise or mention” the wife’s attempts to “restore my marital property as the [Shaw/Dmitrieff] marital assets in the Family Court”.
It appears to me that by this ground the wife is seeking to assert that, as a result of my failure to further adjourn her s 79 application, she will be denied the opportunity of setting aside her bankruptcy and pursuing remedies against her trustee in bankruptcy in the Supreme Court of New South Wales (“the Supreme Court”) before her s 79 application is heard. I can only assume that, in effect, what the wife asserts is that I erred in the exercise of my discretion in failing to give sufficient weight to her pending litigation and / or gave too much weight to the results of previous proceedings (including the Supreme Court proceedings) and the need of the husband (and other respondents) for the proceedings in this Court to be brought to a conclusion. Given the purpose of the Supreme Court proceedings, the effective conclusion of those proceedings as to the taking of accounts, and the length of time the proceedings have been on foot in this Court, it appears to me that the discretion I exercised was reasonably open to me.
In Grounds 4.1 to 4.5 the wife asserts that I demonstrated bias, or that there was procedural unfairness caused to her by my determination to proceed with her application in the absence of any documentation filed by Mr P, other than a letter from Mr P which I marked as an exhibit. At the hearing before me the husband, who was represented, opposed any adjournment application. I did not have regard to any material or submissions made by or on behalf of Mr P. I did have regard to submissions made by the husband’s solicitor. Again, whilst noting the difficulties for a trial Judge in assessing such a ground, it is not readily apparent to me that the wife suffered any bias or unfairness by reason of Mr P not appearing or filing documents. Accordingly I see little potential merit in these grounds. As the transcript will disclose I brought the letter from Mr P to the attention of the wife and the husband’s solicitor. To the best of my recollection there was no objection to the letter being marked as an exhibit.
In ground 6 the wife asserts that I erred in making an order that she pay the husband’s costs of the application, with such costs order being stayed until the conclusion of the s 79 proceedings. I accept that the wife is entitled to challenge the exercise of my discretion in awarding costs noting however the wide discretion available to a trial Judge to make an order for costs (see Penfold & Penfold (1980) 144 CLR 311; (1980) FLC 90-800). However I fail to see any necessity to stay Order 4 of my orders as that order is stayed by operation of Order 5 pending the determination of the s 79 proceedings. On present listings in the Sydney Registry it is likely that the wife’s application for leave to appeal my orders will be heard and determined prior to the s 79 proceedings thus obviating any need to stay Orders 4 and 5.
The proposed grounds 6.7 and 6.8 also appear to be relied on to attack my exercise of discretion in making the costs order. I have already noted the wife’s ability to challenge the costs orders without prejudice to her if a stay is not granted.
The asserted grounds 6.9, 6.10, 6.11 are not proper grounds of appeal. They have no relevance to the orders the subject of the proposed application for leave.
So far as I can discern the proposed grounds 7.1 to 7.3 are not proper grounds of appeal, and could have no relevance to the wife’s application for leave or this stay application.
I am also unable to discern any appealable error identified in grounds 8.1 and 8.2 which would support the granting of a stay.
Discussion – consideration of the evidence and principles applicable to a stay
I have set out above the wife’s affidavit filed in support of the stay. I find nothing in that affidavit to support the wife’s application for a stay. It does not appear to me that the wife has satisfied the onus cast on her to justify why a stay should be granted. However, I do not propose to consider the wife’s stay application limited to her affidavit material, but I propose to take into account her submissions, and the submissions of the husband’s solicitor as well as other factors relevant to the granting of a stay summarised above by me.
I take into account that the husband wishes to have this litigation, which has been conducted in this Court for in excess of ten years, finalised. I do not take into account the rights of respondents six to ten as those respondents have failed for some considerable period of time to participate in the litigation and who have failed to appear on this application.
The orders made by me on 15 October 2008 are procedural orders made to enable the matter to be properly prepared for hearing by listing before a docket Judge for determination of matters in issue requiring adjudication. I was satisfied on the evidence before me that the taking of accounts in the Supreme Court was completed. By the time the wife’s application would be listed for hearing in this Court there was no reason to doubt that the monies due under the Supreme Court orders would be paid to the respective parties. Thus a trial Judge could determine the husband and wife’s share of the two properties at B. I note one property has been sold, (the wife contended today that the proceeds had been invested in an interest bearing account) and the second property is to be or has been purchased by Mr P pursuant to an order of the Supreme Court.
It appears to me from her proposed grounds of appeal that the wife is agitating that if her application in the Federal Court is successful, her bankruptcy may be annulled. The bankruptcy notice on which the wife was made bankrupt was based on costs orders made in the Supreme Court which have not been set aside and were unsuccessfully challenged by the wife on appeal, including an application for special leave to the High Court.
If the annulment appeal was successful, which in light of the basis of the bankruptcy notice appears unlikely, then the wife would be entitled to recover any funds paid to her trustee in bankruptcy. If the wife’s property increased, the husband may have recourse under s 79A if the s 79 proceedings are concluded, if he deemed appropriate to do so. Thus I discern no prejudice is likely to be occasioned to the wife if my procedural orders are not stayed.
The wife’s evidence about her present application before the Supreme Court to appeal in that Court was scant. I infer from her submissions today that her appeal is directed principally her challenge to the validity of the consent orders, signed by the solicitor for the trustee in bankruptcy, by which the wife asserts, the solicitor exceeded her statutory authority, and which orders the wife says contained a term requiring her to make payments as a condition of her occupation of one of the properties at B prior to finalising the taking of accounts. At its highest, if the wife is successful in that application, the husband and wife may recover some additional sums from Mr P and / or the trustee for the period 17 July 2007 (the date of the consent orders) and 8 October 2007 (the date of the wife’s eviction from a B property). I consider (without accepting that the wife will recover monies) that any sum recovered would not be so significant as to warrant yet further delay of the s 79 proceedings. Again if the s 79 proceedings were determined before that Supreme Court appeal, an application could be brought by any party under s 79A in this Court if so advised.
The husband has not filed any material in opposition to the stay. I take into account that he is incurring costs for his legal representation and has, as has any litigant in the Court, the stress associated with litigation. In this case the litigation has proceeded for an inordinate time. I conclude that if my orders were stayed pending the application for leave to appeal the determination of the husband’s property entitlements would be further delayed by many months.
On balance I am satisfied that the prejudice to the husband in further delay outweighs any prejudice to the wife in adjourning the proceedings until her appeals in the Federal Court and Supreme Court are heard and determined.
I have endeavoured, so far as I am able, to assess the likely prospects of success of the wife’s proposed grounds of appeal, and have determined that, save and except the appeal against my costs orders, the grounds are either incompetent or fail to properly assert appealable error. I therefore determine that the application for leave to appeal has little prospects of success. However, in the event I am wrong about that, I must consider whether failing to grant a stay of my orders will render the wife’s proposed appeal nugatory.
The wife is self represented and has demonstrated an ability to file compendious documents in a timely manner. Given her history of self representation to date it is not likely she will incur any legal costs in preparing her affidavit of evidence in chief, or an updated financial statement. The wife has indicated during the proceedings that she seeks a share of the husband’s superannuation. Her present amended application was filed before the introduction of Part VIIIB of the Act and requires amendment. I cannot see how requiring the wife to file an amended application including an application for a splitting order can prejudice the wife. There is nothing to preclude her seeking an order for a sum equivalent to a percentage of the pool of assets as found by the trial Judge. The evidence on which the wife seeks to rely to support her evidence of contributions during the marriage and post separation is not affected by the appeals in the Federal Court and the Supreme Court. So far as the wife is concerned, matters relevant to s 75(2) presently known to me (including the wife’s dependence on Social Security and Housing Commission accommodation) are likely to be more favourable to the wife than if her bankruptcy is annulled. The husband does not seek to further adjourn the proceedings.
The husband’s solicitor submitted today that even after allocation to a judge’s docket, the property proceedings are not likely, on his estimate, to be allocated hearing dates before mid 2009. He further submitted that both parties can presently set out in their affidavits their respective contributions throughout the marriage, and post separation, and refer to relevant factors under s 75 (2). He pointed out that issues to be determined can be canvassed with the trial Judge and necessary subpoena issued (including, if necessary, to the wife’s trustee in bankruptcy), thus enabling the matter to be prepared for trial. I find merit in each of these submissions.
It is necessary that I say something briefly about the stay sought of Order 2 of my orders which dismissed paragraph 1 of the wife’s application filed 8 September 2008. The relief sought by the wife then was as follows:
1.To stand over Justice Boland’s Orders of 3 September 2008 until the applicant’s wife [sic] appeal is heard in the Federal Court of Australia, Matter No.[…] regarding the Bankruptcy and the return of the marital property of the [Shaw/Dmitrieff] marriage/relationship from the possession of Mr [P], the Second Respondent in this matter, and/or his companies, [SL] Pty Ltd, the Third Respondent, and [D] Pty Ltd, the Fourth Respondent. As the matter now stands, the Second Respondent, Mr [P], still has the [Shaw/Dmitrieff] marital assets in his possession.
2.To set aside Justice Boland’s Order 1 and 14 as there is no active current Review Form of [Ms Dmitrieff] in the Family Court matter SYF5191/93.
…
As I noted in my reasons on 15 October 2008 no application for leave to appeal my orders of 3 September 2008 was filed in the time provided in the rules, and in my view the application heard by me on 15 October 2008 was simply a re-agitation by the wife of her oral application of 3 September 2008. I see no utility in staying this order.
CONCLUSION
In summary, I do not find that the wife has satisfied the onus of proof which she bears to obtain a stay of my orders. Nor am I satisfied, having regard to relevant principles applicable to granting a stay, is there any basis which, in the exercise of my discretion, warrants the orders being stayed. Accordingly I propose to dismiss paragraph 3 of the wife’s application in a case filed 12 November 2008.
Balance of orders sought in the wife’s application
The wife has been granted leave to serve short notice of this application. Accordingly paragraph 1 of the application has been determined.
The wife’s application was given an urgent listing because she sought a stay of my orders. There is no urgency in the relief sought in paragraph 2 of the wife’s application. I propose to stand over to Fowler J as the docket Judge the wife’s application for the relief sought in paragraph 2. That application may be dealt with on 16 December 2008 if still pursued by the wife, and not subject of consent of the relevant parties.
I do not propose to set aside the fixing of 16 December 2008 as the first date before the docket Judge. The wife has filed no material which would support such adjournment.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 19 November 2008
Chronology
On 9 May 1999 the wife obtained from the then Australian Securities & Investment Commission a company extract for SL Pty Ltd. (“[SL]”) That search discloses the wife was appointed as a director of SL on 5 March 1998 and ceased being a director on 5 May 1998. The husband was appointed a director on 6 November 1997 and ceased his directorship on 14 March 1998. Mr P was appointed a director on 6 November 1997.
On 10 June 1999 the wife filed an amended application for property settlement in which she named seven additional parties as respondents to the proceedings:
·Respondent 3 – SL Pty Ltd;
·Respondent 4 – Ms T;
·Respondent 5 – Ms E;
·Respondent 6 – Ms J;
·Respondent 7 – Mr G;
·Respondent 8 – Mr A;
·Respondent 9 – Ms S.
On 5 August 1999 Judicial Registrar Johnston dismissed the wife’s application against Ms T and released her as a party from the proceedings. He also released Ms E, Mr G and Mr A. On the same day Judicial Registrar Johnston made orders restraining the trustee of the State Authority Superannuation Scheme, the Hesta Super Fund and the Australian Retirement Fund from paying out to the husband or any person on his behalf any amounts pursuant to any benefits he has in any such scheme or fund.
On 31 August 1999 the wife filed an application to review the orders of Judicial Registrar Johnston.
On 21 September 1999 Cohen J, who was hearing the wife’s review application, delivered ex tempore reasons for judgment, and made orders that a next friend (as then described in then Family Law Rules) be appointed to represent the wife in the proceedings and “the question of dismissal of the application against all respondents other than the husband be stood over until 9.30 am on 12 October 1999”. The wife appealed against these orders to the Full Court by notice of appeal filed on 7 December 1999.
On 9 November 1999 Cohen J delivered further ex tempore reasons. His Honour noted the matter had not been before the Supreme Court. Cohen J refused to further adjourn the proceedings.
On 14 January 2000 the wife sought an extension of time in which to file an appeal against the orders made by Cohen J on 21 September 1999 and 9 November 1999.
On 6 November 2000 the wife’s appeal was heard by the Full Court. The Full Court allowed the wife’s appeal and ordered that the matter be remitted for rehearing by a judge other than Cohen J.
On 7 November 2000 the wife filed an application seeking to restrain Mr P entering onto B2 property.
On 22 November 2000 Judicial Registrar Loughnan made an order in the following terms:
1.That until further order of the court Mr [P] be restrained from entering the property at [B2 property] harassing the wife and from dealing with the wife directly except through his solicitor Mr Brian Muir.
2.That liberty be granted to Mr [P] or any party to restore the matter to the list on 48 hours notice to the court and to the other parties.
On 6 December 2000 Judicial Registrar Loughnan discharged the order restraining Mr P entering onto B2 property.
In the meantime, on 1 December 2000, Moore J had made directions in relation to the rehearing of the wife’s review application in accordance with orders of the Full Court. On 1 December 2000 Moore J consolidated all outstanding applications for final orders for property settlement, spousal maintenance and adult child maintenance and ordered they be listed for hearing as a special fixture on 30 April 2001.
The final hearing was listed before Rose J for hearing on 30 April 2001.
On 11 December 2000 the wife filed an application seeking to restrain Mr P from entering B2 property and from coming into personal contact with her. The wife also sought an order that Mr P forward documents to her post office box number or via facsimile in the event of an urgent application.
On 11 December 2000 Mr P filed an application seeking the wife be declared vexatious, the eviction of the wife from B2 property, the dismissal of the injunction made by Judicial Registrar Knibbs, and that he not have any further part in the proceedings.
On 15 December 2000 Rose J dismissed both applications save and except he made an order that Mr P direct all correspondence and other documents to the wife at her post office box.
On 8 January 2001 the wife filed an application in which she sought exclusive occupancy of B2 property until the completion of the substantive proceedings. An application in similar terms was made by the wife on 22 January 2001.
On 12 January 2001 Chisholm J struck out the wife’s application filed on 8 January 2001. On 25 January 2001 his Honour made orders in chambers striking out a number of subpoenae issued at the request of the wife.
On 5 February 2001 Judicial Registrar Johnston dismissed the wife’s application filed on 22 January 2001.
In February 2001 the wife sought to issue various subpoenae. The matter was listed before Rose J on 7 March 2001 when the wife sought that his Honour should disqualify himself. Rose J refused the wife’s application for disqualification.
On 14 February 2001 Senior Registrar Gersbach made orders that an application to inspect documents be stood over to the first day of the hearing (2 April 2001) and reserved costs.
On 22 February 2001 the wife filed an application seeking a stay of all orders made from 1 December 2000 until the rehearing ordered by the Full Court, save and except the order made by Rose J for service of documents on her.
On 15 March 2001 the wife filed an application to review Senior Registrar Gersbach’s orders. On the same day the wife filed an application seeking leave to view and photocopy subpoenaed documents, and to reinstate her daughter, M Shaw, as an applicant to the substantive application.
On 21 March 2001 the wife’s application for leave to appeal Chisholm J’s orders of 25 January 2001 came before Ellis J. His Honour vacated the hearing date of the applications filed by the wife on 15 March 2001 and listed them for hearing before a Judge on 27 April 2001. Orders were made that the wife pay the husband’s and Mr P’s costs.
The wife’s application for leave to appeal the orders made by Chisholm J on 25 January 2001 was heard by the Full Court on 30 March 2001 (Finn, Coleman & Mushin JJ) and reasons for judgment were delivered on that day. The Full Court upheld the wife’s appeal on the basis that the trial Judge’s orders had been made in chambers without the opportunity for any party to be heard in respect of the dismissal of the subpoena.
On 2 April 2001 the matter was listed before Rose J for case management purposes. A further application was made by the wife that Rose J disqualify himself.
It appears that by this time the wife had commenced proceedings as a plaintiff in the Equity Division of the Supreme Court. On 2 April 2001 Rose J noted “that the parties will be in a position to inform Rose J of precisely the orders and directions made by the Supreme Court of New South Wales in its Equity Division on 9 April 2001”. Rose J adjourned the review application before him until 17 April 2001. On that date the review application was stood over before Rose J to ascertain readiness for hearing on 24 April 2001.
On 24 April 2001 the wife filed an application in which she sought orders adjourning the final hearing of the property and spousal maintenance proceedings pending completion of the proceedings in the Supreme Court. On that day Rose J made orders by consent as follows:
1.That the hearing of the property settlement proceedings fixed to commence on 30 April 2001 is vacated.
2.That the property settlement proceedings are stood over for mention before Rose J at 9.30am on 4 June 2001 for the purpose of hearing any application for transfer of those proceedings to the Supreme Court of New South Wales and for further directions.
3.That the hearing of the wife’s pending Application for Leave to Appeal fixed for 23 April 2001 is vacated.
4.That the wife’s Application for Review filed 31 August 1999 be listed for mention before Rose J at 9.30am on 4 June 2001 for further directions.
5.That the wife’s Application Form 8 filed 24 April 2001 be listed for mention before Rose J at 9.30am on 4 June 2001 for further mention.
On 17 May 2001 the wife filed an application in which she again sought reinstatement of her daughter as an applicant and orders for production of various documents. She also sought an order that all named respondents be included on the front sheet of Court Orders. An application in similar terms was filed by the wife on 5 June 2001.
On 18 June 2001 the wife’s applications were listed before me for a procedural hearing. On that occasion I made the following notation:
It is noted that the applicant wife wishes to have the Supreme Court proceedings finalised before re-hearing of the application in relation to orders by Cohen J remitted from the Full Court of this Court for rehearing as well as the substantive proceedings, being her application for property settlement.
I stood the matter over until 27 August 2001 for further procedural directions.
On 25 June 2001 the wife filed an application seeking orders to photocopy subpoenaed material. That application was listed before Senior Registrar Gersbach on 25 June 2001. A number of orders were made in respect of subpoena by the Senior Registrar who struck out a subpoena to the Colonial Bank as being deficient in form.
On 19 July 2001 the wife filed an application to review orders made by Senior Registrar Gersbach on 25 July 2001.
On 26 July 2001 the wife filed an application in which she sought to reinstate as respondents to the proceedings the third to tenth respondents inclusive.
On 28 August 2001 Senior Registrar Gersbach refused to make orders reinstating those respondents on the basis they had not been removed from the proceedings.
The matter again came before me on a procedural hearing on 27 August 2001. The matter was stood over for mention only before me on 4 February 2002. Leave was granted to the parties to restore the matter to the list earlier in the event the Supreme Court proceedings had been determined before 4 February 2002.
On 31 August 2001 the wife’s application for review filed 19 July 2001 of Senior Registrar Gersbach’s orders of 25 June 2001 was listed for mention, and on 7 September 2001, the wife’s application for review was listed by me for hearing before a Judge on 5 October 2001.
On 5 October 2001 Steele J dismissed the wife’s application for review.
On 19 November 2001 the wife filed an application in which she sought an extension of time to review orders made by Registrar Gersbach on 23 August 2001. It appears the wife was seeking to review the orders of 28 August 2001.
On 19 December 2001 Senior Registrar Henderson granted the wife leave to review Senior Registrar Gersbach’s orders out of time and ordered that such review be filed no later than 21 December 2001. The wife filed her application for review on 17 December 2001, which application was listed for hearing on 4 March 2002.
On 22 February 2002 the wife filed an application for leave to extend time to appeal orders made by Steele J on 5 October 2001. On 7 March 2002 Coleman J granted leave to the wife to extend time to appeal Steele J’s orders.
On 27 March 2002 the matter was listed before Chisholm J who made the following orders:
1.That the Form 44 Application filed on 31 August 1999 and the Form 44 Application filed on 17 December 2001 be struck out and removed from the Acting Pending Cases List.
2.That the Applicant, Mrs [Dmitrieff] have leave to have the proceedings listed before Justice Boland after the completion of the Supreme Court proceedings for the purpose of issuing a trial notice and setting a date for the Pre Trial Conference in relation to the Form 7 Application filed on 6 March 2002.
3.That the Applicant Mrs [Dmitrieff] serve on the respondents named in the Form 7 Application field [sic] 6 March 2002 a copy of that application and a copy of these orders.
4.I direct the Registry Manager to forward a copy of these orders to the Associate to Justice Palmer in the Supreme Court of New South Wales.
Notation:
5.That the Form 7 Application filed 6 March 2002 is intended to name the 10 respondents identified in it and that the apparent crossing out of the names of the respondents 5, 6, 9 and 10 should be disregarded.
6.That Justice Boland is the Judge who has overall responsibility for this case and where practicable all matter [sic] should be referred to her in the first instance.
The transcript of the hearing before Chisholm J reveals that his Honour took the view that the wife’s application, in which she sought to review the orders made by Judicial Registrar Johnston on 9 August 1999 discharging the respondents referred to in paragraph 37 from the proceedings, was rendered moot by the wife having filed an amended application for property settlement on 2 March 2002 in which she sought different orders against some of the respondents named in the earlier proceedings, but named all previous respondents. Thus the parties to the proceedings remain the wife, husband, Mr P, and the parties named as respondents five to nine.
On 31 March 2003 Mr P, L Pty Ltd and D Pty Ltd filed an application seeking interim orders amending the injunction made on 21 April 1999, the removal of the caveat over the properties, and that the wife be restrained from filing any caveat in respect of those properties.
On 6 April 2003 the wife filed a response seeking dismissal of the application. The application was listed before Judicial Registrar Johnston on 16 April 2003 and adjourned to 13 May 2003. The Court noted orders were sought in terms of a document entitled “Short Minutes of Order” and the matter was adjourned to the Judicial Registrar’s duty list on 27 May 2003.
On 27 May 2003 Mr P and the companies’ application was dismissed.
The matter was listed before me on 30 October 2003 when I made the following orders:
1.That Mr Muir file and serve any Form 8 Application and affidavit in support on which he seeks to rely by 4 pm on 13 November 2003.
2.It is noted that as presently constituted and set out in the formal orders of Chisholm J on 27 March 2002 there are 10 Respondents and the Form 8 Application and affidavit are to be served on all 10 Respondents.
3.That Mrs [Dmitrieff] file and serve a Form 8A Response and affidavit in support on which she seeks to rely by 12 December 2003 and such Response and affidavit are to be served on all 10 Respondents.
4.I grant leave to all parties to approach the Listing Coordinator to have the Form 8 Application to be filed by Mr Muir set down for hearing in the first short causes list after 12 December 2003.
5.That all parties costs of today are reserved.
6.It is noted that all parties would consent to a judicial settlement conference taking place if available.
On 15 December 2003 the wife filed an application seeking ex-parte orders restraining the trustees of the estate of the late Mrs Shaw (the husband’s mother) in dealing with specified assets of her estate.
On 16 February 2004 Mr P filed an application seeking orders that the injunction be set aside and that he be permitted to sell the properties. On 2 March 2004 the wife filed a response opposing the orders sought by Mr P.
The applications to discharge the injunction made on 21 April 1999 were eventually listed before Rose J on 24 March 2004. His Honour delivered ex tempore reasons that day. At that time, Mr P submitted that he was suffering financial hardship and that the mortgage debt in respect of the mortgage secured over the properties was increasing. Rose J referred to the judgment of Palmer J in the Supreme Court and said, “I was attracted to making the order as sought by the applicant”. His Honour further noted however that the wife gave an undertaking to the Court that she would pay one half of the monthly mortgage payment in respect of the properties in the amount of $930.00 per month. Noting that an appeal to the New South Wales Court of Appeal was listed to be heard in approximately two month’s time, His Honour made the following orders:
1.That upon the Undertaking provided to the Court today by [Ms Dmitrieff], the Application of [Mr P] and [L] Pty Ltd filed 16 February 2004 is stood over generally with liberty to restore to the List for hearing upon 7 days written notice being given by that party.
2.That [Ms Dmitrieff] pay the applicant’s costs of the Application filed 16 February 2004 as assessed and agreed upon or otherwise as taxed.
On 2 February 2004 Rowlands J made the following orders:
1.The solicitor for the second, third and further respondents be granted leave to file such application as he is minded to within fourteen days of today’s date.
2.The solicitor for the second, third and fourth respondents give the wife 14 days notice of such application or such further notice as the rules for such applications require.
3.The proceedings before the Court today be adjourned to the return date granted for the application made pursuant to Order 1.
4.The solicitor for the second, third and fourth respondents advise the husband in writing as to the outcome of today’s proceedings.
On 22 October 2004 Mr P and L Pty Ltd again filed an application seeking orders that they and D Pty Ltd be discharged as parties to the proceedings, and that the injunction dated 21 April 1999 be discharged.
The wife filed an application on 25 October 2004 seeking, inter alia, production of a number of documents to the Court by the other respondents, and on 11 November 2004, she filed a response to the application of Mr P and the companies opposing the dissolving of the injunction made on 21 April 1999.
On 18 November 2004 all pending applications were listed before me. I made procedural directions consolidating the applications for hearing before a trial Judge.
The wife sought leave to appeal Rose J’s orders of 24 March 2004. Her application was unsuccessful and dismissed by the Full Court on 4 February 2005.
The matter came on for hearing before Rowlands J on 11 March 2005 when his Honour made the following orders:
1.That written submissions with supporting evidentiary material by Mr Muir be filed and served on or before 4th April 2005.
2.That written submissions in response with supporting evidentiary material by Ms [Dmitrieff] be filed and served on or before 28th April 2005.
3.That written submissions in reply by Mr Muir with supporting evidentiary material be filed and served on or before 9th May 2005.
4.That the mater be adjourned for a two hour (or less) hearing at 10.00 am on Tuesday 24th May 2005 to determine what, if any, further oral or written evidentiary material or submissions were required.
As no written submissions with supporting evidence were filed in accordance with his Honour’s directions, the matter was not relisted before his Honour. It appears his Honour considered the application of 22 October 2004 was deemed abandoned.
On 16 August 2005 the wife filed an application in which she sought to join as parties to the proceedings Ms GW and Mr AH. The wife also sought to restrain Ms GW and Mr AH from commencing bankruptcy proceedings against her in the Federal Magistrates Court.
On 29 August 2005 the wife filed a further application seeking orders that the husband pay one half of the monthly mortgage payments in respect of the properties, and sought orders that monthly bank statements be supplied to her.
On 5 September 2005 I made orders dismissing the application filed 16 August 2005 in which the wife sought to join Ms GW and Mr AH and obtain injunctive relief against them. I ordered the wife pay the costs of Ms GW and Mr AH as agreed, and failing agreement within 28 days, as assessed. I also noted that the wife’s application filed 29 August 2005 was withdrawn and dismissed with each party to pay their own costs.
At the time of hearing the wife’s application, Ms GW and Mr AH had caused a Bankruptcy Notice to be issued against the wife and the wife had filed an application to set aside the Bankruptcy Notice in the Federal Magistrates Court.
The wife sought leave to appeal my orders of 5 September 2005. On 3 May 2006 the Full Court dismissed the wife’s application.
On 27 October 2005 to limit costs pending determination of the proceedings in the Supreme Court, the parties, by consent, agreed to the following orders:
1.That the matter [sic] stood over for case management purposes for mention only to 9.30 am on 23 November 2006.
2.Liberty to any party to restore before Justice Boland (or if she is not reasonably available the List Judge) on seven (7) days written notice to the Associate to Justice Boland and to the other parties.
3.That pending further order, the wife; husband; second, third, fourth and tenth respondents shall not file any application in a case until:
a.the matter is first listed before Justice Boland (or if she is not reasonably available the List Judge), and
b.the proposed relief sought is outlined to Justice Boland or the List Judge.
Notwithstanding those orders, and prior to the determination of the proceedings in the Supreme Court, further applications were filed in the matter.
On 22 March 2005 the wife filed an amended application for final orders in the proceedings under s 79. The orders the wife now seeks, by way of final relief, are in the following terms:
1.Lump sum allocation of funds for the monies that I have paid out for [M Shaw’s] education. [M Shaw] is the 1st Respondent’s and my daughter. I paid for [M’s] tertiary education at [University] for a period of 5.1/2 years. [M] has obtained a double degree in […]. The cost to me has been estimated at $50,000.00.
2.Orders are sought for the 1st Respondent’s superannuation benefits. I be allocated a sum which is half of his superannuation at the current pay out figures.
3.Future spousal maintenance be allocated for review.
4.Once the accounting procedure is finalised in the Equity Division, Supreme Court, Matter No. […], that the matter be remitted to the Family Court of Australia Pty Ltd [sic], as per Justice Chisholm’s orders of 27.3.02.
5.If the appeal is unsuccessful in the High Court of Australia, concerning the outcome of the Equity Division, Supreme Court, Matter No. […]; then an Application for Order for sale will be submitted by me, the applicant wife, for the two properties, [B1 and B2 properties].
6.The 2nd Respondent, Mr [P], pay back the debt of $47,598.00 into the pool of assets of the [Shaw/Dmitrieff] marriage.
7.Monies that the 2nd, 3rd and 4th Respondents, i.e. Mr [P], [L] Pty Ltd and [D] Pty Ltd, received in any form whatsoever, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
8.That the 1st Respondent is only paid $20,000.00 from the pool of the [Shaw/Dmitrieff] marital assets as per his written and signed contract agreement in a form of a letter to his solicitor in August 1998.
9.Orders are sought for all the furniture and household goods that I have in my possession.
10.Monies that [Ms E], the 5th Respondent, received from Mr [Shaw] as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
11.Orders are sought that an amount of $8,000.00 be deducted from the respondent husband’s pool of assets for my benefit. In 1998, Mr [Shaw] said he signed this cheque over to [Ms E] for her baby stuff. I had got this money from selling a market stall that I had owned.
12.Monies that Mr [G], the 6th Respondent, received from Mr [Shaw] as a result of the sale of [Z] as an illegal organ donor, for the purchase of the business, [NSC], be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
13.Monies that M/s [S], the 8th Respondent, received as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
14.Monies that Mr [A], the 7th Respondent, received as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
15.Monies that Mrs [J], the 9th Respondent, received as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
16.Monies that Mrs [T], the 10th Respondent, received from Mr [Shaw] as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
17.Monies that any person, still unknown at the present time, who has received monies as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
18.All parties pay for their own costs.
On 4 January 2006 the wife filed an application for interim orders wherein she sought injunctive orders against W Council. W Council had commenced winding-up proceedings against L Pty Ltd for failing to pay council rates in respect of the properties.
On 25 January 2006 I made orders which provided that the husband, Mr P, L Pty Ltd and D Pty Ltd could file any application relevant to outstanding rates, the mortgage secured over the properties, and in respect of the discharge of the injunction made on 21 April 1999.
On 20 February 2006 the wife filed an application in which she sought “[t]hat the Second Respondent be debited the amount of $47,598.00 as monies owing to the [Shaw/Dmitrieff] family property under Section 79 of the Family Law Act 1975. This amount includes interest calculated from the dates as follows – a) 14.11.97 - $17,598.00; and b) 1.12.97 - $35,000.00.” She also sought orders that the husband pay half of the mortgage payments in respect of the properties and that the husband, Mr P, L Pty Ltd and D Pty Ltd make application to the St George Bank to borrow further funds to pay monies owing to W Council.
On 20 March 2006 the wife filed a further application in which she sought orders that Mr P, L Pty Ltd and D Pty Ltd pay the costs of the solicitor for W Council. The wife had sought orders that I disqualify myself from further hearing matters, but withdrew that application.
On 24 April 2006 the wife filed an application in which she sought to strike out the application filed by Mr P, L Pty Ltd and D Pty Ltd on 22 November 2004.
On 28 April 2006 the application of the wife filed on 20 March 2006 was withdrawn and dismissed.
On 20 December 2006 an urgent application, brought by the wife after Mr P listed the properties for sale, was heard by Rose J who made the following orders:
1.That until further order the second, third and fourth respondents their servants and agents forthwith do all things necessary to cause the cessation of listing for sale of the properties [B1 property] and/or [B2 property].
2.That the second and third respondents by their servants and agents remove the “For Sale” sign outside the properties [B1 and B2 properties] within 24 hours from today.
3.That the application for orders otherwise set forth in the Application in a Case filed 18 September 2006 is dismissed.
4.That the application of the respondents [Mr P] [L] Pty Limited and [D] Pty Ltd filed 22 October 2004 is dismissed.
On 22 March 2007 I heard the wife’s application filed on 21 February 2007 in which she sought the annulment of her bankruptcy and made the following orders and directions:
1.That the further amended application in a case filed on 21 February 2007, Form 21 Bankruptcy Application dated 21 February 2007 and Form 27 Notice to Creditors of Annulment Application dated 21 February 2007 is withdrawn by the applicant wife.
2.The applicant wife file and serve a Notice of Discontinuance on all parties named as respondents to the applications referred to in order 1 on or before 28 March 2007.
3.That orders 1 to 4 inclusive of the orders made 1 March 2007 are discharged.
4.That the respondents formerly represented by Mr Brian Muir shall file and serve a Notice of Address for Service by 28 March 2007.
5.The matter be listed before Boland J at 10.00 am on 30 November 2007. This date may be vacated on written application to the Associate to Boland J by any party in the event the matter requires an earlier listing.
Key Legal Topics
Areas of Law
-
Civil Procedure
-
Family Law
Legal Concepts
-
Stay of Proceedings
-
Costs
-
Appeal
3
5
2