Karbines & Karbines and Ors

[2009] FamCA 93

FAMILY COURT OF AUSTRALIA

KARBINES & KARBINES AND ORS [2009] FamCA 93

FAMILY LAW – ORDERS – stay – application by husband for stay of orders pending appeal – where orders provide for sale of various properties and division of proceeds – where lack of merit in grounds of appeal and little likelihood of successful appeal – where significant hardship would be suffered by the wife if a stay granted – application for stay refused.

FAMILY LAW – COSTS – husband to pay first intervenor’s costs of attendance for stay application.

FAMILY LAW – PRACTICE AND PROCEDURE – costs – applications by wife and second intervenors for costs – parties to file any written submissions within 28 days – matter adjourned.

FAMILY LAW – ORDERS – variation of previous order to permit sale of a property at specified price

Family Law Rules 2004 (Cth) r 22.11

The Annot Lyle (1886) 11 PD 114
D and D [1999] FamCA 2121 (unreported)

APPLICANT: Mr Karbines

RESPONDENT: Ms Karbines

FIRST INTERVENOR: C Pty Ltd (In liquidation)

SECOND INTERVENOR:	Mr and Mrs Willa
THIRD INTERVENOR	B Pty Ltd (In Liquidation)
FOURTH INTERVENOR	Westpac Banking Corporation

FILE NUMBER: MLF 2479 of 2005

DATE DELIVERED: 13 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr A.L. Jordan

SOLICITOR FOR THE RESPONDENT: Maddens Lawyers

COUNSEL FOR THE FIRST INTERVENOR:	Mr McGrath
SOLICITOR FOR THE FIRST INTERVENOR	Norman Waterhouse

COUNSEL FOR THE SECOND INTERVENOR:	Mr H. Bersee
SOLICITOR FOR THE SECOND INTERVENOR	Herman Bersee
COUNSEL FOR THE THIRD INTERVENOR	N/A
SOLICITOR FOR THE THIRD INTERVENOR	O’Loughlins Lawyers
COUNSEL FOR THE FOURTH INTERVENOR	N/A
SOLICITOR FOR THE FOURTH INTERVENOR	Fisher Jeffries

Orders

1. The Court refuses to grant the stay of the Orders of the Honourable Justice Dawe made on the 19 December 2008 and the husband’s Application in a Case filed on the 6 January 2009 is dismissed.

2. The husband pay the 1^st Intervener C Pty Ltd (In Liquidation) costs of and in relation to the attendance today fixed in the sum of SIX HUNDRED AND EIGHTY DOLLARS [$680.00] such sum to be paid within twenty-one [21] days.

3. IT IS DIRECTED that the husband and wife file and serve within twenty-eight [28] days from today any written submissions upon which they wish to rely on the question of the wife’s application for costs being the Application in a Case filed by the wife on the 16 January 2009 and that further consideration of the application for costs be adjourned to the 26 March 2009 at 9.15 am before the Honourable Justice Dawe.

4. The Order of the 29 May 2008 is varied to permit the sale of the property at M Street, G, by private sale not auction for the sum of FIVE HUNDRED THOUSAND AND ONE DOLLAR [$500,001.00].

5. The issue of costs of the 2^nd Interveners is adjourned to the 26 March 2009 at 9.15 am before the Honourable Justice Dawe with all parties to file any written submissions in relation to the costs and in particular the details concerning costs sought within twenty-eight [28] days from today.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2479 of 2005

MR KARBINES

Applicant

And

MS KARBINES

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the application by the husband, by Application in a Case filed on 6 January 2009, in which the orders he seeks are: 

   “That there is a stay on all orders passed down by Dawe J, including those granted to the liquidator and [Mr Willa], because these will severely damage my ability to remain solvent throughout the course of this appeal.”

2. In support of that application there is an affidavit filed by the husband which has four paragraphs.  I incorporate those four paragraphs into the judgment.  The first paragraph says that he is seeking legal advice as to what he considers “to have been unfair judgments in the above case, including miss(sic) representation of facts, and new evidence that has come to light.  Additionally totalling of asset vales(sic) has been poorly applied, making the 30% split unrealizable(sic)”.

3. The husband also refers in that affidavit to what he alleges to be misrepresentation of facts “… the creditors on the liquidation aspect, creditors have been denied their rights.  3.   In the instance of Mr [Willa] he has been granted rights ahead of recognised creditors and should await the outcome of the appeal”.

4. That is the extent of the evidence put before the Court in relation to the application for a stay, which relates to the orders made on 19 December 2008, after a long and detailed hearing concerning financial matters involving not only the husband wife and Mr and Mrs Willa, but other intervenors, particularly a bank and liquidators of companies previously operated by the husband and wife.

5. Rule 22.11 of the Family Law Rules provides:

   (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 leave 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.

6. The general principles in relation to the question of a stay have been considered at length.  There has been in place for many years an “ordinary rule” as it is described, that a successful litigant is entitled to the fruits of his litigation, pending the determination of any appeal.  This is known as the Annot Lyle rule, The Annot Lyle (1886) 11 PD 114.

7. There have also been many cases which indicate there need to be special circumstances or particular circumstances justifying that a stay will be necessary.  The main principle is that if the stay is not granted the appeal would be rendered nugatory.

8. To that extent, in this case, the orders that have been made are specific orders in relation to the sale of various property and the division of the proceeds.  On the face of it, if there were a successful appeal, without a stay the result may possibly be rendered difficult if not nugatory. 

9. However, there are other matters to be considered.  One of those is the prospect of success in the appeal.

10. It is difficult for a judge who has made the decision at first instance to assess, objectively, the merits of the appeal from her decision.  However, it is necessary to do that task.  I rely upon the decision of his Honour Justice Chisholm (as he then was) in the matter of D v D, an unreported case [1999] FamCA 2121, where his Honour dealt with the difficult task of a trial judge forming a rough view of the merits of the appeal and whether it is likely to succeed or not.

11. The husband concedes that he has not filed the draft index to the appeal books in accordance with the timing suggested in the memorandum from the Appeal Registrar, but says that he has a reason for his failure to do so. 

12. However, I turn to consideration of the Notice of Appeal itself, to determine whether the appeal is unlikely to succeed or not.  The grounds for the appeal are set out in part E and are:

    “The appeal seeks fair treatment of all creditors to the family business and a more equitable outcome for the husband and third parties.”

13. That is the total of the grounds of appeal in the Notice of Appeal and the only material upon which the Court has a basis to assess the likelihood of the success of the appeal.

14. Under the heading of Part C, Leave to Appeal (which is not in fact necessary in this matter) the husband has also placed some items, all of which refer to conclusions rather than setting out grounds;  assertions such as "The liquidator has acted in an improper manner, made possible by the unquestioning support of the Court," and "That a third party, [J Karbines], has been seriously and negatively impacted by the Court's actions."

15. Viewing the whole of the document (not just the grounds of appeal but all of the Notice of Appeal) it is clear on the face of the document that the merits of the matter are such that there is very little likelihood that the appeal, as set out in the Notice of Appeal, is likely to be successful.  That is a significant factor. 

16. Another factor, however, is the question of the inconvenience and/or hardship to be suffered by the parties and in particular the successful litigant, the wife, who has obtained orders from this Court.

17. The proceedings in this matter have been outstanding for years.  The trial occupied a lengthy period and involved the parties in substantial cost, financial and emotional.  The significant hardship which would be suffered by the wife if a stay were granted must be taken into account.

18. In particular I take into account the lack of merit in the grounds set out in the Notice of Appeal.  I therefore refuse to grant the stay of my orders of December last year.

19. In relation to the intervenor, represented by Mr McGrath, who has attended the application for a stay brought by the husband, it appears on the face of it that the provisions of section 117 would indicate that such an order for costs would be appropriate to be made against the husband, in that the most significant factor is that he has been wholly unsuccessful in his application, for the reasons I have already given.

20. I take into account the financial circumstances of the parties.  This is not a matter in which the individual financial circumstances of the husband and the liquidator need to be compared for the purposes of the order for costs.  Rather the overwhelming factor is that it is just, in the circumstances, for the liquidator to have costs of the unnecessary attendance today, due to the fact that the application was wholly unsuccessful.

21. In relation to the wife's application for costs, there was no opposition to my directing that the husband and wife file and serve, within 28 days from today, any written submissions upon which they wish to rely on the question of the wife's application for costs, being the Application in a Case filed by the wife on 16 January 2009, and that further consideration of the application for costs be adjourned to 26 March at 9.15 am.

22. In view of the history of the matter and the lack of cooperation of the husband in previous attempts in relation to various properties it is appropriate that the order be varied to permit the sale of the property concerned for the amount which has previously been referred to as the reserve price.  The order of 29 May 2008 is varied to permit the sale of the property at M Street to be sold to the purchaser for the sum of $500,001.

23. In relation to the question of the application for costs by Mr and Mrs Willa, I propose to also adjourn that issue to 26 March at 9.15 am, with all parties to file any written submissions in relation to costs, and in particular the details concerning costs sought, within 28 days from today.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  17 February 2009