Krupin & Krupin (No 3)

[2022] FedCFamC2F 1057

Federal Circuit and Family Court of Australia

(DIVISION 2)

Krupin & Krupin (No 3) [2022] FedCFamC2F 1057  

File number(s):	BRC 5459 of 2014
Judgment of:	JUDGE YOUNG
Date of judgment:	3 May 2022
Catchwords:	FAMILY LAW – property – stay application
Division:	Division 2 Family Law
Number of paragraphs:	6
Date of hearing:	3 May 2022
Place:	Darwin
The Applicant:	Appearing on his own behalf
Solicitor for the First Respondent:	Mr Jones of Robert Bax & Associates
Solicitor for the Second Respondent:	Ms Collins of Genuine Legal
Solicitor for the Third Respondent:	Mr Sara of Guy Sara & Associates Lawyers

ORDERS

BRC 5459 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR KRUPIN

Applicant

AND:

MS KRUPIN

First Respondent

MS ANGELOFF

Second Respondent

MS PETROV (and another named in the Schedule)

Third Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	3 MAY 2022

THE COURT ORDERS THAT:

1.Orders 5, 6, 7, 8, 9, 10 and 11 of the Orders of 4 March 2022 be stayed pending the appeal of the Applicant filed being determined, dismissed, discontinued or abandoned.

2.The caveat over the property at C Street, Suburb D, Queensland lodged by the Applicant be removed within 7 days of the date of this Order. If the caveat is not withdrawn by the Applicant a Registrar of the Court will be authorised to sign any such document required to remove the caveat.

3.The Second Respondent is permitted to borrow money against the security of the property at C Street, Suburb D, Queensland and obtain a mortgage for that purpose.

4.Pending the outcome of the Applicant’s appeal, the Second Respondent is not to sell the property at C Street, Suburb D, Queensland.

5.Mr Sara has leave to withdraw as solicitor for the Third Respondent.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Krupin & Krupin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG

1. This is an application for a stay of orders made on 4 March 2022 in relation to three properties.  The two properties that I propose to make a stay order in relation to are E Street, Suburb F and G Street, Suburb H.  E Street, Suburb F is owned by the Applicant and the First Respondent, and is subject to a mortgage.  The Applicant lives in that property with his second wife, the Third Respondent.  The orders of 4 March 2022 essentially provided for the Applicant to pay the First Respondent a sum of money, failing which the E Street, Suburb F property was to be sold.  The Applicant has filed an application for a stay.  His affidavit does not address any balance of convenience issues but simply argues about various factual conclusions.

2. His notice of appeal is generally an unimpressive document that, as might be expected from a lay drafter, is pitched at a level of generality which I consider is unacceptable.  I would imagine at some point there will be an application in respect of a notice of appeal, but I do not have to deal with that.  Generally, the Applicant takes issue with a great many of the findings, including factual findings and the discretionary orders.  He also complains that he was represented by ineffective Counsel and has not had a fair hearing.

3. Looking at the notice of appeal and the affidavit in support, I consider that those arguments are unimpressive but I cannot say that they have no prospect of success at all.  The arguments advanced by Counsel for the First Respondent is that where the First Respondent is still a mortgagor of this property, she is unable to borrow funds or move on with her life. I consider that if there is a stay it merely continues the status quo, and to refuse to stay the orders will probably result in the sale of the Applicant’s home where he resides with the Third Respondent.  I take that into account.

4. I am told by the Second Respondent’s lawyer that the Second Respondent is residing in another property that was the subject of the trial, that is C Street, Suburb D.  At some point the First Respondent lived with her mother, the Second Respondent, in that C Street, Suburb D property.  Whether that is the case now is unclear.  There is no affidavit material that would let me make any fine-grained assessment about the balance of convenience in this case because nothing is relied on.  The Applicant says nothing about balance of convenience in his affidavit, as I have already noted. Taking a broad brush, I am satisfied that the balance of convenience arguments favours the Applicant. I propose to make an order staying the orders in respect of E Street, Suburb F. 

5. G Street, Suburb H is in a slightly different position as it is owned by a company which is the trustee of the family trust.  The First Respondent is a mortgagor in respect of the G Street, Suburb H property. I understand that it is inconvenient at the very least that the First Respondent is unable to obtain a discharge of the various mortgages under which she remains liable, that is over the E Street, Suburb F Street mortgage and the G Street, Suburb H mortgage.  However, I am not satisfied at this stage that the balance of convenience favours her in respect of those properties.  There will be a stay in respect of both properties, subject to the applicant prosecuting his appeal with due diligence. 

6. In relation to the C Street, Suburb D property, the Second Respondent is the owner of the property. She has said that she wishes to mortgage the property to carry out some repairs.  She says that she has no intention of selling the property.  I do not propose to make a stay order in relation to that property, but there will be orders that she not sell the property.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       10 August 2022

SCHEDULE OF PARTIES

BRC 5459 of 2014
Respondents
Fourth Respondent:	B PTY LTD