Milevsky v Carson

[2005] NSWCA 265

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Milevsky v Carson [2005]  NSWCA 265

FILE NUMBER(S):
40459 of 2005

HEARING DATE(S):            8 August 2005

JUDGMENT DATE: 08/08/2005

PARTIES:
Victor Milevsky (Claimant)
Pamela Brenda Carson (Opponent)

JUDGMENT OF:      Handley JA     

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):        SC 2457 of 2002

LOWER COURT JUDICIAL OFFICER:     Nicholas J

COUNSEL:
J Knox (Claimant)
P J Livingstone (Opponent)

SOLICITORS:
Brenton Banfield (Claimant)
Marsdens Law Group (Opponent)

CATCHWORDS:
STAY OF EXECUTION ON CONDITIONS

LEGISLATION CITED:
Property (Relationships) Act 1984

DECISION:
(1) The enforcement of order 3 made by Nicholas J on 13 May 2005, insofar as not already complied with, be stayed until the determination of the appeal or the further order of the Court.
(2) Notice of motion otherwise dismissed.
(3) Costs of the motion to be costs in the appeal.
(4) Order 1 is made upon the claimant's solicitor, Brenton Craig Banfield, undertaking to the Court that he will continue to hold in safe custody certificate of title, folio identifier 2/2857479, relating to the Macquarie Links property, and discharge of mortgage 5077613.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40459 of 2005

HANDLEY JA

8 AUGUST 2005

VICTOR MILEVSKY v PAMELA BRENDA CARSON

Judgment

1. HANDLEY JA:  The claimant has appealed from a decision of Nicholas J in a de facto relationships case.  His Honour ordered the claimant, who was the plaintiff below, to transfer his undivided half interest in a jointly owned property at Macquarie Links to the defendant.  The claimant challenges this order as being excessive in the circumstances, and in his notice of appeal submits that in lieu he should be ordered to pay the opponent the sum of $400,000, and she should transfer to him her right, title and interest in the property at Macquarie Links.

2. The Judge’s orders included, as part of order 3, an order that the mortgage over the Macquarie Links property be discharged by the plaintiff.  This has been done. 

3. When the matter was last before me I became concerned, on the basis of information from counsel for the claimant, that he may have remortgaged the Macquarie Links property to the St George Bank.  This matter has now been clarified by affidavits filed pursuant to directions I then gave, and it is clear that the certificate of title is held by the solicitor for the claimant for safe custody.

4. The claimant sought a stay of orders 3, 4 and 9 made by Nicholas J.  The claim to a stay for order 4 is not pressed in view of subsequent events.  Claim 9 is an order for the plaintiff to pay the defendant’s costs.  It is not the practice of the Court to stay such orders to prevent the successful party having his or her or its costs assessed.  The question of stay is considered, if at all, when the successful party seeks to enforce an order for costs having a certificate of assessment which takes effect as an enforceable judgment.  I therefore decline to stay order 9.

5. What remains is the claim in the notice of motion of 21 July that so much of order 3 be stayed as directs the plaintiff to transfer to the defendant his right, title and interest in the Macquarie Links property.  The opponent resists a stay of this part of order 3 because she wishes to mortgage the property, that is the whole of the property, to raise funds to pay her substantial debt for legal costs and for other purposes.  It seems that she is not working and her sole source of income is a pension from the Federal Government.  I am not satisfied that she is in a position to service any mortgage that she might raise on the property and there is a risk that she will default.  If that happened both she and the claimant could be prejudiced.

6. Interest is running on the opponent’s costs at a rate of five per cent per annum, but this is substantially less than the rate at which she could borrow on the security of the property assuming, with her income position, she could borrow on mortgage at all.  In any event, the solicitors for the opponent are in a position to take security over her undivided half interest.  As of last Monday it appears that steps had not been taken to sever the joint tenancy, although it is possible that order 3 had that effect.

7. The opponent is in possession of the property and entitled to be in possession as a co-owner. The claimant, her co-owner, is in no position to disturb her possession. In the circumstances it seems to me that it would not be appropriate to allow order 3 to be enforced pending the hearing of the appeal to create a mortgage over the entire property. If the appeal succeeds, the existence of such a mortgage would embarrass the enforcement of orders on the appeal. The practical result could be that the order for $400,000 which the appellant claims would adequately satisfy the opponent’s claim under the Property (Relationships) Act 1984 would be substantially absorbed in paying off the proposed mortgage and any arrears of interest.

8. In my view it is for the benefit of the opponent that the order not be enforced at this stage so that her equity is not affected, and if in the end the appeal fails, the opponent’s legal advisers can enforce their orders for costs against the claimant and the opponent will have an unencumbered title to the property. 

9. Therefore it is in the interests of both parties that enforcement of order 3 be stayed, insofar as not already complied with, until the determination of the appeal or the further order of the Court.  I will make this order upon the appellant’s solicitor undertaking to the Court, as has been foreshadowed, that he will hold the certificate of title to the Macquarie Links property in safe custody pending the determination of the appeal or the further order of the Court.  The application for a stay therefore succeeds but on terms which were not offered by the claimant, and I therefore order that the costs of this motion be costs in the appeal. 

10. The following orders are made:

    (1)I order that enforcement of order 3 made by Nicholas J on 13 May 2005, insofar as not already complied with, be stayed until the determination of the appeal or the further order of the Court. 

    (2)        Notice of motion otherwise dismissed. 

    (3)Costs of the motion to be costs in the appeal.  

    (4)Order 1 is made upon the claimant’s solicitor, Brenton Craig Banfield, undertaking to the Court that he will continue to hold in safe custody certificate of title, folio identifier 2/2857479, relating to the Macquarie Links property, and discharge of mortgage 5077613. 

11. Ms Knox, does your instructing solicitor give that undertaking?

12. KNOX:  Yes, your Honour.

13. HANDLEY JA:  That will be noted. 

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LAST UPDATED:            10/08/2005