Nachtigal and Nachtigal (No.2) - [2011] FMCAfam 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACHTIGAL & NACHTIGAL (No.2)

[2011] FMCAfam 223

FAMILY LAW – Application for stay of orders.

Family Law Act 1975 (Cth), ss.117(2), 117(2A)
Property Law Act 1974 (Qld), s.266(1)(c)

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) [1986] HCA 84; (1986) 161 CLR 681

Applicant:

MR NACHTIGAL

Respondent:

MS NACHTIGAL

File Number:

BRC 9074 of 2009

Judgment of:

Burnett FM

Hearing date:

4 February 2011

Date of Last Submission:

4 February 2011

Delivered at:

Brisbane

Delivered on:

4 February 2011

REPRESENTATION

The applicant appeared on his own behalf

Counsel for the Respondent:

Ms C Umashev

Solicitors for the Respondent:

Bushnell & Power Lawyers

ORDERS

That the application be dismissed.
That the applicant pay the respondent’s costs of and incidental to the application to be assessed on a standard basis.

IT IS NOTED that publication of this judgment under the pseudonym Nachtigal & Nachtigal (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 9074 of 2009

MR NACHTIGAL

Applicant

And

MS NACHTIGAL

Respondent

REASONS FOR JUDGMENT

The applicant makes application for stay of orders made by me which were made final with effect from 25 November 2010. By way of background, the matter came on for trial on 21 and 22 October 2010 and judgment was delivered on 29 October 2010 at which time I made various findings and orders. The orders and findings while in part substantive were also in part interim. The substantive parts of the orders related to findings in respect of the value of the estate and the manner of its distribution but were interim in terms of one issue which related to the sale of certain property. At the time of the trial no evidence was led in respect of capital gains tax liability (CGT). It had yet to crystallise.
Accordingly, when orders were made on 29 October, in an order to recognise what I regarded as an appropriate concession for a self-represented applicant, I proposed a series of orders which would have enabled the applicant to sell property of which he was the registered proprietor, the intention being that he would sell the property in the ordinary course rather than have the property subject to sale under fire sale conditions and then crystallise any CGT liability and allow for it in final orders. With that in mind in particular orders 4, 5 and 6 were made on 29 October. It was obvious following the making of those orders that the applicant rejected the substance of not just those orders but the substantive orders made in the proceedings, and he filed a notice of appeal on 25 November 2010.
With that in mind, when the matter came back before me on 31 January 2011, I made orders with effect from 25 November 2010 recognising that the conduct of the applicant was repudiatory of the orders that have been made and in particular orders 4, 5 and 6. The applicant now seeks a stay of all orders which now have the effect of simply providing final relief for each of the parties by way of payment by the applicant to the respondent of a sum of $159,352.00, that of course is now judgment for a monetary sum which would be enforceable in the ordinary way as with any monetary judgment. The principles governing applications for stays are of orders pending appeal and are well settled.
The Court has an unfettered discretion to grant a stay pending an appeal, however it is well settled that the normal rule is that a litigant is entitled to the fruits of litigation and special circumstances are needed to justify departure from that rule. It has been accepted that the jurisdiction to grant a stay is extraordinary and exercisable only in exceptional circumstances, see the observations of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) [1986] HCA 84; (1986) 161 CLR 681 at 684. I am not aware of any authority to depart from the well-established principles enunciated by the High Court on that occasion.
The applicant merely advances in support of his case a complaint that he is unhappy with the judgment made by me following the trial. There are a number of complaints made in his material, perhaps the most notable of which is directed to his capacity to pay. There are also issues in relation to the prospect of recalculation of the final award which are referenced to an allowance that ought to be made for CGT liability, a point that I note he concedes in his affidavit he did not run at trial. For the respondent, the respondent says the matters that ought to be considered are as follows.
First is the prospect of restoring the parties and whether they can be restored to their former situation. That has to be assessed in my view from the underlying expectation that irrespective of whether the appeal is successful or otherwise. Even on the applicant’s best case, there was an entitlement in the hands of the respondent of something not less than 20 per cent of the entire estate. Accepting the estate has a value of approximately $300,000.00 that would mean that the respondent is entitled to something approaching $60,000.00. In this particular estate, the lion’s share of the assets were tied up in two pieces of real property.
There were a number of smaller assets, motor vehicles, furnitures and the fittings and some small superannuation entitlements. However those matters aside, the assets in any event would not be sufficient to meet the judgment award of the respondent to the application even if the applicant was entirely successful in persuading the Court of Appeal to reverse my decision and put in place orders sought by him. From that it follows that by necessity there must be the sale of some real estate. It was a matter which was apparent to me at the trial, and nothing between the trial and today dissuades me from the view that it remains the case today that the only way in which these matters can be resolved is by the sale of a piece of real estate.
When one accepts that underlying premise, it follows that the issue of restoring the parties to the former position is one that can be readily addressed by the payment of money. As the respondent submits, there is nothing to show why, in the event that the applicant is successful on his appeal, the respondent would not be able to repay the moneys which she receives consequent upon such a judgment. In that regard, I am particularly mindful of her evidence that she wishes to use the funds she receives on the realisation of assets to acquire further real property.
Next is the question of hardship. In an affidavit filed by the respondent, she swore that following separation, she lived with her parents until she was able to obtain rental property, but this has been entirely disruptive to her and her children with them having to move from one home to another. It seems as soon as she is in a position where she can finalise her domestic arrangements, the disruption and consequent hardship, that will follow will dissipate.
Next is the matter of the merits of the appeal. The substance of the matters to be agitated by the applicant in his application are evidenced in his affidavit dealing with the points in contention.
What is interesting to note is that at the time of the trial the substance of pool and the values attributable in each of the items of the pool save for a handful of small items was principally agreed between the parties. The trial proceeded to examine two substantive issues: first what could be broadly described as the length of the relationship and second concerned the construction of an agreement that was entered into following an earlier separation between the parties and the appropriate constructional section 266(1)(c) of the Property Law Act 1974 (Qld). Neither of those matters feature in the grounds of appeal. In effect, the applicant seems to be pursuing on appeal matters that were not advanced by him at first instance and it follows that on conventional principles his prospects on appeal would be poor.
I have earlier addressed the real complaint, that is the CGT effect of the orders that were made. The reason that the orders were crafted in the way in which they were was to enable the applicant opportunity to sell in an orderly way property, which was going to be subject to a CGT liability, so that the CGT liability could crystallise and, as I noted to the parties at the time, then be factored into the final award. It was clear from the applicant’s conduct following the orders on that occasion that he does not wish to partake of that process and so these matters will have to be resolved elsewhere. But as I have noted, evidence was not advanced at trial, and accordingly, the prospects of being permitted to run them on appeal are somewhat poor.
In my view those matters also impact upon the bona fides of the application. In particular I note the complaint made by the respondent that the applicant had stated that he is:
“Going to appeal to the High Court if he is unsuccessful in the Family Court.”
It seems to me from my reading of the material, putting aside my assessment of the applicant at the trial, he is just simply a disgruntled litigant with no real rational basis to oppose or object to the orders that were made. It follows in my view that I think the application ought to be dismissed, and I dismiss the application.
The respondent seeks costs. The starting point for costs in these sorts of proceedings that is each party bear his or her own costs. Subsection 2 of s.117 of the Family Law Act1975 (Cth) provides that however I:
“May make such order as to costs whether by interlocutory order or otherwise, as the Court considers just.”
In addressing that matter, the Court must have regard to the matters identified in the ss.2A of section 117 of the Family Law Act.
Dealing with those matters which are relevant to this application, first is financial circumstances of the parties. It is apparent that each party can afford to pay costs and that would not be a disabling event. No party is in receipt of legal assistance. I do note that to the end the respondent is represented by solicitors and counsel, the applicant is self-represented. The respondent has been put to costs in addressing this application which I consider had little, if any, prospects. So far as the parties to proceedings are concerned, there is nothing particular concerning this application that warrants specific mention.
Likewise, it is not a question of the application being necessitated by the failure of a party to comply with previous Court orders. This is an application in respect of prospective orders, that is orders on appeal. As to being unsuccessful, it is apparent that the applicant was entirely unsuccessful in his application. I think the application had little, if any, merit and I take that factor into consideration. There had been no offers made between the parties. All up in my view it is appropriate that the applicant pay the respondent’s costs of the application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 14 April 2011