Padaplous and Padaplous and Anor

[2009] FamCA 830

FAMILY COURT OF AUSTRALIA

PADAPLOUS & PADAPLOUS AND ANOR [2009] FamCA 830

FAMILY LAW – PROPERTY – Interim

APPLICANT: Mr Padaplous

RESPONDENT: Ms Padaplous

2^nd RESPONDENT: P Padaplous

FILE NUMBER: SYC 2077 of 2008

DATE DELIVERED: 31 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 31 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cairns

SOLICITOR FOR THE APPLICANT: Fairfax Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Greenway

SOLICITOR FOR THE RESPONDENT: Andresakis & Associates

COUNSEL FOR THE 2^ND RESPONDENT Mr Campton

SOLICITOR FOR THE 2^ND RESPONDENT: Matthews Folbigg

Orders

1. Order 3 and 4 made 19 May 2009 be discharged.

2. The 2^nd respondent be removed as a party to the proceedings.

3. The wife pay the 2^nd respondent’s costs as agreed or assessed on a solicitor/client basis from 28 August 2009 until 31 August 2009.

4. The husband’s costs of the appearance on 31 August 2009 be reserved. 

5. Within 6 weeks the husband file and serve all evidence upon which he relies (including evidence from third party witnesses) to establish that $120,000 was received from his father in approximately 1997. 

6. Within 6 weeks the parties file and serve any evidence upon which they rely relating to any matter relevant to s 79(4)(d) - (g) Family Law Act.

7. Within 6 weeks the husband file any affidavit evidence upon which he seeks to rely to assert that the wife has jewellery with an approximate value of $100,000. 

8. Within 6 weeks the wife file and serve any evidence upon which she seeks to rely to support her application for the return of chattels. 

9. This matter be otherwise adjourned to 12.30pm on 30 October 2009. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:       SYC 2077 of 2008

MR PADAPLOUS

Applicant

And

MS PADAPLOUS

Respondent

And

P PADAPLOUS

2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The second respondent in this matter has made an application, filed on 27 August 2009, that orders (3) and (4) made by this court on 19 May be discharged and that he be removed as a party to this case.  The basis upon which the initial injunction was granted was that there were properties in Australia, which were in the second respondent’s name, in respect of which the wife asserted the husband had a beneficial interest.

2. There is strong evidence in the material that the second respondent has filed that the source of funds for the acquisition of the properties at A Street and Y Street were as set out by the second respondent, primarily from the proceeds of the sale of an apartment block in Greece, which was originally owned in the joint names of the second respondent and his deceased wife.  Upon her death, without her leaving a will, her interest in that property was transferred in accordance with Greek intestacy laws as to two‑sixteenths of the overall property to the second respondent, three-sixteenths to each of her two sons (one of whom is the husband).

3. There is evidence that there was a gift-back by the husband to his father in relation to the three-sixths interest that he had received by way of intestacy.  I have got no evidence before me that would indicate that that was something that did not happen, although that will be a matter which may be contested at the final hearing.  

4. It is intrinsically likely that did happen.

5. I have before me evidence that the assets remaining in Australia between the husband and wife are the moneys that they have both already received from the sale of M property, which was $50,000 each;  a further amount of $172,000 that is left over from the sale of M property; B, which is worth somewhere between $400,000 and $430,000.  The wife seeks to limit the current injunction; seeks to maintain it at an amount of $112,000.  That is what the wife has calculated the three-sixteenths interest (the amount received from his mother’s intestate estate) to be worth.

6. It is difficult to see how the wife will be prejudiced in the final property hearing if I discharge the current injunctions.  Even if the trial judge finds that the amount of $112,000 is to be added in as an asset of the husband, it is difficult to see how the wife would be prejudiced even if that finding was in fact eventually made by the trial judge.

7. I cannot, in all the circumstances, see any reason why the second respondent should be a party to these proceedings.  Counsel for the 2^nd respondent has indicated that his client will not be making any claim against his son for the alleged amount of $120,000, which it is said the second respondent provided for the acquisition of the first B property.  His continuation as a witness in the husband’s case may be a different issue, but so far as I am concerned, he doesn’t need to continue to be a party to these proceedings.

8. In this matter application is made by the second respondent that the wife pay his costs in relation to the injunctive orders that were made against him on 18 May 2009 and continued on 19 May 2009.  He points to an undertaking as to damages as provided by the wife on 18 May 2009.  At the end of the day the wife has been wholly unsuccessful on the application that she has made against the second respondent.

9. The conduct of the matter by the wife, however, is not without any foundation.  I have had produced to me, and tendered to me, documents that would create suspicion in the wife’s mind in terms of the source of funds for the acquisition of the two properties at Y Street and A Street.  Those documents were marked exhibit A and exhibit B by me.  The wife should, however, had that suspicion satisfied, having read the detailed documentation eventually produced by the second respondent, which was provided to them last Thursday.

10. I do not think this is the type of case that warrants an indemnity costs order, but it is appropriate, given that the second respondent is a third party to the proceedings between the husband and wife, to make a costs order for costs incurred by the second respondent, on a solicitor/ client basis, to the agreed or assessed from 28 August 2009 until 31 August 2009.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  3.9.2009