PEARCE & PEARCE

[2015] FamCA 272

FAMILY COURT OF AUSTRALIA

PEARCE & PEARCE [2015] FamCA 272

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – final orders made requiring the husband to pay to the wife a lump sum - husband sought stay of orders pending determination of the appeal – wife opposed stay and sought orders that the funds be applied in reduction of debt and invested pending the outcome of the appeal – orders stayed pending appeal on condition the interest will continue to accrue.

Family Law Act 1975 (Cth)

APPLICANT: Ms Pearce

RESPONDENT: Mr Pearce

FILE NUMBER: DNC 462 of 2009

DATE DELIVERED: 31 March 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 31 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney SC
[with Ms Farmer]

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd QC

[with Ms Morozov]

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

Upon noting:

1. Judgment is reserved in relation to the costs of the trial;

2. Judgment is reserved in relation to the costs of both Applications in a Case in relation to the costs of the trial and the stay application.

3. The husband undertakes not to encumber or dispose of any of his assets (as identified in paragraph 247 of Reasons for Judgment dated 12 December 2014) other than in the ordinary course of business.

IT IS ORDERED THAT

1. Pending the determination of the husband’s appeal from the Orders made on 12 December 2014 by the Honourable Justice Dawe recovery of the monies due pursuant to paragraph 1(a) be stayed UPON CONDITION that interest accruing from 13 March 2015 will continue to accrue.

2. The Application in a Case filed by the husband on 11 March 2015 is dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  DNC 462 of 2009

Ms Pearce

Applicant

And

Mr Pearce

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have heard all the submissions in relation to the question of application for costs by the wife being costs sought in relation to what I describe as the overall proceedings in relation to property settlement specifically, not including children’s issues, and the application by the husband for a stay of the final orders made by way of property settlement pending the appeal. 

2. In relation to the costs application, I can only describe the amount of material and the submissions which have been put to the court by both the husband and wife’s counsel as extraordinary and very detailed including very detailed affidavits upon which the parties seek to rely.  I regret to say that I am reserving the decision in relation to the application for costs. 

3. In relation to the application for stay pending the appeal, I take into account the timing of the application for a stay brought some considerable period after the orders were made on 12 December 2014 providing for a significant sum to be paid by the husband to the wife.  The application for a stay is brought only a short time before the payments were to take place. 

4. The orders of 12 December 2014, which are the subject of the appeal, provided for the husband to pay within 90 days from that date $1,967,000 to the wife.  There are other ancillary orders as well.  This arose out of a long hearing, the wife having brought proceedings in relation to a section 79A setting aside previous consent orders. 

5. The husband has now filed an appeal against those orders.  I am told that the appeal which the husband has filed is possibly likely to be heard by the Full Court in August of this year.  Even if that does take place then, it is not clear however how long it will take for the judgment in relation to the appeal to be delivered. 

6. I have to take into account, as has clearly been stated by both parties, the provisions of the authorities in relation to questions of stay and also take into account that the wife in the response to the application in a case has sought orders providing for payment to be made to her lawyers and to the ANZ Bank to discharge a debt and then to be invested pending the outcome of the appeal. 

7. I am now referring in detail to the response to the application in a case.  Paragraph 2 states:

   2.That pursuant to Order 1(a) of the Orders 12 December 2014, the Husband do all acts and sign all documents necessary to pay the sum of $1,967,000 and interest from 13 March 2015 to the date of payment in the following manner and order of priority:

   (a)Payment to Withnalls Lawyers on account of the Wife’s legal costs of the Appeal in the sum of $111,250;

   (b)Payment in the sum of $92,000 being payment in full to the ANZ Equity Manager BSB … Account …;

   (c)Payment in the sum of $560,000 into an ANZ offset account to be established in the name of the Wife offset against the Wife’s ANZ Home Loan account BSB … Account …;  and

   (d)The balance to be deposited into an interest bearing ANZ bank account in the joint names of the solicitors for the parties pending the outcome of the Notice of Appeal No 1/2015.

8. The wife opposes the stay but, in the alternative, proposes the orders in paragraph 2. 

9. What the court needs to take into account is whether there is sufficient basis upon which to grant the stay and then, secondly, consider whether the circumstances are such as to make the orders which the wife seeks as an alternative to the stay. 

10. The first matter which the court has to consider is the possibility of the appeal being successful.

11. I accept that this was not a significant factor being argued in this matter.  There are detailed grounds set out in the Notice of Appeal.  Those matters will be considered by the Appeal Court.  I cannot at this stage dismiss the stay on the basis that there is no likelihood of success of the appeal.  I do, however, have to also consider that the wife in this case is, on a prima facie basis, allowed to expect to have the benefit of the judgment but, at the same time, need to weigh the risk of the appeal being rendered nugatory if the stay is not granted and whether the orders now sought by the wife would overcome that difficulty. 

12. I take into account also the significant differences in the financial circumstances of the parties, which is not a matter which is disputed.  The significant assets are under the control of the husband and the much smaller assets in the control of the wife and the significant debts due by the wife. 

13. What the wife is asking, however, is that the husband borrow the money or find the funds referred to and pay significant sums to the wife which would then be used for discharge of debts on the basis that if the husband is successful in this appeal, she would be required to sell the real estate that she has and repay the monies to the husband. 

14. I consider that it is not the sort of order which should be made.  A significant factor is whether the appeal might be rendered nugatory if the stay is not granted.  This is not a case in which the orders provide for the payment of debts by the husband.  It is a case in which the husband is expected to find and, if necessary, borrow the funds, some $1.9 million, to pay to the wife.  By ordering him to make the payment and then expecting him to recover the payment from the wife should he be successful, in my opinion, renders the appeal to a certain extent nugatory in these particular circumstances. 

15. I have taken into account that the husband has in his affidavit provided an undertaking that he would not deal with the assets described as his assets in my judgment save and except in the ordinary course of business, and that the husband accepts that the interest which has commenced and payable from 13 March this year will continue to accrue pending the resolution of the appeal and the subsequent payment, if necessary, of the amounts due pursuant to the order.  I therefore consider it as not appropriate to make the orders sought by the wife in the response but that it is appropriate to make an order staying the enforcement of the orders made by me on 12 December 2014. 

16. The order itself will therefore be that pending the determination of the husband’s appeal from the orders of 12 December 2014, recovery of the monies due pursuant to 1(a) be stayed on condition that the interest accruing from 13 March 2015 will continue to accrue. 

17. In relation to the question of the costs of this application, being the application in relation to costs and the application in relation to the stay, as they are clearly interconnected with the overall costs orders, I will reserve my decision in relation to those as well.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 31 March 2015.

Associate: 

Date:  17 April 2015