Poyzer and Tritton (No. 4)

[2010] FamCA 925

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON (NO. 4) [2010] FamCA 925

FAMILY LAW – ORDERS – application for a stay of orders pending appeal to the Full Court – whether a stay of orders would deny the wife the benefit of the previous orders – where there is a risk of the appeal being rendered nugatory if a stay is denied – where granting a stay should be on terms which are fair to all parties – stay granted upon the condition that the husband pay $300,000 to the wife – orders that husband be restrained from leaving the Commonwealth of Australia

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Kelly & Kelly(No. 2) (1981) FLC 91-108
The Commissioner of Taxation of the Commonwealth of Australia & The Myer Emporium Limited[No.1] (1986) 160 CLR 220

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 30 September 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The husband pay the sum of THREE HUNDRED THOUSAND DOLLARS [$300,000.00] to the wife within ten [10] days and that such sum be paid in the first instance to the reduction of the Commonwealth Bank mortgage over the property at N in the State of South Australia (“the property”).

2. The wife is restrained and an injunction is granted restraining the wife from further encumbering the property for any amount in excess of ONE HUNDRED THOUSAND DOLLARS [$100,000.00].

3. On condition that the husband complies with paragraph 1 hereof and upon condition that paragraphs 2 and 4 of the order of 3 August 2010 are not stayed the enforcement of paragraph 3 of the order of 3 August 2010 is stayed pending the determination of the appeal by the husband from the orders of 3 August 2010.

4. Until further order is made by this Court or the Full Court the husband is restrained from leaving the Commonwealth of Australia and within fourteen [14] days the husband do deliver up to the Registry Manager of the Family Court of Australia, Adelaide Registry his British and Australian passports.

5. It is directed that the parties file and serve updated Statement of Financial Circumstances within fourteen [14] days from today.

6. If the husband is seeking any order in relation to his costs that he file and serve such application and supporting affidavit within fourteen [14] days from today.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

MR POYZER

Applicant

And

MS TRITTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application in which the husband seeks a stay of the orders and the enforcement of the orders for final property settlement made by me on 3 August 2010.  The husband seeks the stay on the basis of his filed Notice of Appeal against the orders made.  The stay is opposed by the wife.  This morning, the husband is represented by Ms Pyke, senior counsel.  The wife appears unrepresented. 

2. The Notice of Appeal was lodged by the husband on 31 August 2010, being some weeks after the final orders were made on 3 August 2010.  There is some dispute about the appropriate service and timing of the service of the Notice of Appeal upon the wife.  I have before me, in the affidavit filed by the husband in support of his application for a stay, a copy of the Notice of Appeal.

3. The authorities (including the Rules of the Court) indicate quite clearly that the filing of a Notice of Appeal does not stay the operation or enforcement of the orders.  A specific application must be made.  It is clear from the authorities (to which Ms Pyke and the wife have both referred me) that ordinarily a successful party is entitled to the judgment.  That is, however, subject to the cases which indicate that circumstances may exist which justify a stay until the appeal is heard and determined.  That, however, is a discretion that the Court has to exercise, bearing in mind the principles which have been set out in the various cases.

4. I take into account those authorities and in particular, Kelly & Kelly (No. 2) (1981) FLC 91-108, The Commissioner of Taxation of the Commonwealth of Australia & The Myer Emporium Limited [No.1] (1986) 160 CLR 220, together with the other authorities referred to therein. In particular, I have in the past referred to a recent Full Court decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 an appeal from the Federal Magistrates Court where a stay was refused. In that judgment, the Full Court set out appropriate principles and in paragraph 18 referred to the authorities which they said:

   “...stress the discretionary nature of the application which should be determined on its merits.”

   In that case, they referred to the principles relevant to that matter which I will use as a guide in this case (albeit that the extra criteria in that case dealt with matters which were then children’s issues).

5. The Court, however, said that the onus is on the applicant to establish a proper basis for the stay, that a person who has obtained a judgment is entitled to the benefit of that judgment and that that person is entitled to presume that the judgment is correct. 

6. I am required to take into account the bona fides of the applicant.  The wife in this case disputes the bona fides of the husband based upon what she says is the evidence and findings in relation to the trial.  However, the bona fides in this case must refer to the bona fides in relation to the application for the stay and in relation to the appeal.  Taking into account the complexity and length of the trial in this matter, I am not able to conclude that the appellant is not bona fides in bringing the application for the stay and the appeal.

7. However, it is also necessary for a stay to be granted on terms that are fair to all of the parties and, as the Full Court indicated, this requires the Court to weigh up the balance of convenience and the competing rights of the parties and, in particular, whether any appeal might be rendered nugatory if a stay were not granted. 

8. This is a question of the payment of monies.  The question therefore of whether an appeal would be rendered nugatory really relates to whether the husband would be required to sell assets if a stay were not granted.  It is not clear from the information available to the Court, either at the trial or based on the information filed in support of the stay, that the husband has made any effort to borrow the monies secured over the assets which he retains in order to meet the payment to the wife.  He maintains simply that he does not want to sell the business which he has been operating through the trust for many years, nor the P property in which he has recently been residing.

9. The authorities also indicate that it is necessary for there to be some preliminary assessment of the strength of the proposed appeal and whether the husband has an arguable case.  In this case, it is also necessary for the Court to take into account when the appeal is likely to be heard and whether satisfactory arrangements can be made during that period of time. 

10. I deal with each of those matters specifically in relation to this case.  Emphasis needs to be placed upon the wife having a judgment, that she should be presumed to be entitled to the benefit of that judgment and that the judgment is correct.  It is significant in this matter that proceedings in relation to financial property settlement have been outstanding before this Court since November 2001 and the trial of this matter commenced in November 2007.  Due to the estimate of the length of the trial being incorrect the trial was adjourned again and again, with judgment not being delivered until August of this year.  That is a significant factor when bearing in mind the hardship to be faced by the person who has the benefit of the final judgment in this case.

11. I take into account the clear authorities that the mere filing of the appeal does not bring about a requirement of a stay. 

12. I have dealt with the issue of bona fides to the extent that, albeit the wife raises issues about the husband’s bona fides, the complexity of the matter leans towards the findings that he may be bona fides in bringing his application for a stay and in the appeal. 

13. The Court is required to grant the stay on terms that are fair to all parties and to balance the convenience and the competing rights of the parties.  To that end it is possible to take into account that the husband is not seeking a stay of the orders which requires the balance of the proceeds of sale of the Lot 22 property and the Lots 51 and 52 properties to be paid to the wife after the discharge of the Commonwealth Bank security.  It is anticipated by the husband in his affidavit that settlement of the sale of those properties is to take place in October and November of this year and that the sum of something in excess of $200,000 should be payable to the wife upon those sales.

14. The wife, however, is concerned about the correctness of this assertion by the husband. 

15. The factor which the husband relies upon is that there is a risk that if the appeal is successful it would be rendered nugatory if a stay is not granted. 

16. The wife points out that she intends to continue to hold onto the real estate at N.  However, balanced against that is the significant claim by her former solicitors for payment of costs in excess of $450,000 which may not be recoverable if the monies received by the wife were paid to the solicitor in payment of those fees. 

17. The Court is required also to make some preliminary assessment of the proposed appeal and whether the husband has an arguable case.  The Notice of Appeal filed by the husband and annexed to the affidavit which is before the Court is a long document setting out numerous grounds of appeal.  A significant number of those are that it is asserted that I erred in making findings of fact and that I erred in determining certain factors in relation to the evidence which was before me.  The grounds of appeal which are in excess of eight or nine pages deal specifically with findings of fact and conclusions drawn from the evidence and in a limited sense relate to the application of the law to the findings of fact.  But bearing in mind the complexity of the matter which was before the Court and the amount of evidence which was before the Court, the husband establishes, at least, that he has an arguable case rather than that he has a strong case or a case that is likely to be successful.

18. The period of time in which the appeal can be heard is not known.  Counsel for the husband suggested that she anticipated it could be heard in February next year.  I am not as confident that the Appeal Court will hear the matter within that time, nor am I confident that there will be a judgment of the appeal received in the early part of 2011.  The significant delay, again, must be taken into account bearing in mind the age of these proceedings. 

19. Taking all of those matters into account, I need to place emphasis upon the hardship to be caused to the wife if the stay is granted on a simple basis or even on the basis that she receive the benefit of paragraph 4 of my orders.  However, on the basis that the husband has other funds in the United Kingdom (which I am informed today total £UK138,000 and $A75,000).  I propose to make it conditional upon any stay of the enforcement of the orders of 3 August 2010 that he pay the sum of $A300,000 to the wife within 10 days, such sum to be paid to the wife’s mortgage to reduce the wife’s mortgage over the N property in the first instance.

20. I make it clear that the orders which I propose to make are orders staying the enforcement of my orders of 3 August 2010 rather than staying the orders themselves.  I am not satisfied that the material before the Court justifies a stay of the orders per se which would have the effect of preventing the accumulation of interest.  Weighing up the hardship that is to be suffered to the wife in particular in this matter, I am satisfied that the balancing of the hardship is such that it is only appropriate to stay the enforcement of the orders of the Court, save and except the enforcement of paragraphs 2 and 4.

21. I am proposing to only allow the stay of the enforcement on the condition that the husband pay the sum of $A300,000 to the wife within 10 days and that such sum be paid by the wife, in the first instance, in reduction of the Commonwealth Bank mortgage over the property at N, on the basis that I will also restrain the wife from further encumbering the N property for any amount in excess of $100,000.  I want to give the wife some opportunity to have access to funds pending the appeal.

22. I have before me also an application by the wife to restrain the husband from leaving the Commonwealth of Australia pending compliance with the orders.  The specific application by the wife is contained in the response to the Application in a Case filed by the wife on 21 September 2010 in which she sought that the husband be restrained from leaving the Commonwealth of Australia until further order, and that he deliver up to the Registrar of the Court his UK and Australian passports. 

23. In relation to that application, the wife refers in her affidavit to the funds which the husband sent to England and kept in his brother’s name.  She referred to the concern that she had that he has family connections and a right to reside in the United Kingdom, and her concern that he would leave the jurisdiction before ensuring payment. 

24. Counsel for the husband maintains that it has not been established that there is any likelihood of the husband leaving the country and that he has assets and family here.  His affidavit filed today in response denies the matters contained therein and says that he is carrying on a business and is actively carrying on the business of the management of the M centre and did not propose to negotiate the sale of assets without disclosing them to the respondent.  He says he will not leave his children. 

25. The circumstances in relation to the matter before the Court are, however, significantly different from those which applied pending the delivery of judgment.  The situation now is that there is a judgment of some substance outstanding, requiring the husband to pay a significant sum to the wife, and that there is now an appeal outstanding with which the wife was served on the day that was nominated for settlement of payment of the sums.  In view of the capacity of the husband to reside in the United Kingdom and to therefore delay the prompt enforcement of any orders once the appeal is determined, I am satisfied that it is also just in these circumstances and of no inconvenience to the husband, on the face of it, to make the order restricting the husband from leaving Australia pending further order of the Court - being a further order of the Court which will be made upon the completion of the appeal and upon the due enforcement of any orders then valid after the appeal.

26. In relation to the question of costs, the application in relation to costs filed by the wife is currently fixed for a date in late October, and I have been informed that the husband will be opposing that application for costs.  The husband sent a letter to the Court saying that he wished to be heard on an application for costs but there is no other material filed by the husband in relation to those costs.  The circumstances which will need to be determined in relation to both applications for costs involve the amount which is owing and outstanding by the parties, which is dealt with in the wife’s affidavit, but I do not have any up-to-date information concerning the husband’s liability for costs, and therefore I direct that, in any event, both parties file and serve an up-to-date statement of financial circumstances within 14 days from today.  If the husband is seeking any order in relation to his costs, that he file and serve an affidavit in support of such application within 14 days from today.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 September 2010.

Associate: 

Date:  14 October 2010