Pulukuri and Pulukuri (No 2)

[2013] FamCA 590

FAMILY COURT OF AUSTRALIA

PULUKURI & PULUKURI (NO 2) [2013] FamCA 590

FAMILY LAW – Stay application pending appeal – no evidence – application dismissed.
FAMILY LAW – Application for enforcement of orders – Orders made.

Family Law Act 1975 (Cth)

Aldridge and Keaton (Stay Appeal) [2009] FamCAFC 106
Commission of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No 1) [1986] HCA 13; (1986) 160 CLR 220
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681)

APPLICANT: Ms Pulukuri

RESPONDENT: Mr Pulukuri

FILE NUMBER: MLC 8738 of 2010

DATE DELIVERED: 9 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 August 2013

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That the husband’s application for a stay of the orders made on 4 March 2013 is dismissed.

2. That the husband’s response to the initiating application filed 31 July 2013 is dismissed.

3. That if the husband does not pay to the wife by 4.00pm on 1 September 2013 the sum of $151,000 together with interest pursuant to the Family Law Rules 2004 accruing from the date of judgment until the date of payment, then the property at Property P in European Country K be sold by the wife and from the net proceeds of sale, the following be paid:

   (a)       Any costs of sale;

   (b)       Any government taxes as a result of the sale

   (c)       The payment out of any encumbrance registered on the title;

   (d)The wife’s entitlement of $151,000 under the orders of 4 March 2013 together with interest accruing under the Family Law Rules until the date of payment; and

   (e)       The balance to the husband.

4. That the wife’s application in a case filed 24 May 2013 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the Pulukuri & Pulukuri 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 MELBOURNE

FILE NUMBER: MLC 8738  of 2010

Ms Pulukuri

Applicant

And

Mr Pulukuri

Respondent

REASONS FOR JUDGMENT

1. These reasons concern two applications one by Mr Pulukuri (“the husband”) and the other by Mrs Pulukuri (“the wife”).

2. The wife’s application was filed on 24 May 2013.  It sought orders that there be an “Enforement (sic) Order to the respondent husband…for failing to comply with the orders delivered on 4^th March 2013…”. 

3. By a response filed 31 July 2013, the husband did not respond to the wife’s application but rather set out seven times the following words:

   Pause this order until Notice of Appeal to the Family Court in August 2013.

4. Both of these proceedings arise out of orders that I made on 4 March 2013 after a contested hearing between the parties on 15 and 18 February 2013.  Both parties conducted the final property hearing on those days without legal representation and I observed at the time the dilemma for the Court in trying to determine according to law, a hearing where the issues were obfuscated by the handicaps of the litigants not understanding how the Court operated despite its best endeavours to explain the process and having urged them to obtain legal advice.  In my reasons for judgment in March, I explained the orders that had to be made on the evidence.

5. The husband has not complied with the orders made.  Accordingly, the wife brought what was, in reality, an enforcement order but without particularity so that again, the Court was obliged to try and work out the enforcement process. 

6. The husband was clearly unhappy with the outcome of the 4 March orders and filed a Notice of Appeal on 2 April 2013.  I shall return to that document below.

7. When the wife’s application came on before the Court on 8 July 2013, both parties attended without legal representation but unfortunately, the husband fell ill before the hearing could be conducted and was attended to by ambulance officers and taken from the Court.  The wife conceded that the matter could not proceed and it was adjourned to 22 July 2013.  Absent any documentation by the husband, I ordered that he file and serve a response and affidavit in support of it by 4 o’clock on 18 July 2013.

8. The matter returned to the Court on 22 July 2013 and the husband had not filed any material.  It became apparent in discussions with him that what he wanted to do was to seek a stay of the orders.  There was certainly confusion about what he had been told (he said by court staff) and to the extent that he understood that his Notice of Appeal acted as a stay of the orders, it was explained that that was not correct.  Somewhat reluctantly, the wife agreed to an adjournment so that the husband could properly file and make the application for the stay.  He was urged to obtain legal advice.

9. He was then ordered to file his material including in relation to the stay by 4.00pm on Tuesday 30 July 2013.  Even in respect of that, there is some doubt as to when his response was filed.

10. When the matter came on before the Court on 1 August 2013, both parties attended without legal representation.  The husband confirmed that what he had  put in his documentation was what he wanted to rely upon but he said that there was more documentation to come and he pointed to the fact that he wished to wait for the National Australia Bank to produce documents that he had been trying to get for some weeks.  As best I could determine it, those documents relate to evidence to show that the findings I have made in March were not correct.  They therefore go to the issue of the appeal but not the stay.

11. On a number of occasions during the hearing, I endeavoured to explain to the husband that his application was for a stay of the orders.  He informed the Court that he had received legal advice but that was certainly not apparent from his documentation nor anything that he said.

12. The wife’s position was that she opposed the stay and wanted the orders enforced but as will be apparent from what is set out at the start of these reasons, no specific orders were sought. 

13. The assets of the parties are modestly simple.  Under the orders, the husband retains a property in Country K.  He was ordered to pay to the wife $151,000 which he had taken from a mortgage drawdown facility secured against the home that the wife was to retain.  It was the non-payment of that $151,000 that had triggered the wife’s application for enforcement.  Ultimately, what she sought was an order that the Country K property be sold if the $151,000 was not paid.  There was then a discussion between the parties and the Court as to the timeframe for the payment and sale if the husband’s application for the stay was rejected.

14. In her affidavit in support of her application, the wife pointed to the fact that not only had the $151,000 not been paid but the husband had otherwise not complied with the orders relating to the winding up of a self-managed superannuation fund, the payment to her of some Country G currency and so forth.  In discussion however, the wife said that she understood the husband was saying that all of those matters were in train and her main contention related to the cash sum that was due to go back into the mortgage account because that was ultimately holding her up from obtaining a transfer of the mortgage obligation to her alone.

15. It is important because of the nature of these proceedings that the stay application be dealt with first. 

16. The approach to a stay application has been set out clearly in Aldridge and Keaton (Stay Appeal) [2009] FamCAFC 106. The principles to be applied are not new (see Commission of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No 1) [1986] HCA 13; (1986) 160 CLR 220; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681). All of those authorities as applied by the Full Court, point to the discretionary nature of the determination and as with all discretionary determinations, the discretion is not unlimited but must be applied according to law.

17. Before turning to the principles, it is necessary to look at what the husband said in his affidavit.  It is a large document but only two pages of substantive affidavit.  The bulk of the documents attached to the affidavit contain copies of bank statements with scrawled notes written on them and parts highlighted in colours along with what appears to be the husband’s mathematical calculations of amounts drawn down.  He then includes affidavit material from a previous proceedings and then at the very end, a handwritten affidavit by Ms F who appears to be the husband’s acquaintance.  Ms F simply says:

    I have received $150,000 cash from (the husband) 14^th Feb, 2013 as agreed on 12 Dec, 2012.

18. The husband handed the Court this bundle of papers, some with staples, but ultimately, it was sufficiently large to warrant someone in the Registry keeping it all together by a bulldog clip.  Because the file was in a mess, a pin was ultimately attached through the document for efficiency of filing.  It was at that point that the affidavit of Ms F became apparent but in any event, it makes no difference to the determination I have to make.

19. In the substantive part of the affidavit, the husband said that he had verification of the various transactions that he wanted to prove and then talked about the sale of the former matrimonial home or more importantly, the wife’s refusal to put it on the market in the past and then mentioned various other aspects about requiring an extension of time to gather evidence and whilst that was occurring, for the orders to be “paused”.  All of that material relates to the fact that the husband wishes to either rerun the property dispute or alternatively, show that the determination I made was wrong.  Indeed in respect of the latter, it looks remarkably like what the husband was doing was proving that which he had not prepared to prove in the trial.

20. The principles to which I earlier referred indicate that a number of considerations guide the exercise of the discretion.  I turn to those now.

21. The onus of establishing a proper basis for the stay is upon the person seeking it.  It is not necessary to demonstrate special or exceptional circumstances.  Unfortunately for the husband, there was no material to justify a stay other than the fact he said that he wanted to prove that which he had not previously proved. 

22. Another important principle is that the person who has obtained a judgment is not only entitled to the benefit of that judgment but to presume that until such time as an appeal court determines otherwise, it is correct.  The wife is therefore entitled to enforce her judgment absent a stay of the orders.

23. As I indicated earlier, the filing of the Notice of Appeal does not operate as a stay and the husband seemed now to understand that.

24. It is important also to look at the bona fides of the applicant.  It is important to indicate whether or not a litigant is simply avoiding the finalisation of the matter and thereby prolonging the inevitable.  It is difficult for me to tell whether the husband is doing just that because his material obfuscates the picture.  To the extent that it might be made more difficult by some language difficulties, I reject that.  The husband articulated the case clearly but doggedly in respect of the issue of proving that the findings I made were wrong.  As I earlier indicated, he informed the Court that he had had legal advice about the stay application.

25. It is important to also note that the period of time between now and when the appeal can be heard does not seem to be extensive and in this case, based on the findings I made, there is extensive equity in the home so that if a Full Court determined that my decision erred, the problem could be rectified by the application of other assets including the equity in the home. 

26. That leads to the question of whether or not the refusal of a stay would render the appeal nugatory.  In my view, it would not.  It is significant in this case that one of the orders was that the husband refund to the wife the $150,000 taken from the mortgage account.  It was difficult to have the husband ultimately concede that he had taken that money and had given it to Ms F.  Nothing in the affidavit of Ms F would indicate that she still does not have it or that she has any justification for retaining it other than she makes some assertion about a discussion in December 2012. 

27. I find in the circumstances therefore that there is no material before the Court that would satisfy any of the principles required in the stay application that the husband now seeks.  Accordingly his stay application must be dismissed.

28. The husband had two opportunities to file material in relation to defending the wife’s application.  Again, he failed to do so maintaining this dogged approach about proving that the orders that I made were wrong.  There is therefore no reason why the wife should not be entitled to the fruits of her judgment.  She was prepared to accept that the payment of $150,000 could be delayed and there was no material from the husband to indicate why it could not be paid immediately.  Accordingly, I propose to order that if the husband does not pay $150,000 by 1 September 2013 together with the interest that is now accruing on the judgment, then the Country K property is to be sold and after payment of encumbrances, the wife is entitled to the fruits of her judgment together with the accruing interest and the husband can retain the balance.  Accordingly I make orders.

I certify that the preceding Twenty Eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 August 2013.

Associate: 

Date:  9 August 2013