Sayid and Alam

[2018] FamCA 570

FAMILY COURT OF AUSTRALIA

SAYID & ALAM [2018] FamCA 570

FAMILY LAW – ORDERS – Application for Stay of an order made in enforcement proceedings – Application dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton [2009] FamCAFC106
Jackson & Balen [2009] FamCAFC 131

APPLICANT: Mr Sayid

RESPONDENT: Ms Alam

FILE NUMBER: SYC 3215 of 2015

DATE DELIVERED: 12 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Eardley

SOLICITOR FOR THE APPLICANT: Mercantile Legal Services

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Hills Legal Group

Orders

1. Pursuant to rule 17.02A(b) Family Law Rules, paragraph [36] of the Reasons of 28 June 2018 is amended to correct the typographical error in that paragraph by replacing “s 106B” with “s 106A” in the two places in which it occurs.

2. The husband’s application for a stay filed 6 July 2018 be dismissed.

3. Pursuant to rule 20.54(2) Family Law Rules, a warrant for possession be issued in the following terms:

   The Marshall, any delegate of the Marshal and all officers of the Australian Federal Police and of the Police Force of New South Wales for the purpose of giving effect to the order of this Court made on 28 June 2018 requiring MR SAYID to vacate the property situate at and known as G Street, Suburb H in the State of New South Wales (“the property”) are directed with such assistance as they may require and if necessary by force to enter upon the property being the land in Certificate of Title Folio Identifier … and cause MR SAYID to vacate the property and vacant possession of the property to be given to MS ALAM. This order remains in force until 12 December 2018.

4. I note that I am told that there currently is in existence an order of the Federal Court (the order) which has been registered against the title of the Suburb H property (the property) aimed at securing the interests of the Australian Taxation Office who is the 2^nd respondent in these proceedings. The 2^nd respondent has indicated today that they wish to approach the Federal Court and seek orders by consent to remove the order from the title of the property to enable the settlement of the sale of the property to be completed.

5. As soon as is practicable, the husband, wife and the Australian Taxation Office do all things and sign all necessary documents to present to the Federal Court a consent order for the consideration of the Federal Court that would have the effect of removing the order from the title of the Suburb H property.

6. The balance net proceeds from the settlement of the sale of the property are to be placed into a controlled monies account in the names of the solicitors for the husband, the solicitors for the wife and the solicitors for the Australian Taxation Office.

7. The husband pay the wife’s costs of the husband’s Application in a Case filed 6 July 2018 on a party/party basis to be agreed or assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3215 of 2015

Mr Sayid

Applicant

And

Ms Alam

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 28 June 2018, I made orders that the wife be appointed trustee for the sale of the property at G Street, Suburb H with the aim of putting the wife in a position to complete a contract that had been entered into with third party purchasers. I also ordered that within a period of seven days (that is, by 5 July 2018) the husband vacate the Suburb H property and remove all furniture and furnishings from the property.

2. The husband was further restrained from lodging any dealings against the title of the Suburb H property or otherwise doing any act or thing that would delay the settlement of the sale of the Suburb H property with the purchasers who had exchanged a contract to acquire it.

3. Finally, I ordered that in the event that the husband failed to comply with the orders that he vacate the Suburb H property, the wife be given liberty on 24 hours’ notice to apply to the court for an order for a warrant for possession against the husband.

4. The husband asserts, by way of submission from his counsel from the bar table, that he vacated the property on 5 July 2018. He concedes that he has not complied with the order to remove all furniture and furnishings from the property.

NOTICE OF APPEAL

1. On 6 July 2018, the Eastern Region Appeals Registry at Sydney, received a Notice of Appeal in relation to the orders made 28 June 2018 and an Application for Leave to Appeal from the husband. The husband appeals all four orders made 28 June 2018. The grounds of appeal are in the following terms:

   1.     His Honour Justice Watt [sic] erred in failing to appoint an independent trustee for the sale of the property known as [G Street, Suburb H] being the whole of the land and improvements comprised in folio identifier … (“Property”).

   2.     His Honour Justice Watt [sic] erred in not considering and ultimately finding that the alleged contract between the Applicant Wife and Respondent Husband for sale of the Property with the purchasers on 25 November 2017 was not terminated.

2. The Application for Leave asserts:

   1.     All orders are being appealed.

   2.     There was an error of fact and an error of law as to validity of the termination of the contract for the sale of the property known as [G Street, Suburb H] New South Wales and described in certificate of title reference ...

   3.     There was an error of law in the exercising of discretion to appoint the respondent wife as trustee for the sale of the property. Such trustee should have been independent.

3. In his Notice of Appeal the husband seeks the Full Court make the following orders:

   7.1.That leave be granted to the appellant to bring this appeal;

   7.2.That the hearing of this appeal be expedited;

   7.3.The orders made on 28 June 2018 be set aside;

   7.4.That the respondent wife and her servants and agents be restrained until further order of the Court from dealing, in any way, with the Suburb H property;

   7.5.That two persons who are identified as Chartered Accountants (and whom counsel for the husband today has asserted from the bar table are chartered accountants), be appointed as trustees for sale of the Suburb H property by private treaty or auction, with a minimum sale price, or reserve, of not less than $5,167,000 with the balance of the sale proceeds after sale costs and the discharge of the mortgage, to be placed in a controlled monies account.

4. The reasons for making the orders on 28 June 2018 are set out in the Reasons for Judgment published when the orders were made.

5. There was communication between the wife’s lawyers and the husband’s lawyers in relation to the husband vacating the property. That communication is in evidence before me.

6. On 6 July 2018, the wife’s lawyers wrote to the solicitors for the husband referring to the orders that had been made on 28 June 2018 telling the lawyers for the husband that the agent, Ms Y, had been unable to gain access to the property using the keys in her possession and looking through the window of the home and into the garage she saw toys and files, which gave her the impression that the husband had not vacated the property. The husband’s lawyer in response to that email on 7 July 2018 responded by saying that she was instructed that the husband had “lodged an appeal on 6 July 2018 currently sitting in the chambers of Watt’s J (sic)”. The letter asserts that the husband enjoys sole occupancy of the home subject to the orders that had been made. So this is an assertion on 7 July 2018 by the husband’s lawyer that he still enjoyed occupancy of the home, notwithstanding, he had been ordered to vacate by 5 July 2018.

7. On 8 July 2018, the wife’s lawyers emailed my associate, with a copy to the lawyers for the husband, the following:

   We are thus writing to request that as per the notation on the judgment dated 28 June 2018, the orders for repossession as entered on the Court’s Records be issued. We confirm that on the day of the hearing the Honourable Justice Watts noted that the Orders for repossession had been made, but were held in Chambers.

8. That was an incorrect statement. No warrant for possession had been ordered at that stage. However, the wife has now filed by way of the Response to an Application in a Case filed 11 July 2018, an application for an order for a warrant for possession. Counsel for the husband concedes that application should be successful in the event that the husband’s application for a stay is unsuccessful.

THE LAW APPLICABLE TO THE GRANTING OF A STAY OF AN ORDER PENDING AN APPEAL

1. The law applicable to granting a stay of an order pending appeal is well-known.

2. In Jackson & Balen [2009] FamCAFC 131 the Full Court said at paragraph [28]:

   The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy RoyaleInvestments Pty Ltd (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   ·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the application must be bona fides;

   ·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   ·some preliminary assessment of the strength of the proposed appeal  - whether the appellant has an arguable case.

3. Counsel for the husband has referred today to a similar statement by the Full Court in Aldridge & Keaton [2009] FamCAFC106 delivered the month before.

4. In support of his application for a stay, the husband has filed an affidavit on 6 July 2018. In that affidavit, the husband expresses his deep concern that as trustee, the wife would not try and secure the best price for the sale of the property and that he will suffer significant prejudice if the property is not sold at a proper market value.

5. It is difficult for me to place any weight upon that evidence, because as noted in [16] of the Reasons for Judgment of 28 June 2018, by 8 December 2017 the husband was content to proceed with the contract for a sale of the Suburb H property for a sale price in the sum of $4.9 million.

6. At [3] of his affidavit, the husband says that damages will not be an adequate remedy nor will there be an adequate buffer for adjustment of property interests in circumstances where he asserts that the wife has already had the benefit of $1.5 million of the $3 million that he has sent to Country A.

7. As noted in [29] of my Reasons, the husband gave no evidence in support of his contention that the property could be sold at a higher price than that for which it is currently under contract. So apart from the mere assertion that damages will flow, there is no evidence to support the assertion that the property would sell for more than $4.9 million if it was placed back on the market today.

8. As set out in the principles to which I have referred, the onus to establish a proper basis for the stay is upon the husband. The wife is entitled to the benefit of the orders made on 28 June 2018 and the Reasons for Judgment are presumably correct. The mere filing of an appeal is insufficient to grant a stay.

9. Counsel for the wife raises the bona-fides of the husband. The husband asserts that he got out of the property on 5 July 2018 and gave keys back to the agent in October 2017. Those assertions made by his counsel from the bar table on instructions do not square easily with the sworn evidence from the agent as of last Monday that she was unable to access the property by way of using keys and the assertion made by the husband’s own lawyers on 7 July 2018 that he was in possession of the property. It was also not consistent with there still being furniture and furnishings in the property that belonged to the husband. On balance, there is some weight to be placed upon counsel for the wife’s submission in relation to the lack of bona-fides of the husband.

10. The basis upon which the husband asserts that he has a deep concern in respect to the wife being appointed trustee for sale do not appear to have any evidentiary foundation. There is no evidence that this property could be sold in the future for a price in excess of $4.9 million. There is no evidence that that $4.9 million is not the best currently available sale price.

11. The stay must be granted on terms that are fair to all parties. The orders that were made were orders for enforcement of existing orders. As was made clear at [33] of the Reasons for Judgment of 28 June 2018, the appeal that has been lodged is against orders for enforcement made pursuant to s 105 of the Act. Those orders required a weighing of discretionary considerations. In making those orders, I did weigh the balance of convenience and the competing rights of the parties.

12. On the one hand, I took into account the husband’s asserted right to terminate the contract of the purchasers and the damages that he asserted might flow if he was unable to pursue those asserted rights (see [27] – [29] of the Reasons). Against that, I took into account the husband’s ability at the final hearing to agitate any arguments in respect of any alleged loss he would suffer (see [30] and [31]) and the significant risks to which the wife was exposed (see [32]).

13. I also took into account at [34] the husband’s assertion that he had a right to wait for the purchasers to sue the husband and wife in the Supreme Court and then defend those proceedings. I also considered an assertion that I should have taken into account as an important relevant consideration, the fact that the purchasers were providing the wife with some litigation funding in respect of the application for enforcement that was before me.

14. All of those considerations are relevant to this stay application in weighing the balance of convenience and the competing rights of the parties. Those considerations weigh heavily in the wife’s favour in circumstances where the wife risks loss arising from the continuing non-payment of the mortgage, the mortgagee’s Supreme Court proceedings and the purchasers suing for breach of contract. I have regard to the agreed fact that the purchasers have paid $283,000 in stamp duty. I do not accept the submission made by counsel for the husband that all that is at stake in this stay application is the effluxion of time. It is the effect of the effluxion of time that is at stake in respect of the matters to which I have just referred.

15. The husband did not argue in this stay application that if the stay was not granted, his appeal will be rendered nugatory. Even if that was the case, however, that consideration has to be assessed against all other discretionary considerations and importantly, that brings into focus some preliminary assessment of the strength of the proposed appeal and whether or not the husband has an arguable case. It is difficult for me to understand how he does have an arguable case.

16. The husband made no reference as to when it might be likely that the Full Court might determine the appeal.

17. The orders he seeks include an order that all the orders be discharged. Effectively the wife would have to go back to where she was two years ago, with the property being put back on the market for sale and with the husband continuing to reside in the home without the mortgage being paid. There would be the outstanding prospect of the purchasers suing the parties in the Supreme Court. More imminently though is the prospect of the mortgagee proceeding with the Supreme Court proceedings that have already been commenced to obtain possession of the property and either settling with the current purchasers or otherwise selling the property at a mortgagee sale.

GROUNDS OF APPEAL

Failure to appoint an independent trustee

1. The first ground of appeal asserts it was an error of law in the exercising of discretion to appoint the wife as trustee for sale of the property.

2. At [36] of the Reasons I said:

   36.  The husband submitted that if orders were to be made placing control of the sale out of his hands, then the wife should not be appointed trustee but rather, the Registrar of the court appointed pursuant to s 106B of the Act. The ability of the Registrar to sign documents under s 106B is more constrained than the freedom that would be given to the wife to complete the transaction should she be appointed trustee. I find it is more appropriate to make an order appointing the wife as trustee and giving her power to sign documents.

3. As counsel for the wife points out, the husband did not seek at the hearing the order he apparently is now seeking from the Full Court, namely that two particular chartered accountants be appointed as trustee for sale. The husband in his affidavit in support of the stay application gives no evidence as to the consent of those persons to fulfilling that role, what they might bring to the role, or what qualifications they have, apart from the assertion by counsel for the husband from the bar table, that they are chartered accountants. The husband leads no evidence as to why the wife might inappropriately abuse the powers given to her as trustee for sale, or if she did in fact abuse those powers, why he could not be adequately compensated by way of an adjustment of the final property settlement.

4. The second ground of appeal is in the terms I have set out above.

5. There seems to be an internal inconsistency in this ground. On the one hand, the error asserted is that I did not consider whether or not the sale “was not terminated” and secondly, that I ultimately found that the contract “was not terminated”.

6. The consideration in relation to the termination of the contract is contained at [17] to [35] of the Reasons of 28 June 2018.

7. At [25] of the Reasons, I set out the essence of the competing arguments of the husband and wife in relation to the termination of the contract:

   25.    The husband asserts that the purchasers breached a term of the contract which gave the vendors the right to terminate the contract. It is the wife’s case that clause 51 when read in its plain language, does not have any operation until the CBA gives approval for the release of the deposit and the bank  made it clear it was not appropriate to give that approval.

8. At [30] I say:

   30.    If the orders which the wife seeks are made she will be able to settle the contract with the purchasers and any remedy against them would be lost ….

1. It is inaccurate to say that I made any ultimate finding as to whether or not the contract had been properly terminated. In fact, it was the submission of the husband during the hearing of the proceedings before me that it was not an appropriate forum to do so.

2. My ultimate conclusion was that in the wife’s proceedings against the husband for enforcement (which were the proceedings before me) it was not necessary for me to reach any conclusion about the issue of whether or not the termination had been properly effected for the reasons I have set out in the paragraphs to which I have referred.

3. The husband in his Notice of Appeal now seeks orders from the Full Court wanting a sale price or reserve price of $5,167,000. I have already indicated that there is no evidence before me that any price of that level or anything like it is currently achievable. The husband in his affidavit makes an inadmissible assertion that “damages will not be an adequate remedy”. The basis upon which he makes that assertion is apparently a further assertion that “the applicant wife has already received the benefit of $1.5 million from monies sent to Country A”, noting as I already have that the monies the husband sent to Country A were in the sum of $3 million.

4. The parties agree today that the equity in the property, if the contract is settled, will be about $1.6 million. I am unable to understand or place any weight on the assertion that damages will not be an adequate remedy given that is the equity available.

5. For those reasons in my view, the prospects of any successful appeal are negligible and for all the reasons that I have given, I will make an order dismissing the husband’s application for a stay.

WARRANT FOR POSSESSION

1. Counsel for the husband has properly conceded that if the husband’s application for a stay was dismissed then the warrant for possession should issue.

2. Rule 20.53(b) of the Family Law Rules 2004 (“The Rules”) allows the wife to make the application that she has. It is based on order 4 made 28 June 2018.

3. Rule 20.54(1) allows an order for possession of real property to be made if the respondent has had at least 7 days’ notice, which he has. There is no contention that the Suburb H property is currently under lease or any written tenancy agreement.

4. Accordingly, rule 20.54(2) allows me to issue a warrant for possession authorising an enforcement officer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.

5. The dictionary to the Rules defines who an enforcement officer is.

6. The wife under the orders of 28 June 2018, is as trustee entitled to possession of the Suburb H property. It is appropriate in the circumstances of this case that I issue a warrant for possession.

7. The order I shall make is that pursuant to rule 20.54(2) of the Rules, the Marshall, any delegate of the Marshal and all officers of the Australian Federal Police and of the Police Force of New South Wales for the purpose of giving effect to the order of this Court made on 28 June 2018 requiring MR SAYID to vacate the property situate at and known as G Street, Suburb H in the State of New South Wales (“the property”) are directed with such assistance as they may require and if necessary by force to enter upon the property being the land in Certificate of Title Folio Identifier 22/881379 and cause MR SAYID to vacate the property and vacant possession of the property to be given to MS ALAM. This order remains in force until 12 December 2018.

COSTS

1. On the application of the wife for an order for costs against the husband, on a party/party basis to be agreed or assessed, I note that counsel for the husband does not wish to be heard. I will make an order for the wife’s costs in respect of the husband’s Application in a Case filed 6 July 2018 on a party/party basis to be agreed or assessed.

I certify that the preceding fifty (50) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 12 July 2018.

Associate:

Date:  31.7.18