Scott & Munayallan (No 8)
[2023] FedCFamC1F 105
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan (No 8) [2023] FedCFamC1F 105
File number: SYC 59 of 2010 Judgment of: HENDERSON J Date of judgment: 20 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where the applicant sought a stay of the proceedings in this Court on the first day of the final hearing pending the outcome of stay proceedings in the New South Wales Court of Appeal – Finding that if the stay application in the Court of Appeal was successful it would have no impact on the issues to be determined in this Court – Application dismissed. Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 20 February 2023 Place: Sydney Solicitor Advocate for the Applicant: Mr Patakas Solicitor for the Applicant: Evangelos Patakas & Associates The First Respondent: Litigant in person The Second Respondent: Litigant in person Counsel for the Third Respondent: Mr Rose Solicitor for the Third Respondent: ERA Legal, Commercial, Insolvency and Litigation Lawyers The Fourth Respondent: Litigant in person (did not participate) The Fifth Respondent: Litigant in person (did not participate) Solicitor Advocate for the Sixth Respondent: Mr Docker Solicitor for the Sixth Respondent: Clyde and Co The Seventh Respondent: Litigant in person Counsel for the Intervener: Mr Duc Solicitor for the Intervener: Mills Oakley Lawyers ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: CC PTY LTD
Applicant
AND: MS MUNAYALLAN
First Respondent
MR SCOTT
Second Respondent
MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY LTD (and others named in the Schedule)
Third Respondent
MILLS OAKLEY LAWYERS
Intervener
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
20 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by Mr M and CC Pty Ltd on 19 February 2023 for a Stay of these proceedings be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott & Munayallan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
HENDERSON J:
An application has been made orally on behalf of CC Pty Ltd by Mr Patakas, solicitor, who has only just received instructions that I in some way stay, for a limited time perhaps, the commencement of the hearing of this matter.[1] The basis is that CC Pty Ltd, the fourth respondent in the substantive proceedings, has filed an Amended Notice of Appeal in the Supreme Court of New South Wales (“the Supreme Court”) seeking to stay a decision of Stevenson J of July 2022, whereby he gave judicial advice that the liquidator of I Pty Ltd and the JJ Trust was justified in dealing with certain property in four categories in a particular fashion.
[1] An Application in a Proceeding was filed by Mr M and CC Pty Ltd on 19 February 2023, however, I was not informed that this Application was filed until after the oral application was made.
The reason this matter is before me is that the entirety of the proceedings in the Supreme Court, as they then were, were transferred to this Court late last year to be dealt with and joined with the family law proceedings that have been ongoing in this Court for many years.
The wife and Liquidator oppose the adjournment.
This is the first day of a hearing that has taken over ten years to reach its zenith. The appeal that has been filed by CC Pty Ltd would, if successful, as properly submitted by Mr Rose on behalf of the liquidator, have little bearing on the application before me as the order the liquidator/receiver seek before me is the same as in his Honour’s decision, namely that the liquidator would be justified in dealing with certain properties in a particular way and is but an advice.
Secondly, as Mr Rose properly points out, the liquidator was appointed as a receiver of the I Pty Ltd trustee company, well before the decision of Stevenson J was made in respect of property that was, at one point in time, in the apparent ownership of JJ Trust. As such, they would be perfectly entitled to deal with that property as they have determined to do, whether his Honour had advised they were entitled so to deal with it or not.
Thirdly, this is the first day of the hearing. It will be some time before the actual hearing commences. It is unlikely evidence will be taken today from any party but I may be incorrect. Additionally, I have a further interlocutory matter to deal with being an application filed by Mr Scott in respect of Mr Phong as the second respondent, the first respondent being a real estate business and a particular manager. That will take some time this morning to be dealt with.
In the event that these substantive proceedings continue and reach their end, it will take some time for me to deliver judgment and there can always be an application made to stay the operation of the delivery of judgment because of what has happened in the Supreme Court.
Given the inordinate delay in this Court in having this matter come on for final hearing, that the matter is ready to be heard, that the proceedings in the Supreme Court are not an appeal of a decision, rather a stay, that what has been granted is leave to file an appeal and directions to file an Amended Notice of Appeal and there is a way to go before an appeal on issues, that I have no formal application to stay these proceedings before me but have accepted an oral application which has come on quickly and finally, for reasons I will give later in my final judgment, the conduct of Mr Scott and Mr M in both the Federal Court of Australia, the Supreme Court, and this Court over a ten-year period, have caused considerable wastage of legal and judicial resources and substantial costs have been incurred in all these circumstances, I do not see staying this proceeding would in any way jeopardise the Supreme Court proceedings and would be a disadvantage to all the other parties before me.
Granting a the stay in the Supreme Court proceedings will not in any way impact on my ultimate decision and the issues to be determined in this matter, which is, apart from the transferred Supreme Court proceedings, what is the value of the matrimonial pool left for division between Ms Munayallan and her former husband Mr Scott and I dismiss the stay application.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson delivered on 20 February 2023. Associate:
Dated: 11 August 2023
SCHEDULE OF PARTIES
SYC 59 of 2010 Respondents
Fourth Respondent:
P PTY LTD
Fifth Respondent:
MR SCOTT AS LITIGATION GUARDIAN FOR MS SCOTT
Sixth Respondent:
AQ REAL ESTATE AND AR PTY LTD
Seventh Respondent:
MR PHONG AND MS PHONG
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