Sindel and Sindel (Stay Application) - [2009] FamCA 883

FAMILY COURT OF AUSTRALIA

SINDEL & SINDEL (STAY APPLICATION)

[2009] FamCA 883

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – application by the husband to stay property orders pending appeal – entitlement of the wife to the fruits of the judgment – stay granted subject to conditions

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

APPLICANT:

Mr Sindel

RESPONDENT:

Ms Sindel

FILE NUMBER:

SYC

5856

2007

DATE DELIVERED:

9 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

8 September 2009

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Richards

Orders

Proceedings on the Orders dated 19 August 2009 be stayed conditionally upon the following terms:
(a)within 28 days the husband pay to the wife or as the wife directs, by bank cheque the sum of $790,000.
(b)simultaneously with compliance by the husband with the provisions of Order 1(a) the wife do all things and sign all documents as may be required to transfer to the husband all her right title and interest in the property situate at and known as P property in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier … by delivering to the husband or his nominee a Transfer in registrable form transferring her interest in that property to the husband.
(c)simultaneously with the compliance by the husband with the provisions of Order 1(a) the wife do all things and sign all documents as may be required to transfer to the husband all her right title and interest in the property situate at and known as G property, in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier … by delivering to the husband or his nominee a Transfer in registrable form transferring her interest in that property to the husband.
(d)the husband will, simultaneously with the wife’s compliance with Orders1(b) and (c) hereof charge (“the charge”) all his right title and interest in and to the properties at P and G in favour of the wife to secure the unfulfilled obligations of the husband under the terms of the judgment and orders herein, including the payment of the sum remaining to be paid by the husband to the wife together with interest from the date of the judgment to the date of payment at the rate prescribed from time to time by the Family Law Rules 2004.
(e)such charge shall rank second in priority only to a mortgage or charge granted by the husband for the purpose of securing the repayment of a loan raised by the husband to pay the sum referred to in Order 1(a) hereof and applied to that purpose and the wife shall be entitled to lodge a Caveat on the P and G properties by reason of the charge referred to in paragraph 1(d) hereof.
(f)The husband is restrained from disposing of the properties at P and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FamCA 883
Decision Date: 9 September 2009

CaseChat Overview and Summary

In *Sindel and Sindel (Stay Application)*, Justice Fowler of the Family Court of Australia considered an application by the husband for a stay of proceedings concerning orders made on 19 August 2009. The underlying dispute involved property settlement following a marriage breakdown, with the husband seeking to appeal the earlier orders.

The primary legal issue before the court was whether to grant a stay of the existing orders pending the determination of the husband's appeal. This required the court to balance the husband's right to pursue an appeal against the wife's interest in having the existing orders enforced. The court also had to consider the terms upon which any stay might be granted, ensuring that the wife's financial position was adequately secured.

Justice Fowler reasoned that a stay should be granted, but only conditionally, to protect the wife's interests. The court ordered that the husband pay $790,000 to the wife within 28 days. Simultaneously, the wife was to transfer her interests in two properties, referred to as P property and G property, to the husband. To secure the husband's remaining obligations under the judgment, he was required to charge his interest in these properties in favour of the wife, with this charge ranking second in priority to any mortgage obtained by the husband to fund the initial payment. The husband was also restrained from disposing of the P and G properties pending the appeal. If either party failed to sign necessary documents, the Registrar was appointed to execute them.

Orders

Orders of the court

Proceedings on the Orders dated 19 August 2009 be stayed conditionally upon the following terms:

(a) within 28 days the husband pay to the wife or as the wife directs, by bank cheque the sum of $790,000.

(b) simultaneously with compliance by the husband with the provisions of Order 1(a) the wife do all things and sign all documents as may be required to transfer to the husband all her right title and interest in the property situate at and known as P property in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier … by delivering to the husband or his nominee a Transfer in registrable form transferring her interest in that property to the husband.

(c) simultaneously with the compliance by the husband with the provisions of Order 1(a) the wife do all things and sign all documents as may be required to transfer to the husband all her right title and interest in the property situate at and known as G property, in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier … by delivering to the husband or his nominee a Transfer in registrable form transferring her interest in that property to the husband.

(d) the husband will, simultaneously with the wife’s compliance with Orders1(b) and (c) hereof charge (“the charge”) all his right title and interest in and to the properties at P and G in favour of the wife to secure the unfulfilled obligations of the husband under the terms of the judgment and orders herein, including the payment of the sum remaining to be paid by the husband to the wife together with interest from the date of the judgment to the date of payment at the rate prescribed from time to time by the Family Law Rules 2004.

(e) such charge shall rank second in priority only to a mortgage or charge granted by the husband for the purpose of securing the repayment of a loan raised by the husband to pay the sum referred to in Order 1(a) hereof and applied to that purpose and the wife shall be entitled to lodge a Caveat on the P and G properties by reason of the charge referred to in paragraph 1(d) hereof.

(f) The husband is restrained from disposing of the properties at P and G pending the determination of his appeal.

(g) Liberty is given to the wife to apply in relation to the enforcement of her charge.

If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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