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 of 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

1. 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.

2. 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.

IT IS NOTED that publication of this judgment under the pseudonym Sindel and Sindel (Stay Application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5856  of 2007

MR SINDEL

Applicant

And

MS SINDEL

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application made by the husband seeking an order that proceedings on the decree made by me in certain proceedings between himself and the wife seeking an alteration of property interests be stayed.  In the alternative that it be stayed conditionally upon the payment to the wife of a certain sum and the transfer to him of her interest in the two properties.

2. The proceedings before me which gave rise to the decision appealed from have been the subject of a written judgment and it is not my intention to repeat its contents.

3. I note that essentially there were two parcels of jointly owned real estate, a significant superannuation fund which was managed by the parties’ company and in which each of them were members, and other assets.

4. The effect of the order that I made was to provide for an equal division of those assets.

5. This was to be achieved by the sale of the two properties at auction and an equal division of those assets, by the splitting of the self-managed superannuation fund in a way which would provide for an equality of benefit in the fund to each party and for assets otherwise in the names of the parties to be retained by them subject to an adjusting payment to be made by the husband to the wife to equalise the value of those other assets.

6. Those other assets, inter alia, comprised certain superannuation entitlements under a number of funds in the husband’s name.  No order was sought before me at the hearing for any splitting of those superannuation funds either by the husband or by the wife and no order was made nor could it have been made since notice to the trustees of those funds had apparently not been given.

7. The husband lodged an appeal containing some 64 grounds of appeal.  Many of them related to the exercise of the discretion vested in the Court to make an order which in the opinion of the court is just and equitable.

8. The grounds do not display in my respectful view a case on appeal which could be described in any event as a strong one.

9. This is a factor that I take into account in my decision.

10. The husband in seeking the stay submitted that the failure to grant a stay would mean that:

    a)the husband would suffer prejudice and hardship;

    b)a successful appeal would be rendered nugatory if the stayable order made is denied; and

    c)the wife suffers no prejudice if a stay is approved until the appeal is heard.

11. In the alternative to a stay without conditions the husband proposed that the stay be granted upon a condition that the real estate the subject of dispute be transferred to him and that the wife be paid the sum of $750,000 which he proposed to raise upon security of the two properties (later amended to $770,000) and that the sum of $790,000 be transferred to the wife’s account of the splittable interest in the Sindel Superannuation Fund.

12. The wife opposed the stay and sought an order that the application be dismissed with costs.  In the alternative, she sought an order that the stay be conditioned upon the payment to her by the husband in an amount of $1,008,929.40, conditional upon her transferring on payment to the husband all her right, title and interest in and to a certain property at P and another property at G.

13. The effect that the wife’s proposed alternative would be that the wife would get a benefit of the judgment and the husband would get the benefit of the property (a benefit he sought in his submissions not only for himself but also he asserted for the parties’ daughter).

14. The husband asserted but did not produce evidence that he was able to procure funds by way of a bank loan on security of the two properties from a bank sufficient to enable him to make the payments he proposed.  There is no updated financial statement filed by either party.  There was no evidence at the original hearing that the husband had any capacity to borrow funds.

15. The wife in opposing the application filed an affidavit setting forth her recollection certain cross-examination of the husband which took place during the trial.  My recollection of that cross-examination is that substantially the wife’s account is correct and I refer to that affidavit.

16. The wife deposes that she is waiting to receive her entitlement under the order in order to enable her to settle her outstanding legal cost and to fund the purchase of a property in which she can live.

17. The husband’s significant complaint about the judgment appears to be that he was ordered to make a payment in cash to compensate the wife for the fact that the assets retained by him which were not real estate assets were superior in value to those retained by the wife.  Since a part of those assets was other superannuation funds he says that the wife has more readily available cash whereas he has significantly the benefit of a future entitlement to superannuation.  That is to an extent the effect of the order made however it is pointed out at the time of the hearing that no order was sought for splitting of any other superannuation fund except for the parties’ self-managed superannuation fund.

18. There is a well recognised principle that a successful litigant should not be deprived of the fruits of the litigation without good cause.

19. There is also a presumption of regularity of judgments subject to the right of appeal.

20. The decision to make or refuse a stay is a discretionary one.  It is suggested by the husband that to refuse a stay will render a successful appeal nugatory.

21. The orders I propose to make will, if carried into effect, secure the payment to the wife of a substantial amount of cash and secure on the properties the repayment of the balance due to her with interest.  The husband asserts that were I to make an order for the payment in full of the amount due to the wife under the judgment he would not be able to raise the necessary funds to make the purchase and conformably with his earlier evidence would be required to sell the properties which in his appeal he seeks to retain.

22. The orders I propose will avoid the unnecessary costs of sales at this time.  However of course those expenses may have to be incurred in the future if it is necessary to do justice between the parties.

23. I have no difficulty in accepting the husband’s assertion that his application for a stay is bona fide and that there has been no undue delay in making his application.

24. I will make the order for the stay set forth above which will have the effect of providing a substantial payment to the wife and secure the balance of her cash entitlement with interest.

25. I reserve the question of costs until after the determination of the husband’s appeal.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  9 September 2009