Sresbodan and Sresbodan and Ors

[2012] FamCA 542

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN AND ORS [2012] FamCA 542

FAMILY LAW - PROPERTY – interim settlement

Family Law Act 1975 (Cth)

Kennon & Kennon (1997) FLC 92-757
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Sresbodan

RESPONDENT: Mr Sresbodan

INTERVENER: Mr Vanin

INTERVENER: Mr Cox

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 17 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 16 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nash

SOLICITORS FOR THE APPLICANT: Adrian Twigg & Co.

COUNSEL FOR THE RESPONDENT: Dr Walsh

SOLICITORS FOR THE RESPONDENT: Jesus Advocacy International

SOLICITOR FOR THE INTERVENERS: Mr Gourlie

SOLICITORS FOR THE INTERVENERS: Watson & Watson

Orders

1. The parties do all such acts and things as may be necessary to cause the monies held in the controlled monies account with Adrian Twigg and Co., Solicitors to be paid as to the sum of $700,000 to the wife.  The proper categorisation of this sum is to be determined by the trial judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sresbodan & Sresbodan & Ors 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 SYDNEY

FILE NUMBER: SYF 4345  of 2006

Ms Sresbodan

Applicant

And

Mr Sresbodan

Respondent

And

Mr Vanin

Intervener

And

Mr Cox

Intervener

REASONS FOR JUDGMENT

1. The proceedings before the Court are proceedings commenced by an Application in a Case filed by the wife on 21 May 2012.  In that application the wife sought an order 2 (the second so designated):

   2.That by way of partial property settlement the Wife be paid $1,000,000 from the controlled moneys account held on behalf of the parties by the solicitors for the wife.

2. To that application the husband filed a Response seeking an order:

   1.That [Ms Sresbodan] not receive any money from the so-called “sale” of my property, no matter where those unlawfully (sic) monies are held.

   2.That [Ms Sresbodan] pay me Damages of my half-share of the full value of [the property at K] which is put at $AUD 35,000,000 (thirty-five million Australian dollars) because she disobeyed a Court Order made on 1 May 2008 by Justice Cohen in the Family Court for the property not to be sold but, instead, to be divided between the two parties into two lots and money to be borrowed against the land for sub-division and surveying.

3. On the hearing of the application the trustee in bankruptcy appears by his solicitor.

4. Mr Sresbodan objected to the appearance of the trustee in bankruptcy on the basis that he was no longer bankrupt.  It appeared however on the material before the Court that the administration of the bankruptcy had not concluded.

5. It is noted that there are proceedings between the trustee and the husband in the Federal Court and that those proceedings have in part been determined by a trial judge and an application for a stay has been dismissed by him.

6. It is noted that other proceedings remain before that Court and in those proceedings the husband seeks an order that the sale proceeds of a certain property paid to the trustee do not constitute property divisible amongst creditors of the estate.

7. The application of the husband to refuse the trustee in the circumstances of this case was refused.

8. The property referred to is a property formerly owned by the parties at Suburb K known as the K property, New South Wales.

9. By Order of Justice Watts (which was not successfully appealed) made on

   
   

   7 June 2010 it was ordered that the wife and the trustee of the husband’s bankrupt estate be appointed as trustees for sale of the property at DP… at K.

10. The sale was by public auction and the Order permitted that each of the husband and the wife had a right to bid at the auction and in the event that they were successful in their bid would not be required to pay a deposit and would be able to offset against the purchase price 25 per cent.  Machinery provisions existed for the setting of a reserve.

11. Pursuant to that Order the said property was sold. The husband did not successfully bid.  The net proceeds of sale arising amounted to $6,231,795 together with interest earned on that sum of $271,106 making the total gross matrimonial assets at least $6,502,901.

12. The husband’s debts amount to $1,200,000 leaving a net asset pool of $5,302,901.  There appeared to be no significant demur from this assessment of the presently available pool.  Already that pool has been partially distributed and the wife has received an amount of $450,000 and the husband an amount of $150,000.

13. There is the possibility of the estate being further diminished by the costs involved in the proceedings before the Federal Court.

14. The husband in his initial application seeks a division of the net asset pool where the wife will receive 40 per cent of the pool and the husband 60 per cent of that pool.  On that case the wife would receive $2,121,160 against which is to be credited an amount of $450,000 already received leaving a balance of $1,671,160 due to her.

15. Even applying the proposed division suggested later by the husband of 25 per cent to the wife and 75 per cent to him, the amount the wife would receive would be $1,325,725 less the partial property settlement already received of $450,000 leaving a balance due of $875,725.

16. The wife seeks a partial property settlement to meet her current needs.  Those include meeting the mortgage commitment on her property and supporting herself in circumstances where she has become unemployed.  The wife’s current indebtedness to the mortgagee of the property in which she resides and which she owns is $430,000.

17. The wife deposes that she will be unable to gain other employment, and that her interest in the property in these proceedings will preclude her from receiving Commonwealth benefits.

18. The husband’s only suggestion as to how the wife might sustain herself until the hearing of this matter was that she could procure employment.  There is a clear issue which is not possible to determine on the current state of the evidence.

19. The wife’s claim in these proceedings arises from a marriage which has subsisted for 40 years.

20. The wife seeks to raise arguments based upon Kennon (1997) FLC 92-757.

21. It seems to the Court that based on Strahan and Strahan [2009] FamCAFC at 166 the order sought by the husband in the proceedings on a very conservative view of the wife’s claim might be within a possible range of results but the Court mindful of the conservatism required to be the guide of its decisions in relation these matters believes it should allow for some margin in the husband’s favour in calculation of the amount if any which the Court should allow the wife.

22. The amount proposed to be ordered should be sufficient to enable her to deal with her mortgage and to provide some support for herself and her needs including further legal fees.  If this matter by reason of litigation pending elsewhere or for any other reason is not dealt with at a time which enables the wife to survive on the monies thus provided she may make application for a further payment.

23. Equally in keeping with the conservative approach of the Court and given the limitations on interlocutory inquiry is it believed that any sum ordered to be paid ought to be subject to its final categorisation either as partial property settlement or otherwise by the trial judge upon a hearing and the Court will so order.

24. The husband informed the Court that he intends to bring a proceeding against the wife and the trustee in bankruptcy claiming the sum of $35,000,000 and for that reason no sum should be paid to the wife.

25. The reason for bringing that claim as expressed in the husband’s Response was “because she (the wife) disobeyed a Court Order made on 1 May 2008 by Justice Cohen in the Family Court for the property not to be sold but, instead, to be divided between the two parties into two lots and money to be borrowed against the land for sub-division and surveying”.

26. The Court has before it a valid, unappealed and subsisting order of

    
    

    Justice Watts for the sale of the property which has been put into effect.

27. If as asserted by Counsel for the husband apparently on instructions that the reason for the proposed suit is that the property was sold at an undervalue there is no evidence before the Court other than the property was sold at a public auction where each party had the right to bid.

28. In the circumstances of this case the Court will not deny to the wife an ability to be supported from large sums that are available to do so and in the circumstances proposes to accede to her application but to the extent at this stage only of $700,000.

29. The Court will therefore make the Order set forth above.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 17 July 2012.

Associate: 

Date:  17 July 2012.