Sresbodan and Sresbodan and Ors (No 2)

[2015] FamCA 764

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN AND ORS (NO 2) [2015] FamCA 764

FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the husband sought a stay of an order requiring payment of money to the wife and various creditors – where the husband has limited financial resources – where a stay is granted conditional on the husband prosecuting an application for expedition of the appeal – where the appeal would be rendered nugatory if the stay were not granted – stay granted.

Family Law Act 1975 (Cth) s 79

APPLICANT: Mr Sresbodan

RESPONDENT:	Ms Sresbodan
FIRST INVERVENORS:	Trustees of the Bankrupt Estate of Mr Sresbodan
SECOND INVERVENORS:	Mr D and Mr E trading as D Attorneys
THIRD INTERVENORS:	Mr O, Mr P and Mr Q trading as R Legal

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 30 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 30 July 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Sresbodan in person

COUNSEL FOR THE RESPONDENT:	Ms Messner
SOLICITOR FOR THE RESPONDENT:	Vizzone Ruggero Twigg Lawyers

SOLICITOR FOR THE FIRST INTERVENORS: Goldrick Farrell & Mullan

SOLICITOR FOR THE SECOND INTERVENORS: Goldrick Farrell & Mullan	Mr E in Person
SOLICITORS FOR THE THIRD INTERVENORS:	R Legal

Orders

1. It is noted, in respect of Order 1(c) (i)-(vi) made 6 July 2015, that it is the intention of the court that those funds are paid directly out of the controlled monies account in the names of the recipients.

2. That, pending further order of the court, the orders made by me on 6 July 2015 are stayed until the determination of the appeal against those orders.

3. That, in the event the husband does not diligently bring and prosecute an application for expedition of the appeal or in the event that expedition is not granted or in the event the husband fails to comply with the rules and directions of the Registrar of the Appeals Division or Judge to prosecute as to diligently prosecute the appeal, liberty is granted to each of the parties to relist the matter upon giving 14 days’ notice for reconsideration of the stay.

4. That the costs of all parties are reserved.

5. The Application in a Case filed by D Attorneys on 30 July 2015 is stood over generally.

6. Leave is granted to the trustees of the bankrupt estate of Mr Sresbodan to file in court an Application in Case in the form handed up returnable instanter.  That application is stood over generally.

7. It is noted that in the event that the wife and R Legal file an application for costs they may do so notwithstanding there is no accompanying affidavit. Those applications are not to be given a return date and are to be marked as stood over generally.

8. Leave is granted for each of those Applications in a Case to be relisted before me and, if I am not available before another judge of the court, 7 days after the determination of the appeal. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sresbodan & Sresbodan and Ors (No 2) 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

Mr Sresbodan

Applicant

And

Ms Sresbodan

Respondent

And

Trustees of the Bankrupt Estate of Mr Sresbodan
First Intervenors

And

Mr D and Mr E trading as D Attorneys
Second Intervenors

And

Mr O, Mr P and Mr Q trading as R Legal
Third Intervenors

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in a Case filed on 24 July 2015 Mr Sresbodan (“the husband”) seeks a stay of orders made by me on 6 July 2015. On that date I made orders and delivered judgment in proceedings which included property proceedings between the husband and Ms Sresbodan (“the wife”) pursuant to s 79 of the Family Law Act 1975 (Cth). In doing so it was also necessary to determine the entitlements of a number of third parties, including the husband’s trustee in bankruptcy, to funds that were held in a controlled monies account and representing the proceeds of sale of N Street, Suburb K (“the Suburb K property”), which comprised, in effect, the total of the divisible property between the husband and the wife.

2. The effect of those orders is to divide the sum presently held amongst each of the parties to the proceedings in accordance with the rights that I attempted to determine in the judgment.  The orders provide that the sums of money be distributed after 28 days from the date of judgment or the maturity of the term deposit in which the funds were held, whichever occurs later.  The time for distribution is fast approaching. 

3. The husband seeks a stay so as to preserve those funds because he says that the effect of his appeal is that he will obtain significantly more for himself on a rehearing, following a successful appeal.  That, of course, has the effect that the other parties would get less.  If the other parties receive those funds and spend them, then there is the chance that the husband would lose the benefit of any appeal and any rehearing. 

4. The application for the stay is opposed by each of the other parties.  The wife, the trustees in bankruptcy and D Attorneys have all either made or foreshadowed an application for costs. The trustees in bankruptcy and D Attorneys will seek, in due course, an order in aid of their costs order, freezing payment of funds to the husband so as to ensure that those costs are paid in due course.

5. A stay is not granted merely because an appeal is filed.  Whilst an applicant for a stay does not have to establish special circumstances to obtain the stay, it is still necessary to persuade the court that a stay is the appropriate order in the interests of justice. 

6. In coming to such a consideration, the court takes into account the fact that the other parties are entitled to the benefit of the judgment that has been given.  These proceedings commenced when the wife sought a property settlement in November 2006, well over nine years ago.  That, of itself, is a significant factor and one that weighs strongly in favour of trying to bring these proceedings to an end as swiftly as possible. 

7. A large part of the delay in the case coming to a final hearing has to be laid at the feet of the husband who has, over the intervening years, pursued a large number of cases in a number of courts against a number of parties to these proceedings and other persons.  As has been seen, those proceedings resulted in the husband’s bankruptcy, which then engendered a number of proceedings involving, and taken against the trustees in bankruptcy.

8. Counsel for the wife points to the wife’s present financial position of having assets and superannuation worth about $990 000.  As a result of these orders she is to receive a further sum of approximately $2 million.  It is correct, as she submits, that there is no evidence that she will deal with those assets in such a way as to dispose of them and that, accordingly, if the husband is successful on a rehearing, it is likely that the wife will be able to meet such an order from those assets.

9. None of the other parties make a similar submission save for D Attorneys, who submitted that any payment to them would be obliged to be repaid to the husband if it was ultimately found that the order should not have been made.  This is because of the obligation, it was said, of lawyers to deal appropriately.  That is, of course, correct.  However, the obligation can only be met if there are funds available to make a repayment.  There is no evidence as to what the present financial position of D Attorneys is, but the more relevant question would be, in any event, what would their financial position likely to be at the time of any repayment?  That is not known. 

10. The reality is that whilst there is no evidence that any of the funds will be improperly disposed of, there is no reason to think that, in particular, the trustees or D Attorneys would do anything other than deal with the funds that they were to receive under the orders.  If they received the funds, they are entitled to do so and there is no impediment to them doing so.  However, that does mean that in the event that the husband is ultimately successful, there may be a difficulty in recovering the funds.

11. Importantly, none of the parties points to any financial hardship that will flow from not receiving the funds at the present time.  There is, therefore, a risk that the appeal could be rendered nugatory.  A relevant consideration is the prospects of success.  It is always a difficult task for the trial judge to assess the chances of appeal against their judgment, however it is something that needs to be done.  The husband has relied upon only three grounds in his Notice of Appeal and as the trustees in bankruptcy properly point out, they do not cover what appear to be the husband’s real complaints which seem to extend beyond those three grounds.

12. Indeed, on a narrow reading of the three grounds, the appeal would be very limited.  However, it is apparent from the affidavit in support of the application for a stay that the husband regards his Notice of Appeal as being against the whole of the judgment, and submissions that he has made today indicate that his attack would seem to be wider than the present grounds of appeal.  Taking those matters into account and also the fact that the husband was acting for himself, I now turn to the grounds of appeal.

13. The first is that I disregarded the fact that an order was made in the Land and Environment Court on 16 February 2005 dismissing the matter.  I dealt with that in the primary judgment.  I came to the same view as did Foster J in the Federal Court of Australia and Davies J in the Supreme Court of New South Wales.  I regard the prospects of success on that ground as remarkably weak.  The second ground is difficult to understand.  It is probably not a ground of appeal at all.  And the third ground simply states that I erred “in many many instances in [the] Judgment…by disregarding all [the husband] put into Affidavits…”.

14. The matter before me was one that was particularly complex and was not assisted by the husband attempting to run a difficult case without the benefit of legal representation.  I am not prepared to say that his last ground is such that his appeal is entirely devoid of merit.  It is submitted that there is no evidence as to when the husband’s appeal is likely to be dealt with.  That is true.  Having regard to the current time delay in the Sydney Registry one would not expect the appeal to come on for some time.

15. However, the claims of the trustees and the creditors that they are entitled to their funds and that they were entitled to them sooner rather than later, has some force.  Of particular force is the fact that the husband, as I am aware from the substantive proceedings, is living in a van.  It seems to me that if these matters were drawn to the attention of an appeals division judge in an application for expedition, there would be very good prospects of the matter being expedited.  But that, of course, is a matter for another judge.

16. Expedition would ameliorate a number of the difficulties that the husband and the other parties face in these proceedings.  I am of the opinion that an order could appropriately be drafted, requiring the husband, as a condition of any stay, to seek expedition.  It was submitted by D Attorneys that their legal entitlement to payment from the husband has already been determined in other places.  That is correct.  What the lawyers seek in these proceedings is an order for payment out of the controlled monies account or at least such part of the controlled monies account as has been found to be the husband’s. 

17. Whilst it is generally true, as the authorities make clear, that the Family Court will strive to ensure that creditors are paid, that is not always the case and ultimately it depends upon the particular circumstances of each case.  Thus, whilst any appeal against those orders by the husband is likely to be a difficult one, it is incorrect to say, as was submitted, that those orders cannot be the subject of appeal.  As to R Legal, the order that is currently in place and the order that was made by many will see the funds remaining in a bank account pending the determination of outstanding proceedings between the husband and R Legal in the Supreme Court of New South Wales. 

18. It seems to me that, therefore, the stay will have little detrimental effect upon them.  As I have said, at least the trustees and D Attorneys seek an order that if the stay is refused, nonetheless, orders be made staying the order for payment out of the controlled monies account to the husband of funds sufficient to meet their claim for costs, which is yet to be determined.  In other words, they want a stay of part of the orders.  A stay of all of the orders will meet that aspect of the matter, at least until determination of the costs issues. 

19. Taking all these matters into account, I am of the view that the interests of justice weigh in favour of granting a stay, however, that stay should be conditional upon the husband taking all reasonable steps to bring and to prosecute an application for expedition of the appeal and diligently to prosecute the appeal, which means that if he does not comply with the rules or the directions of the registrar, the other parties may apply for the lifting of the stay. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 30 July 2015.

Associate: 

Date:  18 September 2015