Sresbodan and Sresbodan and Ors (No 2)

[2013] FamCA 1060

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN & ORS (NO 2) [2013] FamCA 1060

FAMILY LAW – PROPERTY – Interim – Where the applicant sought an interim property order for payment of legal costs and repayment of loans – Whether just and equitable in the circumstances of the case to make an order for the interim distribution of funds – Where the primary proceedings are between the husband and wife to a marriage – Where the Trustees of the husband’s bankrupt estate are intervenors in the proceedings – Where the court is satisfied that the present application is vexatious and oppressive within the meaning of r 12.10 of the Family Court Rules 2004 (Cth) – Where the husband’s application is dismissed.

FAMILY LAW – COSTS – Where the court determined the wife’s costs be reserved – Where the court further determined that it is appropriate the husband pay the trustees in bankruptcy’s costs of the application.

Family Law Act 1975 (Cth)
Family Court Rules 2004 (Cth) r 12.10

Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Mr Sresbodan

RESPONDENT: Ms Sresbodan

FIRST INTERVENOR: Trustees of the Bankrupt Estate of Mr Sresbodan

SECOND INTERVENOR: Mr D & Mr E

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 17 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 17 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Becker

THE APPLICANT IN PERSON: Mr Sresbodan

SOLICITOR FOR THE RESPONDENT: Adrian Twigg & Co Solicitors and Conveyancers

SOLICITOR FOR THE FIRST INTERVENOR Goldrick Farrell & Mullan

SOLICITOR FOR THE SECOND INTERVENOR Kent Attorneys

Orders

1. That the application in a case filed by the husband on 22 November 2013 is hereby dismissed.

1. That leave is refused for the husband to issue subpoena to Ms A, Ms Sresbodan, Mr Vamin, Mr Cox, Ms L and Mr M.  That issue may be revisited in the future. 

2. That the wife’s costs of today are hereby reserved.

3. That Mr Sresbodan shall pay the costs of the Trustees in Bankruptcy today as agreed or as assessed.

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

And

Mr D & Mr E

Second Intervenor

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. By an Application in a Case filed on 22 November 2013, Mr Sresbodan seeks an interim property order for payment to him of $250,000 to be used for legal costs already incurred for future cases in the Courts of Appeal, the High Court, to repay moneys lent to him by friends and for living expenses.

3. On 1 May 2013, Mr Sresbodan filed an Application in a Case seeking, amongst other things, the following order:

   I urgently need a minimum of $250,000 for legal costs already incurred and for future cases in the District, Local, Supreme, Federal and Courts of Appeal and most likely the High Court to repay moneys lent to me by friends and for living expenses.

4. That application was heard by Fowler J on 23 May 2013.  On 20 June 2013 his Honour delivered a written judgment dismissing that application.  In dismissing that application, his Honour found that application of the principles in Strahan[1] would require the rejection of the husband’s application.  This is because the court was not able to be satisfied that any such interim property settlement would be reversible in the sense that, if it were ultimately found that that interim order were not appropriate, the moneys would be able to be repaid. 

   [1] Strahan & Strahan [2009] FamCAFC 166

5. On 3 July 2013, Mr Sresbodan filed a Notice of Appeal.  I am informed that on 9 December 2013 the appeal books were filed, thus enabling the appeal to proceed.  In that appeal, he seeks a rehearing.

6. As I understand the position to be, speaking very generally, pursuant to earlier orders of the court, the wife holds 50 per cent of what was previously the parties’ property, the trustees of Mr Sresbodan’s bankruptcy hold some 35 per cent and some 15 per cent is held for Mr Sresbodan.  The wife says that her entitlement to the matrimonial property, applying the considerations set out in the Act, is greater than 50 per cent and that she is therefore entitled to all or part of Mr Sresbodan’s 15 per cent.  There is also the possibility that the trustees in bankruptcy may make a claim to that 15 per cent.

7. In those circumstances, counsel today appearing for Mr Sresbodan was unable:

   (a) to point to a source of funds that would enable the payment sought  by Mr Sresbodan to be made; and

   (b) could not demonstrate how, if that payment were to be paid, that payment could be reversible if it was ultimately found that that was not a proper payment to be made.

8. Secondly, counsel for Mr Sresbodan was unable to point to any change in circumstances since the hearing before Fowler J other than to submit there has been a steady deterioration in Mr Sresbodan’s condition.  Whilst one has some sympathy for the personal position in which Mr Sresbodan is in, regard has to be had to the reality of the situation, which is that most of his estate is presently vested in his trustee in bankruptcy. 

9. That bankruptcy remains, notwithstanding attempts by Mr Sresbodan to overturn it by way of appeal and by way of annulment applications in the Federal Court.  This Court simply cannot ignore that or the rights that flow from that bankruptcy.

Conclusion

1. Therefore, taking into account the earlier application and the decision of Fowler J, I am satisfied that the present application is vexatious and oppressive within the meaning of r 12.10 of the Family Court Rules 2004 (Cth).  I am also satisfied that it has no reasonable prospects of success.  Accordingly, the application in a case filed by Mr Sresbodan on 22 November 2013 is dismissed.

Costs

1. The wife’s costs of today are reserved.  Mr Mullan, who appears for the trustee in bankruptcy, seeks an order for costs.  Mr Becker, who appears for Mr Sresbodan, submits that Mr Sresbodan is effectively destitute and should not be the subject of a costs application.

2. However, taking that into account and taking into account the findings that I made in relation to the Application in a Case filed on 22 November this year which was, in the light of Fowler J’s judgment, doomed to fail, the appropriate order is that Mr Sresbodan pay the trustees in bankruptcy’s costs of this application.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 17 December 2013.

Legal Associate: 

Date:  20 January 2014