Sresbodan and Sresbodan and Ors (No. 2)

[2012] FamCA 603

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN AND ORS (NO. 2) [2012] FamCA 603

FAMILY LAW - PROPERTY – stay of proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Sresbodan

RESPONDENT: Ms Sresbodan

INTERVENER: Mr Vanin

INTERVENER: Mr Cox

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 31 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 26 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Walsh

SOLICITORS FOR THE APPLICANT: Jesus Advocacy International

SOLICITOR FOR THE RESPONDENT: Mr Richardson

SOLICITORS FOR THE RESPONDENT: Adrian Twigg & Co.

SOLICITOR FOR THE INTERVENERS: Mr Watson

SOLICITORS FOR THE INTERVENERS: Watson & Watson

Orders

1. The wife is to charge the whole of her right title and interest in and to the property situate at and known as Unit …, … C Street, Suburb H (“the wife’s property”) with a repayment of any sum ordered to be repaid by the Court on the determination of the appeal from the Order of 17 July 2012.

2. The wife is restrained by injunction from mortgaging or charging (save as set out in Order 1) or alienating the wife’s property pending the hearing and determination of the appeal.

3. Of the sum presently held by the wife, the wife is to apply a sum of $430,000 to the repayment of the amount outstanding on the mortgage charged on the wife’s property.

4. The wife may pay to herself the sum of $80,000 for her necessary expenses and may give instruction in relation to the sum of $60,000 held by her solicitors in their trust account.

5. The balance of the sum paid pursuant to the order of the Court is to be retained by the wife in an interest bearing account pending further order.

6. The undertaking of the husband given on 20 July 2012 is to continue.

7. The parties’ costs of this application are reserved.

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

Mr Vanin

Intervener

And

Mr Cox

Intervener

REASONS FOR JUDGMENT

1. Before the Court is an application by the husband for an order staying the operation of an order made by the Court on 17 July 2012 that certain funds held in a controlled money account be paid to the wife as to the sum of $700,000 and that the proper categorisation of that sum was to be determined by the trial judge.

2. The reasons for that Judgment and Order are incorporated in this Judgment as if they were a part of this Judgment.

3. The application of the husband came before Justice Le Poer Trench on 20 July 2012.

4. Justice Le Poer Trench on undertakings given by the husband as to damages made orders pending further order of the Court that:

   4.Upon that undertaking being given by the husband, the Court orders that pending further order of the court:

   a)the wife is not to disburse or otherwise spend any of the sum of $640,000.00 received by her pursuant to the order of the court made 17 July 2012; and

   b)the wife is not to take any action including giving any instruction in relation to the use or application of the sum of $60,000 being the balance of the $700,000.00 to which the order of 17 July 2012 entitled her to receive.

1. On that date the further hearing of the application was adjourned firstly to

   
   

   24 July 2012 and subsequently to Thursday, 26 July 2012 for hearing.

2. At the time of the hearing before Justice Le Poer Trench it was asserted that an appeal had been lodged against the Order made on 17 July 2012 but that for reasons of the absence of the Appeals Registrar had not yet been accepted.  When the matter came on for hearing on 26 July 2012 a copy of the Notice of Appeal accepted by the Court registry was handed to the Court.

3. The wife relied upon two affidavits:  one of her solicitor filed on 25 July 2012 in which an Order of Justice Cohen made on 1 May 2008 was annexed, and one of her own filed 25 July 2012.

4. The Court had previously been informed by Counsel for the husband that this Order required a sub-division of certain real estate the subject of dispute between the parties being the property at K.  The fact is that there was no such order made and the Court was previously misled.

5. As is stated in the judgment previously given the Court was then also informed that the decision of Justice Watts on 7 June 2010 resulting in the order for the sale of the subject property was unappealed.  This also appears to be a case in which the Court has been misled and in fact there was an appeal process which was unsuccessful.  There was no appeal within time.  There was an application for leave to appeal out of time which was unsuccessful.

6. There was a decision of the Full Court delivered on 16 December 2011 dismissing the husband’s application for leave to appeal against the orders of the Court of 7 June 2010.

7. The husband’s Notice of Appeal filed in these proceedings contained the following Grounds of Appeal:

   1.  The Orders of Justice Fowler, made on 16 July 2012 concerning File Number SYF4345 of 2006 regarding [Mr Sresbodan] erred, in that they:

   2.  Were not conservative in the context of interim orders but constituted disposal of a significant proportion of the pool of assets accumulated in the marriage.

   3.  Also the wife did not present evidence of need for sustinence (sic) as indicated in Judgment, particularly in context of monies in hand and qualifications and skills.

   4.  The need for adjudication concerning wife’s neglect concerning assets (with Trustee), with accompanying consequences, has not been given adequate allowance.

1. In considering a stay such as is sought by the husband in these proceedings the Court has to consider the entitlement of the wife to the fruits of her litigation and a stay is not automatic once an appeal is lodged.

2. The Court also has to take into account the prospects of success of the appeal.  As to ground 1 the Court takes the view for the reasons adumbrated in its judgment that the order must be regarded as conservative since it is for an amount less than the husband proposes in his documents the wife receive by a reasonable margin.  It is a payment now to the wife which the husband in his pleadings says she ought to have.  There was an attempt to argue it seems that the husband’s proposed claim against the wife and the bankruptcy trustee might create a liability in the wife to him for some $35 million.  It was based apparently on the clearly false assumption that the wife had disobeyed an order made by Justice Cohen for the subdivision and transfer of the property.  That was not the case and His Honour sought only to consider a valuation of the property on a subdivided basis.

3. It seems in the alternative that it is asserted that the sale price procured by the trustees appointed by Justice Watts’ order was insufficient.  The Counsel for the husband conceded that the sale was pursuant to a valid order of the Court.

4. Counsel for the husband conceded that the sale was at a public auction at which the husband was entitled to bid and could have exchanged contracts without payment of deposit.  The husband did not bid.  The sale was effected.  It is not the Court’s view that this ground has substance.

5. Counsel for the husband referred to proceedings continuing in the Federal Court in relation to an assertion that the property the subject of the sale was protected property having been bought it seems with monies provided from a Workers’ compensation verdict and should not be part of the bankruptcy.  It was pointed out to Counsel for the husband that even if protected from the bankruptcy it was not protected from the wife, and the only effect of the success of the proceedings in the Federal Court would be that the creditors would have no funds.  The husband and wife would retain their entitlements to the proceeds of sale and the overall pool of assets would increase.  This presumably would give rise to a greater payment to the wife and the husband rendering the decision of this Court even more conservative.

6. However, in considering whether a stay should be granted the Court has to consider amongst other things whether to not grant a stay would render the appeal nugatory.  To not grant a stay might mean that the funds were utilised or wasted however the wife has been constructive in that regard.

7. The evidence before the Court is that the wife has a property which she says is valued at approximately $620,000 and which is the subject of a mortgage currently standing at $430,000.  The wife says that she would be willing to undertake not to sell or encumber the property until further order of the Court.

8. It was conceded by Counsel for the husband that the monies the subject of the dispute would be protected if they were converted into equity in her property by a discharge of the wife’s mortgage.  The husband did assert that there would be a loss of interest accumulating on the sum but in the circumstances of the equity remaining in the home and given that the appeal is within a short compass, any loss of interest is likely to be minimal and in any event would be, if ordered to be paid, capable of being charged against the equity in the property.

9. The wife through her solicitors informed the Court that she would be prepared to charge the wife’s property with the repayment of any monies she is ultimately ordered to pay back.  The wife finds herself in circumstances where she will be unemployed in September and at the age of 62 not wishing to continue working.  Accordingly, there seems to be a reasonable basis for making an order which would have the joint effect of preserving the sum, should it be required to be repaid, and give to the wife some capacity to sustain herself pending appeal and to fund her costs.

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

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 31 July 2012.

Associate: 

Date:  31 July 2012.