Sresbodan and Sresbodan and Ors (No 2)

[2011] FamCA 602

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN AND ORS (NO 2) [2011] FamCA 602

FAMILY LAW – PROCEDURAL – no basis established to support application for stay of orders of 18 July 2011

Family Law Act 1975 (Cth)

APPLICANT: Ms Sresbodan

RESPONDENT: Mr Sresbodan

INTERVENOR: Trustee in Bankruptcy

INTERVENOR: D Attorneys

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 29 July 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns  

JUDGMENT OF: Watts J

HEARING DATE: 29 July 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Adrian Twigg & Co

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE TRUSTEE: Watson & Watson

SOLICITOR FOR THE INTERVENOR : D Attorneys 

Orders

1. The applications that are contained in paragraphs 10 and 15 of the Submissions made by the husband on 29 July 2011 be dismissed.

2. The costs of this day of the wife, the trustee and the intervenors be reserved.

NOTATIONS:

1. The husband substituted the relief sought in his Application in a Case filed 22 July 2011 with applications for orders in the terms contained in paragraph 15 of his Submissions made by the husband on 29 July 2011.

IT IS NOTED that publication of this judgment under the pseudonym Sresbodan & Sresbodan & Ors (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER:  SYF 4345 of 2006

Ms Sresbodan

Applicant

And

Mr Sresbodan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The husband has filed an Application in a Case on 22 July 2011 seeking that the orders that I made on 18 July 2011 be stayed. The husband, today, substituted the relief he sought with applications for orders in the terms contained in paragraph 15 of the written submissions made by the husband on 29 July 2011.

2. Paragraph 15 of the written Submissions is in the following terms:

   ORDERS SOUGHT

   1.Stay His Honour’s order of 18 July 2011 for 28 days.

   In the alternative,

   2.Stay His Honour’s order of 18 July 2011 for 14 days

   In the alternative,

   3.Stay His Honour’s order of 18 July 2011 for 7 days.

   In the alternative,

   4.Stay His Honour’s order of 7 June 2010 and 18 July 2011 until such time as the Federal Court and the Family Court of Appeal have determined their findings.

3. By way of the last order sought, the husband, for the first time, asks that I stay orders until the conclusion of the appeal in the Family Court of Australia and the conclusion of new proceedings the husband has commenced in the Federal Court.  I have no details of the proceedings in the Federal Court.  I have granted an interim stay of the proceedings on the understanding that the husband will properly prosecute the current proceedings he has before the Full Court of the Family Court of Australia. 

4. The orders that I made on 18 July 2011 are in the following terms:

   4.The solicitors for the wife make a payment to the wife in the sum of $300,000 from the controlled monies account held by them for the parties, such payment to be made within a period of seven days.

   5.The solicitors for the wife pay to the Trustee in Bankruptcy for Mr Sresbodan the sum of $670,000 and the Trustee use that money to pay the GST debt to the Australian Tax Office.

   6.Mr D and Mr E trading as D Attorneys be joined as parties to these proceedings. 

   7.Liberty granted to Mr D and Mr E to relist the matter on 28 days notice in the event they wish to make any further application.

5. Both the solicitor for the wife and the solicitor for the husband’s trustee in bankruptcy have told me that an amount of $970,000 has been drawn from the controlled monies account and paid into the trust account of the solicitors for the wife.  The solicitors for the wife hold the trustee in bankruptcy’s authority to draw those monies from the trust account for the purposes of paying the GST debt to the Australian Tax Office and stand ready to make that payment.  The remaining $300,000 will, subject to this application, become available to the wife.

6. I suggested, and everybody agreed, that although the husband had not yet filed an appeal against the orders of 18 July 2011, the matter could proceed upon the basis that he would.  As I commented, I have an inherent power to grant a stay even though the basis provided under the rules for granting a stay is predicated upon an appeal actually being filed (see rule 22.11 Family Law Rules).  Everybody was comfortable with me dealing with the application for a stay, notwithstanding the fact that the husband had not yet filed an appeal against the orders of 18 July 2011. 

7. The husband has provided a document entitled “Application in an Appeal”.  It is unfiled.  The order that the husband says he is seeking from the Full Court is that:

   “I rely on my application before Justice Watts that this application in the Family Court of Appeal to support a stay in Family Court of Appeal to stay all my matters to such a time as my Federal Court matter has been heard and determined in Federal Court as to my bankruptcy and conduct of trustee and my former wife.”

8. The affidavit the husband filed also refers to the application for the Full Court to stay his appeal in the Family Court until new proceedings he has commenced in the Federal Court are heard. It appears the Federal Court proceedings relate to the discharge of his bankruptcy and a claim for damages against the council (which council I do not know), the trustee (presumably his trustee in bankruptcy) and the wife.  The affidavit asserts that the orders that have been made in relation to the payment of monies jeopardises “returning the property” or “damages”.  The husband asserts again that he should not have been sent bankrupt because his assets exceeded his liabilities and that the Suburb K property was protected property and its proceeds protected money. 

9. I am told by the solicitor for the wife, and the husband did not disagree, that the wife is not a party to any proceedings in the Federal Court nor has the wife been served with any document filed in the Federal Court which seeks damages.

10. So far as I can tell, the husband intends to ask the Full Court of the Family Court to stay its deliberations until proceedings that the husband has taken in the Federal Court, including proceedings against the wife, are dealt with.

11. The husband also filed written submissions. In his submissions, the husband, impermissibly, refers to the details of settlement negotiations he says took place. I indicated that I would take no notice of that material (see s 131(1) Evidence Act 1995 (Cth)).

12. The submissions raise the question whether or not the trustee and the wife acted properly in agreeing with the purchaser to treat the sale of the Suburb K property as being subject to GST. The arrangement entered into was on the basis that the purchaser paid the GST. The husband seems to assert that the wife and the trustee in some way handed the purchaser some type of “windfall”. I cannot see how that could be so given the purchaser paid the entirety of the GST. 

13. At paragraph 10 of his submissions, it appears the husband wishes to make an application to vary the order that I made on 18 July 2011, so that either the trustee personally pay the GST or that the sum of $670,000 be paid from the $1.8 million held by the trustee rather than from the monies held in the controlled monies account. 

14. If I treat what is in paragraph 10 of the husband’s submissions as an application, I dismiss it.  The $670,000 paid by the purchasers went into the controlled monies account and was not ever part of the $1.8 million.  It should more properly be paid from the controlled monies account.  In any event, I am unable to see how any prejudice against the husband arises out of a decision as to which pool of funds the payment is made.

15. The husband asserts that the payment of $300,000 to the wife in addition to the $150,000 already received by the wife creates a circumstance where his claim for “significant damages” against the wife may be jeopardised.  The husband does not detail what he means by “significant damages”.  The husband provides no basis for me to revisit the findings I made on 18 July 2011, namely, that the order for interim property in favour of the wife is clearly within the range of results that she will ultimately receive by way of alteration of property.

16. Paragraph 13 of the husband’s submissions seem to be aimed at asserting that the husband has a reasonable ground to appeal the orders made on 18 July 2011 in relation to the payment by way of interim property settlement in the sum of $300,000 to the wife.  So far as I can understand the submission, it is submitted that because the final property hearing has not been concluded, it is inappropriate to make any interim order.  That in my view provides no basis for expecting that an appeal against my order of 18 July 2011 would be successful.

17. The husband in the second last sentence of paragraph 13 says, “When the $670,000 and the $300,000 is removed from the trust account of my wife’s solicitors that will leave a shortfall should I be successful in obtaining above 50%”.  I am at a total loss to understand the basis of that submission given that the overall pool of assets at the current time (excluding any refund from the $1.8 million held by the trustee) is in the order of $4.3 million. 

18. At paragraph 16 of his submissions, the husband sets out what he asserts is a chronology of events from about 2004 to the current time.  None of it is in evidence before me.  I do not need to make any comment about that chronology except to say that even if I accept that everything the husband says is accurate (and many things may be ultimately disputed: for example and this is not meant to be an exhaustive list, all or parts of 16.1; 16.3; 16.10; 16.12; 16.16; 16.17; 16.18; 16.20; 16.21; 16.23; 16.25; 16.27; 16.28; 16.31; 16.33; 16.34; 16.35), there is nothing in the document prepared by the husband that would provide any basis for believing that the husband would be successful in any appeal against my orders of 18 July 2011. None of that history assists the husband in the present application.

19. There is no weight that could be attached to the argument that it is inappropriate to make what the husband refers to as a “piece meal” interim property order.

20. The stay which has been granted in this case is on the understanding that the husband will expeditiously prosecute the proceedings in the Full Court of the Family Court which seems to be predicated on the notion that the whole, or substantially the whole of the purchase price of Suburb K came from protected monies from the husband’s work injury. 

21. The wife will be considerably disadvantaged if she does not have the benefit of the order that has been made. The Australian Tax Office is entitled to be paid.

22. There is no basis for making any of the orders that the husband seeks and I dismiss his applications. 

23. Given that the husband has been wholly unsuccessful in this application, it is appropriate that the costs of this day of the wife, the trustee and the interveners be reserved.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 29 July 2011.

Associate:  Helen Pickering

Date:  29.7.2011