Sresbodan and Sresbodan & Ors (No 2)

[2016] FamCA 988

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN AND ORS (NO 2) [2016] FamCA 988

FAMILY LAW – PRACTICE AND PROCEDURE – SLIP RULE – Amendment of orders pursuant to r 17.02(1)(h) of the Family Law Rules 2004 (Cth).

FAMILY LAW – PROPERTY – FREEZING ORDERS – Where the first intervener previously sought a freezing order to preserve funds in a controlled monies account – Where that order was refused on the basis that the first intervener was not able to proffer an undertaking as to damages – Where the first intervener is now in a position to give an undertaking – Freezing order made.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 17.02(1)(h)

APPLICANT: Ms Sresbodan

RESPONDENT: Mr Sresbodan

FIRST INTERVENER: Trustees of the Bankrupt Estate of Mr Sresbodan

SECOND INTERVENERS: Mr D and Mr E

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 27 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 27 September 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Ruggero of Vizzone Ruggero Twigg Lawyers

THE RESPONDENT IN PERSON:

No Appearance

SOLICITOR FOR THE FIRST 

INTERVENER:

Mr Mullan of Goldrick Farrell & Mullan Solicitors

SOLICITOR FOR THE SECOND

INTERVENERS:

Mr D of D Attorneys

Orders

1. That pursuant to r 17.02 of the Family Law Rules 2004 Order 2 made on 20 September 2016 be amended to delete the figure $30 385.24 and inserting in its place the figure $30 685.26.

2. That pursuant r 17.02 of the Family Law Rules 2004 Order 1(c)(i) made on 6 July 2015 is amended by deleting the figure of $61 279.02 and substituting in its place $64 664 and Order 1(c)(vii) deleting $646 425.60 and replacing it with the figure $643 040.62.

3. That leave is granted for this matter to proceed today on an ex parte basis. 

4. That upon the Trustees of the Bankrupt Estate of Mr Sresbodan (“the Trustees”) giving the usual undertakings as to damages, Order 6 made on 20 September 2016 be varied by deleting the sum $490 000 and inserting the sum of $520 000 in its place.  The written undertaking is to be filed within 24 hours and a copy of these orders to be served upon Mr Sresbodan by close of business on Friday 30 September 2016.

5. IT IS NOTED that Mr Sresbodan has liberty to apply to relist this matter with respect to the orders made today.

6. That leave is granted to the Trustees to file an application for a claim of monies held in the Controlled Monies Account which is to be made returnable before me at 10:00 am on Wednesday 2 November 2016.

7. The application and, any affidavits in support, are to be filed and served on or before close of business on Friday 14 October 2016.

8. IT IS NOTED that undertakings as to damages were filed in court today by the wife and the Trustees.

9. That leave is granted to the parties to be excused from attendance on the next occasion as they wish. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sresbodan & Sresbodan and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4345 of 2006

Ms Sresbodan

Applicant

And

Mr Sresbodan

Respondent

And

Trustees of the Bankrupt Estate of Mr Sresbodan

First Intervener

And

Mr D and Mr E

Second Interveners

EX TEMPORE REASONS FOR JUDGMENT

1. In these proceedings, in which made orders on 6 July 2015, Mr D and Mr E (“the second interveners”) sought an order for payment to them of costs that Mr Sresbodan (“the respondent”) had been ordered to pay by this Court. I acceded to their claim and made an order for payment of the costs in the orders of 6 July 2015. However, I omitted at that time to make an order for the payment of interest which accrues on those assessed costs, pursuant to the Family Law Rules 2004 (Cth) (“the Rules”). That was a clear slip. The amount involved is not significant. I am somewhat concerned that the respondent is not here today, but he has been informed of today’s hearing date and this application by email.

2. In any event, it is a matter that is obvious, and as I said, not involving a significant sum of money. I propose to proceed. Accordingly, pursuant to r 17.02 of the Rules, order 1(c)(i) made on 6 July 2015 is amended by deleting the figure of “$61 279.02” and substituting “$64 664.00” and order 1(c)(vii) is amended by deleting “$646 425.60” and replacing it with the figures “$643 040.62”.

3. In reasons for judgment delivered on 20 September 2016, I dealt with a number of applications, including four applications for freezing orders.  I declined to make a freezing order on the application of Mr Vanin and Mr Cox, the Trustees of the Bankrupt Estate of Mr Sresbodan (“the first intervener”), because, for reasons which I considered quite proper, they were not in a position to proffer an undertaking as to damages.  Of course, the effect of that was not that they were shut out, in due course, from making a claim against those funds, should the funds still be there and should the trustees be able to establish that they are, in fact, creditors. 

4. I made an order that the sum of $490 000 held in the Controlled Monies Account (“the CMA”) on behalf of the respondent continue to be held, pending the assessment of a number of costs orders.  In making that order, I acted on the evidence that was then available, which was that the effect of the orders would be that the respondent would receive about $80 000 from the CMA.  This would consist of $37 000, approximately, which was the balance of an interim payment to the respondent and the balance of his entitlement from the CMA, less $490 000.

5. Those figures will be slightly different because, earlier today, I have made an order correcting an order made in the substantial proceedings on 6 July 2015, which had the effect of increasing the payment to the second interveners by $3384.98 and reducing the respondent’s payment accordingly, so that will reduce his entitlements somewhat. 

6. In the orders of 20 September 2016, I gave the parties liberty to apply on seven days’ notice in relation to the form of the orders.  Mr Mullan, who appears for the first intervener, has made an oral application to extend the amount of the freezing order.  He does so on the basis that the first intervener is now in a position to give an undertaking as to damages. 

7. The reason for the application is that the final figures for payment of the account have now been prepared by the solicitor for Ms Sresbodan (“the applicant”), who was the controller of the CMA.

8. The payment that the respondent will receive, taking into account the adjustments to the orders that were made earlier today, is $71 284.08.  This, when combined with the figure of approximately $37 000 otherwise payable to the respondent, would result in him receiving $108 284.08 later today, or first thing tomorrow.  The application by the first intervener is that the sum of $71 284.08 be frozen, in effect increasing the amount referred to in order 6, made on 20 September 2016 by that amount.  The basis of the application is that as a larger sum than anticipated is being paid to the respondent, the adjustment is justified.

9. I will not repeat what I have said in my reasons of 20 September 2016, but for the reasons I gave there I am satisfied that the only sums of money that will be available to meet creditors in due course, particularly the creditors associated with the respondent’s bankruptcy, will be from funds that are frozen, pursuant to the orders of the Court.  However, as I also pointed out, it is appropriate that funds be made available to the respondent for his living and legal expenses.  In those reasons, I said:

   119.If this order is made, the husband will be entitled to receive approximately $80 000 from the CMA.  As I have said, he has $37 102 awaiting collection.  This sum should be sufficient to ameliorate his living expenses for the next two years, which will be the period of the freezing order (this being my best estimate of the time the assessments of costs will take).  If this sum is not sufficient, the husband has liberty to apply.  He may do so immediately, if he has a genuine need for further funds.

10. Although the evidence was almost non-existent, that was the best that could be done in the circumstances to identify an appropriate order to account for the respondent’s immediate living expenses and legal expenses.  I will repeat again that the evidence is that he is living in a van.

11. Whether that sum was sufficient was unknown at the time, hence orders were made giving the respondent liberty to apply at any time to vary the orders to seek further funds.  It is submitted today that the $37 000 that the respondent has collected pursuant to the earlier orders will be sufficient for those expenses.  I see no basis to reconsider the view that I took in the 20 September 2016 reasons and remain of the view that the sum of at least $80 000 should be received immediately by the respondent for those expenses.  So the question then is whether a further sum of $28 000 approximately should be frozen.

12. Consistently with the approach I took in my reasons of 20 September 2016, the answer to that must be yes.  If $80 000 is sufficient for the respondent’s living expenses as best as can be determined, then that remains the position for him as well as for the Trustees.

13. I am concerned that the respondent has not been given adequate notice of this application.  He was informed of it by email sent at 1:16 pm today.  I accordingly proceed on the basis that this was an ex parte application, a course which was not opposed by Mr Mullan.  Accordingly, it will be necessary to provide for the respondent to be served with these orders and for him to have the opportunity to come to court and have them reconsidered.

14. I will make the orders set out at the beginning of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 27 September 2016.

Associate: 

Date:  11 November 2016