Telfer and Strahan

[2013] FCCA 1780

FEDERAL CIRCUIT COURT OF AUSTRALIA

TELFER & STRAHAN [2013] FCCA 1780

Catchwords:
FAMILY LAW – Property – matrimonial home – stay of orders.

Legislation:  

Family Law Act 1975

Senior & Anderson (No.2) [2012] FamCA 880
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220
Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685
Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681
Clemett & Clemett (1981) FLC 91-013
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

Applicant: MR TELFER

Respondent: MS STRAHAN

File Number: CAC 436 of 2012

Judgment of: Judge Riethmuller

Hearing dates: 14 June 2013, 17 June 2013 and 24 June 2013

Date of Last Submission: 24 June 2013

Delivered at: Melbourne

Delivered on: 24 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Hill

Solicitors for the Applicant: Elizabeth Fleming & Associates

Counsel for the Respondent: Mr Stavris

ORDERS

1. The stay in order 2 of the Orders dated 17 June 2013 be extended to 3 July 2013 at midday.

2. The Application in a Case filed 13 June 2013 be otherwise dismissed.

3. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Telfer & Strahan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

CAC 436 of 2012

MR TELFER

Applicant

And

MS STRAHAN

Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an Application in a Case filed by the Husband on 13 June 2013 seeking that:

   1. That the orders made by Judge Riethmuller on 29 May 2013 be stayed pending the appeal which the applicant has filed with the Family Court of Australia (file number SOA 32/2013).

   2. That there be no order as to costs.

2. The Orders made on 29 May 2013 flowed from the Wife’s original application for enforcement or variation of property orders. An ex tempore judgment was given. In summary the orders made:

   1.Appointed the Wife as trustee for the sale of the former matrimonial property;

   2.Ordered that the Husband vacate the property within 14 days;

   3.Provided that should the Husband fail to vacate within the required 14 days, a warrant for possession issue; and

   4.Provided that in the event the Husband does not comply with the Orders, the Principal Registrar of the Federal Circuit Court be appointed pursuant to s.106A of the Family Law Act 1975 to sign the documents on his behalf.

3. The Applicant also filed an Affidavit on 13 June 2013 in support of the Application in a Case. The Applicant’s evidence at paragraph 7 of the affidavit is that if a stay is not granted by the Court then the following prejudice will be suffered:

   a. Potential dissipation of assets,

   b. being solely responsible for the mortgage repayments for the real property, and debts associated with the real property, while not being allowed to inhabit those premises

   c. an alteration of my position that cannot be remedied

4. It is further alleged by the Applicant (at paragraphs 8-10 of his Affidavit) that since the making of the most recent Orders in the matter, the Applicant has been offered assistance by a friend who is willing to act as guarantor for any loan that may be obtained in order to re-finance the [S] property and that the Applicant has applied for a loan with the ANZ bank who have informed him that the loan will be approved “once they have received and reviewed further paperwork relating to my business”.

5. The Applicant has not received approval for a loan and has not been given any specific time frame within which the loan may be re-financed should approval be given.

6. The application was first heard before me on 14 June 2013 on which date it was adjourned for further mention on 17 June 2013.

Mention on 17 June 2013

1. When the matter returned before me on 17 June 2013, a copy of the Notice of Appeal filed by the Husband (file number SOA32/2013) was not on the physical file and could not be sourced by my Associate on the Court Portal. The Applicant’s evidence was that the Notice of Appeal was lodged on 11 June 2013 and filed by facsimile to the Sydney Registry.

2. In the interim between 14 June and 17 June 2013, two further Affidavits had been filed by the Applicant. The Applicant deposed at paragraph 6 that “I have taken steps to refinance the loan in relation to the real property which is the subject of the current orders”. Annexure ‘B’ to that Affidavit sets out correspondence sent by the ANZ Bank dated 14 June 2013 as follows:

   Further to our telephone conversation this letter is to confirm your application has been lodged with ANZ and we expect a pre approval for the purchase of your home in [S] by Friday 21^st June.

3. When pressed on the subject of whether or not the Applicant did in fact have pre-approval from the ANZ Bank, Counsel for the Applicant submitted that the earliest date any approval might be forthcoming from the bank would be 21 June 2013 but that the pre-approval would effectively be the approval allowing for the relevant documents to be signed and exchanged so that transfer of the property to the Husband could occur and that the usual time frame for that to pass would be approximately 4 weeks after the signing of the loan documentation.

4. The decision in Senior & Anderson (No.2) [2012] FamCA 880 was relied upon which in turn refers to Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. Counsel relied upon paragraph [37] in Senior & Anderson as being particularly pertinent with respect to this matter. That paragraph states:

   37. One of the key considerations in this case is whether a successful appeal by the husband would be rendered nugatory if a stay is not granted. This is particularly important in this case given that the stay application is in relation to real property. Although this consideration is not determinative, it is a “substantial factor in determining whether it will be appropriate to grant a stay” (Aldridge (supra)). Nonetheless, the harm that may be caused to the applicant in refusing the stay application must be weighed against the harm to the respondent if the stay is granted. This is effectively a balance of convenience test, involving the balancing of the various harms that could be caused to both parties. This approach emphasises the discretionary nature of a stay decision.  

5. In relying on the above, Counsel for the Applicant submitted that the stay Application before the Court was in relation to real property and that the Applicant is seeking to comply with order 2 of the original Orders dated 31 July 2012 that requires the Husband provide documentation releasing and indemnifying the Wife from all debt associated with the [S] property.

6. It was argued that it is expected by the Applicant that compliance can be completed within 5 weeks and if he is successful in re-financing, then the Wife will be released from the debt, whereas if the property is sold then there is potential financial liability for both parties given that the property may sell for a price less than the debt. Further, the stay being sought is only for a short period of time and the child of the marriage is due to spend time with the Applicant during the upcoming school holidays. If the stay is not granted then the Applicant will need to find temporary accommodation at short notice for both himself and the child.

7. The Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 set out the principles that need to be taken into consideration when determining an application for a stay of orders at paragraph [18] of the Judgment (see also: The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329). The principles include the following:

   ·    the onus to establish a proper basis for the stay is on the applicant for the stay. However, it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·    a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·    a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·    the mere filing of an appeal is insufficient to grant a stay;

   ·    the bona fides of the applicant;

   ·    a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·    a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   ·    some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   ·    the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·    the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   ·    the best interests of the child the subject of the proceedings are a significant consideration.

8. In response, Counsel for the Respondent pointed out that the matter had been adjourned in order for the parties to evaluate the grounds of appeal and that the Applicant is seeking to re-agitate matters that have already been put before the Court and that have been decided upon. Notwithstanding this, Counsel for the Respondent submitted that it may be an acceptable proposition if pre-approval for re-finance of the loan was given to the Applicant by the anticipated date of 21 June 2013, given this could result in the complete resolution of the matter without the need for the parties to be put through the process of auctioning the property.

9. Counsel was firm in clarifying that importantly, the annexure to the Applicant’s Affidavit, being the correspondence from the ANZ Bank as set out above, did not promise approval of the Applicant’s re-finance application and even if pre-approval was provided by the bank on 21 June, there was no indication of it being an un-conditional pre-approval or how long the settlement process might take. Therefore, it was submitted that unless the Applicant could provide evidence on or before 21 June 2013 that the matter would be resolved unconditionally via the Applicant obtaining re-finance then the property should be transferred to the Respondent to be sold (as ordered on 29 May 2013).

10. Given the submissions made by the parties, I ordered that:

    1. The matter be adjourned to 24 June 2013 at 2.00 p.m. at Melbourne for mention by telephone.

    2. There be a stay on the operation of orders 3 and 4 of the Orders dated 29 May 2013 to 24 June 2013.

11. These orders being made because, on a practical and pragmatic level the matter may come to a complete resolution by that date.

Mention on 24 June 2013

1. The matter then came back before me for mention on 24 June 2013. On this date there had been no progress on the Applicant’s attempts for re-finance from the ANZ Bank.

2. A letter had been provided to the Court by the Applicant’s solicitors. The letter was from [R] Pty Ltd and dated 21 June 2013. It read:

   Dear Mr F,

   Re: Mr Telfer property refinance

   Further to our conversation I can confirm that we have assessed Mr Telfer’s application for finance and based on our financials, creditworthiness and other pre-assessment criteria I believe we will be able to have the refinance application formally approved by Tuesday 2^nd of July. This would normally be sooner however the End of Financial Year and the location of the property would slow down the normal process, however I am confident we will be able to achieve this within the time frame advise.

3. On the face of it, the Applicant had not had success in obtaining re-finance from the ANZ Bank and was now attempting to do this through a new broker.

4. On the basis of the events that had come to pass, Counsel for the Respondent sought that the orders made on 29 May 2013 take effect and that the Applicant vacate the property in question by 26 June 2013. If finance was to be forthcoming in the interim then the Applicant may be in a position to negotiate and purchase the property. It was further submitted that the costs incurred by the parties in legal fees would have been better utilised the pay the costs thrown away by any auction sale.

5. In reply, the Applicant sought that he be given 14 days in which to vacate the property and that if [R] Pty Ltd is not forthcoming with re-finance approval by 2 July 2013 the Applicant will remove himself from the property without further delay. It was disputed that any real estate agent would need the property to be vacated 14 days prior to inspection for auction as inspections of the property have already been occurring. 

6. In light of what had occurred and the submissions by the parties I made the Orders that:

   1. The stay in order 2 of the Orders dated 17 June 2013 be extended to 3 July 2013 at midday.

   2. The Application in a Case filed 13 June 2013 be otherwise dismissed.

   3. There be no order as to costs.

7. I have had regard to the fact that the appeal would be rendered nugatory if a stay is not granted. However, no real basis for appeal has been articulated. The applicant simply seeks more time to comply with an order. This application is an enforcement application, the substantive issues having been determined in the previous proceedings. The applicant has had ample time to re-finance. I am not persuaded that there should be a stay pending any appeal.

8. However, given that 3 July 2013 is only a little over 1 week away I am persuaded to leave the stay in place until then, in case the applicant does get finance.

9. The respondent has incurred no costs (Counsel for the respondent acted on a pro bono basis). Thus there is no basis for a costs order as there were no costs liabilities on the respondent’s part.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 July 2014