Trebiano and Trebiano (No. 2)

[2018] FamCA 707

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO (NO. 2) [2018] FamCA 707

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – Where application for stay pending Appeal to Full Court – Final property orders – Consideration of applicable principles – Where the nub of the appeal concerns sale of a property – Where to not grant the stay would render the appeal nugatory – Where the wife is entitled to assume the judgment is correct – Where the husband remains in occupation of the home – Where absent a stay the wife would have funds to house herself independently without recourse to her capital superannuation fund – Where it is appropriate to grant a stay on the conditions that the husband pay a periodic sum to the wife and pay property outgoings  – Orders made.

Family Law Rules 2004 (Cth) r 22.11

Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548
Jackson & Balen [2009] FamCAFC 131
Trebiano & Trebiano [2018] FamCA 344

APPLICANT: Mr Trebiano

RESPONDENT: Ms Trebiano

FILE NUMBER: PAC 1251 of 2017

DATE DELIVERED: 12 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 24 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnson

SOLICITOR FOR THE APPLICANT: Brander Smith McKnight

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Maclarens Lawyers

Orders

1. That the operation of Orders (1) and (2) made on 18 May 2018 be stayed pending further order.

2. That the previous order is conditional upon:

   (a)the husband paying to the wife, or as she otherwise directs in writing, the sum of $500.00 per week with the first payment made within seven days from this date and thereafter weekly until determination of the husband’s Appeal to the Full Court; and

   (b)the husband paying, pending determination of his Appeal to the Full Court, as they fall due and payable outgoings including council and water rates, insurances and services and maintaining the property at B Street, Suburb C in good order and condition having regard to the condition of the property as at the date of the single expert valuation used for the purposes of the trial.

3. Liberty is granted to the wife to relist this application on short notice by application to the Court in chambers in the event that she asserts that the husband has failed to comply with the provisions of Order (2) above.

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 Trebiano & Trebiano (No. 2) 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 PARRAMATTA

FILE NUMBER: PAC 1251  of 2017

Mr Trebiano

Applicant

And

Ms Trebiano

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the husband’s Application in a Case filed 14 June 2018.  The application seeks a stay pending determination of his appeal to the Full Court of final property orders made on 18 May 2018 following a defended hearing.

2. In support of the orders sought by him, the husband relies upon:

   a)his Notice of Appeal filed 8 June 2018; and

   b)his affidavits filed 14 June 2018 and 14 August 2018.

3. The wife opposes the application for stay in her Response filed 6 July 2018 and seeks an order that the husband’s application be dismissed.

4. In support of the order sought by her, the wife relies upon her affidavit filed 6 July 2018.

Stay: Applicable Principles

1. It is well settled that a stay will not be granted lightly or as a matter of course.

2. The power to order a stay (r 22.11 of the Family Law Rules 2004 (Cth)) is incidental to the right of appeal and derives from the inherent power of the Court to do whatever is necessary to prevent injustice in relation to the proceedings in the Court: Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548.

3. In Jackson & Balen [2009] FamCAFC 131 the Full Court said at [28]:

   The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; 21st of September date good is from Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter 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 application must be bona fides;

   ·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.

4. Reasons for Judgment and orders were delivered in the primary property proceedings on 18 May 2018: Trebiano & Trebiano [2018] FamCA 344.

5. Final property orders were made as follows:

   (1)That the parties do all things necessary to forthwith sell the property at B Street, Suburb C for the best price reasonably obtainable and on sale after payment of agent’s commission, selling costs and contract adjustments divide the proceeds of sale as to 55 per cent plus $32,981.00 to the Wife and the balance then remaining to the Husband.

   (2)That pending sale the husband pay as they fall due and payable outgoings including council and water rates, insurances and services and maintain the property in good order and condition having regard to the condition of the property as at the date of Single Expert valuation.

   (3)Liberty to apply as to the implementation or enforcement of the previous order.

   (4)That the Husband and Wife do all things necessary to cause D Pty Ltd as trustee of the Trebiano Pension Fund to comply with the following:

   (a)That a base amount sum as is necessary to cause the Wife to have a total superannuation entitlement equal to 80 per cent of the net value of the Trebiano Pension Fund is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”), to the Wife out of the Husband’s interest in the Trebiano Pension Fund.

   (b)That, in accordance with s 90MT(1)(c) of the Act:

   (i)the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Superannuation Regulations”); and

   (ii)the Husband’s entitlement in the Trebiano Pension Fund is correspondingly reduced.

   (c)That D Pty Ltd the trustee of the Trebiano Pension Fund shall do all acts and things and sign all such documents as may be necessary to:

   (i)calculate, in accordance with the requirements of the Act and the Superannuation Regulations, the entitlement created for the Wife in Order 3(a); and

   (ii)transfer the entitlement to the Wife’s member benefit entitlement in the Trebiano Pension Fund and correspondingly reduce the entitlement of the Husband.

   (d)That this order have effect from the operative time being the date of this order.

   (e)That the Husband shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to r 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the Superannuation Industry Regulations”) for the rollover or transfer of the Husband’s transferable benefits either in specie or in cash out of the Trebiano Pension Fund to a complying fund of the Husband’s choosing in accordance with r 7A.12 of the Superannuation Industry Regulations.

   (5)Liberty to apply as to implementation or enforcement of the previous order.

   (6)That concurrently with the Husband’s compliance with Order 3(e) above, the husband shall do all things necessary and sign all necessary documents to transfer to the wife or her nominee all his interest and shareholding in D Pty Ltd and resign from any office held by him in the said company.

   (7)That any application for costs be by way of written submissions filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days and judgment thereafter be reserved

The Notices of Appeal

1. The husband’s Notice of Appeal was filed on 8 June 2018.  On 15 June 2018 the husband’s application that the Appeal be expedited was dismissed.

2. The husband’s Grounds of Appeal, in summary, are as follows:

   a)that the Court erred its discretion in awarding the wife 69.66 per cent of the overall pool of assets in the circumstances of the 25 year marriage;

   b)that insignificant weight was given to the husband’s contribution to the rebuilding and renovation works carried out on the matrimonial home at Suburb C;

   c)that insignificant weight was given to the husband’s construction of and attachment to the very significant workshop that he had created;

   d)that the Court erred in accepting that the cost of rebuilding/renovation works to the Suburb C property was $600,000.00 where that cost was significantly under challenge and contrary to the husband’s uncontested evidence as to his personal contribution to such works; and

   e)that the Court erred by taking a mathematical approach to the division of the superannuation assets rather than a holistic approach to the overall relationship of 25 years with the parties now both aged 70.

3. The orders sought to be impugned by the husband on appeal were orders directed to the sale of the home at Suburb C and the division of the proceeds of sale as to 55 per cent plus $32,981.00 to the wife and the balance then remaining to the husband and that pending sale the husband pay as they fall due and payable outgoings on the property and maintain the property in good order and condition, he having at present exclusive occupation of the property.

4. In lieu of the orders sought to be impugned, the husband seeks orders that the home at Suburb C be transferred to him without consideration of any payment by him to the wife.

5. On hearing of the stay application the husband tendered to the Court a copy of an Amended Notice of Appeal dated 21 August 2018: Exh “D”.  The Court was informed that the Amended Notice of Appeal had been filed in the Appeal Registry.

6. The orders sought by the husband in the Amended Notice of Appeal in the event that his appeal was successful are identical to the first Notice of Appeal.

7. The Grounds of Appeal set out in the Amended Notice of Appeal are, in summary, as follows:

   f)that the Court erred in failing to give reasons as to why five per cent was an appropriate adjustment in favour of the husband to the non-superannuation asset pool and failed to give reasons as to why 10 per cent was an appropriate adjustment to the superannuation pool;

   g)that the Court erred at paragraph [83] in determining that the appellant’s health issues were diminished by his age and failed to give reasons for so determining;

   h)that the Court erred having made adjustments at steps two and three to consider overall whether the result was just and equitable;

   i)that the Court erred in the exercise of the Court’s discretion by awarding the wife 69.66 per cent of the overall pool of non-superannuation and superannuation assets such an award been plainly wrong and manifestly unjust;

   j)that insignificant weight was given to the husband’s contribution to the rebuilding and renovation works carried out on the matrimonial home at Suburb C;

   k)that insignificant weight was given to the husband’s construction of and attachment to the very significant workshop that he had created;

   l)that the Court erred in accepting that the cost of rebuilding/renovation works to the Suburb C property was $600,000.00 where that cost was significantly under challenge and contrary to the husband’s uncontested evidence as to his personal contribution to such works; and

   m)that the Court erred by taking a mathematical approach to the division of the superannuation assets by awarding the wife 80 per cent thereof rather than taking a holistic approach to the overall relationship of 25 years with parties now both aged 70 years resulting in an adjustment that was plainly wrong and manifestly unjust.

8. Whilst it can be argued that the wife who was substantially successful at trial is entitled to the fruits of her judgment, the reality is that the substance of that judgment is now the subject of the present appeal in that the primary orders provide for a sale of the home and division of the proceeds.

9. The wife contends that in her circumstances where the husband remains in occupation of the home and she is being accommodated at friends’ homes, she will suffer hardship by not having funds to rehouse herself.

10. In her affidavit filed 6 July 2018 the wife deposes:

    Since vacating the home I have lived at three residences and paid board of $200.00 each week for board. The subject property is unencumbered and [the husband] has not had to pay rent or make mortgage repayments. I have contributed to the payment of the insurance of the house since vacating. At the present time, I am sharing a home and am still paying board of $200.00 per week. The accommodation is temporary. I live in a bedroom that is approximately 3 x 3 metre in size. I have lived out of a suitcase and was unable to take all of my personal belongings from the home when I left the home because I have nowhere to keep them. I am unable to rehouse myself until [the husband] and I comply with Orders for the sale of the subject property. (sic) 

11. It is likely that in order to rehouse herself independently and appropriately without assistance from friends or without sharing accommodation, the wife would have to pay substantially more than $200.00 per week while the husband enjoys the benefit of living in an unencumbered property. 

12. However, the husband does not seek to interfere with the primary orders splitting the parties’ superfund that has to the wife a value of about $2.282 million. It was common ground at the trial that both parties are of an age where they are entitled to draw in part or wholly their respective capital funds in their superfund. There remains no issue with the fact that the wife can access the entirety of her superannuation to purchase a home and for funds to live on.  Yet it can be inferred that her expectation from the primary judgment was that she would have funds from the sale ordered to rehouse herself adequately other than from her superannuation entitlements.

13. The husband asserts that in the event the home is sold the substance of his appeal seeking to retain the home is rendered nugatory.

14. There is no contention that the subject Amended Appeal is without bona fides. This is not withstanding that in this Court’s view the husband’s grounds are only fair to middling and his prospects of success are uncertain. The grounds address matters going to the substance of the findings and structure of the judgment.

15. As to the merits of the appeal those grounds that go to weight rarely enliven appellate intervention: Grounds (e) and (f) above.

16. Otherwise, other grounds assert the decision to be manifestly unjust: Grounds (d) and (h). Such will be a matter for the Full Court.

17. Another ground asserts failure to give reasons: Grounds (a) and (b). This notwithstanding Reasons at [73]-[77] and then at [81]-[87] of the impugned judgment.

18. Overall, the husband’s prospects on Appeal appear to be poor.

19. However, the nub of the application is the sale of the home depriving the husband of the asset in specie he seeks on appeal.

20. Yet he occupies the parties’ home that has a value of $1.55 million. The wife will be deprived of her verdict for some time should the appeal be unsuccessful. She is entitled to accept the judgment as correct.

21. The husband has superannuation in the parties’ fund of about $570,000.00 that he has immediate access to. He does not seek to interfere with the order that requires him to roll out his entitlement to a fund of his own choice.

22. In the circumstances, it is appropriate that the stay as sought be ordered subject to the husband paying the wife $500.00 per week from the date of these orders until judgment in the Appeal proceedings to assist her in obtaining independent accommodation without significant recourse to her superannuation capital in circumstances where the husband occupies a significant capital asset of the parties in which the wife has at present a significant interest. In the event that such period is about six months, he will be liable to pay about $20,000.00 to the wife. Otherwise, he will also be required to pay outgoings on the home while his occupation continues.

23. Orders will be made accordingly.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 September 2018.

Legal Associate:

Date:  12 September 2018