Valder & Saklani (No 4)
[2023] FedCFamC1F 218
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Valder & Saklani (No 4) [2023] FedCFamC1F 218
File number(s): CAC 2098 of 2016 Judgment of: CHRISTIE J Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – PRACTICE & PROCUEDURE – APPLICATION FOR STAY – Where final property orders were made – Where the first and second respondents in the substantive proceedings both seek a stay of those orders - Where the applicant in the substantive proceedings does not oppose the stay – Where the effect of the orders affects the third and fourth respondent in the substantive proceedings – Where the third and fourth respondents each filed a notice to submit – Stay granted on terms. Cases cited: Carlin & Carlin (1977) FLC 90-320;
Kelly & Kelly (1981) FLC 91-001;
Molier v Van Wyk (No. 2) (1981) FLC 91-001;
Trahn & Long (No 2) (2008) FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 23 March 2023 Place: Sydney Counsel for the Applicant: Mr Horobin Solicitor for the First Respondent: Ms Donnelly, Holmes Donnelly & Co Solicitors The Second Respondent: Litigant in person The Third and Fourth Respondents: Litigant in person (not heard) ORDERS
CAC 2098 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VALDER
Applicant
AND: MS SAKLANI
First Respondent
MR B SAKLANI
Second Respondent
MR C SAKLANI (and another named in the Schedule)
Third Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
30 mARCH 2023
THE COURT ORDERS THAT:
1.The orders of 24 February 2023 be stayed on the following terms:
(a)The husband and wife prosecute their respective appeals expeditiously including complying with all directions of the appeal registrar for filing of appeal documents;
(b)That Mr C Saklani and Ms D Saklani are restrained from dealing with G Street, F Town, New South Wales (“the F Town property”) including but not limited to extending any loan facility, selling the F Town property or any part of it, granting a mortgage caveator charge over the F Town property; and
(c)That Mr C Saklani and Ms D Saklani make all payments in respect of any mortgage registered on title of the F Town property as and when they fall due and attend to payments of all statutory rates and insurances in respect of the F Town property pending disposition of the appeal in this matter.
2.Notwithstanding Order 1(b) Mr C Saklani and Ms D Saklani may take any steps in furtherance of subdivision of the F Town property provided that they notify Ms Valder in writing 21 days in advance.
3.Ms Valder have liberty to relist in the event of alleged non-compliance with the terms.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valder & Saklani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for the stay of orders made on 24 February 2023 (“the final orders”) which relate primarily to the property at G Street, F Town, New South Wales (“the F Town property”) and which provide for its sale.
The first applicant for stay is the wife. The second applicant for stay is the husband. Both applicants have appealed the final orders. Both applicants seek stay of all property orders not merely those which relate to sale of the F Town property. Relevantly, the third and fourth respondents (the son of the applicants and his wife) in the substantive proceedings, who currently own the F Town property, do not seek a stay of these orders and there have not filed a Notice of appeal.
On 24 March 2023 the wife, Ms Saklani, filed an Application in a Proceeding seeking a stay of the orders of 24 February 2023 pending determination of her appeal.
On 27 March 2023 the husband, Mr B Saklani, filed an Application in a Proceeding seeking a stay of the final orders pending determination of his appeal.
In essence the stay is directed to the orders which the Court made on a final basis for sale of the F Town property. That property is owned by the third and fourth respondents, Mr C Saklani and Ms D Saklani who are the son and daughter in law of the two applicants who seek a stay.
As regards the wife, she has a life estate in the subject property. As regards the husband, he resides at the property. The third and fourth respondents, whilst being the registered proprietors of the property, do not reside at the property.
The third and fourth respondents filed a submitting appearance.
The application for a stay was filed the day prior to the date on which the orders were to be implemented. There is no explanation given for the delay in filing the application although it is plain that it was filed after the wife and the husband each filed a Notice of Appeal.
When the matter was listed the respondent, through counsel, indicated a preparedness on the part of the respondent to consent to a stay on terms.
THE LAW
A party may not anticipate that he or she will necessarily obtain a stay upon the filing of a Notice of Appeal. Each case will turn on its facts but the applicable principles, derived from the jurisprudence and in particular the decision of the Full Court in Trahn & Long(No 2) (2008) FamCAFC 194 at [38] are as follows:
(a)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 “special” or “exceptional” circumstances;
(b)A person who has obtained a judgment is entitled to the benefit of that judgment;
(c)The person who has obtained a judgment is entitled to presume the judgment is correct;
(d)The mere filing of an appeal is insufficient to ground a stay;
(e)The bona fides of the applicant;
(f)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;
(g)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 the stay;
(h)Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
See also Carlin & Carlin (1977) FLC 90-320; Kelly & Kelly (1981) FLC 91-001 and Molier v Van Wyk (No. 2) (1981) FLC 91-001.
The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stayfor a short period of time.
CONSIDERATION
It is necessary to first consider the significance of there being no appeal against the final orders or application for stay filed by the registered proprietors of the property.
The F Town property is central to the case as a whole. It is as against that property that the respondent made her equitable claim. It is as against that property that the Supreme Court of New South Wales assessed the Respondent’s equitable compensation. It is that property that was transferred by the consent orders (which the final orders set aside) to the wife. It is that property which the wife then transferred to her son and daughter in law, subject to a life estate (which transaction was set aside by the final orders). It is that property that the husband and wife continue to reside at as at the date of hearing.
The husband and wife have a right as parties to the final orders to appeal and to seek a stay but they are not the parties who are obliged by the terms of the final orders to sell the property.
Neither the husband nor the wife have filed evidence by the son and daughter in law.
The wife’s application for a stay appears premised on:
(a)The need to ready the property for sale;
(b)The inconvenience of moving having regard to her health, work commitments and age; and
(c)Financial hardship.
As regards the need to ready the property for sale, the wife’s affidavit does not address (other than in a cursory manner) why she and not the owner would be responsible for preparation of the property for sale. Given the contents of her affidavit as it concerns both her age and her health I would have no expectation that even as a matter of family duty she would be the person responsible for preparation of the property for sale.
The question of the sale of the F Town property was squarely raised by the application of Ms Valder at trial and so it is difficult to rely upon the fact that those orders were made to then seek more time to prepare the property for sale. The nature of the property – rural, the fact that it was not subdivided, the fact there was plant and equipment – are all matters known to the parties at trial. I note there was no value attributed to any plant and equipment at the F Town property in the financial statements of the husband or wife so assume that either those items are owned by others (perhaps their son) or have no value such as to require disclosure.
I accept that the wife’s life estate in the F Town property means that she has an interest in staying an order which provides for the sale. However, the final mater upon which the wife relies namely financial hardship makes no sense in the context of this case. The orders which I made provided for sale of the property and a distribution of the proceeds – including to the wife. If there is compliance with those orders then the wife will have a source of funds from which she can pay her outstanding liabilities including legal fees. Otherwise it is not plain how she will attend to those fees and so the evidence that she gives on this topic without more tends towards refusing rather than granting the stay.
The husband does not have a life estate in the F Town property. It is not plain on what basis he occupies his residence.
The husband’s application for stay appears premised also on the need for preparation of the property for sale and the need for a clearing sale. I need not repeat my observations above.
There comes a time when further delay is untenable.
No submissions were made concerning the merits of the appeal and this is less significant since the respondent, Ms Valder conceded a stay on terms was appropriate.
The respondent raised on the day of the hearing of this application the possibility of a stay on terms. This deals with the most significant factor which may have tended towards grant of a stay, namely that sale of property may render the appeal nugatory.
The terms proposed were:
(a)The appeal be prosecuted expeditiously;
(b)There be undertakings which prevent dealing with the F Town property pending disposition of the appeal;
(c)Information be provided to the respondent about subdivision.
The solicitor for Ms Saklani sensibly agreed to the proposed terms.
Mr B Saklani appeared on his own behalf and also conceded the terms were appropriate.
Both Mr B Saklani and Ms Saklani suggested that the restraint on dealing should explicitly exclude subdivision and I agree. Ms Valder’s counsel acknowledged the appropriateness of this approach.
I cannot accept an undertaking from parties who have not appeared so I must make injunctions which bind them to act in the manner sought by Ms Valder’s counsel. If there is a breach of these terms then the matter will be relisted.
I think the orders which are proposed balance the competing considerations given the concession of the respondent and the timeframe in which an appeal may be heard.
The respondent will have liberty to relist before me in the event that any of the appeal directions are not complied with and I will entertain an application to lift the stay.
I certify that the preceding thirty-two (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 30 March 2023
SCHEDULE OF PARTIES
CAC 2098 of 2016 Respondents
Fourth Respondent:
MS D SAKLANI
0
0
0