Whittaker and Sinclair

[2013] FamCA 477

FAMILY COURT OF AUSTRALIA

WHITTAKER & SINCLAIR [2013] FamCA 477

FAMILY LAW ─ PARACTICE AND PROCEDURE – Stay application

Family Law Act 1975 (Cth)

APPLICANT: Ms Whittaker

RESPONDENT: Mr Sinclair

FILE NUMBER: SYC 3101 of 2011

DATE DELIVERED: 11 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 11 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Nicholas Eddy &
Company

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Harris Freidman

Orders

1. There be a stay granted in relation to the proceedings for property settlement between the parties on two conditions:

   (i)That the appellant prosecute the appeal which is reflected in the amended Notice of Appeal filed 19 April 2013 in a timely way; and

   (ii)That the parties do all things and sign all documents to cause the payment forthwith to the applicant in the sum of $39,896.86 from the fund comprising the net proceeds of sale of the Suburb Y property.

2. It is NOTED that the character of the payment in Order 1(ii) hereof is a matter to be characterised by the ultimate trial judge.

3. The costs of the parties of and incidental to the proceedings today are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3101 of 2011

Ms Whittaker

Applicant

And

Mr Sinclair

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These are proceedings for interim costs and for a stay.

2. In September last year I heard a threshold issue in relation to a claim under the court’s power to make orders for property settlement between parties to a de facto relationship. In December 2012 I gave judgment, finding that there was a de facto relationship.

3. That elicited the successful applicant’s application in February 2013, for interim costs and interim property settlement. She seeks that the respondent pay her $200,000 by way of interim costs, and that she receive the balance of moneys held in trust, representing the net proceeds of sale of a unit at Suburb Y, $217,000-odd.

4. That application in turn elicited an application for a stay of the proceedings. The proceedings to be stayed are the remainder of the de facto property settlement claim. A Notice of Appeal was filed on 21 December 2012, and an amended Notice was to be filed I think on 26 March 2013.  It was filed on 19 April 2013. The appellant’s summary of argument was to be filed by 29 April 2013, and it has yet to be filed. It is coming, I was told, perhaps within seven days.

5. It is useful to deal with the stay application first. There is no automatic stay on the filing of an appeal. A court can grant a stay, and in doing so considers issues such as the likely success of the appeal; whether there is merit in the appeal; whether the refusal of a stay would render the appeal nugatory.  There I should consider the balance of prejudice, recognising that a successful applicant is entitled to the fruits of his or her victory. In this case of course, the fruits of the victory is a bare right to have the merits of a claim for property settlement determined. The only thing that has been decided is that this court has jurisdiction.

6. From the point of view of the applicant for a stay, if there is no stay, then he is put to the necessary preparation for a property settlement case, including the obligations of financial disclosure, the costs of interlocutory steps, a case assessment conference, and whatever else has to be done for those proceedings - a conciliation conference perhaps. In particular he is concerned about the disclosure about his financial circumstances, which he says are not without some complexity.

7. If it is found on appeal that there is no jurisdiction, then anything done in that line of work will have been a waste of time. He is also concerned that if amounts like those claimed by way of interim costs and interim property settlement was awarded, those funds may not be capable of being recovered if he is successful on appeal. He thinks that because the applicant has disclosed that she has incurred significant costs; that she has virtually exhausted her borrowing capacity, and there will obviously be more costs associated with the appeal, and with any steps that are taken in the substantive proceedings.

8. As to the merits of the appeal, I can’t say the appeal is without prospect. Unfortunately the document that has been prepared is a draft summary of argument, and it seems to describe a discretionary appeal; an appeal against the exercise of discretion. It also seems to expressly say that that is not what it is. “However, it is not an appeal against an evaluative discretionary judgment.” I do not quite follow that. Maybe that is something that will be changed in the settling of the final version of the summary of argument. All of the issues that are raised, the grounds and so on all seem to be to do with insufficient weight or too much weight being laid on various things. As counsel for the applicant for interim costs said, there is no reference in the draft document to me taking into account something inappropriately or ignoring something relevant.

9. The courts traditionally are very careful about interim costs and interim property settlement for a similar reason.  Authorities like Harris have suggested that there should not be a step taken by way of those proceedings that cannot be undone on a final hearing. The arguments in this case suggest that if the appeal was successful the applicant for property settlement could receive very little, perhaps only a component of the proceeds of sale of the Suburb Y property and even then, only after an issue about responsibility for stamp duty is dealt with. The applicant’s legal interest in that property was as to 30 per cent. So that is the amount that on the respondent’s case would likely unambiguously come to the applicant.

10. It fell to the applicant to make the case for the existence of a de facto relationship. Now, the onus is on the respondent to show that there should be a stay. It is argued on behalf of the applicant that the respondent has abused his position in relation to the appeal in that he has not prosecuted it in a timely way. That he delayed in the filing of an amended notice of appeal, and in the provision of summary of argument. There is no evidence before me that either of those things has delayed the appeal. It is common ground that the appeal has not been struck out or even listed for dismissal for want of prosecution.

11. It seems to me that I should take a conservative approach, because as I say, the fruits of the victory were just a bare finding in relation to jurisdiction.

12. It must be that the respondent contends that the applicant is entitled to some part of the funds held on trust. It is vexing that the respondent has not to date been able to agree on the release of some moneys from the controlled moneys account to the applicant. However, I am told by his counsel that he would abide the distribution of the proceeds as to $39,896.86 to the applicant, and he would propose the balance, apart from an allowance for stamp duty, to be released to him.

13. There is no application today from him for the release of those monies, and it must be his case of course that the court has no jurisdiction to deal with the release of those monies. So, it seems to me that it is proper that there be a stay on two conditions: firstly, and importantly, that the appellant prosecute the appeal in a timely way. Secondly, that the parties do all things and sign all documents to cause a payment to the applicant of that sum of $39,896.86. It seems to be a bridge too far for there to be a payment of over $400,000. If the applicant is successful in the ultimate, then it will be a matter perhaps for an argument about costs as to any delay that can be sheeted home to the respondent, and she may be able to be recompensed in that way. As to interim costs, one aim is to preserve the integrity of the judicial process so that litigation is fought on a fairly level playing field. However, money paid or advanced needs to be money that is unambiguously, or very likely to be, money that is ultimately to come to the party seeking it. I cannot say that with confidence today.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 June 2013.

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