Yavuz and Yavuz and Anor

[2014] FamCA 1001

FAMILY COURT OF AUSTRALIA

YAVUZ & YAVUZ & ANOR [2014] FamCA 1001

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband was ordered to pay the wife the sum of $1 506 723 in the substantive property proceedings – Where the husband seeks a stay of the orders pending Appeal – Where a stay of the orders was granted on condition that the husband pay to the wife the sum of $250 000 within 42 days.

Family Law Act 1975 (Cth)

APPLICANT: Mr Yavuz

1st RESPONDENT: Ms Yavuz

2nd RESPONDENT: Dr Yavuz

FILE NUMBER: SYC 1202 of 2009

DATE DELIVERED: 18 March 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 18 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney, SC

SOLICITOR FOR THE APPLICANT: Broun Abrams Burreket

COUNSEL FOR THE 1^ST RESPONDENT: Mr Puckey

SOLICITOR FOR THE 1^ST RESPONDENT: Pearsons Lawyers

COUNSEL FOR THE 2^ND RESPONDENT: Mr Richardson, SC

SOLICITOR FOR THE 2^ND RESPONDENT: York Law

Orders

1. That orders are made in accordance with the hand-written Minute of Orders filed in Court today signed by me and placed with the Court papers as set out hereunder:-

1.Paragraphs 2, 4, 5 and 6 of the orders made 23 December 2013 be stayed subject to paragraph 2 hereof.

2.The husband do pay to the wife within 42 days the sum of $250,000.

3.The costs of the stay application this day be reserved to the hearing of the wife’s costs application.

4.The wife’s costs application filed 17 January 2014 is adjourned to a date to be allocated by the chambers of Justice Johnston following the determination of the Appeal upon written request from the wife’s solicitors.

5.All parties have liberty to apply with respect to:

a)orders pending disposal of the Appeal including order 3 of 23 December 2013 orders;

b)parenting orders upon the filing of an appropriate application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yavuz & Yavuz & Anor 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 1202  of 2009

Mr Yavuz

Applicant

And

Ms Yavuz

1^st Respondent

And

Dr Yavuz

2^nd Respondent

REASONS FOR JUDGMENT

1. These are proceedings for a stay of orders which I made on 23 December 2013.  Those were orders in substantive property proceedings between Ms Yavuz, Mr Yavuz and Dr Yavuz.  Those orders dismissed an application by Dr Yavuz, who was the second respondent in those proceedings.  The orders required the husband to pay the wife the sum of $1 506 723.  There were certain orders which would flow in the event that the husband did not comply with that substantive order. 

2. The applicants for the stay are firstly the husband in the proceedings, and his brother, Dr Yavuz who is also an appellant, I understand, in his own right.  They are seeking to set aside the substantive order, that is, paragraph 2 of the orders.  It is fair to say that Dr Yavuz is seeking a variation of paragraph 3 of the orders, which required the husband and him in their personal capacities and as directors of TT Proprietary Limited and HH Proprietary Limited to be restrained from dealing with, encumbering, disposing of, gifting and/or alienating certain properties that were set out in the Schedule (and I shall not repeat those), except to comply with the terms of these orders or in the ordinary course of business.  That order also required those persons to continue to pay, as and when they fall due, all loan instalment repayments of principal and/or interest to the ANZ Bank and all other outgoings to the properties of whatsoever nature and kind. 

3. The second respondent seeks a variation of that injunction to provide him with the opportunity to bring the matter back to Court in the event that he found himself in a position where he felt constrained by that order in some unreasonable way so that he could have an opportunity to come to Court and put something to the Court in respect of some variation of that injunction.  The husband, for his part, would not oppose continuation of that order. 

4. The real substance of the cases of both the husband and also the second respondent for the stay is that if the Court does not stay the operation of the substantive order, that is, the order 2 requiring the husband to pay the wife the sum of approximately $1.5 million, this may well render the wife’s appeal nugatory.  This is on the basis that the major part of the properties which are held as indicated in my reasons for judgment are held by the husband and Dr Yavuz in partnership, that those properties and other properties are all provided as security to the ANZ Bank for the very substantial loan that I referred to in the reasons and it is submitted by each of the appellants that it may just not be available to the husband and the second respondent to selling some of those properties or rearranging those properties and that in order for the husband to be able to comply with the Court’s order, it would be inevitable that a sale of some or probably all of the properties would be required, because this would be likely to be at the behest of the bank.  In the event that the husband or Dr Yavuz were successful with their appeal, the Court would not be able to put back, as it were, their property so that that would, in effect, render the appeal nugatory.

5. The relevant principles are well-known and learned senior counsel for the husband referred to them in his outline of case document. 

6. Firstly, the mere filing of an appeal is insufficient to grant a stay, and I accept that that is the case.  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.  I accept that. 

7. The next consideration is that a person who has obtained a judgment is entitled to the benefit of the judgment, and a person who has obtained a judgment is entitled to presume the judgment is correct. 

8. The next matter is the bona fides of the applicant. 

9. The next matter is that a stay may be granted on terms that are fair to all parties, which may involve the Court weighing the balance of convenience and the competing rights of the parties. 

10. Then the matter to which I have referred, a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted. 

11. The next matter is some preliminary assessment of the strength of the proposed appeal, that is, whether the appellant has an arguable case and the period of time in which the appeal can be heard. 

12. I accept that the onus is on each of the appellants to establish a proper basis for the stay.  As I say, there have been very strong arguments on behalf of each of them to the effect that if a stay is not granted, then what will almost certainly happen is that there will have to be a sale of properties. 

13. There was a vigorous submission on behalf of the wife in respect of that matter, and it was submitted that firstly, the husband and his brother had indicated to the Court that the husband would find the means to pay the wife in accordance with the Court’s order.  The way that he would do that would be to seek some assistance from his brother.  It is submitted that the Court ought to be confident that between the husband and the second respondent and based on a letter from the ANZ Bank dated 6 February 2014, they would be able to approach the bank and draw down further moneys. 

14. The bank indicated what would be involved in such a process is that seven of the properties as listed in the letter would have to be revalued by the ANZ.  I think the letter indicated that the ANZ Bank lends up to 65 per cent of the value of commercial properties.  And it was submitted that on that basis and in respect of those properties there ought to be an amount or a facility for something in excess of $700 000 to be able to be drawn down against those properties.  There was a challenge to that on behalf of Dr Yavuz.  And I accept that some caution would have to be taken about those matters referred to by the ANZ Bank in that letter.  I accept that, as submitted on behalf of the husband and the second respondent, if the Court does not grant a stay, then the appeals might well be rendered nugatory on the basis I have indicated in accordance with the submissions that were made. 

15. So far as the bona fides of the applicants are concerned, there was some challenge to this by learned counsel for the wife and this was on a few bases.  There was a suggestion that the Court might have some concern about the fact that both appeals were filed within days of the wife filing a costs application, that the Court would take into account that prior to the trial there had been an injunction in place which restrained the husband from dealing with properties, yet he sold properties which I think were the MW Property. 

16. It was submitted that since completion of the trial and before reasons were handed down and orders were made, the husband sold the only remaining property at unit the MW Property, and that the Court would have concerns in those circumstances about the bona fides of the husband.  I must say having considered that submission, having considered the broader matters in the proceedings and the quantum of the order that I have made, and what would be involved in fulfilling that order, I do not have the view that the bona fides of either the husband or Dr Yavuz should be questioned. 

17. So far as the preliminary assessment of the strength of the proposed appeal, Mr Richardson on behalf of Dr Yavuz says there are important and fundamental issues of principle that need to be addressed in the appeal.  Mr Kearney pursues somewhat of a similar theme but also pursues numerous other matters which go to findings that the Court made.  It is very difficult, in my experience, for a trial judge to endeavour to make some sort of preliminary assessment of the strength of the appeal, so I could not say that there is not an arguable case. 

18. So far as the period of time in which the appeal can be heard, none of the parties addressed me in respect of this matter.  But I know from my experience of matters going to the Full Court that there are very considerable delays and matters which go on appeal in this registry seem to take a minimum of 12 months.  I think one could safely say 12 months to completion of the appeal with orders.  My fear is that, in fact, the period of time which may be involved could turn out to be considerably longer than that so that on the one hand, when I consider that if the Court does not put in place the stay, then the appeal might well be rendered nugatory and on the other hand, in particular, that the wife, who has been involved in this litigation with the husband now over quite a few years, is entitled to the fruits of her judgment and entitled to presume that the judgment is correct. 

19. In my view, in trying to weigh the balance of convenience to each of the parties, that is, that the wife has been waiting a long time for some outcome, I suppose as has the husband, as against the risks involved that the appeal may be rendered nugatory if the stay is not granted, in my view, the answer to this is to put in place the stay but on terms.  And Mr Richardson for the second respondent has made it very clear that the Court ought to be somewhat cautious in trampling over those matters, what he describes as the fundamental issue of principle which relates to his client and the extent to which the Court can make orders against his client. 

20. Bearing that matter in mind as well as the other matters that I have referred to, in my view, the appropriate result in these proceedings is to put the stay in place but to require that the husband to pay to the wife the sum of $250 000 within 42 days.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston 18 March 2014.

Associate:     Annette Turner