Panshin & Farmer [2013] FamCAFC 10; (15 February 2013)

Last Updated: 22 February 2013

FAMILY COURT OF AUSTRALIA

PANSHIN & FARMER

[ 2013] FamCAFC 10

FAMILY LAW – APPEAL – stay of orders – impending settlement of sale of property

Family Law Act 1975 (Cth)

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 De L v Director-General, Department of Community Services (NSW) [1996] HCA 9; (1996) 136 ALR 201

APPELLANT:

Ms Panshin

RESPONDENT:

Ms Farmer

APPEAL NUMBER:

EA

101

of

2012

FILE NUMBER:

SYC

2252

of

2011

DATE ORDERS MADE:

1 February 2013

DATE REASONS DELIVERED:

15 February 2013

PLACE DELIVERED:

Sydney

DATE HEARD:

1 February 2013

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 July 2012 and 8 October 2012

LOWER COURT MNC:

[ 2012] FMCAfam 691 and [ 2012] FMCAfam 1107

REPRESENTATION

FOR THE APPELLANT:

Ms Panshin in person

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Stidwill Solicitors

ORDERS

(1) The application for a stay of the settlement of the sale of the property at C be dismissed.
(2) The appellant pay the respondent’s costs of and incidental to the application for a stay in the sum of $3,000, with such sum to be paid on finalisation of the property settlement proceedings between the parties.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 101 of 2012
File Number: SYC 2252 of 2011

MS PANSHIN

Appellant

And

MS FARMER

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 1 February 2013 the appellant, Ms Panshin, sought an order that this Court stay the impending settlement of the sale of a property, the subject of orders by a Federal Magistrate. That application was refused and I indicated that reasons for the refusal would be delivered later. These are the reasons for the refusal to make the order sought.

BACKGROUND

2. Some background to the application is helpful.
3. Proceedings for property settlement between the appellant and Ms Farmer (“the respondent”) were commenced in the Federal Magistrates Court and a hearing began in July 2012.
4. When it became apparent that the matter would not conclude, on 10 July 2012 the respondent sought interlocutory orders in relation to the occupation and sale of a property, jointly owned by the parties at C (“the property”). The appellant opposed that application. She sought, as a final order, that the title of the property be vested in her. The respondent sought orders for a sale of that property and a division of the net proceeds. The issue of property settlement remains to be determined in the resumption of the part heard proceedings.
5. The Federal Magistrate made orders for the sale of the property and further ordered that in the event that either party failed to do any act required to give effect to the sale, the respondent be appointed trustee for the sale of the property. The Federal Magistrate’s orders provided that the sale proceeds, after deduction of costs and expenses and discharge of the mortgage and any other debts on the property, be held in a controlled monies account pending disposition of the property settlement proceedings between the parties.
6. On 8 October 2012 the Federal Magistrate made further orders restraining the appellant from approaching the property and stayed the orders for sale until
   17 October 2012.
7. The matter is part heard before the Federal Magistrate and is listed for further hearing in February 2013.
8. The appellant appealed from the orders of 10 July and 8 October 2012. The respondent agreed to take no further step on the sale of the property pending the hearing and determination of the appeal.

THE APPEAL

9. The appeal was heard by Coleman J on 14 November 2012.
10. Given the nature of the orders made by the Federal Magistrate, the appellant required leave of the Full Court to bring the appeal. No leave was sought but no objection was raised on behalf of the respondent to the issue of leave being considered by his Honour.
11. Equally, the appeal against the orders of the Federal Magistrate was brought outside the time prescribed for the filing of such an appeal. No extension of time to do so was sought. Again, no objection was raised by the respondent by reason of that failure.
12. The application for leave to appeal was dismissed in reasons for judgment delivered on 30 November 2012.
13. Coleman J referred to the findings of the Federal Magistrate and observed that the evidence before the Federal Magistrate suggested a market value of the property of $925,000. Approximately $660,000 was owed to the bank under the mortgage on the property. In addition, the Federal Magistrate found that the appellant had further debts of $22,600 on MasterCard and $11,663 on a personal loan. The Federal Magistrate, having recorded these facts, observed that the appellant’s financial position was “parlous”.
14. More particularly, the Federal Magistrate found that as at January 2012, the mortgage was in arrears of $18,534 and on 18 January 2012 the bank had issued a notice pursuant to s 57(2)(b) of the Real Property Act indicating an intention to enforce the debt by repossession and sale of the property.
15. It seems that the appellant had lodged a complaint about the bank to the Financial Ombudsman Service and she contended that the fact of an unresolved complaint operated as a stay of any enforcement by the bank. This issue was raised before Coleman J and before this Court on the application for the stay and it is as well to include here the Federal Magistrate’s findings on the matter.
16. His Honour, Coleman J observed:

[26] In paragraphs 17 and 18 of his reasons for judgment, which attracted considerable attention before this Court, the learned Federal Magistrate recorded:

The evidence before the court does not support the respondent’s contention that the complaint, in effect, operates as a stay of enforcement on the mortgagee. Indeed, exhibit R9 is evidence that the Financial Ombudsman process is exhausted. This must be the case. For one thing, there is no evidence at all that the respondent can comply with the terms of the resolution agreement, that is to say, repay the home loan on or before 5 October. It is abundantly clear that the respondent will never voluntarily surrender the property to the bank before 5 October. The stay on enforcement was only offered until 5 October.

The Financial Ombudsman Service dispute resolution scheme does not work on the basis that a credit provider’s rights are stayed until such time as the complaint is resolved to the satisfaction of the complainant. What it provides for is a reasonable opportunity for discussion, offer and compromise. That is what exhibit R9 evidences. The court does not accept that if the respondent simply keeps ignoring or rejecting offers of compromise made by the bank that she can indefinitely postpone enforcement.

[27] The concerns articulated by the learned Federal Magistrate in his reasons for judgment of 10 July 2012 were reiterated in paragraph 19 of his reasons for judgment on 8 October 2012. His Honour there recorded:

There is no evidence before the court to satisfy it that by virtue of some provision under the Financial Ombudsman Scheme initiated by the respondent that there is any less risk of the mortgagee exercising its power of sale or enforcement in a situation where there are substantial arrears and where only the interest is being serviced. In this regard, the matters of risk identified by the court in its reasons of 10 July remain unchanged. The respondent now has had two opportunities to demonstrate that somehow the complaint to the Financial Ombudsman scheme removes the risk. She has failed twice.

17. The Federal Magistrate noted that the appellant had reached an agreement with the bank to the effect that it would stay recovery action for three months (from 5 July 2012) to enable her to refinance the loan. He also observed that the letter from the bank was clear that if the loan was not repaid by 5 October 2012, the appellant would relinquish the property to the bank for sale. The Federal Magistrate observed that the appellant said she was not a party to this agreement with the bank, nor did she agree with it.
18. Coleman J considered the Federal Magistrate’s findings on the appellant’s proposal that she refinance the property:

[38] Having referred to the submissions on behalf of the parties, the learned Federal Magistrate recorded the submission on behalf of the appellant that:

44. ... if given the opportunity, the respondent would re-finance the debt in three months, that she could find work quickly, that there is no risk of loss of the property, and that indeed the respondent’s mother may be able to give her money to pay the mortgage.

[39] Under the heading “Discussion” the learned Federal Magistrate revealed the reasoning which led to his decision. The learned Federal Magistrate was satisfied:

45. ... that there is a real risk that the mortgagee, the Commonwealth Bank of Australia, will exercise its powers, the powers it clearly has, to sell the property given the arrears that have accumulated, much of which, though not all, coincides with the respondent’s occupation of the home and non-payment of the mortgage - all at a time when she clearly was in receipt of money that could have been used for this purpose.

[40] His Honour recorded, accurately:

46. The respondent’s position remains that she wishes to retain the property and re-finance the debt. She cannot do that without agreement from the applicant or Order of the Court. Her position in this litigation is that the applicant should retain what she has - that is, that the respondent would pay her nothing. The respondent therefore has no motivation to sell this property. Given the urgency that I perceive, I could not safely entrust to her the responsibility for sale.

[41] Ultimately his Honour concluded:

47. There appears to be no reasonable alternative to sale, given the section 57(2)(b) notice and the lack of confidence I have in the respondent. Her proposal is not one the applicant will accept.

[42] For reasons which he detailed, the learned Federal Magistrate concluded that:

48. ... leaving her [the appellant] in the property is not realistic, will not address the concerns that I have expressed above, and this means that ordering the sale of the property really is the only alternative.

19. Coleman J turned to the proposed grounds of appeal. He found no merit in any of them.
20. The thrust of the appeal was that the Federal Magistrate was in error in characterising the order for the sale of the property as an interim order for property settlement and further challenged his findings as to the effect of the engagement of the Financial Ombudsman Service in an attempted resolution of the issue with the bank.
21. His Honour, Coleman J said in relation to the source of power identified by the Federal Magistrate by which he made the challenged orders:

[49] With respect to the learned Federal Magistrate, the more appropriate source of power for the orders made by him was probably the injunctive power provided by s 114(3) of the Act, given that his Honour’s orders were in reality mandatory injunctive orders for preservation of the property of the parties, and did not involve “settling” property upon either party or altering the interests of the parties, as between themselves, in the property. However, the Court is not persuaded that his Honour was wrong in regarding the application in the way he did, or that his Honour could not have made the orders he did by way of interim property settlement, albeit s 80 did not provide the power to do so.

22. However, Coleman J observed at [46] that the order relating to the sale was informed by (the Federal Magistrate’s) findings and that to delay the sale of the property would, “...for the reasons his Honour articulated, be likely to result in the property of the parties being diminished given that the present respondent sought the sale of the property and that the appellant who opposed its sale could not, on the evidence before his Honour reasonably hope to avert a mortgagee sale of the property, in circumstances where the parties’ equity in the property was being, and would continue to be eroded”.
23. Coleman J concluded at [51] that whether the Federal Magistrate was making an interim property order or an injunction, the exercise of his discretion was “essentially the same”. He said:

[59] Accepting that the learned Federal Magistrate approached the application for the sale of the property, in reliance upon the Court’s powers to make orders for settlement of property rather than the Court’s injunctive powers, the Court is not persuaded that the learned Federal Magistrate erred in the exercise of his discretion by failing in any of the respects articulated in support of this complaint. His Honour clearly directed his attention to all of the matters which the authorities suggest were relevant and appropriate to consider in the light of the facts as found by him.

[60] As noted earlier, and as suggested to Counsel for the appellant during the hearing in this Court, the fate of the “appeal” ultimately turns upon whether a number of critical findings of fact relied upon by the learned Federal Magistrate can be shown to have not been reasonably open to him. As is not in doubt, those critical findings of fact included the ability of the appellant to avoid a sale of the property by the Bank in the exercise of the powers conferred upon it by the mortgage it held over the property, it not being in doubt that the mortgage was in continuing default, and whether, apart from the bank’s entitlement, ordering the sale of the property was necessary to protect the parties’ dwindling equity in it. If his Honour’s critical findings of fact remain undisturbed, the proceedings could not have had any other outcome, even if the “principles” governing applications for interim property settlement were not fully observed.

24. As to the effect of the involvement of the Financial Ombudsman Service, his Honour at [73] referred to passages from the reasons of the Federal Magistrate in relation to the orders of 8 October 2012 in which the Federal Magistrate said, referring to the letter from the bank dated 5 July 2012 and in which it agreed to stay any action on the mortgage for three months:

73. In the learned Federal Magistrate’s subsequent judgment of
8 October 2012, his Honour reiterated that:

17. ... exhibit R9 is evidence that the Financial Ombudsman process is exhausted. This must be the case. For one thing, there is no evidence at all that the respondent can comply with the terms of the resolution agreement, that is to say, repay the home loan on or before 5 October. It is abundantly clear that the respondent will never voluntarily surrender the property to the bank before 5 October. The stay on enforcement was only offered until 5 October.

74. On 8 October 2012, the learned Federal Magistrate further recorded that:

18. The Financial Ombudsman Service dispute resolution scheme does not work on the basis that a credit provider’s rights are stayed until such time as the complaint is resolved to the satisfaction of the complainant. What it provides for is a reasonable opportunity for discussion, offer and compromise. That is what exhibit R9 evidences. The court does not accept that if the respondent simply keeps ignoring or rejecting offers of compromise made by the bank that she can indefinitely postpone enforcement.

19. There is no evidence before the court to satisfy it that by virtue of some provision under the Financial Ombudsman Scheme initiated by the respondent that there is any less risk of the mortgagee exercising its power of sale or enforcement in a situation where there are substantial arrears and where only the interest is being serviced. In this regard, the matters of risk identified by the court in its reasons of 10 July remain unchanged. The respondent now has had two opportunities to demonstrate that somehow the complaint to the Financial Ombudsman scheme removes the risk. She has failed twice.

25. Coleman J concluded on this point that the appellant had failed to demonstrate that the Federal Magistrate’s findings had not been reasonably open to him.
26. His Honour concluded that the appellant had not established that the Federal Magistrate’s discretion had miscarried in any appellate sense. He concluded that as the Federal Magistrate’s findings of fact as to the fate of the property were not successfully challenged, “the proceedings could not have had any other outcome”.
27. His Honour Coleman J concluded that, there being no error shown in any of the proposed grounds of appeal and the further evidence sought to be brought by the appellant did not demonstrate that the decisions under challenge were erroneous, declined to grant leave to appeal.
28. As I have indicated, his Honour’s reasons and orders on the appeal were delivered on 30 November 2012. The appellant’s application for Special Leave to appeal to the High Court was filed on 31 January 2013 as was the application for stay in this Court. The application for Special Leave was not filed in the time provided by the High Court rules. Within the application, the appellant seeks an extension of time in which to bring the application for Special Leave. For the purposes of dealing with the application for a stay, I propose to treat the application for Special Leave as being brought within the time prescribed by the High Court rules.

THE APPLICATION FOR A STAY

29. The application for stay was listed before the Full Court as a matter of urgency, the appellant contending that settlement of the sale of the property was to take place on that day, 31 January 2013. It is unclear whether the appellant had successfully given the respondent or her solicitors notice of the intended application for stay. However, once the matter was listed, the Registry of this Court notified the respondent and her solicitors of the listing. Counsel for the respondent appeared by telephone and, indicating that he had no instructions in the matter, sought the application be adjourned until the following day, 1 February 2013. Counsel for the respondent informed the Court that the settlement of the sale of the property was due to take place on 1 February 2013 at 2pm. Over the appellant’s objections, the matter was adjourned.
30. In the adjournment, the appellant filed two further documents, an amended application in an appeal and a further affidavit. Counsel who appeared for the respondent had not been served with these documents but copies were made available and submissions on the application proceeded. On 1 February 2013, the appellant appeared by telephone as she had on 31 January 2013.
31. The Amended Application in an Appeal sought the following orders:

1. 1. Please Stay the settlement/sale of my Home [C property] URGENT PLEASE

2. 2. I am seeking this please as an appeal has been lodged in the High Court of Australia.

3. 3. Please Stay all of Colemans orders until High Court Decision

4. 4. The property is settling I was told 31.1.2013 and it this was changed without my being inform. I have also not been informed of the purchaser, purchasers lawyer, the location, time.

I have been totally abused and denied my rights as the owner form the process and documents and obligations and I request she is removed due to her abuse of power. I also did notices to produce as the contract was changed to an illegal on e that is high risk and does not discloes the issues and has a bodgy engineers report. I requested this information in a case application after requesting fair information, doing notices to produce, [Farmer] did not turn up and Altobelli ignored all of my rights for disclosure, refusing my fair reasonable order request for this and preventing my ability to do final orders, I have filled an appeal. My file is missing critical information Altobeli has removed: my final orders of july 2012, my chronology and issues statment he asked for and all of my matters submission. On the day I was denied to provide evidence of over 40 items and 2 videos I proving ms [Farmer] was smashing up the house the other proving ms [Farmer] framed me with police and her affidaits were a lie.As I am to be on the street and he took 18 days with a 72 hour listing putting prolific obsticals in my my way, when with theother side he does it quick not doc s and on orders they had up always ignoring mAt the time I requested money from the sale untl I found out I coudl still appeal and have it heard in a fair court. Due to the sever injustice in extreme hardship this matter has created due to ms [Farmer] need for power, control revenge and kill. Leave with hate not love which is opposite to my being and core and morals. I am a fish out of water.)

5. 5. I return to the property by my 42 birthday ... and or it is rented out by [Ms R] at ... Properties for 850 plus per week. This money is used for the loans and/or for the prospective purchaser.
6. 6. Ms [Farmer] pays half her wage spousal maintenance for damaging. From today 1.2.2013 every 2 weeks. $900. I request this please to prevent ms [Farmer] from abusing me and intimidating me and to help me get back on my feet and this matter is over (3-6 months). This is the only way to stop her as she is lying in court and seeking revenge for money and being immoral cruel. This may prevent her from attacking me, my car, my car and my property and technically sabotaging my IT and that of my legal people. I have been her defacto wife since 2005 and she never paid for me while I made us money and she put all her extra into herself and her super, while my home is my super.
7. The legal agent Ms [Farmer] Choose responds to me and ms [Farmer] is removed as trustee and the restraint illgally gove in removed
8. The agent More legal provides before any decsions are made on this appeal a legal contract on the property they say is settling the 1.2.2013 yet failed to advise me telling me 31.1.2013 and giving me an illegal contract. Without purchaser name and or lawyer. I waited and requested for months a contract and details and was told a different purchaser and Ms [Farmer] only 5 weeks after the exchange gave me a viod and illegal contract she changed with apparently different purchasers, that is putting me at risk of being sued for 200K of damages still in the property. I request please a copy of the
9. I request all documents the trustee has and has refused to give me from the sale
10. A copy of the sales agent sales sheet to be provided by [name omitted] showing his payment of fees, ad costs, purchasers etc. Before any decsions is made by the appeals court plesase

(errors and numbering as in original)

32. The affidavit in support of the application was drafted by the appellant and, with respect to her, while clearly articulating her distress at the outcome, does not deal with all of the issues necessary to found a stay. Nevertheless, it is clear that the appellant contends that the Federal Magistrate and Coleman J were wrong in their understanding of the law. The appellant also relied on the written submissions made on her behalf to Coleman J in support of her application. I have read those submissions, which, in any event, are significantly referred to in his Honour’s reasons. Also attached to the affidavit is the Application for Special Leave and the matters to which the appellant would draw the attention of the High Court.
33. In her application for a stay, the appellant argued that his Honour Coleman J was in error in his findings in several particular respects, although I understood her submissions to be that, generally, his Honour was wrong in failing to give her leave to appeal and upholding the challenges to the Federal Magistrate’s orders.
34. The particular matters argued on the stay were his Honour’s findings as to the source of power used by the Federal Magistrate in making the order for sale and the effect of the engagement with the Financial Ombudsman Service on the bank’s entitlement to sell the property under the mortgage.
35. It is important to note that the Application for Special Leave to appeal to the High Court was brought after the time for bringing such an application had expired. The application for a stay was brought on the day on which the appellant believed the settlement of the sale of the property was to have taken place. The application for a stay was listed by the Court as a matter of urgency late in the afternoon. The appellant said that the delay in bringing the application for a stay was the result of her being “devastated” and “confused” by the outcome of her appeal, the Christmas break when the Court was closed and not being able to afford a lawyer. I am unable to make an assessment of the strength of the explanations but, in the result, nothing turns on the explanation given for the delay in seeking the stay.

POWER OF THIS COURT TO ENTERTAIN THE APPLICATION FOR A STAY

36. No issue was taken by counsel for the respondent to the power of this Court to entertain the stay application. The appellant was entitled to seek a stay from this Court (See De L v Director-General, Department of Community Services (NSW) [1996] HCA 9; (1996) 136 ALR 201).
37. It is clear that, his Honour Coleman J having disposed of the application for leave to appeal the orders of the Federal Magistrate, there is no appeal extant in which the application could be brought, as the documents filed by the appellant are styled.
38. The principles to be applied in such an application are well known. In Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460, Kirby J said at [5]:

5. ...Repeatedly, the Court has emphasised that the jurisdiction to grant a stay is exercised only in very exceptional circumstances. It is "extraordinary". In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (6), Brennan J stated the approach to be taken:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

39. Turning first to the issue of the prospect of special leave being granted. As I have indicated, the Application for Special Leave challenges the basis on which the order for the sale of the property was made, and argues that the power exercised by the Federal Magistrate in making the order for sale was not by way of interim order for property settlement but was an interlocutory order. Further challenge is made to the asserted error by the Federal Magistrate in his findings about the Financial Ombudsman Service. The document, while extensive, traverses matters raised in the appeal and in respect of which Coleman J found raised no appellate error. I am not satisfied that the appellant has a substantial prospect of being granted special leave to appeal.
40. The next relevant matter to consider is whether, by making the stay, loss will be occasioned to the respondent. Counsel for the respondent argued persuasively that should the settlement of the sale be stayed there will be inevitable loss to the respondent by the continued diminution of the equity of the property through the mortgage debt increasing. Further, it was argued that there would be consequences not only for the respondent and the appellant but the purchaser. It is to be observed that the appellant offered an undertaking as to damages. The respondent did not suggest that the appellant could not meet any damages as may flow to the respondent as a consequence of the stay, the damages to be met I assume from the appellant’s share of the net proceeds of the sale of the property. Counsel for the respondent did argue that the appellant’s undertaking may not be sufficient to meet any damages that the purchaser may obtain. Counsel for the respondent further argued that the stay would operate as a significant delay to the matter. He submitted that there was no indication from the appellant as to when her Application for Special Leave might be heard which, he argued, would further complicate the situation with the property with the result that the mortgage debt and arrears would increase and the proceeds available to the parties diminish, to the prejudice of both parties.
41. The appellant argued that to fail to order the stay would render her appeal nugatory. I accept that. The appellant’s position before the Federal Magistrate, maintained before Coleman J, before me on the stay and in the submissions on the special leave application, was that the property should be preserved and she be given the opportunity to refinance the mortgage. The failure to grant a stay has had the effect that the property will be sold. The appellant brought no evidence on the stay to make good her assertions that she could refinance the mortgage or, indeed, that she had that financial capacity.
42. Finally, I turn to the balance of convenience. That overwhelming tells against granting the stay. The proceedings between the parties are incomplete. The respondent has an interest as does the appellant in finality of the litigation. The property sale will act to preserve as much of the equity as possible for the benefit of both parties.
43. For these reasons I refused to stay the order for settlement of the sale of the property.
44. I observe that the amended application filed by the appellant sought a variety of orders including a claim for spouse maintenance to be paid by the respondent and an order for the delivery of documents. I do not understand that this Full Court has any power to make such orders and to that end I declined to make any of the orders sought by the appellant.

COSTS

45. At the conclusion of the hearing, counsel for the respondent sought an order for costs in defending the application. He argued that the application was misconceived and was wholly unsuccessful and that it was a proper case in which the appellant should pay the respondent’s costs. Counsel indicated that those costs were claimed in the amount of $5,000. He submitted that the respondent would be content for such other sum as the Court considered appropriate.
46. The appellant felt unable to make submissions on costs at the conclusion of the case being distressed at the outcome. I ordered that she make written submissions on the issue of costs by Friday 8 February 2013.
47. The appellant’s submissions reflected her distress at the outcome of the proceedings for the stay but do not address any issue relevant to the question of costs.
48. The issue of costs in Family Court matters is informed by s 117(1) of the Family Law Act 1975 (Cth). It provides that, subject to the following subsections of that section, parties to proceedings under the Act should pay their own costs. Section 117(2) provides that a Court may make an order that a party to pay costs. Section 117(2A) sets out the matters to be considered when determining what order, if any, should be made under s 117(2) and I shall refer to those that I consider relevant to this matter.
49. The financial circumstances of the parties. It appears that the appellant is not working and, it seems had invested her superannuation into the C property property. She asserts that the respondent has funds for which she has not accounted but there is no basis on which I could find it to be so. However, it seems that when the property is sold there will be net proceeds for division between the parties. I was informed and there was no apparent dispute that some funds were to be paid to each of the respondent and appellant from the proceeds before the balance of the money was to be held in the controlled monies account.
50. The appellant has been wholly unsuccessful in her application for a stay. The application was not one brought in the usual course of proceedings in this Court, the Full Court had heard and determined her application for leave to appeal the orders of the Federal Magistrate. That circumstance together with the fact that the application was unsuccessful persuade me that it is appropriate to make an order that the appellant pay the respondent’s costs of meeting the application for a stay.
51. The appellant complains that the barrister who appeared for the respondent sought and was granted an overnight adjournment to consider the matters raised by the appellant. The matter was brought before the Court the following morning when counsel appeared in person. As I have indicated, it is not clear whether the respondent or her legal representatives had been served by the appellant. It was entirely reasonable for the respondent to have time to consider the application.
52. The respondent seeks a sum of $5,000 in costs. Counsel for the respondent argued that if the Court was of the view that some other sum was appropriate, the respondent would accept the Court’s determination rather than seek assessment of the amount. I am of the view that, having regard to the nature and timing of the application, some lesser sum is appropriate. I fix the respondent’s costs in meeting the application for stay at $3,000.
53. I will order that the payment of those costs abide the finalisation of the property settlement proceedings before the Federal Magistrate or their compromise by settlement.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 15 February 2013.

Associate:

Date: 15 February 2013