Bilous v Mudaliar (No 2) [2006] NSWCA 239 (30 August 2006)

Last Updated: 31 August 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: Bilous v Mudaliar (No 2) [2006] NSWCA 239



FILE NUMBER(S):
40215/05

HEARING DATE(S): On written submissions

DECISION DATE: 30/08/2006

PARTIES:
CA 40215/05
John Bilous (Appellant)
Jayanti Mudaliar (Respondent)



JUDGMENT OF: Giles JA Ipp JA McColl JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 5338/03

LOWER COURT JUDICIAL OFFICER: White J

COUNSEL:
CA 40215/05
A F Givney (Appellant)
P Maiden SC (Respondent)


SOLICITORS:
CA 40215/05
The Charlestown Law Firm (Appellant)
Hills Solicitors (Respondent)


CATCHWORDS:


LEGISLATION CITED:
Civil Procedure Act 2005, s 107
Uniform Procedure Rules 2005 (NSW), r 36.5

DECISION:
(1) The appellant's application be dismissed with costs to be paid on an indemnity basis. (2) The Court orders that the respondent be given six months as from 27 April 2006 to pay the amounts she was ordered to pay the appellant by this Court in [2006] NSWCA 38, without incurring any interest over and above the sum of $10,930 that she has already paid the appellant.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40215/05

ED 5338/03

GILES JA

IPP JA

McCOLL JA

Wednesday 30 August 2006

JOHN BILOUS v JAYANTI MUDALIAR


Judgment (No 2)

1 GILES JA: I agree with Ipp JA.

2 IPP JA: These reasons relate to two applications, one by the appellant (Mr Bilous) and the other by the respondent (Dr Mudaliar) made in chambers after delivery of this Court’s reasons in [2006] NSWCA 38 on 27 April 2006.

3 The appellant’s application relies on the slip rule to seek a variation of the orders the Court made in [2006] NSWCA 38. The respondent’s application is for an extension of time to pay the judgment sum.

4 The appellant’s application is based on the contention that, in adjusting the respective property interests of the parties, the Court made inadvertent errors in regard to the appellant’s superannuation entitlements, a motor vehicle and interest. He argues that these errors trigger the slip rule. There is, however, no substance in the appellant’s submissions.

5 As the respondent correctly points out, the Court’s findings in [2006] NSWCA 38 were based on the unchallenged net value of the assets of the parties at the date of the trial. At that date (as the trial judge held, this Court accepted, and the appellant did not challenge) the net value of the appellant’s assets was $224,690 while those of the respondent amounted to $1,468,312; this resulted in a total net pool of $1,693,002 (see [18], [22], [189], [191] and [196] of [2006] NSWCA 38). In my reasons at [189] I described the net pool of $1,693,002 as the “starting point” of the discretionary adjusting exercise that the Court was required to undertake.

6 I stated at [192] that I intended to adopt a “holistic value judgment” and concluded at [194]: “Orders should be made having the effect that an additional $200,000 should be paid to the appellant.” The $200,000 was made up of a payment of $160,000 to the appellant and $40,000 in respect of superannuation payable to J & J Superannuation Pty Ltd ([194] and [195]). The $200,000 was “additional” to the amount the trial judge ordered the respondent to pay the appellant. I explained (at [196]) that, on this basis, the appellant would receive a total of $539,853.00 out of the net pool of $1,693,002 and the respondent would receive $1,153,149.00. I explained how the $539,853.00 was arrived at. Appropriate orders in accordance with this approach were made.

7 The appellant asserts that there is an error in [30] of my judgment involving an amount of $47,163 that was, wrongly, attributed twice to the appellant. Even if that is correct, it is irrelevant. In [30] I was simply setting out, as a matter of history, the effect of the orders of the trial judge. The arithmetical error in [30] had no bearing on my reasoning leading to the decision that, out of the unchallenged value of the asset pool, the appellant should receive an additional sum, in aggregate, of $200,000.

8 The basis of the appellant’s argument in relation to the asserted error in [30] was the submission made by the appellant that:

“At the date of hearing the appellant did not have assets of $224,690 but had assets of only $167,527”.

How the appellant can now make this assertion, when he accepted during the appeal that the value of his assets was $224,690, escapes me. My reasons make it clear that I was proceeding on the finding that the appellant’s assets amounted to $224,690 and there was no inadvertent slip on my part (as the appellant now suggests) in this respect.

9 The orders I proposed were framed deliberately. They were based on the specific findings that I had made and there was no error of the kind that could give rise to the operation of the slip rule.

10 The orders made reflect the adjustment I intended in regard to superannuation, all the parties’ assets (including the Holden vehicle), and interest. I would add that during the appeal the appellant made no submissions relating particularly to the vehicle and did not refer to interest. There was no inadvertent error on my part. The appellant’s submissions in support of this application do not reveal any such error.

11 In my opinion the appellant’s application should be dismissed. The respondent seeks an order for indemnity costs. In my opinion, the appellant’s application was hopeless and an order for indemnity costs should be made.

12 I turn now to the respondent’s application. The respondent applies under s 107 of the Civil Procedure Act 2005 (NSW) and r 36.5 of the Uniform Procedure Rules 2005 (NSW) for an order allowing her six months to pay the balance of the judgment sum outstanding, without incurring “further” interest.

13 The respondent states that in March 2005, in partial discharge of the orders made by the trial judge, she “paid the sum of $78,390 to the appellant which comprised a sum of $68,000 ordered to be paid together with interest in the sum of $10,930”. I understand the sum of $78,390 to be a typographical error and the correct sum to be $78,930. The latter sum was paid. The respondent points out that the interest of $10,930 was paid pursuant to an order that has been set aside. In the light of the orders made in consequence of the appeal, she had no obligation to pay interest.

14 In an affidavit supporting her application, the respondent states that she has experienced difficulties in discharging the Court’s judgment. She has decided that the most appropriate way of raising the money is to sell a certain property, and she needs time to realise the funds from the sale.

15 The respondent submits:

“At current rates, interest on $200,000 over a period of six months is $9,000. Clearly, the appellant suffers no prejudice if the Court were to order an extension of time as requested. It is submitted that given the amount of monies already paid, in particular interest, and having regard to the necessity of the respondent to again restructure her financial affairs, it is only fair that the respondent be allowed the extra time to pay without being penalised with further interest. Although formally necessary to make application for such an extension, it is submitted that the approach suggested above is the quickest and cheapest way of achieving such outcome.”

16 I understand the respondent to accept that, of the amount of $78,930 that she has paid the appellant, $68,000 be regarded as capital and a payment towards the judgment sum she is obliged to pay in terms of the order of this Court, and $10,930 be retained as interest by the appellant and not regarded as a payment towards the judgment sum.

17 On this basis, I see no prejudice to the appellant were the respondent’s application to be granted. The appellant has not filed any affidavit alleging any prejudice and has not filed any submissions opposing the respondent’s application.

18 In my opinion the respondent’s application should be granted.

19 In summary therefore I propose that:

(a) The appellant’s application be dismissed with costs to be paid on an indemnity basis.

(b) This Court order that the respondent be given six months as from 27 April 2006 to pay the amounts she was ordered to pay the appellant by this Court in [2006] NSWCA 38, without incurring any interest over and above the sum of $10,930 that she has already paid the appellant.

20 McCOLL JA: I agree with Ipp JA.

**********

LAST UPDATED: 30/08/2006