Agassi and Ayari (No 4)

[2020] FamCA 1138

FAMILY COURT OF AUSTRALIA

AGASSI & AYARI (NO. 4) [2020] FamCA 1138

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Orders – Where wife seeks stay of costs orders pending the outcome of an Appeal filed by the wife – Application opposed by the husband- Application granted

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Case filed by the husband seeking orders that the wife be referred to the Director of Public Prosecutions in relation to material in the Substantive Proceedings – Application dismissed

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131

APPLICANT: Ms Agassi

RESPONDENT: Mr Ayari

SECOND RESPONDENT: Ms Behzadi

FILE NUMBER: SYC 5697 of 2016

DATE DELIVERED: 23 December 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 23 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE 1^ST RESPONDENT: Mr Cairns

SOLICITOR FOR THE 1ST RESPONDENT:	In person
COUNSEL FOR THE 2ND RESPONDENT:	Mr Cairns
SOLICITOR FOR THE RESPONDENT:	In person

Orders

1. Orders 1, 2 and 3 made 24 November 2020 requiring Ms Agassi (‘the wife’) to pay the costs of the first respondent Mr Ayari (‘the husband’) and orders 1 and 2 made 24 November 2020 requiring the wife to pay the costs of Ms Behzadi (‘the second respondent’) be stayed until the wife’s Appeal against the order is determined, provided the wife at all times prosecutes her appeal with the Full Court expeditiously.

2. In the event the wife does not fulfil the conditions of this stay, the husband and/or the second respondent have liberty, on the giving of fourteen (14) day’s notice, to relist this matter before me if I am reasonably available or any other Judge of the Family Court for consideration as to whether the stay order shall continue to remain in place.

3. The Application in a Case filed 22 December 2020 by the husband is dismissed.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 5697 of 2016

MS AGASSI

Applicant

And

MR AYARI

Respondent

And

MS BEHZADI

EX TEMPORE REASONS FOR JUDGMENT

1. There is an application before me for a stay in relation to costs orders I made following a hearing in these proceedings.  The costs orders were made on 24 November 2020.  In these proceedings the parties were engaged in a property dispute which was heard by me on 6 March, 4, 6, 7, 8 and 11 May 2020, 6 June 2020 and 8 July 2020.  I made property orders on 31 July 2020 and published Reasons for Judgment. 

2. There has been no appeal lodged in relation to those Substantive Orders.  Within the 28 day period the husband Mr Ayari (‘the husband’) filed a Costs Application and as part of that application his present wife Ms Behzadi (‘the present wife’) also filed an application which came before me and at the request of the wife Ms Agassi (‘the wife’), those proceedings were deferred or adjourned to 24 November 2020.  At that stage I heard that Costs Application, delivered Reasons for Judgment and made costs orders in favour of the husband and his present wife.

3. Within the 28 day period the wife filed a Notice of Appeal which I have before me to those costs orders.  The wife filed an Application for Stay of the costs orders on 18 December 2020.  I have before me the following documents, and I will repeat them again:-

   a)the wife’s Application in a Case for a stay filed 18 December 2020;

   b)the wife’s affidavit in support of that Application filed the same day;

   c)the husband’s Application in a Case filed 22 December 2020;

   d)the husband’s Affidavit filed 22 December 2020;

   e)the Notice of Appeal dated 21 December 2020 which had attached to it the subject costs orders;

   f)the Reasons for Judgment delivered by me on 31 July 2020;

   g)the Transcript of Proceedings on 24 November 2020; and

   h)the two sets of Reasons for Judgement in respect of the costs orders.

4. The wife appeared today and sought an interpreter.  I have dealt with the wife in relation to a number of matters over this year and I am satisfied she has enough English to understand what is happening today.

5. The Full Court said in Jackson & Balen [2009] FamCAFC 131 at paragraph 28 the principles to be applied in the hearing of a stay application:-

   The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit CorporationLtd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   ·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 any “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the application must be bona fides;

   ·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;

   ·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 a stay;

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.

6. In this case there is no issue that the wife bears the onus and that the husband is entitled to the benefit of the orders.  The wife asserts that the appeal is bona fide.  In terms of the basis for the Appeal, the wife impliedly submits that the trouble and time necessary to go to a costs order would be rendered nugatory if the appeal is successful.  I am satisfied that the wife is bona fide in her application, although there may be some aspects where she is hopeful beyond realistic, and in some aspects of her appeal she challenges the substantive findings which are not the subject of an appeal.

7. I have read the notice of grounds for appeal and I make the following comments:-

   a)The first ground is that the wife complains that there was no interpreter available for her on the hearing of 24 November 2020.  No complaint to that end was made by the wife during the course of that hearing and the wife engaged in that hearing and clearly spoke English in that hearing.

   b)The wife complains she was not able to appeal the outcome of 31 July 2020 due to COVID-19.  That is not a relevant consideration in terms of the appeal against the costs orders because those orders stand and the Reasons continue.

   c)The wife complains that I did not give sufficient weight to the documents upon which she relied.  That will be a matter for the Full Court, although clearly I dealt with those documents in the Reasons.

   d)That I accepted fake documents from Country E.  They were findings in the Substantive Proceedings which are not open to challenge by the wife.

8. The wife then goes on to say that she ought not to pay the fees for the husband’s present wife as she was not a party to the proceedings.  I am not dismissing that part of the Appeal, that may or may not be successful, and it may have some basis in law, although that will be a matter for the Full Court.

9. The problem with costs is that the cost of having costs assessed even on a party/party basis is extraordinarily expensive.  The risk that the husband faces is that which he addresses in his affidavit, that is, that the wife may be disposing of assets.  But on the evidence before me the assets have also already been transferred to her present husband.

10. Given those circumstances in terms of the stay application I am satisfied that a stay order should be made, but it should be conditional upon the wife prosecuting the Appeal in a prompt and effective way.  Accordingly, I will be making the stay order.

11. There is an Application in a Case filed by the husband which was only received by me last night or this morning and presumably by the wife last night or this morning.  Two of the parts of that application seek orders referring the wife to the Director of Public Prosecutions in relation to material in the Substantive Hearing.  Those orders were available if I had power to make them at the time of the Substantive Hearing or shortly after the Substantive Hearing.  It seems to me that this is inappropriate in terms of the current application, and as such should be dismissed.

12. The third is that the husband seeks orders that the wife be restrained from disposing or dealing with the proceeds of the sale of her business to her present husband.  I am not sure, given the nature of the proceedings, whether I have jurisdiction to hear that in the absence of a substantive proceeding.  Even if I did have jurisdiction, I would be unwilling to exercise that discretion, bearing in mind the nature of this application.  If the husband was concerned about some aspect of costs, some aspect of security, that should have been raised at the time that the costs orders were made, and not simply on appeal, and as such I would not allow that.  There was also an oral application, by the husband, for some form of security for costs.  I have regard to the general approach by the Full Court in relation to enabling parties if they wish to file a notice of appeal, and I would not in the circumstances of the evidence adduced by the husband to date make such an order.

13. Accordingly, I make the following orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 December 2020.

Associate:     

Date:              11 February 2021