Aldam and Cesari (No. 3) - [2020] FamCA 849

FAMILY COURT OF AUSTRALIA

ALDAM & CESARI (NO. 3)

[2020] FamCA 849

FAMILY LAW – STAY APPLICATION PENDING APPEAL – no basis demonstrated – application refused.

Family Law Rules 2004 (Cth)

Aldam & Cesari [2020] FamCA 54
Aldam & Cesari (No. 2) [2020] FamCA 732
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Commissioner of Taxation (Cth) v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Jackson & Balen [2009] FamCAFC 131
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681

APPLICANT:

Mr Aldam

RESPONDENT:

Mr Cesari

FILE NUMBER:

MLC

9029

2018

DATE DELIVERED:

6 October 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

6 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms C. Conlan

SOLICITOR FOR THE APPLICANT:

Blackwood Family Lawyers

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Not applicable

Orders

I dismiss the respondent’s stay application filed 2 October 2020.
If any costs application is made by or on behalf of Mr Aldam then –
a)Mr Aldam’s written submissions must be filed and served by 4pm on 13 October 2020; and
b)Mr Cesari’s written submissions must be filed and served by 4pm on 20 October 2020.
Judgment on the question of costs of this stay application will be determined on the papers.

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 Aldam & Cesari 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 MELBOURNE

FILE NUMBER: MLC 9029 of 2018

Mr Aldam

Applicant

And

Mr Cesari

Respondent

REASONS FOR JUDGMENT

On 4 September 2020 I handed down reasons for judgment in this case.[1]
[1]Aldam & Cesari (No. 2) [2020] FamCA 732.
Since then the respondent has appealed. He has sought a stay of the orders I made requiring property to be sold in default of agreement.
One of the major reasons underpinning the orders I made was the serious deficiencies in the disclosure the respondent made.
The Family Law Rules 2004 require the respondent to apply to the judge who made the orders for a stay of those orders.
Here, the respondent brought his stay application by application in a case sealed by the court on 2 October 2020. He sought a stay of all orders made by me on 4 September 2020.
On 2 October 2020 the respondent made a very short affidavit in support of his stay application. It is utile to record paragraphs 3 to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aldam and Cesari (No. 3)

Details

AGLC: Aldam and Cesari (No. 3) [2020] FamCA 849
Case: [2020] FamCA 849
Decision Date: 6 October 2020

CaseChat Overview and Summary

In *Aldam and Cesari (No. 3)*, Justice Wilson of the Supreme Court of Victoria considered an application by Mr Cesari for a stay of proceedings. The nature of the underlying dispute between Mr Aldam and Mr Cesari is not detailed in the provided text, but the application concerned the costs associated with a prior stay application.

The primary legal issue before the Court was whether to grant Mr Cesari's application for a stay of proceedings related to the costs of the earlier stay application. The Court was required to determine the appropriate course of action regarding the costs of the stay application, including the timing for submissions and the method of determination.

Justice Wilson dismissed Mr Cesari's stay application. The Court ordered that if Mr Aldam intended to make a costs application, his written submissions were to be filed and served by 4pm on 13 October 2020, with Mr Cesari's responding submissions due by 4pm on 20 October 2020. The judgment on the question of costs for the stay application was to be determined on the papers.

Orders

Orders of the court

I dismiss the respondent’s stay application filed 2 October 2020.

If any costs application is made by or on behalf of Mr Aldam then –

a) Mr Aldam’s written submissions must be filed and served by 4pm on 13 October 2020; and

b) Mr Cesari’s written submissions must be filed and served by 4pm on 20 October 2020.

Judgment on the question of costs of this stay application will be determined on the papers.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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