Atuk and Atuk and Anor (No. 2)
[2016] FamCA 491
•20 June 2016
FAMILY COURT OF AUSTRALIA
| ATUK & ATUK & ANOR (NO. 2) | [2016] FamCA 491 |
| FAMILY LAW – STAY PENDING APPEAL – property orders – where application for stay pending determination of appeal from final property orders in favour of wife – where consideration of applicable principles – application for stay granted. |
| Family Law Rules 2004 (Cth) r 22.11 |
| Atuk & Atuk and Anor [2016] FamCA 179 |
| APPLICANT: | Mr Atuk |
| 1st RESPONDENT: | Ms Atuk |
| 2nd RESPONDENT: | Ms B Atuk |
| FILE NUMBER: | PAC | 4209 | of | 2014 |
| DATE DELIVERED: | 20 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 June 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Atila Lawyers |
| SOLICITOR FOR THE 1ST RESPONDENT: | McAuley Hawach Lawyers |
| SOLICITOR FOR THE 2ND RESPONDENT: | Erdem Hussein Solicitor |
Orders
That orders made on 24 March 2016 be stayed pending further order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Atuk & Atuk and Anor (No. 2) 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 PARRAMATTA |
FILE NUMBER: PAC 4209 of 2014
| Mr Atuk |
Applicant
And
| Ms Atuk |
First Respondent
And
Ms B Atuk
Second Respondent
REASONS FOR JUDGMENT
The present application for determination is an application for stay of final property orders made on 24 March 2016 pending determination of certain appeals. The applications for stay are made by the husband, the applicant in the primary proceedings, and the husband’s mother, the second respondent in the primary proceedings.
The substantive remaining property pool of the applicant husband and the respondent wife is represented by the sum of approximately $444,000 held on interest-bearing controlled monies deposit by their respective solicitors.
The second respondent sought orders at trial seeking to maintain a constructive trust by reason of certain contributions made by her and her late husband to the purchase of the former matrimonial home at H Street, Suburb C.
The home was sold subsequent to separation with the net proceeds of sale remaining on deposit. At trial the constructive trust arguments maintained by the second respondent were rejected.
Reasons for judgment in the primary trial are to be found at Atuk & Atuk and Anor [2016] FamCA 179.
As a consequence of the rejection of the arguments propounded by the second respondent the matrimonial property pool for adjustment purposes was found to be as follows:
Joint Controlled funds sale proceeds $443,859
Husband Household Contents $ 5,000
Wife Household Contents $ 6,000
Wife Car $ 7,000
Wife Jewellery – ring $ 1,000
Wife Superannuation $ 2,000
Husband Superannuation $ 49,797
Husband F Pty Ltd $ NK
$514,656
Liabilities Nil
$514,656
Overall it was determined that the pool be divided as to the wife 52.5 per cent and the husband 47.5 per cent.
To effect that division orders were made as follows:
a)That the husband and wife do all things necessary to authorise and direct that controlled monies presently held on trust for them be paid as follows:
·As to $254,194 together with pro rata interest accrued on that sum to the wife; and
·As to the balance then remaining to the husband.
On 21 April 2016 the applicant husband filed a Notice of Appeal. The Appeal sets out various grounds, totalling 18 in all, impugning findings of fact and other determinations in the judgment. If successful on the appeal, the husband seeks an order that from the monies presently on interest-bearing deposit the wife receive $108,248.33 together with pro rata interest accrued on that sum with the balance payable to the husband.
On 21 April 2016 the second respondent, the applicant husband’s mother, filed a Notice of Appeal. Subsequently on 19 May 2016 the second respondent filed an Amended Notice of Appeal incorporating 12 grounds of appeal impugning various findings of fact and asserting errors of law. In effect in propounding the appeal the second respondent continues to assert equitable relief by way of constructive trust or otherwise in relation to the former matrimonial home and thereafter the net proceeds of sale.
The second respondent in her appeal in substance seeks an order, clarified in oral submissions, that she be entitled to the sum of $339,216 from the proceeds of sale of the home presently on interest-bearing deposit. Such a sum would leave a balance of about $105,000 for adjustment as between the applicant husband and the respondent wife.
During the course of submissions it was common ground that a stay as to distribution of the invested funds to the extent of the capital sum sought by the second respondent in her appeal would be appropriate.
It was contended on behalf of the wife that if the property settlement was reduced to such a small sum, in the event that the second respondent was successful in her appeal, then by reason of s 75(2) factors the wife may well be entitled to a significant proportion of those funds.
It was initially contended by both the husband and wife that there could be some distribution to each of them from the balance available of about $105,000 with a fall-back position from both that all funds remain on deposit pending the appeals.
Principles
It is well settled that a stay will not be granted lightly or as a matter of course.
The power to order a stay (r 22.11 of the Family Law Rules 2004 (Cth)) is incidental to the right of appeal and derives from the inherent power of the Court to do whatever is necessary to prevent injustice in relation to the proceedings in the Court: Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548.
In Jackson & Balen [2009] FamCAFC 131 the Full Court said at [28]:
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] HCA 13; (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] HCA 84; (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.
It is readily apparent that the uncertainty as to the outcome of the appeals renders the distribution of any of the funds problematic. Ultimately any funds released would in all likelihood not be able to be recovered if it was necessary to do so as a consequence of the determination of the appeal or orders made on a rehearing if ordered. In that event refusing to grant the stay would render the appeals nugatory at least in part.
Whilst it can be argued that the wife who was substantially successful at trial is entitled to the fruits of her judgment the reality is that the substance of that judgment is now the subject of the present appeals.
None of the parties assert any hardship that would be occasioned by the granting or refusal of the stay.
There is no contention that the subject appeals are without bona fides. They address matters going to the substance of the judgment. As to the merits of the appeal, the grounds are varied and many. By reason of the previous considerations it would be of little utility in endeavouring to disseminate the merits or otherwise of the present grounds of appeal.
It is also apparent that there will on present indications be significant delay in the determination of the appeal. However funds are on interest-bearing deposit and will remain preserved pending determination of the appeal or a rehearing if ordered.
In the circumstances it is appropriate that there be a stay granted in relation to the whole of the funds presently held on interest-bearing deposit.
Orders will be made accordingly.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 June 2016.
Associate:
Date: 20 June 2016
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