ATWOOD & ATWOOD (NO. 2 )

[2017] FamCA 937

FAMILY COURT OF AUSTRALIA

ATWOOD & ATWOOD (NO. 2 ) [2017] FamCA 937

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where the mother sought a stay of the operation of orders that are the subject of an appeal – Consideration of the principles identified in Aldridge & Keaton [2009] FamCAFC 106 – Where the mother’s appeal will be rendered nugatory if no stay is granted – Where if granted the stay may expose the parties to litigation and costs – Where one of the orders in question is to restrict the mother from approaching the property – Where this order has no utility once the other orders come into operation – Where a stay is granted in relation to only the order restricting the mother from approaching the property.

Real Property Act 1900 (NSW) s 57(2)(b)

Aldridge & Keaton [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013

APPLICANT: Ms Atwood

RESPONDENT: Mr Atwood

FILE NUMBER: SYC 3943 of 2014

DATE DELIVERED: 13 October 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 13 October 2017

REPRESENTATION

APPLICANT MOTHER IN PERSON:

SOLICITOR FOR THE RESPONDENT: Mr Condon of Condon Legal Pty Ltd

Orders

1. By consent, the operation of Order 5 made on 26 July 2017 is stayed as from 6.00 pm today.

2. Otherwise the applications of the mother filed 28 July 2017 seeking stays of the operation of the orders made on 10 April 2017 and 26 July 2017 are dismissed.

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 Atwood & Atwood (No 2) 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 SYDNEY

FILE NUMBER:  SYC3943 of 2014

Ms Atwood

Applicant

And

Mr Atwood

Respondent

REASONS FOR JUDGMENT

1. There are two applications before the Court, both filed on 28 July 2017 on behalf of the mother seeking a stay of the operation of orders that are the subject of an appeal.  The mother seeks a stay of all of the orders made on 10 April 2017 and 26 July 2017.  As I understand it however, the mother specifically seeks a stay of a decision made on 10 April 2017 that the solicitors for the father in the substantive proceedings have carriage of the sale of the parties’ property; and a stay of a decision made on 26 July 2017 restraining the mother from attending within a certain distance of that subject property.

2. If available, the judge who made a decision can be asked to stay the operation of that decision.  That can be done in aid of an application to vary or discharge the orders in question or, as in this case, where there is an appeal.  The principles going to the consideration of a stay are well settled.  Relevantly, in a decision of Aldridge & Keaton [2009] FamCAFC 106 the Full Court set out principles in relation to stay applications and said:

   18.…The authorities stress the discretionary nature of the application which should be determined on its merits.  Principles relevant to this matter include the following:

   othe 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;

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

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

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

   othe bona fides of the applicant;

   oa 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;

   oa 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;

   osome preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   othe desirability of limiting the frequency of any change in a child’s living arrangements;

   othe period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   othe best interests of the child the subject of the proceedings are a significant consideration.

3. There are two references to children in that passage.  That was because in Aldridge & Keaton and in the earlier decision of Clemett & Clemett (1981) FLC 91-013 the orders in question were parenting orders. That is not the case here.

4. The background facts are that neither of the parties was paying the mortgage instalments on a property they jointly owned. After a number of interlocutory hearings, ultimately orders were made for the property to be sold. Reasons were given for that decision at the time, but they included the fact that because the parties were not meeting the mortgage, the mortgagee had a right to enter. A notice had issued under s 57(2)(b) of the Real Property Act1900 (NSW) and therefore action could be taken by the mortgagee because of the default.

5. On that basis the April orders were made.  There were some problems in the execution of those orders, and the July orders were necessary to give the husband carriage of the sale.  In terms of the principles I have identified, the husband is entitled to the benefit of the orders he obtained.  I am to presume that the orders I made are correct. 

6. The fact that there is an appeal is not sufficient to grant the stay.  There is no reason, in my view, to challenge the bona fides of the applicant in respect of her appeal.  There is no reason to suggest that she has appealed for any ulterior purpose.  She was opposed to the orders that were made and has not acted in a way inconsistent with that opposition.  I do not have a reason to assume that she is seeking these orders or seeking the setting aside of the substantive orders for any reason other than that she genuinely opposes those orders.  A stay could be granted on conditions. 

7. As Ms Atwood submits, her appeal will be rendered nugatory if no stay is granted.  If an order is not made staying the order providing for the father’s solicitor to act on the sale, the sale will settle today and the mother’s appeal will be meaningless. 

8. As to a preliminary assessment of the strength of the appeal, it is always difficult for a trial judge to say whether the challenge to that same judge’s orders has some strength to it.  I think the mother’s concern is based on matters to do with her view about the independence of the solicitor, and some issues I understand, although there is no evidence before me about it, about interaction that the mother might have had with that solicitor in the past.  She also raises issues about the competence of the solicitor in general and particularly in relation to him discharging his obligations when acting on a sale. 

9. The mother has raised in the substantive proceedings and again today a concern arising out of her contention that there is asbestos in an unstable state, at the property.  It is her contention that there were obligations that fell to the vendors in relation to that situation that have not been met.  There is no evidence to support that contention at all.  There is no requirement that a conveyancing solicitor be independent of the vendors.  In the course of her affidavit the mother referred to the analogy of an independent lawyer for a child.  The trouble with that argument is that, unlike a child, the Court has no obligation to an apartment and the apartment has no voice in the proceedings.  

10. The Court has no independent obligation to make orders in the best interests of the apartment, and the parties are in exactly the same interest in relation to the apartment:  they both want the maximum value for the apartment.  That can be their only legitimate interest in this instance, to maximise the return so that there is the maximum sum available for division between them.  Therefore, there is no conflict of interest for the father’s solicitor acting on the sale because in this instance, his client can only legitimately want exactly the same outcome as the mother. 

11. I know of no obligation that falls to the vendors as described by the mother.  She has not produced any evidence about it, but the general law in relation to property conveyances is a principle known as caveat emptor, which is a Latin phrase meaning, “Let the buyer beware”.  That is why purchasers are obliged to make their own inquiries about a property, why they are advised to have a building inspection and to make whatever other inquiries in relation to planning to ensure that there is not a highway planned to be put through the property et cetera.  All of those obligations fall to the purchaser and not to the vendor. 

12. Therefore I do not know of anything that should have been done in that regard by the solicitor with carriage of the sale.  There is no basis for that solicitor to be independent of either or both of the parties.  On that basis I do not understand what error was made by me in relation to the decision.  Indeed it is invariably the case, I would say, that the solicitor for one of the parties or the solicitor for the parties jointly have carriage of the sale of a property sold in connection with family law proceedings.  The reason for that is obvious:  they are interested in the same outcome that the parties are interested in, a timely sale at full value.  A third-party solicitor might not have that same interest.  I do not think the case to challenge Mr Condon’s appointment is a strong one. 

13. The other thing to say about the order that the mother proposes is that it would cause devastation.  If the sale is interfered with, then we have a purchaser who has a right of action against the vendors.  The deposit would be lost and it may be that the purchasers would have a right to sue the vendors for damage caused to the purchaser, which I do not know about.  Who knows what they have done.  If granted, the stay would expose the parties to litigation and to cost, in this case, in my view, for no good reason.

14. There is merit, however, in the mother’s case in relation to an order made on 26 July 2017 that restrains her from approaching the property.  It is an order expressed until further order and so it would lapse on making final orders in the proceedings.  The order says:

    Until further order the wife is restrained from attending at the former matrimonial home at [M Street, Suburb G] in the State of New South Wales or from attending within 100 metres from the entrance of that property.

15. The mother makes a sound point.  The order is not limited as to time or event.  It is an order made before the contracts had exchanged and it has no utility once the purposes of the order in aid of which it was made, have been completed.  That is the completion of the sale.  Mr Condon says he is confident that will happen today.  Mr Condon, on behalf of his client, does not oppose me making an order that the operation of that order, which is order number 5 made on 26 July, be stayed from 6.00 pm today.  That is a permanent stay.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 October 2017.

Associate: 

Date:  21 November 2017