Baghti and Banis and Ors (Stay)

[2015] FamCA 306

FAMILY COURT OF AUSTRALIA

BAGHTI & BANIS AND ORS (STAY) [2015] FamCA 306

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders pending appeal – Where the principles set out in Aldridge & Keaton were considered – Where the Court considered that the appeal would be rendered nugatory if the stay was not granted.

Family Law Rules 2004 (Cth) – Rule 22.11

Aldridge & Keaton [2009] FamCAFC 106

APPLICANT: Ms M Baghti

1st RESPONDENT: Mr Banis

2nd RESPONDENT: Mrs Banis

3rd RESPONDENT: Ms Baghti

4th RESPONDENT: Mr Baghti

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 16 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 16 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levet

SOLICITOR FOR THE APPLICANT: Baghti & Company Lawyers

SOLICITOR FOR THE 1^ST & 2^ND RESPONDENTS: Mr McDonell, solicitor of McDonell Milne Toltz Family Lawyers

FOR THE 3^RD RESPONDENT: The Wife in person

SOLICITOR FOR THE 4^TH RESPONDENT: No appearance by the Husband

Orders

1. That the Court notes that Ms M Baghti undertakes to the Court to file a notice of appeal today.

2. That the orders made by Johnston J on 7 April 2015 are stayed pending the hearing of the appeal to be filed by Ms M Baghti on 16 April 2015.

3. That all costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Banis and Ors 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 SYDNEY

FILE NUMBER: SYC 2145 of 2009

Ms M Baghti

Applicant

And

Mr Banis

1^st Respondent

And

Mrs Banis

2^nd Respondent

And

Ms Baghti

3^rd Respondent

And

Mr Baghti

4^th Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on 7 April 2015 by Ms M Baghti (“Ms MB”) for a stay of certain orders made by me earlier that day. 

2. On 7 April 2015 certain enforcement proceedings were before me for hearing.  Ms MB was seeking leave to intervene in the enforcement proceedings.  I ordered that her application for leave to intervene be dismissed.  I also ordered that her application for adjournment of the hearing of her application for leave to intervene be dismissed.

3. Ms MB seeks a stay of those orders.

4. The enforcement proceedings were brought by Mr Banis and Mrs Banis (“the parents”).  I explained the background to those proceedings, and the detailed orders sought, in my reasons for making the 7 April 2015 orders.  In summary, the parents were interveners in substantive property proceedings between their daughter, Ms Baghti (“the wife”) and Mr Baghti (“the husband”).  Fowler J made a costs order against the husband and in favour of the parents.  The parents are seeking to enforce the costs order.  They have asked the Court to, in effect, re-direct money owed under Fowler J’s orders by the wife to the husband, to them.  This would be by way of a third party debt notice.

5. Ms MB is the husband’s sister.  As indicated above, she has sought leave to intervene in the proceedings.  She alleges that in October 2011, she and the husband entered into an agreement pursuant to a deed in which she loaned the husband $150 000.  Ms MB has brought proceedings in the Supreme Court of New South Wales against the husband in respect of the alleged loan. 

6. Turning to the stay application, Ms MB has prepared a draft notice of appeal, and I noted her undertaking to the Court to file a notice of appeal against the 7 April 2015 orders today. 

7. Mr Levet, counsel for Ms MB, says in support of her application for the stay, firstly, that the appeal has reasonable prospects.  He, again, took me through part of the argument which he made in support of the application for an adjournment on 7 April 2015.  In addition, he said that Ms MB will suffer prejudice if the orders are not stayed, particularly on the basis that if the orders are not stayed, the appeal will be rendered nugatory. 

8. On the other hand, Mr McDonell, for the parents, says that Ms MB will not suffer prejudice.  He says that she is seeking really what amounts to restraining orders to restrain the parents from continuing with their present application pending completion of the proceedings which she has taken in the Supreme Court of New South Wales against her brother, the husband.  In any event, Mr McDonell submits that there will not be prejudice to Ms MB because in the event that money was to change hands in the way sought in the application by the parents, it has not been demonstrated that the parents would not have the financial capacity to be able to meet any order which the Court might ultimately make in the event that they were ordered by the Court to repay to Ms MB the money which would have changed hands.

9. The principles which are relevant to a stay application have been summarised by the Full Court of this Court on many occasions but including in the well-known case of Aldridge & Keaton [2009] FamCAFC 106. In that case, the Full Court referred to various authorities both in the general law and also some family law authorities. The Full Court said the authorities stress the discretionary nature of the application which should be determined on its merits. They said the principles relevant to a stay application 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 bona fides of the applicant.

   ·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.

   ·The 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.

10. I note the first three matters, namely that the onus is on Ms MB, that a person who has obtained a judgment is entitled to the benefit of the judgment and that the mere filing of an appeal is insufficient to grant a stay.

11. There is nothing before the Court to reflect adversely on the bona fides of Ms MB. 

12. So far as granting the stay on terms is concerned, I suppose there could be terms that the appeal would be prosecuted without delay or with all efficiency.

13. The next matter is a weighing of the risk that the appeal may be rendered nugatory if a stay is not granted.  This is a substantial factor and I shall return to this below. 

14. The next matter is some preliminary assessment of the strength of the proposed appeal.  In my view, this is usually a difficult matter for trial judges.  Mr Levet adheres to his view that the appeal has reasonable prospects.  It is difficult for me to form a view about this matter. 

15. So far as the period of time in which the appeal can be heard is concerned, it is far from clear to me what would be involved.  My perception from my general understanding of the passage of appeals is that the process appears to be rather slow, and there may be considerable delay in dealing with an appeal that is not expedited.

16. In my view, the strongest factor in favour of a stay is that if the stay is not granted, then the appeal may be rendered nugatory.  I say this because unless Ms MB is able to present the case that she has been endeavouring to present, what is almost certain to occur is that the enforcement order sought by the parents would be made.  This is because there would be no opposition to the application by the parents because the wife does not oppose the application and the husband did not appear in response to the application. 

17. Accordingly, in those circumstances, the money would change hands, and that would be the end of the matter. 

18. I have not overlooked Mr McDonell’s submission that in that eventuality, if Ms MB was successful in her appeal she could be repaid by the parents.  It is an interesting submission.  But the view which I have is that, in reality, in the event that I was not to grant the stay, then the appeal would be rendered nugatory.  In those circumstances, in my view, the application for the stay must succeed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 16 April 2015.

Associate:     

Date:              30 April 2015