Browne v Browne - [2018] WASCA 72

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BROWNE -v- BROWNE [2018] WASCA 72
CORAM:   MURPHY JA
HEARD:   23 APRIL 2018
DELIVERED          :   18 MAY 2018
FILE NO/S:   CACV 14 of 2018
BETWEEN:   EDWARD BROWNE
Appellant
AND
STEVEN EDWARD BROWNE
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH AJ
Citation: BROWNE -v- BROWNE [No 2] [2017] WASC 375
File Number            :   CIV 2044 of 2017

Catchwords:

Practice and procedure - Application for a stay or injunctive orders to similar effect pending determination of appeal - Turns on own facts

Legislation:

Nil

Result:

Application dismissed subject to appropriate undertakings being given

Representation:

Counsel:

Appellant	:	Mr S Penglis
Respondent	:	Ms K A T Pedersen

Solicitors:

Appellant	:	Dwyer Durack
Respondent	:	Hotchkin Hanly Barristers & Solicitors

Case(s) referred to in decision(s):

Beeck v Kohlen [2013] WASCA 134
Browne v Browne [No 2] [2017] WASC 375
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Mercanti v Mercanti [2015] WASCA 206
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

MURPHY JA:

Introduction

This is the appellant's application for, in effect, a stay of the primary court's orders or injunctive relief with broadly similar effect, pending the determination of the appeal.
The substantive appeal in this matter is against Acting Justice Smith's decision in Browne v Browne [No 2].[1] The primary proceedings concerned a claim by the respondent (as plaintiff) to the effect that the appellant held certain farming land known as Burracoorong on trust for the respondent. The appellant is the father of the respondent. The primary judge referred to the appellant as Mr Browne and the respondent as Steven. I will do likewise in these reasons.
[1] Browne v Browne [No 2] [2017] WASC 375.

The primary decision

Background

Steven is one of Mr Browne's four sons.[2]
[2] Primary decision [1].
Mr Browne came from a farming family. He purchased a farm called Yargalain. He also inherited a farm called Burracoorong from his father in 1966.[3]
[3] Primary decision [3].
In 1974, Mr and Mrs Browne formed a partnership with their two eldest sons, Steven and Paul. The partnership farmed the property owned by Mr Browne at nominal rent. The membership of the partnership changed over time to include all four sons.[4]
[4] Primary decision [4], [10].
In late 1975, Steven began working full‑time in the farming partnership. He farmed all of the partnership property including Burracoorong. By the late 1970s Steven had a central role in managing the farming partnership.[5]
[5] Primary decision [5].
Until 1988, all habitable accommodation was on Yaraglain.[6]
[6] Primary decision [7].
In 1988, Steven and his wife began building a family home on Burracoorong. It was not in dispute that Mr Browne told Steven and his wife to build their home on Burracoorong, and they subsequently did so.[7]
[7] Primary decision [7].
By the end of 1997, the partnership had…

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 Browne v Browne

Details

AGLC: Browne v Browne [2018] WASCA 72
Case: [2018] WASCA 72
Decision Date: 18 MAY 2018

CaseChat Overview and Summary

In Browne v Browne, the applicant sought a stay or injunctive orders to prevent the respondent from selling property pending the determination of an appeal. The case was heard in the Family Court of Australia. The applicant, the former wife, sought to prevent the sale of the property, which was the former matrimonial home, while her appeal against the property settlement was being determined. The former husband, the respondent, opposed the application, arguing that the application turned on its own facts and that there was no basis for granting the relief sought.

The court was required to determine whether the applicant's appeal was likely to succeed and whether the applicant had established grounds to justify a stay or injunctive orders pending the appeal. The court considered the principles of interlocutory relief and the balance of convenience, including the risk of hardship and the likelihood of success on the merits. The court also considered the factors relevant to determining the merits of the appeal, such as the contributions made by each party to the acquisition and preservation of the property.

The court found that the applicant's appeal was not likely to succeed and that there were no grounds to justify a stay or injunctive orders pending the appeal. The court noted that the applicant had not established a serious question to be tried on the merits of the appeal, and that the balance of convenience favoured the respondent. The court also found that the application turned on its own facts and that the applicant had not demonstrated any exceptional circumstances that would warrant the grant of the relief sought. The court dismissed the application and ordered the applicant to pay the respondent's costs of the application.

The court made no orders as to costs of the appeal.

Orders