Bukari & Bukari (No 4) - [2023] FedCFamC1A 84

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bukari & Bukari (No 4) [2023] FedCFamC1A 84

Appeal from: Orders made 16 May 2023

Appeal number(s): NAA 113 of 2023

File number(s): PAC 3346 of 2020

Judgment of: SCHONELL J

Date of judgment: 26 May 2023

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant sought a review of the appeal registrar’s decision to summarily dismiss the Notice of Appeal regarding a refusal to grant a stay by the primary judge – Where the appellant argued that not being able to appeal the stay application would render his appeal nugatory – Where the stay appeal should be heard with the primary appeal, which is consistent with the overarching purpose of family law practice and procedure – Orders made for the consolidation of the two appeals.

Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Cases cited: Commission of Taxation v Myer Emporium Ltd (1986) 160 CLR 220

Number of paragraphs: 26

Date of hearing: 25 May 2023

Place: Sydney

Solicitor for the Appellant: Atila Lawyers

Counsel for the Respondent: Ms Yu

Solicitor for the Respondent: AS Family Lawyers
ORDERS

NAA 113 of 2023
PAC 3346 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR BUKARI

Appellant

AND:
MS BUKARI

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

25 MAY 2023

IT IS ORDERED THAT:
1.Leave is granted to the appellant to make an oral application to set aside the order made today dismissing the Application in an Appeal filed 17 May 2023.
2.The order made today dismissing the appellant’s Application in an Appeal filed 17 May 2023 is set aside.
3.The orders made by the appeal registrar on 16 May 2023 are dismissed.
4.The appellant is directed to file an Amended Notice of Appeal in relation to the appeal filed on 1 May 2023 within 14 days.
5.This matter is referred to the appeal registrar to make directions for the purposes of consolidating the appeals (NAA 77 of 2023 and NAA 113 of 2023) such that they will both be heard on 25 July 2023.

IT IS FURTHER ORDERED IN CHAMBERS THAT:
6.The Application in an Appeal filed 17 May 2023 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym

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 Bukari & Bukari (No 4)

Details

AGLC: Bukari & Bukari (No 4) [2023] FedCFamC1A 84
Case: [2023] FedCFamC1A 84
Decision Date

CaseChat Overview and Summary

The case of Bukari & Bukari (No 4) before the court involved an appeal concerning the dismissal of a Notice of Appeal by the appeal registrar, which was deemed to lack utility. The primary issue for the court was whether the dismissal of the Notice of Appeal in the stay appeal was justified, given that the appellant and his daughter did not have the capacity to purchase the respondent’s interest in the properties in question. Additionally, the court needed to determine if the special circumstances existed to warrant a stay of execution of the primary judgment.

In addressing the legal issues, the court considered the principles laid out in Commission of Taxation v Myer Emporium Ltd, which articulate the conditions under which a stay may be granted. The court found that the appellant's assertion of an exclusive right to purchase the properties was unsubstantiated and that there was no impediment to the appellant or his daughter purchasing the properties at auction. The court emphasised that special circumstances justifying a stay must exist to prevent the appeal from becoming nugatory if successful, which was not the case here. The court also noted that the appellant's conduct in potentially rendering the appeal nugatory through their actions was not a basis for a stay. The court concluded that the stay appeal was defective and required amendment, and that the appellant should be granted a limited time to rectify this.

The court ordered that the appellant could file an Amended Notice of Appeal within two weeks, along with any necessary preparations for the appeal. The respondent would then have a further two weeks to respond, after which the appeal would be listed for hearing before the Full Court. This ruling ensured that the appeal process could proceed in an orderly manner, with appropriate time provided for the appellant to address the deficiencies in the stay appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant’s solicitor conceded that there was no evidence that either the appellant or the daughter would be able to purchase the properties.CONCLUSION The Application in an Appeal involves a review of a determination made by the appeal registrar to dismiss the appellant’s Notice of Appeal in the stay appeal as it lacked utility. As such, the review is a de novo hearing. There is no evidence that the appellant or his daughter have the capacity to purchase the respondent’s interest in the properties, the subject of the stay orders, at a lesser percentage whatever that might be. Nor was any lesser percentage suggested. The asserted “exclusive right to purchase the properties” was not made apparent. There is no impediment to the appellant and/or his daughter purchasing the properties at auction. If either or both of them do so, there would be a change in the legal ownership of the properties to that which existed before the primary judge. The High Court in Commission of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222–223 said:…Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v. Church [No.2]; Klinker Knitting Mills Ply. Ltd. v. L’Union Fire Accident and General Insurance Co. Ltd. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v. Sandland [No.2].(Footnotes omitted) If what the appellant seeks to do comes about, then the appeal would have been rendered nugatory by the appellant’s own conduct. To suggest that is a basis for a stay is absurd. It is the usual practice of the Court to consolidate the hearing of the primary appeal and the stay appeal. Thus, if the appeal registrar had not dismissed the stay appeal, then both would in the ordinary course have been listed together. That is, on 25 July 2023. The appellant through his solicitor now concedes that the stay appeal is defective and requires amendment. There is no adequate explanation other than the fact that the appellant is now represented that explains why this was not attended to earlier. He submitted that the appellant can file an Amended Notice of Appeal within two weeks. He also submitted that the appellant could also do all that was necessary to prepare for the appeal in that time including filing a Summary of Argument. One presumes this would include preparation of the appeal book and a transcript. He suggested that the respondent should then have a further two weeks to respond and that the appeal thereafter be listed for hearing before the Full Court.

Ratio Decidendi

Legal Principle Established

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NAA 113 of 2023 PAC 3346 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR BUKARI Appellant
AND:	MS BUKARI Respondent

Appeal from:	Orders made 16 May 2023
Appeal number(s):	NAA 113 of 2023
File number(s):	PAC 3346 of 2020
Judgment of:	SCHONELL J
Date of judgment:	26 May 2023
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant sought a review of the appeal registrar’s decision to summarily dismiss the Notice of Appeal regarding a refusal to grant a stay by the primary judge – Where the appellant argued that not being able to appeal the stay application would render his appeal nugatory – Where the stay appeal should be heard with the primary appeal, which is consistent with the overarching purpose of family law practice and procedure – Orders made for the consolidation of the two appeals.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Cases cited:	Commission of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Number of paragraphs:	26
Date of hearing:	25 May 2023
Place:	Sydney
Solicitor for the Appellant:	Atila Lawyers
Counsel for the Respondent:	Ms Yu
Solicitor for the Respondent:	AS Family Lawyers

order made by:	SCHONELL J
DATE OF ORDER:	25 MAY 2023