Caffyn and Protz & Anor [ - [2018] FamCA 499

FAMILY COURT OF AUSTRALIA

CAFFYN & PROTZ AND ANOR

[2018] FamCA

FAMILY LAW – PROPERTY – STAY – Where the wife seeks a stay of two sets of orders pending the determination of her appeal against the latter set of orders – Where the earlier set of orders are consent orders in relation to the position of the liquidator – Where there is no basis to stay that set of orders – Where the latter set of orders are consent property settlement orders between the husband and wife – Partial stay ordered requiring a sum of money to be held in a controlled monies account pending determination of the appeal – Wife restrained from dealing with a property pending the determination of the appeal.

FAMILY LAW – COSTS – Where the liquidator seeks that the wife pay his costs of the application – Where the wife was wholly unsuccessful in relation to her application to stay the orders involving the liquidator – Wife to pay liquidator’s costs on a party and party basis – Where the husband also seeks costs – Where the wife was successful in obtaining a partial stay of the property settlement orders made between the husband and wife – No order as to costs.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Trahn & Long(No. 2) [2008] FamCAFC 194

APPLICANT:

Ms Caffyn

FIRST RESPONDENT:

Mr Protz (as Liquidator) and

B Pty Ltd (In Liquidation)

SECOND RESPONDENT:

Mr Caffyn

FILE NUMBER:

PAC

3892

2015

DATE DELIVERED:

4 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

3 July 2018

REPRESENTATION

FOR THE APPLICANT:

Ms Caffyn in Person

SOLICITOR FOR THE FIRST RESPONDENT:

ERA Legal

COUNSEL FOR THE SECOND RESPONDENT:

Mr Heazlewood

SOLICITOR FOR THE SECOND RESPONDENT:

Lewarne & Goldsmith

Orders

That the operation of Orders 2.1 and 2.2 made on 26 April 2018 be stayed in part.
That from any money to be paid to the husband pursuant to Order 2.1 or 2.2, the sum of $330,000 be held by the husband’s solicitors in a controlled monies account, pending the determination of the appeal filed by the wife on 22 May 2018.
That in the event that the wife’s appeal is dismissed, the sum of $330,000 held in the controlled monies account, together with any interest accrued on the account, shall be paid to the husband.
That in the event that the wife’s appeal is dismissed, she shall pay to the husband interest upon the said sum of $330,000 at the rate prescribed by the Family Law Rules, less any amount of interest actually accrued to the controlled monies account.
That pending the determination of the appeal filed by the wife, she is restrained from transferring, selling, encumbering, charging or otherwise dealing with the property at B Street, E Town (“the E Town property”) being the whole of the property in Folio Identifier … & ....
That pending the determination of the appeal filed by the wife, the…

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.

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Details

AGLC: Caffyn and Protz & Anor [ [2018] FamCA 499
Case: [2018] FamCA 499
Decision Date: 4 July 2018

CaseChat Overview and Summary

In the Family Court of Australia, Rees J considered an application by the wife for a stay of two sets of orders pending her appeal against the latter set. The earlier orders concerned the position of a liquidator, and the wife sought no basis to stay these. The latter orders were consent property settlement orders made between the husband and wife.

The primary legal issues before the court were whether to grant a stay of the consent property settlement orders and, if so, to what extent, and to determine the costs of the applications. The court was also required to consider the wife's application to stay the orders involving the liquidator.

Rees J reasoned that there was no basis to stay the orders concerning the liquidator, and therefore the wife was unsuccessful in that regard and was ordered to pay the liquidator's costs. However, in relation to the property settlement orders, the court found it appropriate to grant a partial stay. This involved ordering that a sum of $330,000 be held in a controlled monies account by the husband's solicitors pending the determination of the wife's appeal. Furthermore, the wife was restrained from dealing with a specific property, the "E Town property," pending the appeal.

Consequently, the court ordered a partial stay of the property settlement orders, requiring $330,000 to be held in a controlled monies account and restraining the wife from dealing with the E Town property. The wife was ordered to pay the liquidator's costs. The husband's application for costs was dismissed, and no order was made as to costs between the husband and wife regarding the stay application.

Orders

Orders of the court

That the operation of Orders 2.1 and 2.2 made on 26 April 2018 be stayed in part.

That from any money to be paid to the husband pursuant to Order 2.1 or 2.2, the sum of $330,000 be held by the husband’s solicitors in a controlled monies account, pending the determination of the appeal filed by the wife on 22 May 2018.

That in the event that the wife’s appeal is dismissed, the sum of $330,000 held in the controlled monies account, together with any interest accrued on the account, shall be paid to the husband.

That in the event that the wife’s appeal is dismissed, she shall pay to the husband interest upon the said sum of $330,000 at the rate prescribed by the Family Law Rules, less any amount of interest actually accrued to the controlled monies account.

That pending the determination of the appeal filed by the wife, she is restrained from transferring, selling, encumbering, charging or otherwise dealing with the property at B Street, E Town (“the E Town property”) being the whole of the property in Folio Identifier … & ....

That pending the determination of the appeal filed by the wife, the husband may lodge a caveat against the title of the E Town property to notify the existence of Order 5.

That the wife pay the costs of the second respondent in relation to the stay application, as agreed or assessed, such payment to be made simultaneously with the settlement of the sale of the property at D Street, Suburb E.

That the husband’s application for costs of the stay application is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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