Cagnani and Stankic (No. 2)

[2017] FamCA 864

FAMILY COURT OF AUSTRALIA

CAGNANI & STANKIC (NO. 2) [2017] FamCA 864

FAMILY LAW – STAY APPLICATION – Application by husband for a stay or orders pending appeal – husbands application dismissed – costs reserved to the conclusion of the appeal

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.11

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT: Mr Cagnani

RESPONDENT: Ms Stankic

FILE NUMBER: SYC 5204 of 2013

DATE DELIVERED: 18 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 18 September

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Vizzone Rugerro Twigg

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: MacPherson & Kelley

Orders

1. The application for stay of orders made on behalf of the applicant husband is dismissed.

2. BY CONSENT pursuant to leave granted by this Court, Orders 4(i), (ii) and (iii) dated 15 June 2017 be made, those being:-

   Order 11

   In accordance with s 90MT(1)(a) of the Family Law Act 1975 (‘the Act’), whenever a splittable payment within the meaning of s 90ME of the Act becomes payable to or on behalf of Ms Stankic from her interest in the AZ Superannuation Scheme the husband is entitled to be paid by the Trustee of the AZ the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $107,680 and there is a corresponding reduction in the entitlement Ms Stankic would have had but for these Orders.

   Order 12

   The operative time the above order is twenty eight (28) business days after the service of the sealed Final Orders on the Trustees of the AZ Superannuation Scheme.

   Order 13

   Liberty is reserved to the said Trustees and the parties to apply to this Court about the Orders made or the form thereof within the period of twenty eight (28) days after service of a copy of these Orders on the Trustees.

IT IS DIRECTED

1. The solicitor for the applicant husband forward to my administrative associate, the form of such order, in word format, within two (2) business days from the date of this Order.

IT IS FURTHER ORDERED

1. The costs of both parties be reserved in relation to the stay application, such costs be reserved for the following periods:-

   (a)if the appeal is unsuccessful, for a period of twenty eight (28) days after the dismissal of any appeal; and

   (b)if the appeal is successful the costs be reserved to the Judge determining any issue to be remitted to a court at first instance.

IT IS FURTHER DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS NOTED

1. The Court notes and accepts the undertaking of the respondent wife contained in the following terms:-

   The wife undertakes to the court that in the event the stay application is unsuccessful and the husband’s interest in the property at VV Street, Suburb J, New South Wales (‘the Suburb J property’) is transferred to her, in accordance with order 2 of the court’s orders of 15 June 2017 that the wife will not take any steps to further encumber or to sell the Suburb J property until such time as the appeal of this matter has been heard and determined.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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  Cagnani & Stankic (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: SYC 5204 of 2013

Mr Cagnani

Applicant

And

Ms Stankic

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application by Mr Cagnani (‘the husband’) for a stay of property orders I made with regard to he and Ms Stankic (‘the wife’) earlier this year.  The substantive hearing came before me in January, February and May 2017, and I delivered reasons on 15 June of that year (‘the reasons’).  The substantive effect of that order was to divide the property as to 60 per cent to the wife and as to 40 per cent to the husband, but relevantly, that the wife takes possession and ownership of the former matrimonial home (‘the home’). 

2. The husband has lodged an appeal with the Full Court and that appeal was lodged in time, and the substance of the appeal relates to the transfer of the home from the husband to the wife.  Handed up to me today was an amended notice of grounds of appeal which are substantially similar to those initially lodged, but with some minor changes.  The thrust of the appeal is that I failed to give sufficient weight to the offer by the husband’s mother to provide her home as security to enable borrowings by the husband, and failed to give sufficient weight to the offer by the husband’s brother to provide real estate by way of security for the loan and to assist the husband in terms of paying out the wife. 

3. The other ground of appeal seems to be that I failed to give reasons or adequate reasons on my finding that the husband would need to pay out his other obligations, and my approach in terms of the wife taking the home, given her evidence that she would, at least, for some time, ask that the property be available for letting. 

The parties’ material

1. In terms of his application, the husband relied upon the following:-

   a)his amended notice of appeal; I can indicate that I have also had regard to his original notice of appeal for no other reason than to show that it was filed within time; and

   b)his affidavit filed 19 July 2017.  The husband sought to rely on an affidavit of his brother, Mr DE, which was filed and/or served today.  I did not permit the husband to rely on that affidavit.  That will be a matter for the Full Court as to whether they will allow the husband to adduce further evidence in the appeal. 

2. The wife relied upon her response to an application in a case, which was filed on 15 September 2017, and her affidavit filed at the same time.  During this proceeding each of the parties was represented by counsel, and I note the background circumstances as set out in the reasons, of which I have also had regard, from paragraph 16 through to paragraph 88. 

Rules and Principles relating to Stay applications

1. The rules and principles relating to a stay application, such an application is a discretionary decision made by a first instance judge, if that judge is available.

2. Rule 22.11 of the Family Law Rules 2004 (Cth) provides as follows:-

   (1)The filing of the matters of appeal does not stay the operation or enforcement of an order appealed from, unless otherwise provided by legislative provision.

   (2)If an appeal has been stayed or a party has applied for leave of appeal against an order, any party may apply for an order staying the operation of enforcement of all or part of the order.

   (3)An application for stay must be filed in the registry, in which the order under appeal was made, to be heard by the Judge of the Family Court who made the order. 

3. Counsel for the husband referred me to the principle set out in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, where at paragraph 18 the Full Court set out the following principles:-

   ·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; I will add at this stage, that I accept that approach, as I am bound to do in any event.

   ·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 competing rights of the parties.  I think it is.

   ·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; and

   ...

   ·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; …

4. The appeal was lodged in time, and there is no criticism of the husband in that regard.  Secondly, it is clear that this appeal will take, perhaps, upwards of a year from filing to determination, noting that determination will also include, perhaps, time for the Full Court to consider its reasons before publishing them.  It seems uncontroversial that this appeal is likely to be heard around the middle of 2019.  There is no issue as to the bona fides of the applicant, and I will treat the applicant for the stay applications as being bona fide, and I have treated him as being bona fide. 

5. There is a question as to whether the appeal may be rendered nugatory if a stay is not granted.  In this case, if the home is transferred to the wife, she has provided an undertaking in her affidavit, which undertaking I accept, that she will not sell the house after she has refinanced and moved into the home.  Given those circumstances, I am not satisfied that the appeal would be rendered nugatory.  It may put the parties to some inconvenience, but that is something which I have considered in terms of the question of the convenience of both parties. 

6. In terms of an assessment as to the strength of the proposed appeal, this is an appeal in terms of the exercise of the Court’s discretion and they are notoriously difficult to win.  Full Courts tend to look at some obvious error in the application of law and to succeed in respect of such a discretionary matter is easier said than done.  I am not satisfied that the appeal is a particularly strong appeal; although, I cannot say that the appellant does not have an arguable case.  The thrust or the real thrust of the argument of the husband is in relation to the question of the convenience of the parties. 

7. The husband says that he has lived in the home since separation at about 2012

   or that there was some planning in 2012; which came into effect in 2013.  Consequently, the husband has lived in the home or had control of the home since that time, including letting the home in about October 2015, for a period of eight to 10 months, in which time he collected rent on the property.  That rent, from the material before me, and mentioned in the reasons, was used to meet the mortgage repayments.

8. The orders provide that the husband meet the council rates, water rates and mortgage instalments pending the transfer to the wife.  The husband says that it will be of great inconvenience to him to be required to move out of the home in the event that in a year-or-so’s time the appeal is successful, and he would then have to have the home transferred back.

9. Weighed against that must be the inconvenience of the wife, who has the primary care of the parties’ two children.  Also in relation to that are the presumptions to which I have earlier referred, that is, that a party is entitled to the benefit of her judgment or his judgment and that a party is entitled to presume that the judgment is correct. 

10. In all of the circumstances to which I have alluded, and considering and weighing the balance of convenience, I am satisfied that the stay ought not to be granted. 

11. At the time I made the substantive orders, there was concern as to the form of the splitting order with the superannuation trustee.  As a consequence, I made order 13, which gave leave to the parties to apply in the event that the form of the order needed to be amended in some way to meet the needs of the trustee.  I am now asked to make order 4, contained in the amended application in a case, which would enable the splitting of the superannuation in accordance with the substantive orders; and which orders, as I understand it, are not the subject of any appeal before the Court at the present time.  I will make those orders; not under the slip rule, but under the leave provided provision in those orders. 

12. Finally, I was asked to make an order for costs.  I do not intend to make an order for costs today, for this reason:  it may be that the Full Court at the end of the day decides that I am wrong.  If that is the case, then any costs order I made would then have to be the subject of an appeal in itself, which would put the parties to additional cost and expense.

13. What I intend to do is to reserve the costs of today, certify for counsel, and provide that the parties have leave to apply for costs until 28 days after the determination of the appeal if the appeal is unsuccessful, or it will be reserved to a Judge on a re-hearing if the matter is remitted to determine the question of the cost of the stay application if the appeal is successful.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 September 2017.

Associate:     

Date:              18 October 2017