FAMILY COURT OF AUSTRALIA
Cantoni & Cantoni (No. 2) [2021] FamCA 553
File number(s): PAC 1840 of 2018 Judgment of: FOSTER J Date of judgment: 29 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – where application made by the wife for stay of interim property orders pending appeal – where consideration of applicable principles – where appeal would be rendered nugatory absent a stay – where stay ordered – where wife to meet property outgoings pending determination of appeal. Legislation: Family Law Rules 2004 (Cth) r 22.11 Cases cited: Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (1985) 2 NSWLR 685
Fauna Holding Pty Ltd and Ors & Mitchell [2000] FamCA 548; (2000) FLC 93-024
House v The King (1936) 55 CLR 499
Jackson & Balen [2009] FamCAFC 131
Medlow & Medlow [2016] FamCAFC 34
Cantoni & Cantoni [2021] FamCA 464Re Middle Harbour Investments Ltd (in Liq) (unreported, Court of Appeal (NSW), 15 December 1976)
Number of paragraphs: 21 Date of last submission/s: 26 July 2021 Date of hearing: 23 July 2021 Place: Parramatta Solicitor for the Applicant: Ms Khalil of Khalil Family Lawyers Pty Ltd Counsel for the Respondent: Mr McCormick Solicitor for the Respondent: Goldsmiths Lawyers ORDERS
PAC 1840 of 2018 BETWEEN: MS CANTONI
Applicant
AND: MR CANTONI
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1.Orders made on 2 July 2021 be stayed pending determination of the wife’s appeal conditional upon:
(a)the wife diligently prosecuting her appeal and application for leave to appeal;
(b)the wife paying as they fall due and payable as and from 2 July 2021 all council, water rates and insurances payable in respect of the property at D Street, Suburb E, Victoria; and
(c)the wife paying all mortgage instalments due and payable in respect of the said property, such that the balance outstanding on the mortgage not exceed the amount due and owing as at 2 July 2021.
2.The husband and wife have liberty to apply as to implementation or enforcement of these orders.
3.The costs of the present application for stay be reserved to agreement for final hearing.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cantoni & Cantoni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 2 July 2021 the Court made orders and delivered Reasons for judgment in relation to an interlocutory application in the context of ongoing financial proceedings between the primary applicant husband and the…
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CaseChat Overview and Summary
The central legal issue before the court was whether the wife had established sufficient grounds to warrant a stay of the interim property orders. This involved considering the principles applicable to applications for stays pending appeal in family law proceedings, particularly in circumstances where the appeal might be rendered nugatory if a stay were not granted.
Foster J reasoned that a stay was appropriate in this instance, applying the principle that a stay should be granted if the appeal would be rendered nugatory without it. The court ordered that the interim property orders be stayed, subject to certain conditions. These conditions included the wife diligently prosecuting her appeal and application for leave to appeal, and that she meet all outgoings, including council rates, water rates, insurances, and mortgage instalments for the property at D Street, Suburb E, Victoria, from 2 July 2021 onwards, ensuring the mortgage balance did not exceed the amount owing on that date. The parties were granted liberty to apply regarding the implementation or enforcement of these orders, and the costs of the stay application were reserved.
Orders
Orders of the court
PAC 1840 of 2018
BETWEEN:
MS CANTONI
Applicant
AND:
MR CANTONI
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1. Orders made on 2 July 2021 be stayed pending determination of the wife’s appeal conditional upon:
(a) the wife diligently prosecuting her appeal and application for leave to appeal;
(b) the wife paying as they fall due and payable as and from 2 July 2021 all council, water rates and insurances payable in respect of the property at D Street, Suburb E, Victoria; and
(c) the wife paying all mortgage instalments due and payable in respect of the said property, such that the balance outstanding on the mortgage not exceed the amount due and owing as at 2 July 2021.
2. The husband and wife have liberty to apply as to implementation or enforcement of these orders.
3. The costs of the present application for stay be reserved to agreement for final hearing.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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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