Cerny and Seidler - [2019] FamCA 273

FAMILY COURT OF AUSTRALIA

CERNY & SEIDLER

[2019] FamCA 273

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Where the father files an application in a case for a stay of orders – Where the orders are subject to an appeal – Where the father also sought a substitution of some of the orders – Where a correction of orders is also sought under the slip rule – Where the father application for a correction under the slip rule will be heard at a later date – Where the father also makes an application for the mother to be dealt with for contravening orders – Where this application will also be heard at a later date – Where the parties presented an agreed minute of order for the pattern of living arrangements after the school holidays and the issue was resolved – Where the father bears the onus to establish a proper basis for the stay – Where he is not required to demonstrate special or exceptional circumstances – Where there is little difference in the terms of the stay proposed by the mother and the father – Where the order made are based on the mothers proposed terms of the stay – Where a stay is granted on certain orders pending the determination of the appeal commenced by the father – Where the father seeks further subpoenas be issued – Where leave is not granted until the determination of the slip rule application.

APPLICANT:

Mr Cerny

RESPONDENT:

Ms Seidler

FILE NUMBER:

SYC

6696

2014

DATE DELIVERED:

7 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

27 February 2019

REPRESENTATION

APPLICANT HUSBAND IN PERSON:

Mr Cerny

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

Orders

Pending the determination of the appeals commenced by Notices of Appeal filed on behalf of the father 22 February 2019 the following orders of 30 January 2019 are stayed on these terms:
i.Order 3(c) is varied to provide:
(c)In discharge of the mortgage to the Westpac Banking Corporation being registered dealing number …63 relating to Westpac Loan …98 only and that the funds required to discharge Westpac Banking Corporation loan …18 be held in a controlled monies account by the conveyancing solicitor;
ii.The mother is restrained from allowing the balance of the Westpac Loan …98 to increase above $1,319,542;
iii.The mother is restrained from further encumbering the property at F Street, Suburb G in any way other than by the Westpac Loan …98;
iv.Order 3 (e) is varied to provide:
(e)In paying an amount sufficient to discharge the Westpac Loan …69 into a controlled monies account by the conveyancing solicitor;
v.The mother is restrained from allowing the balances of the Westpac Loans …18 and …69 to increase above $94,161 and $149,936, respectively.
It is Noted that the issue of whether or not Westpac loans …18 and …69 must be paid out of the sale proceeds of the Suburb G property may be finalised on determination of the father’s…

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 Cerny and Seidler

Details

AGLC: Cerny and Seidler [2019] FamCA 273
Case: [2019] FamCA 273
Decision Date: 7 March 2019

CaseChat Overview and Summary

The case of *Cerny and Seidler* concerned an appeal before Loughnan J regarding orders made on 30 January 2019. The dispute involved the management and encumbrance of a property at F Street, Suburb G, and the discharge of various Westpac Banking Corporation loans secured against it. The father had filed notices of appeal on 22 February 2019, leading to the current proceedings to stay the earlier orders pending the determination of those appeals.

The central legal issues before the court were whether to stay the existing orders and, if so, on what terms. Specifically, the court had to consider how to manage the discharge of certain mortgages while restraining the mother from further encumbering the property or allowing the balances of specific Westpac loans to increase beyond stipulated amounts. The court was also required to determine the appropriate handling of funds for loan discharges, including the use of a controlled monies account.

Loughnan J applied principles relating to the granting of stays pending appeal, balancing the need to preserve the status quo and prevent further prejudice to the parties against the practicalities of managing secured debts. The court varied the original orders to provide for the discharge of a specific Westpac mortgage (Loan …63) and to hold funds for another (Loan …18) in a controlled monies account. Furthermore, the mother was restrained from increasing the balances of Westpac Loans …98, …18, and …69 above specified figures, and from further encumbering the property except in relation to Westpac Loan …98. The court also varied an order concerning the payment of an amount to discharge Westpac Loan …69 into a controlled monies account.

Orders

Orders of the court

Pending the determination of the appeals commenced by Notices of Appeal filed on behalf of the father 22 February 2019 the following orders of 30 January 2019 are stayed on these terms:

i. Order 3(c) is varied to provide:

(c) In discharge of the mortgage to the Westpac Banking Corporation being registered dealing number …63 relating to Westpac Loan …98 only and that the funds required to discharge Westpac Banking Corporation loan …18 be held in a controlled monies account by the conveyancing solicitor;

ii. The mother is restrained from allowing the balance of the Westpac Loan …98 to increase above $1,319,542;

iii. The mother is restrained from further encumbering the property at F Street, Suburb G in any way other than by the Westpac Loan …98;

iv. Order 3 (e) is varied to provide:

(e) In paying an amount sufficient to discharge the Westpac Loan …69 into a controlled monies account by the conveyancing solicitor;

v. The mother is restrained from allowing the balances of the Westpac Loans …18 and …69 to increase above $94,161 and $149,936, respectively.

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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