Chaihine and Kamal and Ors (No. 2)
[2020] FamCA 728
FAMILY COURT OF AUSTRALIA
| CHAIHINE & KAMAL AND ORS (NO. 2) | [2020] FamCA 728 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where interim financial orders made as between husband and wife – Where application by eighth Respondent for stay of certain of those orders pending appeal – Where consideration of applicable principles – Where application for stay refused – Where costs reserved |
| Family Law Act 1975 (Cth) s 94AA Family Law Rules 2004 (Cth) r 22.11 |
| Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Chaihine & Kamal and Ors [2020] FamCA 513 Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548; (2000) FLC 93-024 Jackson & Balen [2009] FamCAFC 131 Medlow & Medlow [2016] FamCAFC 34; (2016) FLC 93-692 Re Middle Harbour Investments Ltd (in Liq) (unreported, Court of Appeal (NSW), 15 December 1976) |
| APPLICANT: | Mr Chaihine |
| FIRST RESPONDENT: | Ms Kamal |
| SECOND RESPONDENT: | Mr B |
| THIRD RESPONDENT: | Mr C Chaihine |
| FOURTH RESPONDENT: | Mr D |
| FIFTH RESPONDENT: | E Pty Ltd |
| SIXTH RESPONDENT: | Mr A Chaihine |
| SEVENTH RESPONDENT: | Mr M Chaihine |
| EIGHTH RESPONDENT: | Mr F |
| NINTH RESPONDENT: | G Pty Ltd |
| FILE NUMBER: | PAC | 2393 | of | 2018 |
| DATE DELIVERED: | 3 September 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 24 July 2020 and by way of written submissions last received 13 August 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Penhall & Co Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr O’Brien |
| SOLICITOR FOR THE FIRST RESPONDENT: | Sanford Legal |
| SOLICITOR FOR THE SECOND RESPONDENT: | Penhall & Co Lawyers |
| SOLICITOR FOR THE THIRD RESPONDENT: | Penhall & Co Lawyers |
| SOLICITOR FOR THE FOURTH RESPONDENT: | No appearance by Edmond Khoury Solicitors |
| SOLICITOR FOR THE FIFTH RESPONDENT: | No appearance by Edmond Khoury Solicitors |
| SOLICITOR FOR THE SIXTH RESPONDENT: | Penhall & Co Lawyers |
| SOLICITOR FOR THE SEVENTH RESPONDENT: | Penhall & Co Lawyers |
| COUNSEL FOR THE EIGHTH RESPONDENT: | Mr Lawrence |
| SOLICITOR FOR THE EIGHTH RESPONDENT: | Keypoint Law |
| NINTH RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
Orders
That the application by the eighth respondent for stay of orders made 26 June 2020 is dismissed.
That the question of costs of the application for stay be reserved.
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 Chaihine & Kamal 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 PARRAMATTA |
FILE NUMBER: PAC 2393 of 2018
| Mr Chaihine |
Applicant
And
| Ms Kamal |
First Respondent
And
| Mr B |
Second Respondent
And
| Mr C Chaihine |
Third Respondent
And
| Mr D |
Fourth Respondent
And
| E Pty Ltd |
Fifth Respondent
And
| Mr A Chaihine |
Sixth Respondent
And
| Mr M Chaihine |
Seventh Respondent
And
| Mr F |
Eighth Respondent
And
| G Pty Ltd |
Ninth Respondent
REASONS FOR JUDGMENT
On 26 June 2020 certain interim financial orders were made in these proceedings. Those orders, relevantly, were as follows:
(1)That the proceeds of sale of the property at H Street, Suburb J, New South Wales on settlement of the sale be paid in accordance with Orders made on 30 October 2019 save that the balance remaining after payment of legal fees of the sale shall not be paid to Penhall and Co Lawyers but be paid as follows:
(a)In payment of the sum then remaining to the wife’s solicitor to be held on trust for the husband and wife in an interest bearing controlled money account, then;
(b)In payment of any arrears outstanding in relation to the mortgage secured over property at K Street, Suburb L (“the Suburb L property”);
(c)Payment to the wife in the sum of $50,000 to the wife or as she may, otherwise, direct with such sum to be categorised at final hearing or by agreement; and
(d)Pending further order, in payment from the balance then remaining to future payments of mortgage payments, insurances and rates levied in relation to the Suburb L property as they fall due and payable.
Earlier in these financial proceedings orders had been made on 30 October 2019 that provided for the Suburb J property to be sold by the husband with the proceeds of sale after sale costs and discharge of mortgage to be held by the husband’s solicitors in trust for the husband and wife and eighth respondent pending further order.
These reasons for judgment assume familiarity with the Court’s reasons for judgment delivered on the 26 June 2020: Chaihine & Kamal and Ors [2020] FamCA 513.
It was said in the earlier reasons for judgment as to the Suburb J property:
[16]….. The property remains unsold. The consent order for sale was also signed by the eighth respondent who the husband asserts provided substantial finance by way of loan for the property. There is no provision for the eighth respondent to be paid any money from the proceeds of sale or for any other third party interest to be addressed. The Suburb J property has an asserted value of about $650,000 and is subject to a mortgage of $250,000 to the ANZ Bank. As at the interim hearing, the Court was informed that the property had sold for $650,000 subject to a 21 day cooling off period. Net proceeds are estimated at about $375,000 after sale costs.
The Eighth Respondent in these proceedings
The eighth respondent was purportedly joined to these proceedings by the husband by reason of him filing an Amended Response on 28 September 2018. In this Amended Response the husband sought no orders in relation to the present eighth respondent. The only order in this Amended Response that might have relevance to the eighth respondent was an order “that the court determine and declare the description and net value of the matrimonial property pool of the parties after deduction of liabilities”.
It is of note that on 13 May 2019 orders and directions were made by the registrar that inter-alia provided that within 21 days the husband provide all documents evidencing loan agreements between the husband and Mr F and transaction records evidencing any repayments as to the above.
Otherwise, on 26 August 2019 Hannam J relevantly made orders as follows:
(4)In the event that the person as nominated as the 6th to 9th respondents seek to intervene in the proceedings or the husband seeks to join them as parties, such application is to be made by an Application in a Case supported by an affidavit.
(5)In the event that any such parties who are joined to the proceedings or intervene asserted equitable interest in any of the properties owned by the husband, such party as to file points of claim particular arising such a claim and an affidavit within 28 days of such application and the wife is thereafter to respond to such points of claim within a further 28 days.
On 30 October 2019 proceedings were again before a registrar. On that date Mr Penhall, solicitor who acts for the husband and several of the respondents, also appeared on behalf of the proposed eighth respondent. By consent on that day orders were made granting to the first respondent husband leave to join in the sixth, seventh, eighth and ninth respondents notwithstanding that the husband had failed to comply with the orders of Hannam J made on 26 August 2019.
By consent on that day, further orders were made as referred to above for the sale of the Suburb J property with those orders signed by the eighth respondent. Net proceeds of sale were to be held on trust for the wife and husband and the eighth respondent pending further order.
Proceedings were adjourned for further directions before a registrar to 20 January 2020.
On 20 January 2020 Mr Penhall, solicitor appeared for the husband and for the third, sixth and seventh respondents. There was no appearance by or on behalf of the eighth respondent. By this date the eighth respondent had not filed a Response or Points of Claim in relation to any equitable or common law relief that may be sought by him. Proceedings were adjourned for further directions before a registrar on 5 March 2020.
On 5 March 2020 there was again no appearance by or on behalf of the eighth respondent before the registrar. Mr Penhall solicitor appeared for the husband, third, sixth and seventh respondents. It was noted by the registrar that the eighth respondent had not filed any documents in the proceedings and that the Suburb J property had not as yet been sold pursuant to the earlier orders.
In the husband’s Further Amended Response filed 30 March 2020 the husband sought no final property orders in relation to property at Suburb J. Otherwise, he sought no particular orders in favour of or against the interests of the eighth respondent Mr F save for the following order that may or may not impact the interests of the eighth respondent:
(2)That the court determined and the clear the description and net value of the matrimonial property pool of the parties after adding back interim distributions, deducting liabilities and determining the interests of third‑party respondents joined in these proceedings and who have served points of claim or otherwise claiming an interest in property registered in the name of the husband…
Notwithstanding directions to do so, the eighth respondent has failed to file a Response in these proceedings and he has failed to file Points of Claim that would set out, with particularity, any relief sought by him in the proceedings by way of equitable relief or, otherwise, in relation to matters arising out of his financial dealings with the husband.
On 11 May 2020 trial directions were made for the financial issues between the wife, the husband and the second, third, sixth and seventh respondents to proceed to final hearing. The eighth respondent is not at present a party to that final hearing, not having complied with orders to file a Response.
The husband’s case at the interim hearing.
In support of orders sought by him at the interim hearing in respect to which reasons for judgment were delivered 26 June 2020, the husband relied upon his affidavit filed 19 January 2020.
The husband’s affidavit asserts that “after discharge of the ANZ mortgage for $250,000 and repayment to Mr F of his contributions I anticipate that any net residue available to me will be minimal”.
The husband’s affidavit further asserts in relation to the Suburb J property:
…I am registered proprietor, but in which I have only a small fractional interest. That property was the subject of a development application to Suburb AA Council for approval as a boarding house, which I anticipate would have substantially increased its value. The Suburb J project was largely being financed by Mr F who is referred to as the 8th respondent but has not yet formally been served with process, in order to save further legal costs. Mr F attended the hearing before Registrar Tran on 30 October 2019 when consent orders for sale of Suburb J were made.
Otherwise, in his supporting affidavit the husband attaches correspondence from certain accountants with that correspondence dated 15 November 2019 providing a list of “funds provided” by the eighth respondent. Those funds total $427,351. Such correspondence does not assert that the eighth respondent has an interest in the subject property save and except that he is owed money by the husband for funds provided by him to the husband.
The husband asserts that “a repayment is due to Mr F of $427,000 for his contributions”. Otherwise, the husband asserted that he had more recently began accounting to Mr F for the husband’s one half share of the Suburb J rents as a consequence of Mr F’s difficult financial circumstances. It appears that Mr F asserts funds advanced to the husband of about $377,351 relating to the Suburb J property with other funds advanced to the husband relating to the husband’s freight business.
The evidence of the husband is strongly indicative of there being an arrangement by way of loan between himself and Mr F.
At the interim hearing the following exchange took place:
HIS HONOUR: No. They weren’t filed in connection with this application, Mr Penhall, so I don’t read them. What’s happening with the sale of the Suburb J property?
MR PENHALL: Yes, your Honour. That property has been sold in the last week for $650,000.
HIS HONOUR: That was pretty close to market. Yes.
MR PENHALL: But it is subject to a 21 day cooling off period and the effect of that will be that there will be no money out of it for the husband. The major provider of money for it was a Mr F who is the eighth, I think, eighth respondent in the proceedings. He has attended directions hearings before Registrar Tran but he has not yet filed documents in the proceedings. He’s waiting to see what happens today because the property is being sold and the consent orders are that the net sale proceeds will go to the wife’s solicitor’s trust account.
HIS HONOUR: Yes. Just to be held in trust.
MR PENHALL: So that’s an argument for another day. So he doesn’t need to be here today. But we have evidence on which indicates that there’s no money out of this for the husband. It all goes to paying off an ANZ mortgage of $251,000 and paying the balance to Mr F who’s the only person who put any money into the project.
HIS HONOUR: Well, maybe you better file some documents, I suppose. But he won’t get his money until the court makes some orders. Is that right?
MR PENHALL: No. Well, the other – two things may happen. The Suburb J sale may fall over in the 21 day cooling off period or it may complete. If it completes, the money will go to Sanford Legal Trust Account.
HIS HONOUR: Yes, and just sit there.
MR PENHALL: And as I understand it, he’s seeing a solicitor and he will file documents in relation to an application to the court to get that money out.
HIS HONOUR: Yes.
MR PENHALL: Once he knows there’s a sale.
HIS HONOUR: Yes.
MR PENHALL: And he was consulted and he did consent to a sale for $650,000. I made the husband confer with him because of his interest in the property and he has consented to the sale for $650,000.
HIS HONOUR: Sure. Well, you know, he might not get paid out of the proceeds of this property. He might get paid out of the proceeds of the matrimonial home at a final hearing. But at the moment there doesn’t seem to be a lot of cash running around to pay anybody; is there?
MR PENHALL: No, your Honour. The situation is the mortgage is currently $13,260 in arrears. The monthly payments are $4,420. It will shortly go up another – by that another month up to about close to $18,000 in arrears. Neither party has – my client is not working. He has no capacity to meet any payments and the, you know, the wife has exhausted a fund which was provided by your Honour more than a year ago.
The present application
On 9 July 2020 the eighth respondent’s present solicitors filed a Notice of Address for Service. It is noted that Mr Penhall solicitor who purported to appear on behalf of the proposed eighth respondent before the registrar at no time filed a Notice of Address for Service, although it appears that he continued to represent his interest in the proceedings.
On 14 July 2020 the eighth respondent filed an Application for Leave to Appeal and Notice of Appeal to the Full Court from orders made on 26 June 2020.
On 13 July 2020 the eighth respondent, by way of Application in a Case, sought an order that the operation of orders made 26 June 2020 be stayed pending determination of his appeal and that somewhat belatedly the eighth respondent file and serve a Response to the Initiating Application of the wife within 28 days.
The eighth respondent’s application for stay supported by his affidavit is filed 13 July 2020 and 13 August 2020.
As at this date, the eighth respondent has failed to file a Response or Points of Claim asserting any equitable or common law claim in relation to the matrimonial asset pool of the husband and wife in these proceedings.
The eighth respondent says that in March 2019 Mr Penhall, solicitor for the respondent husband, provided to him a folder of documents together with a covering letter. That letter informs the eighth respondent (and his company) that they have been joined as the eighth and ninth respondents in the proceedings and in accordance with the solicitor’s undertaking to the Court he is provided with a lever arch file of documents relevant to the proceedings.
The eighth respondent asserts that it was his understanding that Mr Penhall was acting as his solicitor to “protect my claim on the Suburb J property”. The eighth respondent refers to correspondence dated 16 October 2019 from Mr Penhall to the wife’s solicitors that includes the following:
We further note that Mr F recently attended a conference with Registrar Tran which was attended by the husband and wife and their legal representatives, and where Mr F informally stated his interest in the Suburb J property.
In the light of all this factual information, it is unreasonable that your client fails to acknowledge the substantial interest of Mr F in Suburb J and the debt owing to him by the husband, which the husband admits on affidavit…
… There appears to be no conflict in our acting not only for the husband but for Mr F. The nature of their partnership is the subject of banking records.
It is of note that Mr Penhall, solicitor appeared for the husband on the interim hearing, the orders of which are the subject of the present appeal.
The eighth respondent asserts that he provided funds totalling $377,351 in relation to the Suburb J property. Otherwise, he asserts that he provided other funds to the husband.
As to the Suburb J property the eighth respondent now asserts the existence in 2017 of a joint venture agreement relating to the property with the husband. Ultimately, it appears that he will assert that the husband, the registered proprietor of the property, is indebted to him for a sum certain as a consequence of the sale of the property. As such the eighth respondent is a prospective creditor of the husband. That debt is an issue in the primary property proceedings as between husband and wife.
The Stay Application: Discussion
It is well settled that a stay will not be granted lightly or as a matter of course.
The power to order a stay (r 22.11 of the Family Law Rules 2004 (Cth)) is incidental to the right of appeal and derives from the inherent power of the Court to do whatever is necessary to prevent injustice in relation to the proceedings in the Court: Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548; (2000) FLC 93-024.
In Jackson & Balen [2009] FamCAFC 131 the Full Court said at [28]:
The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681).
Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
a)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;
b)a person who has obtained a judgment is entitled to the benefit of that judgment;
c)a person who has obtained a judgment is entitled to presume the judgment is correct;
d) the mere filing of an appeal is insufficient to grant a stay;
e) the application must be bona fides;
f)a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
g)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;
h)some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
In Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (1985) 2 NSWLR 685 the NSW Court of Appeal outlined relevant principles as follows (at 694-695):
It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.
There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties ... The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears ... The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.
...
Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay ... Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay ... Secondly, although courts approaching applications will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution of judgment...
The Court of Appeal also referred with approval to the approach enunciated by Mahoney JA (with whom Moffitt P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in Liq) (unreported, Court of Appeal (NSW), 15 December 1976) (at 2):
Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct ... where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
As to the necessary preliminary application for leave to appeal, the test for leave pursuant to s 94AA of the Family Law Act 1975 (Cth) (“the Act”) was reiterated by the plurality of the Full Court in Medlow & Medlow [2016] FamCAFC 34; (2016) FLC 93-692 who said:
We are of the opinion that, subject to the caveat just discussed, the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
The Grounds of Appeal
The eighth respondent sets out seven grounds of appeal in his Notice of Appeal. They are as follows:
(1)The primary judge erred in failing to afford procedural fairness to the appellant when determining to make orders in respect of the disposition and application of the proceeds from the sale of the property H Street, Suburb J, New South Wales which had the effect of varying orders made on 30 October 2019.
(2)The primary judge erred in concluding that the Consent Orders made on 30 October, 2019 made no provision for the appellants to be paid any money from the proceeds of sale of the Suburb J property.
(3)The primary judge erred in concluding that the Consent Orders made 30 October 2019 provided that the proceeds of sale of the Suburb J property after sale costs and discharge of mortgage were to be held in trust for the husband and wife pending further order.
(4)The primary judge erred in failing to make orders to preserve adequately or at all the appellant’s asserted interest in the proceeds of sale of the Suburb J property.
(5)The primary judge erred by making orders which have the effect of dissipating the proceeds of sale of the Suburb J property as to which funds the appellant asserts an interest.
(6)The primary judge erred in concluding that the orders his Honour made would provide the appellant with equivalent or alternatively adequate security for the appellants asserted interest in the Suburb J property or the proceeds of sale of that property.
(7)The primary judge erred in finding that there was “clearly sufficient equity” available to the husband or wife in the Suburb J property to meet the “the wife’s claim” in circumstances where the appellant had an asserted interest in that equity.
As to the appellant’s grounds of appeal it is readily apparent that earlier orders provided for the proceeds of sale of the Suburb J property to be held on trust for the husband and wife and eighth respondent. The primary judgment inadvertently omits reference to the eighth respondent.
The husband’s clear assertion is that the arrangement between himself and the eighth respondent is one of lender and borrower, although it is the husband’s contention that he proposed to deal with the funds owing to the eighth respondent from the proceeds of sale of the Suburb J property. The eighth respondent made no assertion or claim in respect to his asserted interest in the Suburb J property that would require his interest to be met from the realisation of that property alone. The reasons for judgment set out clearly that there is sufficient equity in the remainder of the matrimonial asset pool to deal with the husband’s asserted debt to the eighth respondent.
As to ground 2, Consent Orders made on 30 October 2019 provide that funds from the Suburb J property were to be held in trust for the husband and wife and eighth respondent pending further order. Subsequent orders made dealt with the disposition of those funds in circumstances where the eighth respondent failed to engage in the proceedings and where the matrimonial home has sufficient equity should the eighth respondent be successful in his claim against the husband. Paragraph [23] of the primary reasons for judgment sets out:
23.The Suburb L matrimonial home has a value asserted by the wife to be $1.85 million with a mortgage outstanding of $1.15 million. The property has possible equity of about $700,000 before sale costs. There is no third party interest asserted in the Suburb L property.
Indeed, proceeds of sale of Suburb J will meet arrears of mortgage and ongoing payments in relation to that mortgage thus preserving the equity for final hearing.
Ground 3 is correct. Such an error does not vitiate the underlying basis for the orders made as discussed above.
Ground 4 has no basis. The eighth respondent failed to make any assertion or claim as against the property at Suburb J that required his interest to be met from the sale proceeds. By reason of his consent to sale, his interest must, of necessity, have been converted to a money claim with the quantum to be determined that can be met, otherwise, from the matrimonial pool. Ground 5 in effect asserts the same complaint as Ground 4.
Ground 6 has no basis. On the evidence any claim by the eighth respondent has converted to a money claim by the sale and that for the reasons discussed above it can be met from other assets of the parties.
Ground 7 has no merit. Such evidence was clearly before the Court on the evidence of both parties that the equity in the Suburb J property was sufficient for the purposes as sought by the wife. The interest of the eighth respondent was as monetary sum only the basis of which was to the subject of evidence. The only evidence, that of the husband, being that it was a debt due to him by the husband. As was set out at [76]:
76.There is clearly sufficient equity in the Suburb J property to meet the wife’s claim. Otherwise, the remaining funds from the sale or ultimately the equity in the home at Suburb L will be available to meet any claim by the eighth respondent as to his asserted entitlement in regard to the Suburb J property or its proceeds of sale. It is thus unnecessary to address the question of the sale of the Suburb Q property.
By reason of the above discussion as to the Grounds of Appeal, there is significant doubt as to whether the eighth respondent would indeed get leave to proceed with his appeal against this interlocutory order.
In the event that the stay is not granted, the appeal is not rendered nugatory in that the eighth respondent’s claim as against the husband for an accounting under the joint venture agreement will, if the eight respondent joins in these proceedings, be determined at final trial. As discussed above, there is sufficient equity in the matrimonial home to meet his claim.
The balance of convenience favours the wife. The eighth respondent has failed to engage in the proceedings. The wife faces the prospect of the home occupied by her and the children being sold from under her by reason of significant mortgage arrears. The present orders see the arrears at hearing of about $13,000 paid, a sum of $50,000 to the wife and the remaining balance to meet mortgage payments of about $4,400 per month pending final determination. There is the real prospect of capital funds remaining from the sale proceeds at that time.
By reason of the above discussion the application for stay will be dismissed.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 September 2020.
Associate:
Date: 3 September 2020
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