Dajani & Dajani (No 2)

Case [2024] FedCFamC1F 749

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dajani & Dajani (No 2) [2024] FedCFamC1F 749

File number(s): SYC 3672 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 8 November 2024
Catchwords: FAMILY LAW –  STAY APPLICATION – Where the husband seeks to stay final orders for the sale of the former matrimonial home pending his appeal – Where the wife opposes the stay – Where the wife proposes alternative orders that would preserve the subject matter of the appeal – Discussion of the extent of the Court’s power to make orders by way of conditions of a stay – Where the Court declines to grant a stay of orders for the sale of the former matrimonial home – Orders made for the former matrimonial home to be sold as per the final orders with the sum in contention at appeal to be deposited into a controlled monies account pending determination of the appeal.   
Legislation: Family Law Act 1975 (Cth) s 79
Cases cited:

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

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Dajani & Dajani [2024] FedCFamC1F 605

House v The King (1936) 55 CLR 499; [1936] HCA 40

Newett & Newett (No 6) [2021] FamCA 436

Re Middle Harbour Investments Ltd (In Liq) (Court of Appeal, 15 December 1976, unreported)

White & White [2014] FamCAFC 213
Division: Division 1 First Instance
Number of paragraphs: 40
Date of hearing: 4 November 2024
Place: Sydney
Counsel for the Applicant: Mr O’Brien
Solicitor for the Applicant: Russell Kennedy Lawyers
Counsel for the Respondent: Ms Gerace SC
Solicitor for the Respondent: Santone Lawyers

ORDERS

SYC 3672 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DAJANI

Applicant
AND:

MS DAJANI

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1.Pending the determination of the appeal with the file number NAA263/2024, the property at C Street, Suburb D NSW (“the Suburb D property”) be sold in accordance with Orders 2, 3, 4, 5 and 6 of the final orders made 12 September 2024 (“the final orders”), save that upon settlement of the sale, Order 4(f) of the final orders be varied such that:

(a)The Respondent wife (“the wife”) receives such sum to result in her receiving 40 per cent of the net asset pool;

(b)Such amount that constitutes 22.5 per cent of the net asset pool is deposited into a Controlled Monies Account invested by Santone Lawyers; and

(c)The Applicant husband receives the balance.

2.These orders act as full authority for the wife to forthwith accept the offer of $3,850,000 for the sale of the Suburb D property and in the event that purchaser is no longer available, to continue to act as sole trustee to effect the sale of the Suburb D property.

THE COURT NOTES THAT:

A.For the purpose…

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Dajani & Dajani (No 2) [2024] FedCFamC1F 749
Case
[2024] FedCFamC1F 749
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Dajani & Dajani (No 2) involves a stay application filed by the husband, who is currently incarcerated, seeking to halt the final orders for the sale of the former matrimonial home pending his appeal. The wife opposes the stay and proposes alternative orders to preserve the subject matter of the appeal. The primary legal issues revolve around the extent of the Court's power to impose conditions on a stay and the appropriate balance of considerations in determining whether to grant a stay of execution. The husband's appeal challenges various aspects of the final orders, including the valuation of assets and the distribution of proceeds from the sale of the matrimonial home.

The Court considered the relevant principles for granting a stay, which include the discretionary nature of the application, the entitlement of the judgment creditor to the benefit of their judgment, and the necessity for the applicant to demonstrate an arguable case on appeal. The Court also weighed the balance of convenience and the competing rights of the parties, as well as the risk that the appeal may be rendered nugatory if a stay is not granted. After evaluating the evidence and submissions, the Court declined to grant a stay of the orders for the sale of the former matrimonial home. Instead, the Court ordered that the sale proceed, with the wife receiving 40 per cent of the net asset pool and the remaining amount to be deposited into a controlled monies account pending the determination of the appeal.

Pending the appeal, the Court made specific orders for the sale of the Suburb D property, authorising the wife to accept an offer of $3,850,000 and to continue efforts to sell the property if the purchaser withdraws. The net asset pool is defined in accordance with the reasons for judgment from the final orders, adjusted for any variations in the value of the property. These orders ensure that the sale proceeds are managed in a manner that respects the rights of both parties pending the outcome of the appeal.

Orders

Orders of the court

SYC 3672 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DAJANI

Applicant

AND:

MS DAJANI

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Pending the determination of the appeal with the file number NAA263/2024, the property at C Street, Suburb D NSW (“the Suburb D property”) be sold in accordance with Orders 2, 3, 4, 5 and 6 of the final orders made 12 September 2024 (“the final orders”), save that upon settlement of the sale, Order 4(f) of the final orders be varied such that:

(a) The Respondent wife (“the wife”) receives such sum to result in her receiving 40 per cent of the net asset pool;

(b) Such amount that constitutes 22.5 per cent of the net asset pool is deposited into a Controlled Monies Account invested by Santone Lawyers; and

(c) The Applicant husband receives the balance.

2. These orders act as full authority for the wife to forthwith accept the offer of $3,850,000 for the sale of the Suburb D property and in the event that purchaser is no longer available, to continue to act as sole trustee to effect the sale of the Suburb D property.

THE COURT NOTES THAT:

A. For the purpose of these orders, the “net asset pool” is defined as the assets, addbacks, liabilities, superannuation and financial resources as set out at [191] of the reasons for judgment of the Honourable Justice Altobelli dated 12 September 2024 (Dajani & Dajani [2024] FedCFamC1F 605), but taking into account any variation in the value of the Suburb D property, such value being determined by the sale price, together with the actual sales costs and expenses incurred in preparing the Suburb D property for sale.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons for judgment explain the orders the Court has made pending an appeal in the substantive matter to the Full Court. BACKGROUND The final hearing of this matter was listed for four days commencing 22 April 2024 in relation to alteration of property interests. The husband was the respondent in the substantive proceedings, but the applicant in the current proceedings (“the husband”). The wife was the applicant in the substantive proceedings, but the respondent in the current proceedings (“the wife”). The husband was, and still is, incarcerated after being found guilty of offences in relation to the sexual assault of the parties’ daughter. The primary asset in dispute in both the substantive and current proceedings is the former matrimonial home at C Street, Suburb D NSW (“the Suburb D property”). On 12 September 2024, final orders were made (“the final orders”) and reasons for judgment delivered: Dajani & Dajani [2024] FedCFamC1F 605 (“my reasons for judgment”). The husband filed a Notice of Appeal on 10 October 2024 (“the appeal”). By way of an Application in a Proceeding filed 14 October 2024, the husband seeks to stay Orders 1–5, 9–11, 18–20 and 22 of the final orders, pending the determination of the appeal. These orders primarily relate to the sale of the Suburb D property and the distribution of funds from the parties’ joint accounts. During submissions, counsel for the husband conceded that he could no longer press the stay of Orders 18–20, as these orders had already been implemented. He also seeks that the parties continue to engage a real estate agent to lease the Suburb D property for a period of not greater than 12 months, with the net rental income to be paid to the wife, and that the wife be restrained from dealing with his personal property that remains on the Suburb D property. The wife seeks for the husband’s application to be dismissed. However, she offers two alternative orders, the first of which would see her receive 40 per cent of the net asset pool through the sale of the Suburb D property, with the remaining amount she would otherwise be entitled to pursuant to the final orders being kept in a controlled monies account pending the determination of the appeal. The second alternative order would see her receive 40 per cent of the net asset pool through funds otherwise available from the husband, and the Suburb D property would be leased with her receiving 100 per cent of the net rental income. THE FINAL ORDERS AND REASONS FOR JUDGMENT The final orders provided for the Suburb D property to be sold, with the wife appointed as trustee for herself and the husband in relation to the sale. There is no challenge on appeal to this order. The net proceeds of sale were to be distributed as to 62.5 per cent to the wife and 37.5 per cent to the husband, with the husband to pay the wife a cash adjustment if the amount remaining was insufficient to achieve the distribution of the net matrimonial asset pool in the aforementioned percentages. They were to otherwise retain any property in their sole names. The parties were ordered to pay to their two adult children (“the children”) $30,000 each, and two vehicles were to be held on trust and transferred into their names. Several incidental orders were made.

Evidence

Evidence Before The Court

The grounds of appeal will be referred to where relevant.THE EVIDENCE In support of his case, the husband relies upon the following material:(1)Outline of Case Document filed 1 November 2024;(2)Application in a Proceeding filed 14 October 2024;(3)His affidavit filed 14 October 2024; and(4)Documents tendered during the proceedings and marked as Exhibits A1–A4. In support of her case, the wife relies upon the following material:(1)Outline of Case Document filed 1 November 2024;(2)Response to an Application in a Proceeding filed 25 October 2024;(3)Her affidavit filed 25 October 2024;(4)Affidavits of Mr CC filed 25 October 2024 and 1 November 2024; and(5)Documents tendered during the proceedings and marked as Exhibits R1–R4.THE APPLICABLE LAW The principles relevant to the present stay application were referred to by both parties and are conveniently set out by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton”) at [18]:The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known. The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:•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;•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 the competing rights of the parties;•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;•the desirability of limiting the frequency of any change in a child’s living arrangements;•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; and•the best interests of the child the subject of the proceedings are a significant consideration.(Citations omitted) For the purposes of the present application, the Court will focus on the principles which it considers to be most relevant, and which were referred to in the wife’s Outline of Case Document filed 1 November 2024, namely:(1)A person who has obtained a judgement is entitled to presume the judgement is correct;(2)The mere filing of an appeal is insufficient to ground a stay;(3)A stay may be granted on terms that are fair to all parties and this may involve a court weighing the balance of convenience and competing rights of the parties;(4)The bona fides of the applicant; (5)Some preliminary assessment of the strength of the appeal; and(6)Weighing the risk that an appeal may be rendered nugatory should a stay not be granted. THE SUBMISSIONS SUMMARISED

Decision

Reasons for decision

The wife seeks for the husband’s application to be dismissed. However, she offers two alternative orders, the first of which would see her receive 40 per cent of the net asset pool through the sale of the Suburb D property, with the remaining amount she would otherwise be entitled to pursuant to the final orders being kept in a controlled monies account pending the determination of the appeal. The second alternative order would see her receive 40 per cent of the net asset pool through funds otherwise available from the husband, and the Suburb D property would be leased with her receiving 100 per cent of the net rental income. THE FINAL ORDERS AND REASONS FOR JUDGMENT The final orders provided for the Suburb D property to be sold, with the wife appointed as trustee for herself and the husband in relation to the sale. There is no challenge on appeal to this order. The net proceeds of sale were to be distributed as to 62.5 per cent to the wife and 37.5 per cent to the husband, with the husband to pay the wife a cash adjustment if the amount remaining was insufficient to achieve the distribution of the net matrimonial asset pool in the aforementioned percentages. They were to otherwise retain any property in their sole names. The parties were ordered to pay to their two adult children (“the children”) $30,000 each, and two vehicles were to be held on trust and transferred into their names. Several incidental orders were made. In my reasons for judgment, findings were made in relation to the impact of the husband’s family violence perpetrated towards the wife and the children, both during the marriage and post-separation. The Court found that there was ample evidence to establish that the husband perpetrated family violence and that this made the wife’s pre- and post-separation contributions, particularly as homemaker and parent, significantly more arduous (see [164] and [167]). The Court holistically assessed contribution, both direct and indirect, financial and non‑financial as 60:40 in favour of the wife (see [173]) and made a two and a half per cent adjustment under s 75(2) (see [185]). Relevantly, the parties agreed that the value of the Suburb D property was $4 million.THE NOTICE OF APPEAL The husband filed a Notice of Appeal on 10 October 2024 in relation to the final orders and my reasons for judgment. His grounds of appeal are reproduced as follows:1. His Honour erred in his exercise of discretion by failing to:a. Properly consider the actual (1,000,000 [Country J currency]) rather than purchase (200,000 [Country J currency]) value of the Appellant’s shares (bought by the Appellant’s family business) at the start of the marriage; and b. Attribute appropriate weight to this financial contribution providing a ‘springboard’ for the parties’ later financial investment success.2. In respect of the Appellant’s Sentencing Remarks from his criminal trial, His Honour:a. Misapplied s.91 of the Evidence Act Cth (1995) and erroneously admitted such document into evidence; and b. Misapplied s.135 of the Evidence Act Cth (1995) by failing to exclude such document on the basis it was unfairly prejudicial to the Appellant.3. When assessing the contributions of the parties, His Honour:a. Drew an inference in support of the Respondent’s argument based upon inadmissible evidence (Sentencing Remarks);b. Considered the Kennon argument independently from the other contributions of the parties; and c. Gave inadequate reasons as to the basis upon which the Appellant’s conduct had a significant adverse effect upon the Respondent’s contributions.4. His Honour erred by failing to afford the Appellant procedural fairness by allowing the Final Hearing (22 – 24, 26 April 2024) to proceed in circumstances where the Appellant had been transferred from one correctional facility to another without being able to properly confer with his legal representatives, give instructions or prepare the required Court documents until, and within the time period of only 18 – 19 April 2024.

Ratio Decidendi

Legal Principle Established

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