Easom and Burhan

[2020] FamCA 13

FAMILY COURT OF AUSTRALIA

EASOM & BURHAN [2020] FamCA 13

FAMILY LAW – STAY APPLICATION – respondent in the proceeding seeking to stay operation of interlocutory orders requiring him to pay $170 000 – amended notice of appeal in respect of orders appealed against 14 grounds of appeal in which alleged errors of law were raised – none raising error of law – assertion that husband who had been ordered to pay $170 000 was unable to source funds to make such a payment – husband having access to a $3 000 000 loan facility in November 2019 – assertion that loan facility terminated on 20 December 2019 and therefore assertion that husband had no capacity to pay the sum ordered – arguable notice of termination invalid and takes the form of new evidence for which leave is required before husband can rely on it – wife asserting termination of load deed a sham – held, stay application refused.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth)

De L v Director-General, NSW Department of Community Services (1996) 70 ALJR 532
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

APPLICANT: Ms Easom

FIRST RESPONDENT: Mr Burhan

SECOND RESPONDENT: Ms Burhan

THIRD RESPONDENT: C Pty Ltd

FOURTH RESPONDENT: C Family Trust

FIFTH RESPONDENT: C2 Pty Ltd

SIXTH RESPONDENT: C2 Unit Trust

FILE NUMBER: MLC 11409 of 2018

DATE DELIVERED: 15 January 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 14, 15 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Brown of One of Her Majesty's Counsel

SOLICITOR FOR THE APPLICANT: DSA Law

COUNSEL FOR THE FIRST RESPONDENT: Ms R Stoikovska of Senior Counsel

SOLICITOR FOR THE FIRST RESPONDENT: Lander & Rogers

COUNSEL FOR THE SECOND RESPONDENT: Ms C Devine

SOLICITOR FOR THE SECOND RESPONDENT: Pigdon Norgate Family Lawyers

COUNSEL FOR THE THIRD RESPONDENT: Ms C Devine

SOLICITOR FOR THE THIRD RESPONDENT: Pigdon Norgate Family Lawyers

COUNSEL FOR THE FOURTH RESPONDENT: Ms C Devine

SOLICITOR FOR THE FOURTH RESPONDENT: Pigdon Norgate Family Lawyers

COUNSEL FOR THE FIFTH RESPONDENT: Ms C Devine

SOLICITOR FOR THE FIFTH RESPONDENT: Pigdon Norgate Family Lawyers

COUNSEL FOR THE SIXTH RESPONDENT: Ms C Devine

SOLICITOR FOR THE SIXTH RESPONDENT: Pigdon Norgate Family Lawyers

Orders

1. The husband’s application in a case filed 8 January 2020 for the stay of orders made 25 November 2019 is dismissed.

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 Easom & Burhan 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 MELBOURNE

FILE NUMBER: MLC 11409 of 2018

Ms Easom

Applicant

And

Mr Burhan

First Respondent

And

Ms Burhan

Second Respondent

And

C Pty Ltd

Third Respondent

And

C Family Trust

Fourth Respondent

And

C2 Pty Ltd

Fifth Respondent

And

C2 Unit Trust

Sixth Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 25 November 2019 I handed down reasons for judgment in this proceeding.  Pursuant to those reasons I acceded to the application brought by the wife for orders requiring the husband to pay the wife a lump sum amount of $50 000 by way of spousal maintenance, to pay litigation funding in the sum of $100 000 and to reimburse the wife for $20 000 for a balloon payment made by the wife in relation to a motor vehicle.

2. Being dissatisfied with the orders made against him, the husband has brought an interlocutory appeal against my decision given on 25 November 2019.  He has sought a stay of the operation of those orders arguing that the appeal will be rendered nugatory unless a stay is given.  By his amended notice of appeal the husband relies on 14 grounds, the last of which is not so much a proper ground of appeal but rather a submission about the effect of my reasons, namely that the orders are not just and equitable in the circumstances.

3. The Family Law Rules require a stay application to be heard and determined by the Judge from whose orders the appellant seeks leave to appeal, hence this stay application was argued before me.  Before going to my reasons, let me state at once that I have decided to refuse this stay application.  In my view none of the grounds of appeal in the amended notice of appeal have merit and instead represent little more than the husband’s unwillingness to do what he has been ordered to do.

4. While the notice of appeal is redolent with assertions that my reasons for judgment are littered with “errors of law” those assertions are incorrectly characterised and instead amount to no more than the husband’s disagreement with my construction of the factual matrix against which the wife’s application for interlocutory relief was set.  An “error of law” is a term of art having a particular and precise legal interpretation as scores of authorities in the High Court and courts of intermediate appellate level have held.  Far from conceding that I made an error in my reasons, the construction of the factual matrix that presented itself to me was legitimately open on the evidence and no error, still less an error of law, was thereby demonstrated.

5. It is neither necessary nor desirable to pick apart the 14 grounds of appeal on which the husband relies in his amended notice of appeal.  The task of assessing the legitimacy of those grounds falls to an appeal court.  Senior Counsel for the husband told me that some prospect exists that the interlocutory appeal in this case may be heard by mid-year.  She said that my orders require the husband to make payment of an amount equivalent to $170 000 well prior to that date, so the husband will likely be confronted with a contravention application unless the stay is ordered.  Whether events transpire in the manner feared by the husband remains to be seen.  It seemed to me that the submission to that effect by counsel for the husband was laced with a high degree of speculation, guesswork and surmise. 

6. Before going to the heart of the husband’s position on this appeal, it is necessary to say a little about the property situation, as was recorded in my reasons for judgment.  Among the property to be divided under s 79 in this case is a holiday home in Town N, the former matrimonial home in Suburb E and real estate in F Street, Suburb G.  The wife does not want to sell the F Street property and the husband does not want to sell the Town N property.  According to Senior Counsel for the husband, some equity exists in the Suburb E property from which the amount of $170 000 that I ordered the husband to pay could be generated if further joint borrowings were undertaken.  Once it is recognised that any such further borrowings against the Suburb E property would be joint, the illogicality of the husband’s position in that contention becomes apparent.

7. In the hearing of the application that led to my 25 November 2019 reasons, an alternative position was debated as to the source of funds to generate the sum that I ordered be paid.  It was the line of credit that was available pursuant to a deed of loan entered into between the husband and his sister for the provision by a company controlled by her of financial accommodation of up to $3 million.  That deed was exhibited to affidavit material before me.  Naturally, I examined the deed.  Senior Counsel for the husband was critical of me for doing that, contending that, having recorded in my reasons the undesirability on an interlocutory application of making a detailed examination of the deed, she said I did precisely what I said I should not do. 

8. That submission and the grounds of appeal relevant to it were erroneous.  The only way I was able to entertain the argument advanced by Queen’s Counsel then appearing for the wife about the line of credit conferred by the deed was to examine the deed in a perfunctory way.  I reject the characterisation given by Senior Counsel for the husband today that my reasons recorded a detailed examination of the terms of the deed.  My reasons recorded that the deed was signed that it had the hallmarks of a commercial instrument that it stated by its provisions that a form of financial accommodation was conferred by the sister’s company to the husband and that, at face value, the husband could avail himself of the line of credit that the deed, at face value, gave him.

9. In debate yesterday, I pointed out to the husband’s barrister that if the deed was valid as the husband said it was, he could do as any borrower would do in the usual course of events, namely take up the line of funds that the instrument gave him.  In what heightened my fears that the loan deed may not be legitimate, the husband said the lender, his sister, did not want to advance funds to him.  I told the husband’s Senior Counsel that, depending on the wording of the relevant instrument, a borrower with a contractual entitlement to funds pursuant to a commercial loan facility is ordinarily able to compel the lender to do as the lender agreed to do, namely advance funds under the deed.  Senior Counsel for the husband said the sister had chosen not to advance funds.  I said that if the loan deed was legitimate, the obligation to advance funds was enforceable by mandatory injunction.  The husband’s counsel said the husband did not want to sue his sister.  It became apparent to me that the legitimacy of the deed may very well call at trial for detailed examination. 

10. Then, in support of the husband’s stay application, he proffered a notice of termination of the deed of loan given under the sister’s hand and dated 20 December 2019, thereby demonstrating, so the husband said, that the husband no longer had access to the line of credit that by the deed of loan he was given.  Unsurprisingly, Mr David Brown QC characterised that notice as a sham and an insult to court process.  He is probably correct in that submission although I make no finding on the point.  Undoubtedly, an appeal court that hears the application for leave to appeal from my decision will examine the issue as indeed it must. 

11. Returning to the loan deed, in my reasons I devoted paragraphs 28, 29, 30 and 31 to a cursory examination of the deed.  That was scarcely a detailed examination, certainly not of the sort undertaken on a daily basis in commercial courts across the country.  I reject the characterisation by Senior Counsel for the husband that I examined the loan deed in detail after saying such a task was undesirable and unnecessary.  Senior Counsel for the husband was particularly trenchant with criticisms of my treatment of the orders relating to child support.  It must be recorded that Senior Counsel for the husband conceded in debate before me yesterday that the issue agitated in ground 11 of the amended notice of appeal was not argued before me by the husband, yet in that ground, the husband advances propositions on which his counsel was wholly silent in argument.  Senior Counsel argued, in a manner I found extraordinary, that somehow I was required to formulate the husband’s argument for his counsel along the lines recorded in paragraph 11.  That was despite counsel then appearing on his behalf being eminent, experienced and highly learned in this field.  It is not my job to do counsel’s job.  In short, the point agitated in ground 11 was not argued by the husband’s counsel before me.  Precisely how he can raise on appeal a point not argued below bewilders m.

12. The position of the second to sixth respondents before me yesterday was inconsistent.  Their position before me in argument leading to my orders of 25 November 2019 was equally inconsistent.  Let me explain.  Ms Devine who appeared for them agreed she had no standing to make submissions about child support.  She was correct in that concession.  She said the second to sixth respondents were, in fact, respondents, a concession eroding the basis of debating ground 1 of the husband’s amended notice of appeal.  However, she said she supported the appeal.  Ms Devine argued that the documents her client needed so as to advance the position of the second to sixth respondents were provided to her clients after the date on which I handed down my reasons on 25 November 2019, so she argued her clients had not been adequately heard on the issue.  That point is devoid of merit as the following chronology of events reveals.

13. The hearing of the application that led to my orders of 25 November 2019 was conducted over two days as is narrated between paragraphs 10 to 13 of my reasons.  The documentation that Mr Buckley sought is mentioned in paragraph 12.  In short, all legal representatives for the parties conferred and agreed on the provision of documentation to Mr Buckley.  The details of that agreement, especially what was to be provided and by when it was to be provided, was not given to me nor was it appropriate that I knew as an arrangement between counsel was reached One of whom was one of Her Majesty’s Counsel,.  It ill-behoves a judge to immerse himself in the private negotiations between counsel, especially Queen’s Counsel.  At all events, once that arrangement was reached Mr Buckley asked to be excused.  There being no objection he was excused.  He did not ask for leave to make submissions once he was provided with the documents he sought.  He could have done so but he chose not to do so.  It is simply not open now for his clients to complain about a point never taken by their legal representative.  Ms Devine did not seriously press the point once that was brought to her attention.

14. On behalf of the wife, Mr Brown QC argued that this application for a stay was ambitious, that the notice of termination given by the letter of 20 December 2019 was an insult and that the husband suffered no hardship as might have otherwise attracted the operation of principles governing stay applications.  Mr Brown argued that the loan deed was at the heart of this application.  He said no special circumstances exist to grant a stay and that unless a stay is granted my judgment takes effect according to its terms, the making of a stay application or the filing of an appeal not operating as a stay in fact and in law.  Mr Brown QC said the husband’s position of alleged inability to pay was not borne out by the fact that a prepaid tax payment was made that need not have been made when it was. 

15. In reply, Senior Counsel for the husband relied on the decision of the High Court in De L v Director-General, NSW Department of Community Services[1] where Gummow J considered a stay application pending the hearing and determination of an application to the High Court.  There, his Honour spoke of the balance of convenience as a relevant factor, applying the earlier reasoning in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1).[2]  In both decisions, the need to address whether the appeal would be rendered nugatory was addressed.  In my view, in this case the appeal will not be rendered nugatory unless the stay sought is granted.  I do not agree that an irreparable hardship will be occasioned to the husband if his stay application is refused.  He is in Country A today, so I am told.  His counsel told me his ticket was prearranged.  I do not accept that in view of the alleged termination of the loan facility the only way the husband can acquire funds to meet the orders I made is by his escalating the debt over existing real estate borrowings.  If the effect of a refusal of his stay application leads to a contravention application then that application will fall for determination if and when such an application is made. 

    [1] (1996) 70 ALJR 532.

    [2] (1986) 161 CLR 681.

16. I dismiss the husband’s application in a case dated 8 January 2020. 

17. I will hear the parties on applications for consequential orders. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 15 January 2020.

Associate: 

Date:  17 January 2020