Fowles & Fowles (No 4)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fowles & Fowles (No 4) [2024] FedCFamC1A 174

Appeal from: Fowles & Fowles (No 4) [2023] FedCFamC1F 819
Appeal number: NAA 305 of 2023
File number: MLC 8587 of 2015
Judgment of: ALDRIDGE, CAMPTON & SCHONELL JJ
Date of judgment: 3 October 2024
Catchwords: FAMILY LAW – APPEAL – STAY – Application for stay of orders pending application for special leave to appeal to the High Court of Australia – Subject orders require the applicant to transfer his interest in a property to the respondent and pay her a fixed sum – Applicant asserts he will suffer irredeemable prejudice if a stay is not granted – Absence of evidence as to the applicant’s financial position – Prospects of a grant of special leave are not substantial – Balance of convenience favours the respondent – Respondent concedes stay of order for transfer of property – Order made for payment of a fixed sum to a controlled monies account pending the outcome of the special leave application – Application otherwise dismissed.
Legislation: High Court Rules 2004 (Cth) r 41.02.1
Cases cited:

Fowles & Fowles [2023] FedCFamC1A 238

Fowles & Fowles (No 2) [2024] FedCFamC1A 115

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84

Number of paragraphs: 33
Date of hearing: 3 October 2024
Place: Sydney
Counsel for the Applicant: Mr Wyles KC with Ms Frederico
Solicitor for the Applicant: Nicholes Family Lawyers
Counsel for the Respondent: Mr Sheales
Solicitor for the Respondent: Lander & Rogers

ORDERS

NAA 305 of 2023
MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FOWLES

Applicant

AND:

MS FOWLES

Respondent

ORDER MADE BY:

ALDRIDGE, CAMPTON & SCHONELL JJ

DATE OF ORDER:

3 OCTOBER 2024

THE COURT ORDERS THAT:

1.Order 1(b) of the orders of 6 October 2023 is stayed pending the hearing of the application for special leave to appeal to the High Court of Australia and any subsequent appeal or further order of this Court.

2.Upon the applicant paying the sum of $1,240,231 to the respondent’s solicitors to be held on trust in a controlled monies account until further order of this Court, or upon securing payment of that sum to the written satisfaction of the respondent, Order 3 of the orders of 6 October 2023 is stayed pending the determination of the application for special leave to the High Court of Australia and any subsequent appeal or further order of this Court.

3.The Application in an Appeal is otherwise dismissed.

4.Written submissions of no more than three pages dealing with the question of costs are to be filed and served within seven days.

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…

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Details
Case
[2024] FedCFamC1A 174
Decision Date

CaseChat Overview and Summary

The case of Fowles & Fowles (No 4) involves the applicant, Mr Fowles, and the respondent, Ms Fowles. The dispute revolves around a family law matter, specifically the enforcement of court orders concerning the transfer of property and payment of a sum of money. The Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction, was tasked with considering the application for a stay of these orders pending the applicant's application for special leave to appeal to the High Court of Australia.

The central legal issues the court needed to address were whether the applicant would suffer irredeemable prejudice if required to comply with the orders before the special leave application was resolved, and whether the balance of convenience favoured granting a stay. The applicant argued that if he paid the sum of $1,240,231 to the respondent, she would use it to settle her debts, including legal fees, leaving him with no means of recovering the money if the appeal was successful. Additionally, he claimed that the mere act of raising the funds would be a significant financial burden, although he provided no concrete evidence of his financial situation.

The court considered the applicant's arguments and found that the prospects of a grant of special leave were not substantial. The court noted that the applicant had not provided any evidence to support his claims of financial hardship. Moreover, the balance of convenience favoured the respondent, as she was entitled to enforce the court's orders. The court also acknowledged the applicant's concession regarding the stay of the order for the transfer of property. Consequently, the court decided to stay the order for the payment of the sum to a controlled monies account pending the outcome of the special leave application, while dismissing the application for a stay of the transfer order.

The final orders of the court were that the stay of the order for the payment of $1,240,231 to a controlled monies account would continue pending the determination of the special leave application and any subsequent appeals. The order for the transfer of the property was stayed, and the application for a stay of all other orders was dismissed. Additionally, the court requested written submissions on the issue of costs within seven days.

Orders

Orders of the court

NAA 305 of 2023

MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FOWLES

Applicant

AND:

MS FOWLES

Respondent

ORDER MADE BY:

ALDRIDGE, CAMPTON & SCHONELL JJ

DATE OF ORDER:

3 OCTOBER 2024

THE COURT ORDERS THAT:

1. Order 1(b) of the orders of 6 October 2023 is stayed pending the hearing of the application for special leave to appeal to the High Court of Australia and any subsequent appeal or further order of this Court.

2. Upon the applicant paying the sum of $1,240,231 to the respondent’s solicitors to be held on trust in a controlled monies account until further order of this Court, or upon securing payment of that sum to the written satisfaction of the respondent, Order 3 of the orders of 6 October 2023 is stayed pending the determination of the application for special leave to the High Court of Australia and any subsequent appeal or further order of this Court.

3. The Application in an Appeal is otherwise dismissed.

4. Written submissions of no more than three pages dealing with the question of costs are to be filed and served within seven days.

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

The applicant continued to press for a stay of all orders without condition.BACKGROUND The applicant filed a Notice of Appeal on 3 November 2023. On 20 December 2023, Austin J stayed the operation of the order for the transfer of the property to the respondent and the payment of the $1,240,231 pending the determination of the appeal (Fowles & Fowles [2023] FedCFamC1A 238). His Honour declined to stay the order requiring the applicant to discharge the encumbrance over the property. Nonetheless, that order has also not been complied with. The appeal was dismissed on 12 July 2024 (Fowles & Fowles (No 2) [2024] FedCFamC1A 115). In mid-August 2024, the applicant filed an application for special leave to appeal in the High Court of Australia. He also sought an order that compliance with r 41.02.1 of the High Court Rules 2004 (Cth) be dispensed with as the application was not filed within the prescribed time. The present application was filed on 12 September 2024.CONSIDERATION OF A STAY The applicant seeks to preserve his position pending determination of the application for special leave to appeal, which may not be resolved this year. He asserts that he will suffer irredeemable prejudice if he is obliged to pay $1,240,231 to the respondent. First, the applicant says that if he pays any money to the respondent, she will immediately use those funds to pay her creditors, especially her lawyers. Once that sum is spent, she will then have no capacity to repay it to the applicant if any appeal is ultimately successful. That possibility is avoided by the order proposed by the respondent. The second prejudice is said to be the raising of the sum of $1,240,231 itself and the loss of its use. Such a prejudice can easily be inferred but, in the absence of any evidence from the applicant as to his financial position, the weight to be given to that prejudice is difficult to determine. It might be a minor or major inconvenience but that cannot be determined on the evidence. In the absence of such evidence, it is also difficult to determine whether any delay in the time for the payment to the respondent would adversely affect the applicant’s ability to pay it when due. In support if this application, in an affidavit filed 12 September 2024, the applicant said:20.Pursuant to Order 1(a) of the Orders dated 6 October 2023, I am required “to repay any loan secured by ..” the [X] Street apartment registered to Westpac. I am not in a financial position to repay the mortgage or any loan secured by the [X] Street apartment for the following reasons:i.I have spoken with Westpac and understand that the mortgage repayments are currently on hold pending negotiations in relation to new terms. The amount outstanding under the mortgage, at least as at 29 June 2023 according to the Statement of Claim filed by the mortgagee in possession proceedings commenced against the applicant in September 2023, was $57,381.82 (Annexure “[MF]-2” of the respondent’s affidavit filed 30 September 2024). However, in the absence of relevant evidence, I would not be prepared to find that this was because the applicant has not been able to afford to make those payments merely on that say so, particularly given the history of non-disclosure found by the primary judge.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The present application was filed on 12 September 2024.CONSIDERATION OF A STAY The applicant seeks to preserve his position pending determination of the application for special leave to appeal, which may not be resolved this year. He asserts that he will suffer irredeemable prejudice if he is obliged to pay $1,240,231 to the respondent. First, the applicant says that if he pays any money to the respondent, she will immediately use those funds to pay her creditors, especially her lawyers. Once that sum is spent, she will then have no capacity to repay it to the applicant if any appeal is ultimately successful. That possibility is avoided by the order proposed by the respondent. The second prejudice is said to be the raising of the sum of $1,240,231 itself and the loss of its use. Such a prejudice can easily be inferred but, in the absence of any evidence from the applicant as to his financial position, the weight to be given to that prejudice is difficult to determine. It might be a minor or major inconvenience but that cannot be determined on the evidence. In the absence of such evidence, it is also difficult to determine whether any delay in the time for the payment to the respondent would adversely affect the applicant’s ability to pay it when due. In support if this application, in an affidavit filed 12 September 2024, the applicant said:20.Pursuant to Order 1(a) of the Orders dated 6 October 2023, I am required “to repay any loan secured by ..” the [X] Street apartment registered to Westpac. I am not in a financial position to repay the mortgage or any loan secured by the [X] Street apartment for the following reasons:i.I have spoken with Westpac and understand that the mortgage repayments are currently on hold pending negotiations in relation to new terms. The amount outstanding under the mortgage, at least as at 29 June 2023 according to the Statement of Claim filed by the mortgagee in possession proceedings commenced against the applicant in September 2023, was $57,381.82 (Annexure “[MF]-2” of the respondent’s affidavit filed 30 September 2024). However, in the absence of relevant evidence, I would not be prepared to find that this was because the applicant has not been able to afford to make those payments merely on that say so, particularly given the history of non-disclosure found by the primary judge. I would also note that since 21 August 2024, the applicant has paid, from his income and from a sum of $100,000 which had been paid on account of security for costs and subsequently released, total legal costs of $257,276.56. Compliance with the orders requiring the applicant to discharge the mortgage would involve no more that the applicant rectifying his default with the mortgagee by paying it. As he is legally obliged to do so anyway, he would lose nothing by complying with the order. Presently, the applicant has no right of appeal – that depends upon his application for special leave to appeal being successful. The respondent is fully entitled to pursue the fruits of the judgment.