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 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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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- Case
- [2024] FedCFamC1A 174
- Decision Date
CaseChat Overview and Summary
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
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.