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Gull & Gull (Stay Application)

Gull & Gull (Stay Application)

Case [2009] FamCAFC 104 19 June 2009

Stay of Proceedings

Costs

Family Law

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FAMILY COURT OF AUSTRALIA

GULL & GULL (STAY APPLICATION)

[2009] FamCAFC 104

FAMILY LAW – PROPERTY - STAY APPLICATION – PENDING SPECIAL LEAVE TO APPEAL TO HIGH COURT – Application for stay of orders of Full Court of the Family Court of Australia – Circumstances in which a stay should be granted – Whether the circumstances in this case are exceptional - Where granting a stay would cause the husband substantial prejudice

FAMILY LAW - STAY APPLICATION – Dismissed

FAMILY LAW - COSTS – Application unsuccessful – Respondent sought costs - Applicant pay the costs of the respondent to be assessed

Family Law Act 1975 (Cth)

Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
PetrotimorCompanhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 82

APPELLANT:

MRS GULL

RESPONDENT:

MR GULL

FILE NUMBER:

MLF

2723

2004

APPEAL NUMBER:

2008

DATE DELIVERED:

19 June 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Warnick, May & Boland JJ

HEARING DATE:

18 June 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 March 2008

LOWER COURT MNC:

[2008] FamCA 183

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Appellant appeared in person

SOLICITOR FOR THE RESPONDENT:

Vernon Da Gama & Associates

Orders

The application for a stay of the orders of the Full Court made 30 April 2009 is dismissed.
The applicant pay the costs of the respondent to be assessed.

IT IS NOTED that publication of this judgment under the pseudonym Gull and Gull (Stay Application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 23 of 2008
File Number: MLF 2723 of 2004

MRS GULL

Appellant

And

MR GULL

Respondent

REASONS FOR JUDGMENT

The wife applied that this court stay the operation and the execution of orders made by the Full Court on 30 April 2009. The orders dismissed an appeal by the wife save for slight adjustments made due to a mathematical error. The wife, we understand on 26 May 2009 filed an Application for Special Leave to Appeal to the High Court of Australia. A stay of the Full Court’s order would in effect continue the operation of Mushin J’s (the trial Judge) stay made 16 May 2008, pending the outcome of the wife’s application to the High Court.
We have the application containing the Grounds.
It is until the hearing of the special leave application that Mrs Gull seeks a stay.
The husband opposes the stay being granted.

BACKGROUND

Final property orders were made by Mushin J on 19 March 2008. The property consisted mainly of real estate in Melbourne found to have a total net value of approximately $200,000 and funds invested in India of approximately $500,000. It was ordered that both parties sign all documents necessary to cause the investment moneys to be repatriated from India to Australia, to be divided between them as provided by the orders.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gull & Gull (Stay Application)

Details

AGLC: Gull & Gull (Stay Application) [2009] FamCAFC 104
Case: [2009] FamCAFC 104
Decision Date: 19 June 2009

CaseChat Overview and Summary

In the matter of Gull & Gull, the applicant sought a stay of the orders made by the Full Court of the Family Court of Australia on 30 April 2009. These orders pertained to property distribution in their divorce proceedings. The applicant argued that a stay should be granted due to an impending application for special leave to appeal to the High Court, which they considered exceptional circumstances warranting a stay. The respondent, on the other hand, contended that the applicant's circumstances were not exceptional enough to justify a stay and that such a stay would cause substantial prejudice to the respondent.

The central legal issue before the court was whether the circumstances in this case warranted a stay of the Family Court's orders pending the outcome of the special leave application to the High Court. The court had to consider the exceptional nature of the circumstances and the potential prejudice that granting a stay might cause to the respondent. The court acknowledged that while the applicant's intention to seek special leave was a significant factor, it did not necessarily constitute exceptional circumstances that would justify a stay. Furthermore, the court determined that granting a stay would indeed cause substantial prejudice to the respondent, as it would undermine the finality and enforceability of the Family Court's orders.

Consequently, the court dismissed the application for a stay of the orders of the Full Court, finding that the circumstances did not meet the threshold for an exceptional case. The court also ruled that the applicant should pay the costs of the respondent to be assessed, reflecting the unsuccessful nature of the stay application.

Orders

Orders of the court

The application for a stay of the orders of the Full Court made 30 April 2009 is dismissed.

The applicant pay the costs of the respondent to be assessed.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

Citations

AGLC Citation

Gull & Gull (Stay Application) [2009] FamCAFC 104

Most Recent Citation

Guo & Zoric [2023] FedCFamC1F 628

Cases citing this decision · 5 of 5 shown

Guo & Zoric (No 2)
[2023] FedCFamC1F 707 Para 11

…he ought invite me to invoke with respect to his stay order. [Mr R] relied on two Full Court decisions from 2009 ( Gull & Gull (Stay Application) [2009] FamCAFC 104 and Jackson & Balen [2009] FamCAFC 131), which he said concerned stays pending appeal. However, there is no appeal on foot here. I asked [Mr R] about app…
Guo & Zoric
[2023] FedCFamC1F 628 Para 1

…Mr Kerrison relied on two Full Court decisions from 2009 ( Gull & Gull (Stay Application) [2009] FamCAFC 104 and Jackson & Balen [2009] FamCAFC 131), which he said concerned stays pending appeal. However, there is no appeal on foot here. I asked Mr Kerrison about applicability of the well-known authority of Medlow &…
Anderson & Senior (Stay Appeal)
[2013] FamCAFC 152 Para 3

…), Fauna Holdings Pty Ltd and McGillivray v Mitchell (supra at [25]), Tate and Tate (No 4) (2003) FLC 93-139 at [7], Gull & Gull (Stay Application) [2009] FamCAFC 104 at [13], Halsbury & Halsbury (supra at [27]) and Stephens and Stephens (Stay Application) (supra at [80]).…
CHILDS & CHILDS
[2010] FamCAFC 35 Para 4

…ng or refusing a stay is a highly discretionary matter. We were referred to the recent decision of the Full Court in Gull & Gull (Stay Application) [2009] FamCAFC 104 where in paragraphs 9 and 10 the Full Court set out the relevant principles to be applied in determining a stay application. There the Full Court said:…
Strahan and Strahan (Stay)
[2009] FamCA 1238 Para 6

…On the same day a different Full Court (Warnick, May and Boland JJ) delivered the judgment of Gull & Gull (Stay Application) [2009] FamCAFC 104 which referred to various decisions including Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 referring to Brennan J at 683: “The ju…

View all 5 citing cases →

Cases cited in this decision · 9 of 9 shown

Gull and Gull
[2008] FamCA 183

…[2008] FamCA 183…
Bryant v Commonwealth Bank of Australia
[1996] HCA 3 Para 2

…We would add for completeness the decision of Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 particularly commencing at p.308 where his Honour made observations on the principles governing applications for a stay pending determination of a special leave application.…
Edelsten v Ward
[1994] NSWCA 87 Para 1

…ant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.” [18] In Edelsten v Ward (No 2) (1988) 63 ALJR 346, Brennan J, emphasising the “exceptional” character of the Court’s inherent jurisdiction to preserve the subject matter of litigation pending the making of a special…
Rahme v Commonwealth Bank of Australia
[1993] HCA 62 Para 1

…e judgment against him is executed: see McBride v Sandland [No 2] [(1918) 25 CLR 369]." … [22] In Rahme v Commonwealth Bank (1993) 117 ALR 618, Deane J said (at 620): "Apart from the exceptional case in which special leave to appeal to this court has been actually granted, the final decision of the highest appellate…
Edelsten v Ward
[1988] NSWCA 40 Para 1

…The matters to be considered in relation to whether a stay should be granted have been explained by the High Court on a number of occasions and were conveniently summarised for our purposes in the judgment of Beaumont J in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCA…
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd
[1986] HCA 84 Para 1

…The matters to be considered in relation to whether a stay should be granted have been explained by the High Court on a number of occasions and were conveniently summarised for our purposes in the judgment of Beaumont J in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCA…
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)
[1986] HCA 13 Para 1

…hing quite exceptional must be shown before that jurisdiction is exercised." [19] In Commissioner of Taxation v Myer Emporium (1986) 160 CLR 220, Dawson J noted (at 222) that the High Court Rules (see now O70 r8(1)) provide that, unless otherwise ordered, an appeal does not operate as a stay. His Honour said (at 222…
McBride v Sandland (No 2)
[1918] HCA 59 Para 1

…t to be restored substantially to his former position if the judgment against him is executed: see McBride v Sandland [No 2] [(1918) 25 CLR 369]." … [22] In Rahme v Commonwealth Bank (1993) 117 ALR 618, Deane J said (at 620): "Apart from the exceptional case in which special leave to appeal to this court has been ac…
[2003] FCAFC 82
[2003] FCAFC 82 Para 1

…and were conveniently summarised for our purposes in the judgment of Beaumont J in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 82: [15] In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681, where the Court below had ordered the cancellatio…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention