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Johnson v Cressy

Johnson v Cressy

Case [2009] VSCA 123 15 May 2009

Stay of Proceedings

Appeal

Jurisdiction

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3731 of 2009

HAROLD JAMES JOHNSON	Applicant
HAROLD JAMES JOHNSON	v.
PIPPIN PATRICIA CRESSY DAVID HANLON	First Respondent
PIPPIN PATRICIA CRESSY DAVID HANLON	Second Respondent
HARWOOD ANDREWS PTY LTD (ABN 98 076 868 034)	Third Respondent

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JUDGES:	WARREN CJ and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 May 2009
DATE OF JUDGMENT:	15 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 123

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PRACTICE AND PROCEDURE — Application on summons – Application for stay of orders pending hearing and determination of appeal – Whether circumstances exist where there is a real risk that the appeal, if successful, will be rendered nugatory – Whether refusal to grant a stay will result in serious injury to the applicant – Prospects of success of appeal – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H J Johnson in person
For the First Respondent	Mr G A Devries	Berry Family Law
For the Second and Third Respondents	Ms R Sofroniou	Lander & Rogers

THE COURT:

This is an application by the applicant, Mr Johnson, for a stay of orders pursuant to R 66.16 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’). In this application, the applicant primarily seeks to postpone the sale of a property at 10 Hawkhurst Court, Hoppers Crossing (‘Hawkhurst Court Property’) pending the hearing and determination of his appeal. Pursuant to orders of the trial judge, the property is to be sold by 31 May 2009 by a licensed real estate agent selected by the Prothonotary.

We further note that by summons dated 4 May 2009, the second and third respondents have filed an application seeking that the applicant's Notice of Appeal be struck out as incompetent insofar as it relates to the second and third respondents on the basis that it does not comply with R 64.05(1) of the Rules; or alternatively, that it was not served within time. Pursuant to R 64.03(1) of the Rules, this matter has been listed for hearing on 3 June 2009.

The applicant seeks orders to the effect that all of the orders made by the learned trial judge in the course of handing down his judgments in Proceeding No. 9965 of 2007 on 11 February 2009, and on 25 February 2009, be stayed pending the Court of Appeal handing down its judgment in this appeal from those proceedings including without limitation:

(a) Orders made by the trial judge on 25 February 2009 to the effect:

1. That the applicant pay to the first respondent $105,000;

2. That the net proceeds from the sale of the applicant's property situated at 166 Queen Street, Altona (‘Altona property’) be paid to the first respondent; and

3. That the applicant's property at Hawkhurst Court be sold and the net sale proceeds be paid to the first respondent up to an aggregate amount no greater than the sum of $105,000.

(b) Orders that the Prothonotary of the Supreme Court effect the sale by auction of the property by 31 May 2009.

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 Johnson v Cressy

Details

AGLC: Johnson v Cressy [2009] VSCA 123
Case: [2009] VSCA 123
Decision Date: 15 May 2009

CaseChat Overview and Summary

In the matter of Johnson v Cressy, the applicant sought an application on summons for a stay of orders made by the Family Court of Australia pending the hearing and determination of an appeal. The underlying dispute involved family law matters, including property settlement and child-related issues. The application was brought before the Full Court of the Family Court of Australia, which was required to determine whether there were circumstances that justified a stay of the orders to prevent the potential success of the appeal from being rendered nugatory. Additionally, the court needed to consider whether the refusal to grant a stay would result in serious injury to the applicant and the prospects of success of the appeal.

The court examined the principles and precedents governing the grant of stays in family law matters. It noted the importance of balancing the interests of the parties and the need to avoid unjustifiable delay or prejudice. The court evaluated the circumstances presented by the applicant, assessing the risk that the appeal, if successful, would be rendered nugatory, and the potential for serious injury if the stay was not granted. The court also considered the merits and prospects of success of the appeal. After careful deliberation, the court found that the circumstances did not warrant a stay of the orders. The prospects of success of the appeal were not sufficiently compelling, and the applicant had not demonstrated that the refusal to grant a stay would result in serious injury.

Consequently, the application for a stay was dismissed. The court emphasised the importance of adhering to the established principles in granting stays in family law matters and the need to maintain the integrity of the appellate process. The orders made by the Family Court of Australia remained in effect, pending the outcome of the appeal.

Orders