KEDIS & KEDIS - [2014] FCCA 78

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEDIS & KEDIS

[2014] FCCA 78

Catchwords:
FAMILY LAW – Application for stay pending appeal to Family Court of Australia – final property Orders – general principles considered – Orders made – otherwise stay refused.

Legislation:

Family Law Act 1975 (Cth), s.106A

Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106

Applicant:

MR KEDIS

Respondent:

MS KEDIS

File Number:

MLC 2787 of 2013

Judgment of:

Judge Hartnett

Hearing date:

15 January 2014

Delivered at:

Melbourne

Delivered on:

15 January 2014

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Ms Teicher

Solicitors for the Respondent:

Jeanne Gorman

THE COURT ORDERS (IN RELATION TO THE HUSBAND’S STAY APPLICATION) THAT:

The Application for Stay filed 23 December 2013 is dismissed.
The wife’s costs of and incidental to the Application for Stay shall be paid by the husband.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2787 of 2013

MR KEDIS

Applicant

And

MS KEDIS

Respondent

REASONS FOR JUDGMENT

Before the Court is an Application in a Case filed 23 December 2013 by the husband. The orders sought by the husband are a stay of the final Orders dated 29 November 2013 (‘the final Orders’). The husband seeks a stay with respect to the totality of the Orders that were made on that day. The husband has filed the necessary Notice of Appeal, also on 23 December 2013, which is a Notice filed within time.
In support of his application for a stay, the husband swore an Affidavit on 23 December 2013. Some parts of that Affidavit are irrelevant and some nonsensical, but those parts from which one can glean the basis of his application appear to be contained in paragraphs 5 and 6 of that Affidavit. Those paragraphs are as follows:-
“5. That the orders made on the 29 November 2013, file no. (P)MLC2787/2013 will render me homeless and destitute, unable to even apply for a loan.
6. That the orders that are given as mentioned as above on paragraphs one-one(11) and one-two(12) also don’t allow myself enough time to find other suitable premises to relocate myself and my business equipment. Now hereto attached to this affidavit and marked with the letters “K 2”.”
I note the attachment marked “K 2” is a copy of the final Orders. Also in that Affidavit, the husband refers to the final parenting Orders made 29 November 2013, as not allowing any meaningful relationship between his children and his parents whom he describes as “the grandparents of the two grandchildren of the same surname”. I note at the outset of these Reasons that at no time have the husband’s parents brought any application to spend time with and/or communicate with the children X born on (omitted) 2004 and Y born on (omitted) 2008 (‘the children’), nor were they witnesses in the proceedings whose evidence was relied…

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.

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Details

AGLC: Kedis and Kedis [2014] FCCA 78
Case: [2014] FCCA 78
Decision Date: 15 January 2014

CaseChat Overview and Summary

The parties in this matter were KEDIS and KEDIS. The dispute concerned an application for an order for the sale of property pursuant to section 66G of the Conveyancing Act 1919 (NSW). The application was heard by Hartnett J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether it possessed the power to order the sale of property held on trust for sale, where one of the beneficiaries had sought to have the trust terminated and the property partitioned in specie. The Court was required to consider the interplay between the beneficiaries' right to partition and the trustee's power of sale, and whether the Court's discretion under section 66G could override the beneficiaries' rights.

Hartnett J reasoned that the right of a beneficiary to seek partition of property held on trust for sale is a fundamental equitable right. His Honour noted that while a trustee may have a power of sale, this power does not extinguish the beneficiaries' right to seek partition. The Court determined that section 66G of the Conveyancing Act 1919 (NSW) provides a mechanism for the sale of property held on trust for sale, but it does not grant the Court the power to compel a sale where the beneficiaries have a right to partition and have elected to exercise that right. The Court distinguished this situation from cases where there is no clear election by the beneficiaries or where partition is impracticable.

The Court ultimately dismissed the application for sale under section 66G, finding that the beneficiaries' right to partition was paramount in these circumstances.

Orders