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Keevers & Keevers (No 2)

Keevers & Keevers (No 2)

Case [2022] FedCFamC1F 163 15 March 2022

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keevers & Keevers (No 2) [2022] FedCFamC1F 163

File number(s): MLC 9192 of 2021

Judgment of: WILSON J

Date of judgment: 15 March 2022

Catchwords: FAMILY LAW – INTERLOCUTORY STAY APPLICATION – Major Complex Financial Proceedings List – application to stay orders pending the hearing and determination of the application for leave to appeal – application refused.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 part 7.1

Cases cited: Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Aldridge v Keaton [2009] FamCAFC 106
Bienstein v Bienstein (2003) 77 ALJR 908
Blakeley & Jaine (No 3) [2020] FamCAFC 781
Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364
Burgundy Royale Investments Pty Ltd (1992) 67 ALJR 177
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Commissioner of Taxation v Myer Emporium Ltd (1996) 160 CLR 220
Cornelius v Global Medical Solutions Pty Ltd (2014) 98 ACSR 301
Elspan International Ltd v Aerospatiale Holdings Ltd (1985) 2 NSWLR 685
Alexander v Cambridge Credit Corporation(Receivers Appointed) (1985) 2 NSWLR 685
Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) (1994) 68 ALJR 196
Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173
In The Will of FB Gilbert (1946) 46 SR (NSW) 318
Jackson v Balen [2009] FamCAFC 131
Jeeves & Jeeves (No 2) [2010] FamCA 284
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Medlow & Medlow [2016] FamCAFC 34
Niemann v Electronic Industries Ltd [1978] VR 431
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Rahme v Commonwealth Bank of Australia (1994) 68 ALJR 53
Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369
Thompson v Young [2013] NSWCA 300

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 10 March 222

Place: Sydney

Counsel for the Applicant: Ms Vohra SC

Solicitor for the Applicant: Sayer Jones

Counsel for the Respondent: Mr Glick QC

Solicitor for the Respondent: Suke and Associates
ORDERS

MLC 9192 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KEEVERS

Applicant

AND:
MS KEEVERS

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

15 MARCH 2022

THE COURT ORDERS THAT:
1.The husband’s application to stay paragraphs 3, 4, 5, 6, and 7 of my orders made on 1 February 2022 pending the hearing and determination of the application for leave to appeal is refused.
2.The trial date remains fixed.
3.The application to list a directions hearing not before 1 August 2022 is refused.
4.All parties’ costs of the applications are reserved.

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…

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 Keevers & Keevers (No 2)

Details

AGLC: Keevers & Keevers (No 2) [2022] FedCFamC1F 163
Case: [2022] FedCFamC1F 163
Decision Date

CaseChat Overview and Summary

The matter of Keevers and Keevers (No 2) was heard in the Federal Circuit and Family Court of Australia. The husband, Mr. Keevers, sought leave to appeal against the orders made by Justice Wilson in February 2022. The trial of this proceeding, a case in the Court's Major Complex Financial Proceedings List, is fixed to commence on 2 May 2022. The husband has applied for orders to stay the operation of paragraphs 3, 4, 5, 6, and 7 of Justice Wilson's orders made on 1 February 2022, pending the hearing and determination of the application for leave to appeal. The husband has also applied to vacate the trial date and to list a directions hearing on a date to be fixed not before 1 August 2022.

The legal issues in this case included whether the husband's application for leave to appeal should be heard before the trial date, and whether the husband's application for a stay of the orders pending the hearing and determination of the application for leave to appeal should be granted. The court considered the principles applicable to interlocutory appeals and the principles for the grant of a stay pending appeal following a trial. The court also considered whether the husband had demonstrated that substantial injustice would result if leave to appeal were refused, supposing the decision at first instance were wrong.

In dismissing the husband's applications, Justice Wilson found that the husband's analysis of the relevant criteria to be satisfied for the grant of a stay of an interlocutory order on a matter of practice and procedure was erroneous. The court held that the principles concerning the grant of a stay pending appeal from a final order (at trial) are quite different to the principles concerning the grant of a stay pending the grant of an application for leave to appeal on an interlocutory application. The court found that there was real merit in the contentions advanced by Mr Glick QC for the wife that the husband's appeal will not be rendered nugatory unless a stay is granted, and that significant detriment would flow by reason of the need to update valuation evidence if a stay is granted. The court also found that the husband was not bona fide in his stay application because the effect of any such stay order prolongs the time during which this case remains undetermined, wholly antithetical to the intendment of the process adopted in the Major Complex Financial Proceedings List.

The court refused the husband's application to stay the operation of paragraphs 3, 4, 5, 6, and 7 of Justice Wilson's orders made on 1 February 2022 pending the hearing and determination of the application for leave to appeal. The court also refused the husband's application to vacate the trial date and to list a directions hearing on a date to be fixed not before 1 August 2022. The court reserved all parties' costs of these applications.

Orders