KINGSTON & FIELD

[2020] FamCA 303

FAMILY COURT OF AUSTRALIA

KINGSTON & FIELD [2020] FamCA 303

FAMILY LAW – PRACTICE AND PROCEDURE – STAY PENDING PROPERTY APPEAL – Where the husband seeks that orders made 21 November 2019 be stayed – Where consideration of applicable principles – Where a stay order conditional upon a party capital payment to the wife was appropriate – Where order made accordingly.

Family Law Rules 2004 (Cth) r 22.11

Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548
Jackson & Balen [2009] FamCAFC 131

APPLICANT: Mr Kingston

RESPONDENT: Ms Field

FILE NUMBER: PAC 2095 of 2014

DATE DELIVERED: 30 April 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 1 April 2020

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Mr Kingston

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Matthews Folbigg Pty Ltd

Orders

1. That the orders made 21 November 2019 be stayed pending further order on condition that within eight weeks from this date the husband pay to the wife, or as she may direct in writing, the sum of $500,000.

2. That in default of the payment provided for in Order 1 being made by the due date, the stay order shall stand discharged.

3. That the costs of the stay application be reserved until finalisation of the husband’s Appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingston & Field has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2095 of 2014

Mr Kingston

Applicant

And

Ms Field

Respondent

REASONS FOR JUDGMENT

1. On 21 November 2019 reasons for judgment were delivered and orders were made in respect to the competing property proposals of the primary application between the applicant wife and the respondent husband.

2. Subsequently, the respondent husband lodged a Notice of Appeal in respect of those orders.  On 18 March 2020 the husband lodged a Further Amended Notice of Appeal.

3. As a consequence of the Notice of Appeal, the husband in his Application in a Case filed 4 February 2020 sought a stay of the operation of the orders made 21 November 2019.  The application for stay is supported by the husband’s affidavit filed 4 February 2020 together with his supplementary affidavit filed 17 February 2020.

4. The wife opposes the application for stay and seeks its dismissal.  She relies upon her Response filed 29 March 2020 to the husband’s Application in a Case and her affidavit filed 29 March 2020 and written submissions filed 31 March 2020: Exh “A”.

5. The orders made on 21 November 2019 were as follows:

   (1)That within three months from this date the husband pay to the wife, or as she may otherwise direct in writing, the sum of $1,232,616 with interest to accrue on that sum from the due date.

   (2)That the husband indemnify the wife from all or any liability arising from the Company C loan facility.

   (3)That in default of the husband paying the said sum to the wife by the due date, the husband and wife shall do all things necessary to sell the property at S Street, Suburb B for the best price reasonably obtainable and after payment of selling costs and discharge of the mortgages and/or loan advances Company Cured thereon (including CBA home loan, Viridian Line of Credit and Company C facility)  pay the net proceeds of sale in the following manner and priority:

   (a)As to the wife 47.5 per cent of the balance remaining;

   (b)As to the wife a further payment of $289,790; and

   (c)As to the balance then remaining to the husband.

   (4)That pending sale of the Suburb B property, the husband pay all outgoings in relation to the property as they fall due and payable and pay as they fall due and payable principle (if any) and interest payments on the borrowings set out hereunder and maintain the balances of the said borrowings at or below the balances set out hereunder:

   Company C facility   $151,777

   CBA mortgage Suburb B    $299,133

   Viridian Line of Credit  $264,192

   (5)That in the event that the Suburb B property is sold to facilitate the payment to the wife, and not otherwise, the wife shall reimburse the husband a sum equivalent to 47.5 per cent of any additional personal income tax assessed as against the husband by reason of an additional capital gain income being included in his, otherwise, assessable taxable income for the relevant year with such payment to be made to the husband within 28 days of the wife being provided with a copy of the husband’s personal income tax return for the relevant year and a copy of the income tax assessment notice for the relevant year with interest to accrue as and from the due date of such payment.

   (6)Liberty to apply as to implementation or enforcement of these order.

   (7)That the wife’s application for spouse maintenance be dismissed.

Applicable Principles

1. It is well settled that a stay will not be granted lightly or as a matter of course.

2. The power to order a stay (r 22.11 of the Family Law Rules 2004 (Cth)) is incidental to the right of appeal and derives from the inherent power of the Court to do whatever is necessary to prevent injustice in relation to the proceedings in the Court: Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548.

3. In Jackson & Balen [2009] FamCAFC 131 the Full Court said at [28]:

   The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681).

   Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   a)the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   b)a person who has obtained a judgment is entitled to the benefit of that judgment;

   c)a person who has obtained a judgment is entitled to presume the judgment is correct;

   d)       the mere filing of an appeal is insufficient to grant a stay;

   e)        the application must be bona fides;

   f)a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   g)a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   h)some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.

4. It is pertinent to note that during the course of the primary trial that was conducted over four days in mid-October 2019, the husband was represented by experienced senior counsel, as was the wife.

The Husband’s contentions

1. In his affidavit filed 4 February 2020 the husband makes various complaints in relation to the conduct of the trial.  In summary, he complains that:

   a)the Court inappropriately interjected in cross examination of the wife;

   b)he was denied procedural fairness by allowing a “former judicial officer of the court” to appear as instructing solicitor for the wife without serving a two-year exclusion;

   c)that the legal representatives of the wife failed to disclose any relationship with any judicial officer at the Parramatta registry of this Court, in particular, that on 15 October 2019, the Company Cond day of the hearing, the husband observed the wife’s legal representatives going to lunch with a “judicial officer” of the Parramatta registry;

   d)that the Court demonstrated lack of impartiality in requesting that the husband provide certain evidence at the trial;

   e)that the Court erred in finding that the wife made financial contributions to the mortgage account;

   f)that the Court handed down an unfair decision as the wife never supplied “legitimate tax returns” pursuant to her obligations as to disclosure;

   g)that the Court accepted the evidence of the wife’s deceased father on affidavit notwithstanding that he was unavailable for cross examination;

   h)that the Court failed to consider appropriately the short length of the marriage being eight years and eight months;

   i)that the Court failed to consider the value of the subject property at the time of the commencement of cohabitation as contended by the husband; and

   j)that the Court accepted the wife’s evidence in chief even though she committed perjury.

2. In his further affidavit filed 17 February 2020 the husband complains that in final orders the Court failed to discharge an injunction that the husband asserts prevented him from refinancing his property so as to comply with the primary orders.

The Wife’s contentions

1. The wife asserts that she has borrowed funds from friends to meet her rent until August 2020 and, otherwise, has significant credit card debt, a debt to her parents, an ATO debt, a car finance debt and has significant outstanding legal costs.

2. The wife is unemployed and living in rental accommodation with the children of the marriage during periods that the children reside with her. Otherwise, she contends that the husband continues to reside in the former matrimonial property, receives rental income from the cottage on that property and has advertised to lease an area being improvements made to the property during the period of cohabitation.

3. As to the matters complained of by the husband, the wife says:

   a)the tender of any retrospective evaluation of the matrimonial home as complained of by the husband was not pressed by his senior counsel at trial.

   b)that notwithstanding the husband made an interlocutory application seeking that the wife’s solicitor be precluded from acting, on 9 September 2019 that application was dismissed.  Subsequently on 17 September 2019 the husband filed a further application a case seeking an order that the wife’s solicitors be precluded from acting.  On 26 September 2019 the husband’s then solicitors filed a Notice of Discontinuance of that application.  Subsequently, such application was not made again or pressed at the final hearing of the matter.

   c)On 15 July 2019 the husband was restrained by order from further encumbering, mortgaging or charging the former matrimonial home at Suburb B pending further order.  Final orders as to property provide for the husband to make a significant payment to the wife in the sum of $1,232,616.  The earlier interlocutory injunction is not repeated in those final orders. 

4. The wife contends that in the absence of any application by the husband for expedition of his appeal, it is likely that the appeal would not be heard until mid-2021 with judgment expected within six months thereafter.  Otherwise, it is contended that at trial the husband contended for a contribution finding in his favour of 65 per cent to 70 per cent.  Thus on the husband’s case at trial, the wife would be entitled to a payment from him of $764,188.

The Notice of Appeal 

1. As to the husband’s Further Amended Notice of Appeal filed 18 March 2020, counsel for the wife properly contends that the appeal is “ambit in its nature”. 

2. The appeal, it is submitted, includes:

   a)applications that had been finalised prior to trial;

   b)applications, matters and issues that the husband did not seek to have determined at trial, grounds of appeal that were not argued before the trial judge;

   c)complaints as to a failure to give reasons or inadequate reasons when such reasons clearly form part of the judgment;

   d)complaints as to factual matters that were abandoned or withdrawn at trial;

   e)other factual matters contended not to have been considered but are recorded as considered in the published reasons;

   f)other contentions of the husband that were not established at trial; and

   g)factual matters that were not material to the determination.

3. As to the specific grounds of appeal in the Further Amended Notice of Appeal filed 18 March 2020, counsel for the wife properly contends:

   a)Ground 1 is absent merit, there being no application for disqualification made by the husband’s counsel during the course of the trial;

   b)Ground 2 is absent merit, the matters that were not agitated at trial;

   c)Grounds 3, 4, 5, 7, 9, 10, 11, 12 and 13 broadly contend a combination of errors in that the Court failed to take into account relevant matters or facts or the Court failing to give adequate reasons or matters going to issues of weight.  These grounds are absent merit when considering the reasons for judgment;

   d)Ground 6 is absent merit, as the husband’s application seeking to borrow funds against the Suburb B property was not proCompany Cuted by him either before the trial or during the trial; and

   e)Ground 6 is absent merit, the Court having determined that a significant portion of the husband’s legal fees were paid by capital drawings thus further encumbering the matrimonial home.

4. It is submitted on behalf of the wife that the absence of merit is most probative in refusing a stay application.

5. Otherwise, there is no evidence from the husband of any attempt to access funds to meet all or part of the wife’s entitlement. It is contended that by reason of the husband’s Company Cured debt over the home of about $715,000 and his unCompany Cured debts of about $426,000 a sale of the property is inevitable.

6. The wife is entitled to assume to the correctness of the judgment and is entitled to the benefit of same.

7. The Appeal itself seemingly lacks merit.

8. The question of convenience favours the wife by reason of the parties’ respective financial position and the circumstance that sees the husband in control of the whole of the matrimonial property including its occupation and rental income and prospective rental income.

9. It is not open to the husband on appeal to contend for a contribution finding significantly different to that contended for by him at trial. On his own case at trial he would be required to pay the wife about $764,000. Any stay order should require the husband to pay to the wife a significant sum within the range contended for by him at trial.

10. It is considered, that in all the circumstances that a stay should be granted but on condition that within eight weeks the husband pay to the wife or as she may direct in writing the sum of $500,000.

11. Orders will be made accordingly. 

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 April 2020.

Associate: 

Date:  30 April 2020