Kruger & Kruger

[2009] FamCA 228

FAMILY COURT OF AUSTRALIA

KRUGER & KRUGER [2009] FamCA 228

FAMILY LAW – ORDERS – STAY – Wife’s application for a stay of orders for settlement of property pending the determination of her appeal to the Full Court – Where refusal of a stay would not render nugatory a successful appeal against the orders but where the process of transfer of the assets involves a convoluted process governed by legislation – Where the wife has had effective control of the assets and the husband has derived no financial or other benefits from the assets during that period – Whilst the apparent merit of the appeal, or its absence, is a factor relevant to the discretion to grant or refuse a stay, the Court must proceed on the basis that the wife’s appeal may find favour with the Full Court – Consideration given to the wife’s discontinuance of a previous Notice of Appeal and consequent prolongation of the proceedings, and to the wife’s proposed amendment to the current Notice of Appeal – Where unlikely for the judgment in the appeal to be delivered much prior to the end of the year, some 18 months after the primary judgment – The evidence failing to establish that the refusal of a stay would render nugatory a successful appeal, and the discretionary matters weighing against so doing, the wife’s stay application refused

Alexander v Cambridge Credit Corp Ltd (recs apptd)(1985) 2 NSWLR 685
Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279
Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
Coulton v Holcombe (1986) 162 CLR 1
Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; (1986) 64 ALR 325
Jennings Constructions Ltd v  Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
K and B (2006) FLC 93-288
Kelly and Kelly (1981) FLC 91-007
McBride v Sandland (No 2) (1918) 25 CLR 369
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
Norbis & Norbis (1986) 161 CLR 513
Scarborough v Lew’s Junction Stores Pty Ltd (1963) VR 129
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

APPLICANT: Ms Kruger

RESPONDENT: Mr Kruger

FILE NUMBER: PAC 174 of 2007

DATE DELIVERED: 20 March 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 20 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr de Robillard

SOLICITOR FOR THE APPLICANT: Kent Attorneys

COUNSEL FOR THE RESPONDENT:

Mr Dubler S.C.

Mr Combe

SOLICITOR FOR THE RESPONDENT: Macquarie Partnership

Orders

1. Note the undertaking of the husband to the Court through his Senior Counsel that pending further order of the Full Court he will not dispose of any asset in his control or coming into his control the subject of the wife’s Notice of Appeal filed 24 November 2008 and will preserve such assets and the equity in them.

2. That the wife’s application to stay the orders of 27 November 2008 be and is hereby dismissed.

3. That the costs of the wife’s stay application be reserved to the Full Court hearing the wife’s appeal against the orders of 27 November 2008.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 174 of 2007

MS KRUGER

Applicant

And

MR KRUGER

Respondent

REASONS FOR JUDGMENT

STAY APPLICATION

Introduction

1. On 24 December 2008 Ms Kruger (“the wife”) filed a Notice of Appeal against orders made by the Court on 27 November 2008 in proceedings for settlement of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) between the wife and Mr Kruger (“the husband”).

2. On the same day the wife filed an application for a stay of the orders of 27 November 2008 until the determination of her appeal to the Full Court. The application was supported by an affidavit of the wife’s solicitor Mr Kent filed the same day and an affidavit of Mr Kent sworn and filed on 20 February 2009. The wife also relied upon affidavits sworn on 23 October 2008 and filed on 24 October 2008 by C and Q.

3. Through her Counsel, the wife indicated a willingness to preserve the assets the subject of the Court’s orders of 27 November 2008 which were within her possession in the event of her application for a stay being successful

4. The husband opposed the staying of the orders of 27 November 2008. In the event that the Court granted the wife’s application for a stay of the orders of 27 November 2008 the husband sought that such stay be substantially on the conditions appearing in a document provided by his Counsel headed “Husband’s Outline of Submissions in Support of Conditions for Stay”.

Background

1. For reasons which the Court has from time to time endeavoured to articulate in a series of judgments, the finalisation of the property settlement between the parties has been convoluted, and not without complexity.

2. On 27 June 2008 the Court delivered its primary judgment in the property settlement proceedings. For the reasons which the Court then published, it concluded that the property and superannuation interests of the parties found by the Court to have a net value of $8 927 984 should be divided as to 52 percent to the wife and 48 percent to the husband. The Court noted its conclusion “that the final orders of the Court will vest title to [Residential Facility One] in the husband and enable the wife to retain [Residential Facility Two]”.

3. On 25 July 2008 the wife filed a Notice of Appeal against the order made on 27 June 2008. In lieu of the orders made on 27 June 2008, the wife sought a “rehearing by a differently constituted court at the Parramatta Registry” and costs certificates. The wife sought that the assets of the parties be divided as to 70 percent to her and as to 30 percent to the husband.

4. On 14 August 2008 the husband filed a Notice of Cross Appeal. By his Notice of Cross Appeal, the husband sought that the order of 27 June 2008 be varied to provide for an equal division of the assets of the parties as found.

5. Subsequently on 5 September 2008 the wife discontinued the Notice of Appeal which she had filed on 25 July 2008. Although it is not entirely clear when, the husband then withdrew/discontinued his Notice of Cross Appeal.

6. The property settlement proceedings were then again before the Court pursuant to Order 3 of the orders of 27 June 2008 on 18 September 2008, 7 October 2008 and 24 October 2008. As a consequence, supplementary judgments were delivered on the following dates:

   ·    (No 2) Ex tempore – 24 October 2008

   ·    (No 3) – 11 November 2008

   ·    (No 4) – 27 November 2008

7. As is plain from their terms, each of the supplementary judgments delivered on those dates was directed to implementation of the Court’s primary judgment and the conclusions recorded in that judgment.

8. On 27 November 2008, for reasons then published, the Court made final orders pursuant to Part VIII of the Act. Those order sought to finalise the overall division of the assets of the parties which the Court had concluded to be just and equitable in its primary judgment of 27 June 2008.

9. The orders of 27 November 2008 also reflected the conclusion reached by the Court in its primary judgment of 27 June 2008 that one of two facilities held by or on behalf of the parties, namely Residential Facility One, should become the property of the husband or an entity nominated by him for that purpose.

10. In her Notice of Appeal filed 24 December 2008 the wife sought that the orders of 27 November 2008 be varied in ways particularised in the Notice of Appeal. Significantly for present purposes, the Notice of Appeal did not seek to disturb the conclusion recorded in the judgment of 27 June 2008 that the “financial interests” of the parties should be divided as to 52 percent to the wife and 48 percent to the husband. Albeit subject to the particular adjustments and conditions set out in the Notice of Appeal, the wife did not seek to disturb the Court’s order of 27 November 2008 providing for the vesting of Residential Facility One in the name of the husband or an entity nominated by him for that purpose.

11. On 20 February 2009 the wife’s solicitor filed an affidavit stating that “since we lodged the appeal on behalf of the wife, we have now received instructions that she wishes to amend her appeal so as to retain both [facilities] and to pay to the husband an equivalent value for [Residential Facility One]”.

12. If the wife’s Notice of Appeal is amended in accordance with those instructions, it appears that the issue of substance emerging from the orders of 27 November 2008 will be whether, as the orders provide, the husband acquires Residential Facility One, directly or indirectly, or whether the wife retains the Residential Facility One, albeit through the entities by which that has historically been the case. As at the date of this judgment, no Amended Notice of Appeal in the terms foreshadowed has been filed.

13. The affidavit of the wife’s solicitor of 20 February 2009 also confirmed that instructions had been obtained to lodge an application for expedition of the wife’s appeal, the intention being to “lodge such application on or before Tuesday 24 February 2009”. The affidavit also revealed that the wife’s appeal had been listed for directions, presumably before a Registrar of the Full Court, on 10 March 2009.

14. On 10 March 2009, by consent, the appeal was expedited. The orders of the Appeals Registrar of that date relevantly provided:

    1.That, by consent the hearing of the appeal be expedited, and subject to notation 6 below, be listed if possible in the week of 15 June 2009.

    …

    4.That the respondent file and application for security for costs by 31 March 2009.

15. The notations made on 10 March 2009 relevantly provided:

    1.The estimated hearing time of the appeal is two days.

    …

    6.While the parties have been advised that the appeal may be able to be heard in the week of 15 June 2009, that listing is subject to, but not limited to, the following considerations:

    1.Whether or not the Full Court can accommodate the hearing of a two day appeal during that week.

    2.The respondent has advised of their intention to file an application for security for costs and has been advised that such an application would have to be heard by a Full Court and judgment delivered prior to the hearing of the appeal. The ability to list the appeal in the week of 15 June 2009 would be affected by whether or not the security application could be determined prior to that week.

The wife’s case in support of the granting of a stay

1. A number of Counsel for the wife’s submissions related to the impact of the legislative requirements with respect to the transfer of the relevant licenses held by Residential Facility One to interests of the husband.

2. It is common ground that the husband cannot yet legally commence to operate the facility. There is no evidence that either party has neglected to facilitate the husband being able to lawfully operate the facility. There is no evidence before this Court that the husband will not be successful in his application(s) with respect to the licensing requirements attaching to his becoming licensed to operate the facility.

3. It is common ground that this Court, at least in the proceedings as presently constituted, has no power to influence the decisions relevant to the transfer of the relevant licence(s) to the husband or interests on his behalf. There is no evidence as to when, in the absence of any order staying the orders of 27 November 2008, consent to the transfers of the relevant licenses will be granted or refused.

4. It is common ground that since the parties separated in January 2006 the wife has had effective control of Residential Facility One, and that the husband has derived no financial or other benefits from Residential Facility One during that period.

5. Since separation the wife has operated Residential Facility Two to the exclusion of the husband and the husband has derived no financial or other benefits from Residential Facility Two. The husband has never sought to disturb the Court’s intention that he have no interest in Residential Facility Two, or to challenge the Court’s orders giving effect to such intention.

6. It was submitted on behalf of the wife that the Court should exercise its discretion to stay the orders of 27 November 2008 on a number of grounds. Particular reliance was placed upon the nature of Residential Facility One. Counsel for the wife submitted that 27 residents lived at Residential Facility One, and that to decline to stay the Court’s orders pending the hearing of the appeal would be likely to cause uncertainty, disruption and distress for the residents and staff of the facility.

7. Whilst the Court accepts that, depending upon how the parties conducted themselves, the residents of Residential Facility One could experience a measure of uncertainty until the wife’s appeal is determined, in the absence of any evidence establishing it, the Court does not accept that the residents would necessarily be upset or disturbed to the extent submitted on behalf of the wife. In the three years since the parties separated, the husband has not done anything to cause the residents of Residential Facility One distress, disruption or inconvenience. There is no rational basis for concluding that he would do so now.

8. The evidence at trial left little room for doubt that the conduct and management of residential facilities is the subject of significant and ongoing scrutiny by a variety of regulatory agents. As the evidence at trial also revealed, those bodies have significant coercive powers, the ultimate of which is the power to revoke or suspend the licenses necessary to conduct a facility. Those factors, and the husband’s desire to have the facility, militate against his doing, or failing to do, anything to jeopardise its future.

9. There was no evidence at trial that the husband was incapable of appropriately conducting Residential Facility One. While the wife contended at trial, successfully, that she was more experienced than was the husband in that regard, it was not successfully asserted on her behalf at trial that inability to adequately manage the facility was a factor militating against ordering that the husband receive one of the two residential facilities.

10. Whilst Counsel for the wife, fairly, did not go so far as to suggest that the refusal of a stay would render nugatory a successful appeal against the orders of 27 November 2008, it was submitted that the understandably convoluted process of obtaining approval of the transfer of licenses required to enable the husband to operate Residential Facility One would all have to be done again to reverse the process if, as she hopes, the wife’s proposed challenge is successful.

11. Objectively, that assertion must be correct. However, having held the requisite licenses for some time, it would be reasonable to presume that reversing the process in this case would be likely to be somewhat less convoluted than the transfer process currently being undertaken has to date proved to be if the wife’s proposed grounds of appeal succeeded. Objectively however, the prospect of transfers and re-transfers of licenses is probably the strongest factor in favour of the granting of a stay.

12. It was submitted on behalf of the wife that, if the orders of 27 November 2008 were stayed, and the transfer process with respect to the relevant licences were suspended, there would not be any significant or undue delay in finalising that process if, contrary to her hopes, the wife’s appeal to the Full Court proves unsuccessful. In the absence of any evidence in support of that proposition, the Court does not feel that it can safely accept it. Moreover, the proposition involves a measure of reversing the onus in a stay application.

13. It was further submitted on behalf of the wife that, whilst it had to be acknowledged that granting a stay would deprive the husband of the fruits of success at trial, declining the grant of a stay would impose significant financial burdens upon the wife.

14. The trial before this Court proceeded on the basis of undisputed expert opinion evidence that Residential Facility One and Residential Facility Two were stand-alone entities. Whilst, as Counsel for the wife correctly submitted, each entity had ongoing expenses and outgoings of a significant nature, as the evidence at trial confirmed, each facility generated significant monies, in various ways, in the hands of the wife in the post separation period and, prior thereto in the hands of both parties.

15. Absent clear evidence that the wife would in some way be unfairly disadvantaged were the stay to be refused and Residential Facility One to be transferred to the husband’s interests, the Court cannot accept that this topic advances the wife’s application for a stay. What is not in doubt, having regard to the evidence at trial, is the reality that for just over three years the wife has had the sole financial benefit of both facilities and the husband has had none. Giving up any of those benefits will have an impact upon the wife. That however does not establish financial hardship.

16. If, as seems clear from the wife’s Notice of Appeal filed 24 December 2008, and the aspects of it which are apparently intended to be varied, the wife accepts a 52/48 division of the net assets of the property of the parties, it is difficult to see on what basis it could be successfully asserted by the wife that the husband should be denied the fruits of success at trial pending the determination of her appeal.

17. Without referring to them in any detail, a number of matters raised on behalf of the wife in support of a granting of a stay of the orders are clearly not matters raised at trial, the most obvious of which relates to the complaints made in the 24 December 2008 Notice of Appeal with respect to Company One Pty Limited. Whilst it may be that such matters are permitted to be agitated before the Full Court, notwithstanding decisions of the High Court in cases such as Metwally (No 2) v University of Wollongong (1985) 60 ALR 68, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, Coulton v Holcombe (1986) 162 CLR 1, and Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279, the Court does not believe that they could properly advance the wife’s application for a stay of the Court’s orders.

18. On behalf of the husband it was submitted, correctly in the Court’s view, that the wife bore the onus of establishing that a stay should be granted, and that the husband was entitled to the fruits of his success at trial.

19. It was further submitted that, whilst there might be a measure of “inconvenience” in having two lots of transfers, such inconvenience fell well short of demonstrating that refusal of a stay would render nugatory a successful appeal.

20. It was further submitted in this context that, on balance, the inconvenience to the wife, if her appeal were successful, of potentially having to go through the re-transfer process with respect to Residential Facility One was more than outweighed by the adverse consequences for the husband of staying the orders of 27 November 2008.

21. It was submitted that staying the orders would mean that, in all probability, more than a year would pass between the Court’s final judgment and the husband’s receipt of the fruits of his success. Reliance was placed upon the reality that, albeit the wife had done far more work in and for the facilities since January 2006 than has the husband, the wife has had the totality of the financial benefits flowing from having the management of those facilities during that three year period.

22. Senior Counsel for the husband also relied upon the reality that the wife would retain Residential Facility Two, which her Counsel at trial had described as “the jewel in the crown” and would thereby continue to enjoy, albeit not without having to work in order to do so, the significant financial benefits flowing from so doing.

1. Senior Counsel for the husband also submitted that the apparent merit of the appeal, or its absence, was a factor relevant to the discretion to grant or refuse a stay. The Court accepts that such is the case. So doing however, does not greatly advance matters. Whilst the Court would not have made the orders it did on 27 November 2008 had it not considered them to be just and equitable and defensible, what the Court as currently constituted thinks about them is irrelevant. It is for three other judges to determine whether the Court has committed an appealable error or errors.

2. Notwithstanding the changes in position of the wife, and what Brennan J said in Norbis & Norbis (1986) 161 CLR 513 as to the reasonable ambit of permissible disagreement in the exercise of discretion, the Court must proceed on the basis that the wife’s appeal may find favour with the Full Court. To do otherwise would be churlish.

3. The principles governing the present application are not in doubt and do not require extensive restatement.

4. An appeal against the orders of a trial Judge does not automatically operate as a stay.  There is an onus on a party who seeks a stay to satisfy the Court that there are circumstances that justify it.  (K and B (2006) FLC 93-288 at 80,939-940). Barton J in McBride v Sandland (No 2) (1918) 25 CLR 369 said (at 374):

   The ordinary principle is that a successful party is entitled to the fruits of his judgment. That being so, there must be sound reasons sufficient to justify the court in suspending his right.

5. The “ordinary principle” that that a successful party is entitled to the fruits of his or her judgment must be balanced against the concern to ensure that the fruits of a successful appeal are not rendered nugatory. The authorities on this point were summarised succinctly by Dawson J in Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; (1986) 64 ALR 325 in the following paragraph:

   It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal: see, eg, The Annot Lyle (1886) 11 PD 114 at 116; Scarborough v Lew's Junction Stores Pty Ltd[1963] VR 129 at 130. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v Church (No 2) (1879) 12 Ch D 454 at 458; Klinker Knitting Mills Pty Ltd v L'Union Fire Accident and General Insurance Co Ltd [1937] VLR 142. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant 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 at 375.

6. It is helpful to set out the relevant paragraph of Adam J’s judgment in Scarborough v Lew’s Junction Stores Pty Ltd (1963) VR 129 in full (at 130):

   The rule says that an appeal does not operate as a stay of execution. That is so, and an application for a stay of proceedings is not granted as of course. There must be special circumstances existing to justify an order staying the execution of the judgment -- some special circumstances which must be relevant to the purpose for which the stay is granted. Such circumstances would exist where a successful appellant would be deprived of the fruits of his appeal if a stay of execution were not granted. It has been stated that the applicant for a stay of execution should show that he will 'probably' not be able to recover from the other party the amount of judgment which he has been compelled to pay under execution, in order to satisfy the court that a stay should be granted. I do not think that the word 'probably' has any particular merit. The test, I think, is, whether there is a real risk that the appeal would prove abortive if the applicant were not granted a stay.

7. The requirement that “special” or “exceptional” circumstances be demonstrated has been relaxed in some jurisdictions. In Alexander v Cambridge Credit Corp Ltd (recs apptd)(1985) 2 NSWLR 685 Kirby P, as he then was, said (at 694):

   it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.

   In Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 Kirby J reviewed the authorities on this point in detail.

8. In Jennings Constructions Ltd v  Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 Brennan J, as he then was, considered an application for stay pending determination of an application for special leave to appeal to the High Court. His Honour set out some relevant considerations to be taken into account (at 685):

   In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion.  In each case when the court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of the stay will cause loss to the respondent and fourthly, where the balance of convenience lies.

9. Whilst categories for consideration have been outlined in the authorities of various jurisdictions, the observations of Fogarty J in Kelly and Kelly (1981) FLC 91-007 are particularly relevant in this jurisdiction (at 76,104-5):

   Clearly, there must be circumstances shown which would justify the exercise of that discretion. It is, I think, unhelpful to attempt to circumscribe the exercise of that discretion by particular phrases or by reference to particular categories. Each case must be looked at in the light of its own circumstances against the background of that general approach, and a decision made in each case as to whether a stay is proper in the light of the words of the regulations considered against the background of the decided cases. That the discretion should be wide and untrammelled by reference to particular categories is particularly important under the Family Law Act. Confining oneself to property orders, experience shows that the scope and impact of orders under sec. 78 and sec. 79 of the Family Law Act can vary considerably and the relevance of an application for a stay would vary markedly. For example, the ordinary type of order encountered frequently in this jurisdiction is an order for the sale of the only asset of the parties, namely the matrimonial home, which may be occupied by one of them and perhaps the children of the marriage. Ordinarily, one would anticipate that it would be proper to grant a stay in respect of such an order because it may prove impossible or impractical to restore the previously existing situation if the appeal were successful but the sale had been carried through in the meantime. Numerous other instances come to mind.

10. Whilst it is ultimately a matter for discretion, the most significant fact or circumstance relevant to the exercise of that discretion for present purposes is whether the refusal of a stay would render nugatory a successful appeal.

11. On balance, the Court concludes that the unfairness to the husband of denying him the fruits of success at trial in circumstances where so doing will not render nugatory a successful appeal by the wife outweighs any unfairness to the wife in refusing to stay the orders of 27 November 2008.

12. Apart from the fact that, on her own case it now seems, the wife suggests that the parties’ entitlements to their assets should be seen as almost equal, the disparity in the financial positions of the parties until the husband has the benefit of operating Residential Facility One militates against granting a stay.

13. There is however another, and somewhat unusual, aspect of this case which in the Court’s view militates against exercising the discretion to grant a stay. As noted earlier, on 27 June 2008 the Court published Reasons for Judgment in support if its conclusion that the parties’ assets should be shared as to 52 percent to the wife and as to 48 percent to the husband and that the husband should receive Residential Facility One.

14. The wife filed a Notice of Appeal against that decision. Although it is not expressly stated in the orders sought by her, it can reasonably be assumed that, as part of the 70 percent of the parties’ assets, the wife sought to retain Residential Facility One. It is also relevant that whilst the wife sought 70 percent of the net assets of the parties in her Notice of Appeal, her Counsel at trial had sought 57.5 percent of the assets.

15. Whilst it is generally acknowledged that appeals to the Full Court lie against orders made by trial judges, rather than against judgments delivered by them, that issue was not taken by the husband in response to the wife’s Notice of Appeal filed 25 July 2008. Indeed, the husband himself filed a Notice of Cross Appeal.

16. The solicitors who filed the wife’s Notice of Appeal on 25 July 2008 were not the solicitors who acted for her at trial. Nor did they continue to act for her. The wife’s present solicitors were retained subsequent to 25 July 2008. Pursuant to their retainer, the wife’s present solicitors withdrew the wife’s Notice of Appeal and, as the record confirms, participated in proceedings directed to and ultimately resulting in the making of final orders to give effect to the Court’s judgment of 27 June 2008.

17. Objectively, those representing the husband could have been forgiven for thinking when the 25 July 2008 Notice of Appeal was discontinued that the wife accepted both the percentage division of assets concluded to be just and equitable in the judgment of 27 June 2008, and the Court’s decision that Residential Facility One should pass to interests of the husband. Objectively, only by assuming bad faith on the part of the wife could one conclude otherwise.

18. Were it otherwise, the wife would not have continued with the process of finalising orders to give effect to the judgment of 27 June 2008, but would instead have persisted with the appeal she already had on foot, the competence of which had not been challenged. Success pursuant to the Notice of Appeal filed on 25 July 2008 would have resulted in a new trial. All of the further appearances and judgments subsequent to 25 July 2008 culminating in the final supplementary judgment and orders of 27 November 2008 would have been avoided.

19. Perhaps more significantly from the husband’s perspective, a delay of almost six months in having the matter finalised would also have been avoided. Whilst it is the wife’s right to file Notices of Appeal, to discontinue them, to file further Notices of Appeal, and to materially vary them in the way apparently now intended, those are matters to which the Court can legitimately have regard in the exercise of its discretion in a case where the refusal of a stay will not render nugatory a successful appeal. So doing does not assist the wife’s stay application.

20. The orders made in the appeal on 10 March 2009 are also of some relevance to the exercise of discretion. The orders, and particularly order 4, and the notations then made and recorded earlier, render it likely, but by no means certain, that the wife’s appeal will be heard by the Full Court in June of this year. Were that to occur, it would be unrealistic to imagine that the Full Court would have delivered judgment in the appeal much prior to the end of the year.  That would be some 18 months after the judgment of June 2008 which the wife took steps to challenge in July 2008.

21. Assuming, in the wife’s favour, as the Court does, that the events referred to above subsequent to the delivery of the Court’s primary judgment of 27 June 2008 were not simply designed to delay matters, and that the wife, for whatever reasons, has changed her mind, or will change her mind, as to the relief she seeks, those events further militate against denying the husband the fruits of success in circumstances where refusing to stay the orders giving rise to such success would not be rendered nugatory by such refusal.

22. In summary, the evidence failing to establish that the refusal of a stay would render nugatory a successful appeal, and the discretionary matters to which reference has been made weighing against so doing, the wife’s stay application will be refused.

23. If, as is likely, the wife exercises her right to appeal against the Court’s decision to refuse a stay, any such appeal ought to be able to be consolidated with the primary appeal. That however is a matter for the Full Court to decide.

24. Senior Counsel for the husband indicated during the course of his submissions that he was instructed to offer an undertaking that, if the stay be refused, the husband would not dispose of any of the assets in his possession or control, or Residential Facility One if it comes into his control prior to the completion of the wife’s appeal, and to preserve such assets and the equity in them. That undertaking should be noted. It would extraordinary if, the wife’s application for a stay having been refused, albeit there is no evidence to suggest that he would, the husband should be put in a position where he could, by acts or omissions, render nugatory the fruits of the successful appeal.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: 

Date: 20 March 2009