Liatos and Liatos (No. 2) - [2007] FamCA 1057

FAMILY COURT OF AUSTRALIA

LIATOS & LIATOS (NO. 2)

[2007] FamCA 1057

FAMILY LAW – PRACTICE AND PROCEDURE - Stay of order

B & B [2006] FamCA 166
The Annot Lyle (1886) 11 PD 114
Monk v Bartram (1891) 1 QB 346
Kelly and Kelly (1981) FLC 91-007
Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 693-694
Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498 at 499
Carlin v Carlin (1977) FLC 90-320
McBride v Sandland (No. 2) (1918) 25 CLR 369 at 374
Wilson v Church (No 2) (1879) 12 Ch D 454
TCN Channel 9 Pty Limited v Antoniadis (No. 2) (1999) 48 NSWLR 381

APPLICANT:

Mrs Liatos

RESPONDENT:

Mr Liatos

SECOND RESPONDENT:

J Capital Ltd

FILE NUMBER:

SYC

579

2007

DATE DELIVERED:

10 September 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

6 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr W Lloyd

SOLICITOR FOR THE APPLICANT:

Prosilis Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Meyer Pigdon

COUNSEL FOR THE INTERVENOR:

Mr J Lloyd

SOLICITOR FOR THE INTERVENOR:

Newnhams Solicitors

Orders

The operation of Order 3 made on 28 August 2007 be stayed until further order.
The Wife expeditiously seek a hearing of her application to the Full Court for leave to appeal against order 3 made by me on 28 August 2007 and if leave is granted expeditiously seek a hearing of the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Ryan delivered this day will for all publication and reporting purposes be referred to as Liatos & Liatos.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 579 of 2007

Mrs Liatos

Applicant

And

Mr Liatos

Respondent

REASONS FOR JUDGMENT

Introduction

Before me for hearing is in an application filed on 31 August 2007 by Mrs Liatos who I shall refer to as the Wife. The Wife is seeking a stay of an order I made on 28 August 2007 discharging an order made on 2 August 2007 restraining the Husband from leaving the Commonwealth of Australia. The Husband is Mr Liatos.
There are pending proceedings for settlement of property between the Husband and the Wife which were commenced by application filed by the Husband on 30 January 2007. In the property settlement proceedings there is a significant issue as to the extent and value of the net assets of the parties.
The Wife contends that the Husband has failed to make a full and frank disclosure of the parties financial circumstances despite her repeated requests for disclosure and that the Husband has significant interests overseas. The Wife contends that during the marriage the Husband hid transactions from her and did so in circumstances where he failed to advise, consult, request or deliberate with her on his decisions either prior to taking such actions or after he made these decisions. The Wife contends that the Husband never…

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

Case: [2007] FamCA 1057
Decision Date: 10 September 2007

CaseChat Overview and Summary

In *Liatos and Liatos (No. 2)*, O'Ryan J of the Family Court of Australia considered an application by the Wife for a stay of an order made on 28 August 2007, pending her application for leave to appeal that order to the Full Court. The underlying dispute concerned property settlement proceedings between the parties.

The primary legal issue before O'Ryan J was whether the Wife had established sufficient grounds to warrant a stay of the earlier order. This required the court to assess the balance of convenience and the prospects of success on appeal, considering the potential prejudice to each party if the stay was granted or refused.

O'Ryan J reasoned that a stay should be granted where there is a real prospect of an appeal succeeding and where the applicant would suffer irreparable harm if the stay were not granted. His Honour considered the Wife's arguments regarding the potential impact of the earlier order on her financial position and the importance of allowing the Full Court to consider the merits of her appeal. The court applied the principles governing the grant of interlocutory injunctions and stays, balancing the interests of both parties.

Consequently, O'Ryan J ordered that the operation of the 28 August 2007 order be stayed until further order. The Wife was also directed to expeditiously seek a hearing of her application for leave to appeal and, if leave were granted, to expeditiously seek a hearing of the appeal itself.

Orders

Orders of the court

The operation of Order 3 made on 28 August 2007 be stayed until further order.

The Wife expeditiously seek a hearing of her application to the Full Court for leave to appeal against order 3 made by me on 28 August 2007 and if leave is granted expeditiously seek a hearing of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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