LUU & KAA

[2019] FamCAFC 160

FAMILY COURT OF AUSTRALIA

LUU & KAA [2019] FamCAFC 160

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where interim orders made requiring money held in the parties’ offset accounts to pay off the mortgage over the former matrimonial home as well as the sale of this and another property – Where proceeds of sales ordered to allow the wife to settle the purchase of a unit – Where the husband wishes to retain the former matrimonial home – Where the husband seeks that the appeal hearing be expedited –Where rule 12.10A(1) and (4) relevant – Where the primary judge relied on section 80(1)(k) to make the order – Where presumably the primary judge instead intended to refer to section 90SS because the parties were in a de facto relationship, not married – Where if no expedition ordered the husband’s appeal will be made irrelevant and he will suffer irreversible prejudice – Order made for expedition.

Family Law Act 1975 (Cth) ss 80, 90SM, 90SS, 94
Family Law Rules (Cth) r 12.10A

Strahan & Strahan (Interim Property Orders) (2009) 42 Fam LR 203
Sorbo & Soulos (2015) FLC 93-652

APPELLANT: Mr Luu

RESPONDENT: Ms Kaa

FILE NUMBER: BRC 6137 of 2017

APPEAL NUMBER: NOA 59 of 2019

DATE DELIVERED: 19 September 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 17 September 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 21 June 2019

LOWER COURT MNC: [2019] FCCA 1973

REPRESENTATION

SOLICITORS FOR THE APPELLANT: Bruce Dulley Family Lawyers

SOLICITORS FOR THE RESPONDENT: Barry Nilsson Lawyers

Orders

1. That the appeal be listed for hearing at 10:00am Brisbane time (11:00am Sydney time) on Tuesday 8 October 2019 by video link from between the Brisbane, Cairns and Sydney registries before the Honourable Justices Ryan, Aldridge and Tree.  The parties will attend by video link in the Brisbane registry. 

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 Luu & Kaa 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS

Appeal Number: NOA 59 of 2019
File Number: BRC 6137 of 2017

Mr Luu

Appellant

And

Ms Kaa

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 21 June 2019, the primary Federal Circuit Court judge made interim orders requiring the payment of monies held in the parties’ two offset accounts off the mortgage secured over their former matrimonial home (“Suburb A”) and for its urgent sale, together with the sale of another property.  The net proceeds of both sales were then to be made available exclusively to Ms Kaa (“the wife”) to enable her to settle the purchase of a unit (“the unit”) which is likely to fall due for completion in October 2019.

2. On 25 June 2019, Mr Luu (“the husband”) appealed from those orders, and by Application in an Appeal filed 20 August 2018, sought that the hearing of the appeal be expedited.  The wife agrees to expedition.

3. The primary judge’s ex tempore reasons state that s 80(1)(k) of the Family Law Act was the source of power relied upon in making the orders, however since the parties were not married, presumably his Honour was intending to refer to s 90SS(1)(k). If so, then the general power of the court to alter the parties’ property interests was in s 90SM.

4. In his written submissions, the husband contends that in making the interim orders, the primary judge did not undertake the three stage process required in interim property orders as articulated in Strahan & Strahan (Interim Property Orders) (2009) 42 Fam LR 203. Certainly there was no express advertence to the considerations in s 90SM(4) by the primary judge, nor any advertence to the reversibility of the interim orders at trial.

5. Whilst the power to expedite an appeal is found in s. 94(2D) of the Family Law Act, there is no statutory or regulatory articulation of the relevant considerations for expedition, such as is provided by Rule 12.10A in relation to trials in the Family Court.  However the matters articulated in that Rule may be relevant, and certainly inform the sorts of matters which the court may consider.[1]

   [1]Sorbo & Soulos (2015) FLC 93-652.

6. Here, by reference to the matters in Rule 12.10A(1) and (4), the husband identifies the following as relevant:

   (a)He has acted reasonably, and there is no suggestion of delay in his conduct in the primary case;

   (b)This application for expedition has been made without delay;

   (c)Expedition would occasion no detriment to the wife, who concedes that the appeal should be expedited;

   (d)He will suffer irreversible prejudice if the appeal is not heard expeditiously, in that:

   (i)He wishes to retain the Suburb A in the property proceedings, and the primary judge’s orders would preclude that;

   (ii)He is presently residing in the Suburb A, and the orders require its sale;

   (iii)On the evidence, if the Suburb A mortgage is paid out, as the orders require, the mortgage cannot thereafter be drawn down again;

   (iv)If the purchase of the unit settles, then the parties will have paid more for it than it is likely worth, and further, the costs of sale of the other two properties, and the stamp duty on the unit purchase, will further compound that loss;

   (e)The primary judge has refused to stay his orders.

7. For her part, the wife says that the purchase of the unit will likely be due for settlement some time in October, however the primary judge has refused to enforce the interim orders.  If the two properties are not sold by October, the purchase of the unit could not be completed, and she would likely not only lose the opportunity to purchase it, but further, the parties would forfeit their deposit, and also face a potentially significant claim by the vendor.

8. In short, if the hearing of the appeal is not expedited then the husband’s appeal will be rendered nugatory, and he will suffer irreversible prejudice (and indeed the wife may, too). He says that informs why his appeal should be given priority, to the possible detriment of other appeals.

9. Weighing those matters in the balance tells in favour of expedition, and I will so order.   

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 September 2019.

Associate: 

Date:  19 September 2019