Massalski & Riley (No. 2)
[2021] FamCA 138
•5 March 2021
FAMILY COURT OF AUSTRALIA
Massalski & Riley (No. 2) [2021] FamCA 138
File number(s): SYC 496 of 2015 Judgment of: MCCLELLAND DCJ Date of judgment: 5 March 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of costs order – Where the Applicant seeks a stay of orders made in respect to costs by the trial judge and orders made in assessing the quantum of costs by a Registrar – Where an appeal of the substantive decision is pending – Where no appeal has been filed against the costs decision – Where no review of the Registrar’s decision has been filed – Where the Respondent has provided an undertaking to the Court not to seek to enforce the costs order or the assessment of the costs payable until such time that the Full Court delivers its decision in respect to the appeal of the substantive property decision – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 106A Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Number of paragraphs: 20 Date of hearing: 5 March 2021 Place: Sydney by web conference Counsel for the Applicant: The Applicant appearing in person Solicitor for the Respondent: Mr Byrnes of Russell C Byrnes Solicitors ORDERS
SYC 496 of 2015 BETWEEN: MS MASSALSKI
Applicant
AND: MR RILEY
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
5 MARCH 2021
THE COURT NOTES THAT:
A.The Respondent de facto husband, through his solicitor, has provided an undertaking to the Court that he would not seek to enforce the costs order made by me on 25 May 2020 and/or the assessment made by Registrar Chayna determining the amount of costs payable in her decision dated 2 November 2020 until such time as the Full Court delivers judgment on the appeal of my judgment delivered on 24 December 2019.
THE COURT ORDERS THAT:
1.The Applicant de facto wife’s Application in a Case filed 18 January 2021 is dismissed with no order as to costs.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Massalski & Riley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
McClelland DCJ:
This decision concerns an Application by Ms Massalski (“the Applicant”) seeking a stay of the costs order I made on 25 May 2020 and orders made on 2 November 2020 by a Registrar determining the amount of costs payable.
By way of a brief background, on 24 December 2019, I delivered judgment and made final orders in respect to the adjustment of the parties’ property interests arising from their de facto relationship.[1] An appeal of that decision was heard on 10 October 2020 and the Full Court’s decision is currently reserved. On 25 May 2020, I delivered judgment in respect to the costs of and incidental to the proceedings and made orders for the Applicant to pay the costs of Mr Riley (“the Respondent”) on a party/party basis.[2] On 2 November 2020, Registrar Chayna made orders for the Applicant to pay the costs of the Respondent assessed in the sum of $209,945.25. Further, on 23 February 2021, Registrar Chayna made orders, pursuant to s 106A of the Family Law Act 1975 (Cth), executing a document entitled “Deposited Plan Administration Sheet”.
[1] [2019] FamCA 1013
[2] [2020] FamCA 389
The Applicant seeks orders be made in accordance with her Application in a Case filed 18 January 2021, as follows:
1. Order to stay the Costs Order of the Fmaily [sic] Court from 25/05/20.
or alternatively and order,
That the the Costs Order of the Family Court from 25/05/20 and/or the Order of Registrar Chayna from 2 Nov 2020, to award the costs of$209,945.25 to the Respondent, be stayed until all proceedings between the parties in the Family Court, Supreme Court of NSW and in the Supreme Court of Victoria are determined and attention is given to the consequential relief, as well as cost.
At the hearing of this matter, the Applicant sought leave to further amend her Application. The additional orders sought by the Applicant are as follows:
That the registration of the strata plan on the title of the property at W Street, Suburb G being the land in folio identifier … be stayed until the appeal is determined and/or
alternatively
That an injunction be granted against the Registrar executing the documents that were filed or are intended to be filed in relation to the registration of the strata plan on the title of the property at W Street, Suburb G.
The Respondent opposes the Applicant’s Application for a stay and for leave to be granted.
LEAVE TO SEEK ADDITIONAL ORDERS
It is not contested that the Respondent has applied to the Land Titles Office for the registration of a strata plan on the title of the property at W Street, Suburb G (“the W Street property”). The Applicant however seeks orders staying the registration of that strata plan. The first difficulty I have with that order is that it is unsatisfactorily ambiguous. I am unable to determine whether it seeks a restraint on the Respondent, or whether it is an attempt to be a restraint on an officer of the Land Titles Office or other Government Agency entrusted with the responsibility of registering the strata plan documents.
In respect to the orders proposing a restraint on an officer of the relevant Government Authority, the Court would be making orders against an officer of the New South Wales Land Titles Office when there is no evidence that the Land Titles Office or any relevant proper officer of the Land Titles Office has been notified of the Applicant’s intention to apply for such an order. In those circumstances, there would be a fundamental denial of natural justice.
In respect to the orders proposing a restraint on the Respondent, such an order would be a futility in circumstances where the Respondent has already undertaken and completed the task of applying for registration of the strata plan. Accordingly, any attempt to impose an injunction, restraint, or otherwise give effect to an application for the stay sought by the Applicant would lack utility as the conduct on behalf of the Respondent has already taken place.
Further, the alternative form of the order that the Applicant seeks in respect to the orders made by the Registrar on 23 February 2021 is also a futility in that the Applicant seeks an injunction to prevent a Registrar undertaking the course of action which has already occurred.
In those circumstances, I do not grant the Applicant leave to so amend her Application in a Case filed on 18 January 2021 because I am not satisfied that there is any utility in doing so.
STAY APPLICATION
The Applicant indicated that she is seeking the second form on the order, that is, the costs order made on 25 May 2020 and/or the order made on 2 November 2020 to award the costs of $209,945.25 to the Respondent be stayed until all proceedings between the parties in the Family Court of Australia, the Supreme Court of New South Wales and the Supreme Court of Victoria, are determined and attention is given to the consequential relief as well as cost.
The solicitor for the Respondent opposed the Application for a stay, noting that there has in fact been no appeal filed against the costs order made on 25 May 2020 nor has there been an Application for review of the orders made by Registrar Chayna on 2 November 2020. That submission, with respect, has merit, however, I will deal with the substance of the Application for stay of those respective orders.
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court at [18] articulated principles for a trial judge to consider in determining whether a stay should be granted:
18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•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;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
• the mere filing of an appeal is insufficient to grant a stay;
• the bona fides of the applicant;
•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;
•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;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
The onus rests upon the Applicant to establish a proper basis for the stay in the context where the Respondent is entitled to presume that the judgments I delivered in this matter are correct, where he is entitled to the benefit of the judgment, and specifically noting that the mere filing of an appeal is insufficient to grant a stay.
Dealing first with the bona fides of the Applicant, I accept, for the purposes of this decision, the bona fides of the Applicant in applying for a stay of the costs order and the costs assessment, noting that she is an unrepresented litigant and perhaps not aware of the requirements to appeal my decision of 25 May 2020 and/or to seek a review of Registrar’s decision.
In terms of whether a stay should be granted on terms that are fair to all parties, that consideration necessarily involves a consideration as to whether the stay is necessary, and I will come to that point in dealing with the next consideration.
In respect to weighing the risk that an appeal may be rendered nugatory if a stay is not granted, in this matter, the Applicant will not be adversely impacted or prejudice by my declining her Application for a stay in terms of the order that she has proposed. This is because the Respondent, through his solicitor, has provided an undertaking to the Court that he will not seek to enforce the costs order until the Full Court delivers judgment in respect to the Appeal against my primary decision delivered on 24 December 2019.
In respect to the outstanding appeal, it is difficult for a trial judge to assess the prospects of success in an appeal, particularly when the trial judge has not been a party to the appeal proceedings. For the purpose of this decision, I will, however, assume that the appeal has some prospects of success. As I have noted, in this matter, the appeal was heard in October 2020 and it can be assumed that the decision is likely to be handed down within the next few months.
The most relevant consideration in my rejection of the Application for a stay, however, is the fact that the Respondent has offered an undertaking which has been accepted by Applicant and noted by the Court, that he will not seek to enforce the costs order until the decision of the Full Court against my decision dated 24 December 2019 is delivered. In those circumstances, the Applicant’s interests will not be prejudiced in the event of the Court failing to grant the stay as sought by her.
In those circumstances, I will dismiss the Applicant’s Application in a Case and make the relevant notations as set out at the commencement of these reasons for judgment.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 18 March 2021
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