Mephiste and Mephiste (No 2)

[2010] FamCA 1060

FAMILY COURT OF AUSTRALIA

MEPHISTE & MEPHISTE (NO. 2) [2010] FamCA 1060

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Rule 22.11(2)

Amos v Ian K Fry & Company [2010] QCA131 1 June 2010

APPLICANT: Ms Mephiste

RESPONDENT: Mr Mephiste

FILE NUMBER: PAF 1468 of 2006

DATE DELIVERED: 25 November 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Cleary J

HEARING DATE: 19 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Georgiadis & Baker

COUNSEL FOR THE RESPONDENT: Mr Battley

SOLICITOR FOR THE RESPONDENT: McDonnell Schroder

Orders

1. That the Application filed 29 October 2010 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1468 of 2006

MS MEPHISTE

Applicant

And

MR MEPHISTE

Respondent

REASONS FOR JUDGMENT

1. This is an Application by the wife for a Stay of the operation of particular Orders made by me on 21 September 2010. 

2. There has been an Appeal against those Orders by the husband.  The Appeal was filed on 20 October 2010 and served on or about 27 October 2010.  Correspondence annexed to the Affidavit of the wife sworn 29 October 2010 and filed on that day suggests that the Appeal was served on 27 October 2010 only after prompting by solicitors for the wife.

3. The Application for a Stay was filed by the wife on 29 October 2010 supported by her Affidavit sworn and filed on that day.  The Application came before me on 19 November 2010.  The Application for a Stay was opposed on behalf of the husband.  Opposition was on two grounds:  

   (i)That the wife as a respondent to an Appeal did not have standing to make the Application for a Stay; and

   (ii)      As to the merits of the Application.

4. The relevant Rule is as follows:-

   “22.11(2)   If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.”

5. Neither Counsel were able to cite a decision where a respondent to an Appeal had successfully or unsuccessfully made an Application for a Stay.  There is a decision of the Supreme Court of Queensland Amos v Ian K Fry & Company [2010] QCA131 1 June 2010.  In that matter, involving a dispute over an Estate in the Supreme Court of Queensland, a party filed a Notice of Appeal from an Order dismissing an Application for leave to commence proceedings to seek a Costs Assessment Order.  The respondent to the Appeal, a solicitor, filed an Application seeking Orders that the Appeal be dismissed or stayed permanently.  The decision did not turn on the standing of the Respondent to make an Application for a Stay.

6. It is unusual for a Respondent to an Appeal to be the Applicant for a Stay.  However, in my view the Rules are clear that any party to an Appeal may apply for an Order staying the operation or enforcement of the Orders appealed against.  Accordingly, in my view the wife has standing to bring the Application for the Stay.

Merits of the Application

1. The onus is on the Applicant seeking the stay.

2. Although there are no criteria in the Rules, there are considerations arising out of the case law as follows:-

   a)Would refusing the Stay render the Appeal nugatory?

   In the event that the relevant Orders were not stayed the outcome of the Appeal could only be:-

   (i)that if the Appeal was unsuccessful in which case all Orders would be capable of being complied with; or

   (ii)in the event the Appeal was successful then the wife would have an obligation presumably to pay a further amount or to sell the former matrimonial home.

   It was not argued that the Appeal would be rendered nugatory if these Orders were not stayed and it could hardly be the case.

   b)The entitlement of a party to an Appeal to the fruits of the Judgment at first instance

   Clearly the fruits of the Judgment in this case are that: the wife retain the family home subject to Orders requiring her to re-finance and to pay certain sums, both to the husband and third parties, the husband receive from the wife $86,425.

   There is no circumstance in which the wife would have to pay less than this amount.

   c)Hardship caused by the granting or refusal of a Stay

   The wife on her own evidence has taken all steps necessary to re-finance the former matrimonial home and to raise funds in order to pay the husband the amount stated above together with some third party debts.  The relevant withdrawal of Caveat had been prepared and the matter was poised for settlement until the wife became aware of the husband having lodged an Appeal in the matter.  The hardship caused to the husband is obvious.  He is entitled to receive the stated amount in circumstances where he has no other tangible assets other than superannuation.  The hardship caused to the wife by the Orders not being stayed is said to be the fact that in the event that an Appeal is unsuccessful she may be successful in seeking costs and that there might not be sufficient funds available to meet that Order for costs.  Such a difficulty could be addressed by an Application for Security for Costs made to the Full Court of the Family Court of Australia in the ordinary way.

Merits of the Appeal

1. It was fairly conceded by counsel for the wife that at least some of the grounds of the Appeal were arguable and that it was not completely unmeritorious.  Accordingly, there is at least some prospect that the Appeal will be successful or partially successful in which case the payment by the wife to the husband could only increase.

Delay in Seeking a Stay

1. The wife filed her Application in a Case two days after being served with the Notice of Appeal. She could not have made her Application more expeditiously.  In my view there is nothing in this ground.

The likely delay in disposition of the Appeal

1. No submission was put about when the Appeal is likely to be heard.

Conclusion

1. I do not consider that the Applicant has discharged the onus in this Application.  It may well be the case that the husband would have difficulty meeting a Costs Order in the event that his Appeal is unsuccessful.  However, I accept the submission of counsel for the husband that in that event there are other remedies, including a Garnishee Order on his wage or payment by instalments.  Also, as noted in these Reasons, an Application for Security for Costs.  Accordingly, the Application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary

Associate:     

Date:              25 November 2010