NARKIS & NARKIS - [2019] FamCA 197

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS

[2019] FamCA 197

FAMILY LAW – STAY APPLICATION PENDING APPEAL – where the wife is self-represented – Where the orders subject to the appeal were made on discretionary grounds at a time when the wife was represented by counsel – Where there is no new evidence presented – Stay principles considered – Application for the stay refused.

FAMILY LAW – COSTS – where the husband sought costs on an indemnity basis – Where the costs should be granted in favour of the husband but not on an indemnity basis as the wife was misguided in her view about the stay – Costs fixed.

Family Law Act 1975 (Cth)

Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681
Prantage & Prantage[2013] FamCAFC 105; (2013) FLC 93-544
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No 1] [1986] HCA 13; (1986) 160 CLR 220

APPLICANT:

Ms Narkis

RESPONDENT:

Mr Narkis

FILE NUMBER:

MLC

210

2014

DATE DELIVERED:

5 March 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

25 February 2019

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr Strum QC

SOLICITOR FOR THE RESPONDENT:

Cantwell Family Lawyers

Orders

That the wife pay the husband’s costs of the stay application fixed in the sum of $6,992.30.
The wife’s application for a stay of the payment of the costs is refused.

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 Narkis & Narkis 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 210 of 2014

Ms NARKIS

Applicant

And

Mr NARKIS

Respondent

REASONS FOR JUDGMENT

Ms Narkis (“the wife”) applied for an order that paragraphs (1) and (2) of the orders made by the court on 18 December 2018 be “temporarily stayed until further order”. It was not controversial that the wife was seeking a stay pending the determination of her appeal against the December 2018 orders. Mr Narkis (“the husband”) opposed the stay being granted.
Although the husband and the wife have been long-separated, I shall refer to them as I have, only for my convenience of description.
Paragraphs (1) and (2) of the 18 December 2018 orders read as follows:
(1)All existing orders precluding the husband selling the property at M Street, Suburb N (“the M Street Property”) are discharged.
(2)The husband have the right to sell the said M Street property…

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.

Continue reading NARKIS & NARKIS

Details

AGLC: NARKIS & NARKIS [2019] FamCA 197
Case: [2019] FamCA 197
Decision Date: 5 March 2019

CaseChat Overview and Summary

The matter of *Narkis & Narkis* concerned an application by the wife for a stay of orders pending an appeal, and a subsequent application by the husband for costs on an indemnity basis. The wife, who was self-represented, sought to stay orders that had been made at a time when she was represented by counsel, and no new evidence was presented in support of the stay application.

The primary legal issue before the court was whether the wife had satisfied the principles for granting a stay pending appeal. A secondary issue arose regarding the husband's application for costs on an indemnity basis, and whether such an order was warranted given the wife's conduct and her belief regarding the stay.

In refusing the wife's application for a stay, the court applied the established principles for granting such relief, finding that the wife had not demonstrated a sufficient basis to warrant a stay of the original orders. Regarding costs, while the court found that costs should be granted in favour of the husband, it declined to award them on an indemnity basis. The court reasoned that although the wife's application for a stay was misguided, this did not rise to the level of conduct that would justify an indemnity order.

Consequently, the court ordered that the wife pay the husband's costs of the stay application, fixed at $6,992.30. The wife's subsequent application to stay the payment of these costs was refused.

Orders

Orders of the court

That the wife pay the husband’s costs of the stay application fixed in the sum of $6,992.30.

The wife’s application for a stay of the payment of the costs is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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