NOMA & NOMA

[2015] FamCA 218

FAMILY COURT OF AUSTRALIA

NOMA & NOMA [2015] FamCA 218

FAMILY LAW – STAY PENDING APPEAL – interim property order – where application for stay pending determination of appeal from interim property order in favour of wife – where consideration of applicable principles – application for stay refused.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth) r 22.11

Fauna Holding Pty Ltd & McGillivray v Mitchell (2000) FamCA 548

APPLICANT: Mr Noma

RESPONDENT: Ms Noma

FILE NUMBER: PAC 6 of 2013

DATE DELIVERED: 1 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: McAuley Hawach Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Matthews Folbigg Pty Ltd

Orders

1. That the application for stay filed on the 6 March 2015 be dismissed.

2. That any application for costs be by way of Application in a Case supported by affidavit filed within 28 days from this date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Noma & Noma has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6  of 2013

Mr Noma

Applicant

And

Ms Noma

Respondent

REASONS FOR JUDGMENT

1. The application for determination is an application by the husband for an order for a stay of orders made on 27 February 2015 in respect to the wife’s application for an interim distribution of property.

2. Reasons for the determination as to the wife’s application for interim property are set out in Noma & Noma and Ors [2015] FamCA 114. In that application orders were made as follows:

   (1) That by way of interim property orders pursuant to section 79 of the Family Law Act 1975 (Cth) the husband and wife do all acts and things and sign all necessary documents to authorise and direct Matthews Folbigg, Solicitors to pay to the wife or as she may otherwise direct those solicitors in writing the sum of $200,000 within 7 days from the date of these orders.

   (2)      That in default of the husband doing all acts and things and signing all necessary documents as required in the previous order this order of itself shall be sufficient authority for Matthews Folbigg, Solicitors to pay the said funds to the wife or as she may otherwise direct those solicitors in writing.

   (3)      That the costs of the wife in respect to the present application be reserved.

   (4)      That otherwise all pending interim applications before the Court be dismissed.

3. On 6 March 2015 the husband filed his application seeking orders for stay pending determination of his appeal to the Full Court of this court. The husband’s Notice of Appeal incorporating his application for leave to appeal from the interlocutory order was filed on 6 March 2015.

4. The husband seeks leave to appeal on the following grounds:

   1. The Order made by the learned Trial Judge may result in the rights of third parties being significantly affected in that their ability to recover debt/s from the parties will be compromised (sic);

   2. The Appellant would suffer a substantial injustice in the event that leave were not granted in that the Orders made by the learned Trial Judge are not Orders that are capable of being reversed or rectified at final hearing.

5. The husband’s grounds of appeal comprised the following:

   1. That the learned Trial Judge erred in finding that the balance of the matrimonial asset pool would be about $938,850.

   2. That the learned Trial Judge in failing to consider the impact on the available asset pool in the event that the resolution of the dispute that exists between the parties in relation to parts of the Balance Sheet were resolved in favour of the contentions advanced by the Appellant.

   3. That the learned Trial Judge erred in failing to consider any of the evidence adduced by the Appellant as to the financial history of the marriage and/or financial transactions relating to the acquisition and financing of various properties during the parties’ marriage.

   4. That the learned to Trial Judge erred in finding that the Appellant had failed to respond to any of the Respondent’s requests for disclosure and undertakings not to deal with any of the parties’ bank loans or assets.

   5. That the learned Trial Judge erred in finding that there was no evidence before the Court in relation to the familial debts asserted by the Appellant.

   6. That the learned Trial Judge failed to identify the evidence relied on to provide a foundation for the findings referred to above.

6. It is well settled that a stay will not be granted likely or as a matter of course. The onus rests on the applicant for stay in respect of an application for stay under Rule 22.11 of the Family Law Rules 2004.

7. The significant factors affecting the Court’s determination include the following:

   a)Whether refusing a stay would render the appeal nugatory;

   b)That the successful party is entitled to the fruits of the judgment;

   c)Whether hardship would be caused by the granting or refusal of a stay;

   d)The merits of the appeal;

   e)Any delay in seeking the stay;

   f)The likely delay in the disposition of the appeal.

8. Counsel for the applicant husband contended that the right of the wife to the fruits of the interlocutory judgment was but one factor particularly where the final determination as to fact will need to await final trial. It was further contended that there was no evidence that the wife would be locked out of the litigation in the event that funds were not received by her as there was no evidence that her solicitor and/or counsel would not appear in the absence of funds being made available.

9. Counsel for the applicant took issue with various factual determinations in the reasons for judgment particularly in circumstances where a final determination as to facts in dispute would need to await a final hearing. Many of those issues were canvassed in the primary judgment and taken into account.

10. The interim application was marked by the lack of corroborative evidence supporting the husband’s assertions where the strong inference was that such evidence that would come from close family members was readily available.

11. It was further contended by counsel for the applicant husband that the appeal would be rendered nugatory in the event that funds were released to the wife as ordered as there was clear and compelling evidence that most if not all of those funds would be expended on legal and associated expenses. That contention, with respect to counsel for the husband, seems to rest upon an assertion that the wife has virtually no claim for property adjustment that could be met by the matrimonial property controlled by the husband and detailed in the primary judgment.

12. As to the question of hardship it was contended by counsel for the husband that the authorities are predisposed towards the position that there should be only one exercise of power under section 79 by way of property adjustment. With respect that contention depends on the particular circumstances before the Court in the context of an interlocutory application. In the present circumstances the wife is locked out of the whole of the matrimonial property as it remains in the possession or control of the husband where there is a strong inference to suggest that his evidence as to the nature and extent of the pool of assets such as it is should to be considered with some circumspection.

13. The additional respondents to the proceedings include members of the husband’s family to whom he asserts he owes money in relation to the acquisition or maintenance of matrimonial property. Peculiarly none of the additional respondents sought to engage in the interlocutory proceedings nor did they file any evidence supporting what one would assume to be their asserted position that they are creditors of the husband and seeking to protect their position. The husband proffered no evidence himself save for the bald assertion of debt.

14. Counsel for the respondent wife provided a written outline of argument (Exh A). It was contended on behalf of the wife that there was no automatic right to a stay of proceedings and prima face, the judgement appealed from is correct. The Court, it was submitted, should not deprive the wife of the fruits of her litigation without good cause.

15. The power to order a stay is incidental to the right of appeal and derives from the inherent power of the Court to do whatever is necessary to prevent injustice in relation to the proceedings in the Court: Fauna Holding Pty Ltd & McGillivray v Mitchell (2000) FamCA 548.

16. The husband’s position taken in relation to the interlocutory application assists the determination of the present application. He, in submissions, sought an order that the parties each receive $100,000, although providing no calculation for such entitlement. At hearing counsel for the husband conceded a “pool” of about $938,850 after consideration of asserted familial debts. There remained the additional outstanding questions as to:

    a)of funds unilaterally advanced to the parties’ son by the husband of $522,000 that had the prospect of increasing the “pool” and

    b)the unresolved property dealings by the husband in Country I and

    c)the question of funds held in the bank in Country I that had the further prospect of increasing the pool

    d)the disposition in most uncertain circumstances by the husband of his interest in a business.

17. For the reasons discussed the application for stay will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 April 2015.

Associate: 

Date:  1 April 2015