O’Cleary & Vukasin (No 3)
[2024] FedCFamC1F 814
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
O’Cleary & Vukasin (No 3) [2024] FedCFamC1F 814
File number: SYC 4005 of 2020 Judgment of: CAMPTON J Date of judgment: 28 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay pending appeal – Where the wife appeals from final property adjustment orders – Where the husband gives an undertaking to retain a specific real property and permitting the wife to continue to occupy it pending appeal, militating the appeal being rendered nugatory – Where there prospects of success of the appeal are not strong – Where the husband’s undertakings shift the balance of convenience to not favouring the granting of a stay – Application for a stay dismissed on condition as to the husband filing an undertaking in writing certified by his solicitor. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6
Cases cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; [1986] HCA 13
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588; [1999] HCA 3
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 22 November 2024 Place: Sydney Counsel for the Applicant: Mr Smith Solicitor for the Applicant: Jc Legal Practice Counsel for the First Respondent: Mr Levet Solicitor for the First Respondent: Jeffrey Choy Legal Solicitor for the Second Respondent: Ms Dunkley, Newnhams Solicitors ORDERS
SYC 4005 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS O'CLEARY
Applicant
AND: MR VUKASIN
First Respondent
MR PASSERINI
Second Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
28 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Leave is granted to Mr AR to withdraw.
2.The wife has leave to rely on her affidavit filed at 6.59pm on 21 November 2024.
3.By consent, orders 9, 10 and 11 made 30 September 2024 are stayed pending determination of appeal NAA280/2024 filed 25 October 2024.
4.Provided the husband files on or before 4pm today an undertaking to the Court in writing certified by his solicitor to:
(a)Not sell or encumber to property at G Street, Suburb H other than to make a payment to the wife as provided for in Order 8 made 30 September 2024, pending the outcome of the wife’s appeal; and
(b)To permit the wife to continue to reside at the property at G Street, Suburb H pending determination of the appeal.
(c)The balance of relief, save as to costs, as sought by the wife in her Application in a Proceeding filed 19 November 2024 is dismissed.
5.The listing of the Application in a Proceeding of the husband as to costs filed 9 October 2024 and the Application in a Proceeding of MR Passerini the Intervener as to costs filed 17 October 2024 by way of Webex at 9.30am on 6 December 2024 is confirmed.
6.The time for the wife to file any Response to the Applications in a Proceeding as to costs and affidavit material in support thereof pursuant to Order 2 made 23 October 2024 be extended until 25 November 2024.
7.On or before 24 December 2024, the wife pay:
(a)The husband’s costs of and incidental to the Application for a Stay determined today fixed in the sum of $8000;
(b)The intervener’s costs of and incidental to the Application for a Stay determined today and fixed in the sum of $1800.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Ms O'Cleary (“the wife”), by way of a Notice of Appeal filed on 25 October 2024 in proceedings number NAA280/2024, appeals from Orders 5 to 16, as made on 30 September 2024, adjusting property between she and the husband and otherwise.
On 19 November 2024, the wife filed an Application in a Proceeding (“the stay application”) seeking the following orders:
1. That Orders 4, 5, 7, 8, 9, 10, 11 and 16 (as between the [wife] and [the husband]) made by Justice Campton on 30 September 2024 be stayed pending the determination of the appeal in proceeding no NAA280/2024
2. That the Costs of and incidental to this Application in a Proceeding be paid by the [husband].
3. Any further or other Order that the Court deems fit.
The relief sought by the wife for the purposes of the stay was amended by way of Exhibit 1. The relief sought by the wife in Exhibit 1 records:
1.That….Orders 9 to 11 and 16 of the Orders made on 30 September 2024 be stayed pending the determination of the Wife’s Notice of Appeal filed 25 October 2024.
2.That Orders 4, 5, 7 and 8 of the Orders made on 30 September 2024 be stayed pending the determination of the Wife’s Notice of Appeal filed 25 October 2024 on the following terms:-
2.1That the Husband shall be at liberty to redraw the sum of $933,437.37 from the mortgage account (bearing account number ending […]80) secured against the property known as and situate at [G Street, Suburb H], (“the [G Street] Property”), for the purposes of applying such funds to the discharge of the Westpac […] account (obtained by the Husband via [Vukasin Investment Pty Ltd] on 25 October 2024 in the sum of $900,000);
2.2That the Wife is solely responsible for and pays the outgoings associated with the [G Street] Property as and when they fall due and shall indemnify the Husband and keep him indemnified with respect to such outgoings pending the determination of the Wife’s Notice of Appeal filed 25 October 2024 such outgoings to include but are not limited to:-
2.2.1 All mortgage repayments;
2.2.2 All council and water rates;
2.2.3 All utilities; and
2.2.4 All insurances.
The husband, by way of a Response to an Application in a Proceeding filed on 21 November 2024, consented to Orders 9, 10, and 11 as made on 30 September 2024, being the subject of a stay, pending determination of the wife's appeal.
BACKGROUND
The wife commenced proceedings for the adjustment of property between she and the husband on 22 June 2020. The husband filed a Response to an Initiating Application on 20 August 2020 seeking different orders adjusting that property.
Mr Passerini intervened in the proceeding on 30 December 2023, his participation as a party being necessary in circumstances where it was contended the husband held a 30 per cent interest in the trading enterprise Vukasin Pty Ltd on trust for the benefit of Mr Passerini.
On 30 September 2024, for reasons then delivered, orders and declarations were made providing that the husband held 30 per cent of his interest in Vukasin Pty Ltd on trust for the benefit of Mr Passerini, and consequential orders were made to implement that determination. The property of the husband and the wife, as found, was adjusted 83.5 per cent to the husband and 16.5 per cent to the wife.
The orders provided, consistent with the terms in which the parties conducted the dispute pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), for a series of events to occur. For the purposes of these reasons, the relevant orders applicable to the stay are as follows:
4.On or before 28 October 2024 the husband shall do all things to cause the mortgage secured over the property at [G Street, Suburb H], being Lot […] of Deposited Plan […] (“the [G Street] property”) to be discharged and indemnify the wife in relation to same, and the wife shall sign all such documents as are necessary to facilitate the husband’s compliance with this order.
5.On or before 25 November 2024 the wife shall pay to the husband sum of to $3,679,350.
6.Pending compliance with Orders 5, 8, 9, 10 and 11, whichever is the earlier, the wife:
(a)Is restrained from doing any act or thing to transfer, encumber, mortgage, or adversely affect her interest in the [G Street] property save as to facilitate compliance with Order 5; and
(b)Is to do all things as are necessary to keep and maintain the [G Street] property in good order and condition.
7.In the event the wife fails or neglects to comply with Order 5, the husband may elect by notice in writing to the wife to be served within seven days of such default to require the wife to transfer to him all her interest in the [G Street] property.
8.In the event the husband makes the election in writing pursuant to Order 7 then:
(a)On or before 23 December 2024, the husband shall pay to the wife the sum of $2,420,650; and
(b)Simultaneously upon receipt of such sum, the wife shall execute all documents prepared by the husband at his expense for the wife to transfer to the husband all her interest in the [G Street] property and the wife shall provide the husband with vacant possession of the [G Street] property.
9.In the event the wife fails to comply with Order 5 and the husband does not exercise the election pursuant to Order 7, the husband and wife shall do all such things as are necessary to list for sale the [G Street] property on terms they agree in writing or failing to so agree in writing for more than 14 days, on the following terms:
(a)To list for auction with an agent agreed upon by them in writing within 14 days and failing agreement the agent be appointed by the President of the Real Estate Institute of New South Wales or his or her nominee;
(b)Give such instructions to a solicitor to act on the sale of the property agreed upon in writing within 14 days, and failing agreement as to the identify of the solicitor, the solicitor be appointed by the President of the Law Society of New South Wales or his or her nominee;
(c)Market the [G Street] property for sale by public auction to be held on-site within six weeks of the date this order comes into operation at a reserve price to be agreed by them in writing seven days prior to auction and failing such agreement at a reserve price determined by single real property valuation expert who opined as to the value of the [G Street] property for trial;
(d)Attend the auction and in the event that the reserve price set for the auction is not reached negotiate with the highest and second highest bidder and accept any offer to purchase that is the highest made within five per cent of the reserve price set for that auction unless the parties otherwise agree in writing; and
(e)Execute the contract for sale and in the event they fail to agree on the terms of the contract for sale, the terms recommended by the solicitor acting on the sale shall be adopted.
10.Upon the completion of the sale of the [G Street] property, the husband and wife shall do all things to apply the proceeds of the sale in the following manner and priority:
(a) In payment of any outstanding land tax, council rates, and water rates;
(b)In payment of fees for the nomination of an agent or solicitor pursuant to these orders, if any;
(c) In payment of the valuers fees, if any;
(d)In payment of the real estate agent’s commission, selling expenses, and auction expenses incurred on the sale;
(e) In payment of conveyancing legal costs associated with the sale;
(f)In the amount of 60 per cent of the remaining balance to the husband; and then
(g) In payment of the balance to the wife.
11.In the event of the husband exercising the election pursuant to Order 7 and the husband failing to comply with Order 8(a), the [G Street] property shall be listed for sale and sold on the terms provided for in Order 9 and the proceeds of sale applied as provided for in Order 10.
12.As between the husband and the wife, each shall be responsible for and shall pay one half of the joint and several costs orders payable by them up until 6 September 2022 as made in the New South Wales District Court and New South Wales Court of Appeal and shall indemnify the other in respect of the remaining half balance payable pursuant to those costs orders.
13.Otherwise than as provided for in these orders, each of the husband and the wife be and is hereby declared to be the sole and absolute owner to the exclusion of the other of all items of property currently standing in his or her name or otherwise being in his or her possession custody or control.
14.In the event that the husband or the wife fails, neglects or refuses to sign or execute any document required by or to give effect to these orders, then the Registrar of the Federal Circuit and Family Court of Australia (Division 1), Sydney Registry, is authorised, empowered, and directed to sign and execute such document on behalf of the party in default upon being satisfied of such failure or neglect by way of affidavit evidence, and the signature of the Registrar shall thereafter be deemed to be the signature of such party.
THE LAW
The principles applicable to the granting of a stay, pending determination of appeal from the primary orders, both in general law and in respect of these proceedings, are well settled (Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681). These authorities stress the discretionary nature of the application which would be determined on its merits. The principles relevant to this matter include the following:
(a)The onus to establish a proper basis for the stay is on the wife, however it is not necessary for the wife to demonstrate special or exceptional circumstances;
(b)The husband who has obtained a judgment is entitled to the benefit of that judgment;
(c)The husband who has obtained the judgment is entitled to presume that the judgment is correct;
(d)The mere filing of an appeal is insufficient to grant a stay;
(e)The bona fide is of the wife;
(f)A stay may be granted on terms that are fair to both the husband and the wife. This may involve the weighing of the balance of convenience and the competing rights of the parties;
(g)The weighing of the risk that an appeal may be rendered nugatory if a stay is not granted is a substantial factor in determining whether it is appropriate to grant a stay;
(h)A preliminary assessment of the strength of the proposed appeal is required, specifically as to whether the wife has an arguable case on appeal; and
(i)The period of time in which the appeal can be heard is relevant, and whether existing satisfactory arrangements may support the granting of a stay for a short period of time.
The wife accepts she bears the onus to establish the proper basis for the stay.
The husband submitted appropriately that he ought to have the benefit of the fruits of this longstanding litigation.
The Notice of Appeal (Exhibit 2) records two grounds of appeal.
The first ground challenges findings of fact as to the credibility and reliability of evidence adduced in the wife's case. The wife encountered some challenges in identifying specified paragraphs of the primary reasons recording the findings of fact subject to challenge by way of the ground. The husband identified that the ground as constructed does illuminate any consequential challenge from the product of the findings as to credibility made in the primary reasons.
The second ground challenges a finding of fact as to the value of the husband's interest in the trading enterprise Vukasin Pty Ltd. The relevant findings in the primary reasons are recorded as follows:
191Exhibit 42 recorded the value as asserted by the wife of $33,782,000, and a value as asserted by the husband of $18,032,000. Each of these values were varied by an agreement reached between the parties during submissions, resulting in the value asserted by the wife being amended to $32,839,000, and the value asserted by the husband being amended to $17,089,000.
192 In oral submissions the following exchange occurred:
[SENIOR COUNSEL FOR THE WIFE]: Your Honour, on my maths, the figure in line 2, wife’s value, should be $32,839,000.
[SENIOR COUNSEL FOR THE HUSBAND]: Agreed.
HIS HONOUR: All right.
[SENIOR COUNSEL FOR THE WIFE]: And – against the husband’s value, seven – $17,089,000.
HIS HONOUR: [Mr AR]?
[SENIOR COUNSEL FOR THE HUSBAND]: Agreed.
HIS HONOUR: All right, so the value for line 2, in Exhibit 42, for the wife will be 32,839,000 and for the husband will be $17,089,000. All right. So first up, [senior counsel for the husband] and [senior counsel for the wife], the difference is, as to 30 per cent?
[SENIOR COUNSEL FOR THE HUSBAND]: Two elements - - -
HIS HONOUR: Yes.
[SENIOR COUNSEL FOR THE HUSBAND]: - - - the 30 per cent, and the inclusion or exclusion of goodwill.
HIS HONOUR: All right. So, your value, you say, is the value achieved from [Ms E], [senior counsel for the husband]?
[SENIOR COUNSEL FOR THE HUSBAND]: Indeed.
HIS HONOUR: Okay.
[SENIOR COUNSEL FOR THE HUSBAND]: And the reference there, your Honour, is [Ms E’s] affidavit in relation to the husband’s question and answers.
HIS HONOUR: Yes.
[SENIOR COUNSEL FOR THE HUSBAND]: Page 4 of her report, she deals with the prospect of the new lease and agrees that, in the event that your Honour accepts that the new lease is, indeed, what holds – what the future holds for the business, then the company – the goodwill is eliminated, and the net interest is – it is adjusted accordingly. So that’s just simply a $5.6 million deduction from the valuation in both columns if your Honour accepts that the heads of agreement in relation to the lease are genuine and to be handed in to.
(Emphasis added) (Transcript 13 September 2024, p.74 line 41 to p.75 line 22)
193 The husband and the wife confirmed that:
(a)Each of their values as to Item 2 had consensually taken into account other items that would have been included in the balance sheet by way of assets or liabilities to arrive at their respective final amended values of $32,839,000 and $17,089,000, and that I need not concern myself as to how those agreements were achieved, or as to their integers. The husband and the wife set the parameters of this issue to be determined in the proceeding; and
(b)The findings of fact that pivot the determination as to the contest of the value of Item 2 are:
(i)Firstly, whether the assumption as to [Vukasin Pty Ltd] entering the new lease of the [AQ Street, Suburb U] premises is established, and if so, its impact on a finding as to goodwill and its inclusion in the value of [Vukasin Pty Ltd]. The value of goodwill, if established, was not to be disturbed from that originally opined at $5.6 million; and
(ii)Secondly, whether the husband has the benefit of all the issued shares in [Vukasin Pty Ltd], or 70 per cent thereof.
194The evidence as to the fact of the increased rent is contained in a heads of agreement document dated 5 August 2024 and executed by [Vukasin Pty Ltd] and the third-party landlord (Exhibit 20). There is no evidence to find that [Vukasin Pty Ltd] will not enter the lease to continue to trade from its head office on the terms recorded in the executed heads of agreement. I find it more likely than not that [Vukasin Pty Ltd] will enter a lease on the terms recorded in Exhibit 20.
195The wife submitted that there was no evidence that the increased rental charge from the new lease will not be taken up or passed on to customers by way of increasing prices or by other costs savings. She submitted the future cost of increased rent to the trading enterprise ought not to be taken into account in discounting the value of [Vukasin Pty Ltd]. Propositions as to these topics were not put to the husband or to [Mr Passerini]. The submission of the wife is absent sufficient evidentiary foundation. It is not accepted.
196I find that the evidence establishes that the value of Item 2 excludes any goodwill component. For the reasons recorded earlier, the husband has a 70 per cent interest in [Vukasin Pty Ltd]. By implementation of the terms of the agreement between the husband and the wife as to the disputes on Item 2, I find the value of the husband’s interest in [Vukasin Pty Ltd] is $17,089,000.
The wife did not elucidate any further substance to the challenge by way of the second ground, or why it was in error.
The test on appeal to ground intervention as to whether a finding of fact or findings of fact material to the exercise of discretion were not reasonably open is identified in Edwards v Noble (1971) 125 CLR 296. The test raised is one which is not likely or readily satisfied. More, in cases involving issues of credit, a finding of fact will only be disturbed if it is contrary to incontrovertible evidence, uncontested facts or compelling inferences, or glaringly improbable (Fox v Percy (2003) 214 CLR 118). As identified during the hearing of the stay, there is a material difference between the advantage of a primary judge having the opportunity to see and hear the evidence and the witnesses who give it as it unfolds, in making factual findings, drawing inferences from those findings, and an appellate court simply reading what is recorded as have been said (State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588).
It is trite to observe that the prospects of success of the appeal are not strong. This factor weighs against the stay as sought.
The wife gives evidence as to the preparation of appeal books and obtaining the transcript. It is unknown as to when the appeal is likely to be listed.
The primary reasons were delivered, and orders made, on 30 September 2024, being about eight weeks ago. The Notice of Appeal was filed four weeks ago. The wife, by way of a letter sent from her solicitors dated 2 November 2024 (Exhibit 4), identified that she proposed to make an application to stay Orders 5–16 as made on 30 September 2024. By way of that letter, she was content for the husband to comply with Order 4, providing for he to undertake the first sequence of events prescribed by the orders so as to discharge the mortgage secured upon the G Street property. The wife did not propose any other conditions of the stay in her letter.
Although not tested by way of cross-examination in the stay hearing, there is an undercurrent in the wife's affidavit evidence in support of the stay, as filed on 19 November 2024, at paragraph 16, that the husband had not discharged the loan in favour of the NAB secured by way of mortgage upon the property as he was required to by way of Order 4 as made on 30 September 2024. She implicitly was critical of the husband in opposing any stay of the primary orders while not complying with them himself.
The husband, in his affidavit evidence, records that he had paid out the loan secured by way of the NAB mortgage on the G Street property on 5 November 2024 in a sum of $933,437. He gives evidence as to requesting that the wife execute an authority to discharge the mortgage directed to the NAB by way of letters sent by his solicitors to the wife's solicitors on 10 October 2024 and 16 October 2024 and the wife not responding to them. The wife indicates in her evidence that she had changed solicitors.
It is difficult to apprehend, in circumstances where the wife was aware of the terms of the primary orders, that she in some way seeks to shift responsibility for the failure of her prior solicitors to pass on material to her to the husband.
In any event, the husband puts into evidence a series of emails sent by the NAB to him, copying into the wife, on 7 November 2024, 11 November 2024, and 20 November 2024 as to requirements for the wife to execute the authority to discharge directed to the NAB.
The wife still, as at today, has not executed the authority to discharge. She adduces no material evidence as to why she has failed to do so in compliance with the primary orders. Her application for a stay belatedly seeks a stay of order 4, after it has been complied with by the husband but not facilitated by her.
As I understand the wife's case today, she says she does not “currently” have the capacity to raise $3,679,350 to pay to the husband by 25 November 2024, and that she will not have that capacity at any time in the foreseeable future. She adduces no evidence as to when she will be able to comply with the current orders, if at all. She identifies that her limited enquiries to date reveal that if she did borrow $3.6 million by way of a loan from a bank, her mortgage repayments would be in the sum of $22,500 per month. The wife adduces no evidence as to any other enquiries or applications that have been made to borrow monies to comply with the primary orders over the past eight weeks.
The primary reasons found that the wife has significant resources by way of her parents and by way of the father of her children, who, at the time of the primary reasons, was living in the G Street property. She further has the benefit, including by way of the payment coming from the husband to her in December, of approximately $7.4 million worth of property.
The husband gives evidence as to raising funds by way of a $900,000 overdraft through a limited 40-day facility to pay out the NAB mortgage on the G Street property. He gives evidence as to that facility being part of a $40 million financing facility obtained by Vukasin Pty Ltd. It is his evidence that he requires the primary payment from the wife due on Monday 25 November 2025, or the G Street property as security for future borrowings, in order to prevent a domino effect by way of his financing arrangements entered, relying on the judgment he obtained and the presumption that the judgment was correct.
The husband by way of paragraph 10 of his affidavit filed on 21 November 2024 gives evidence that he will undertake not to encumber the G Street property other than to make the payment to the wife pursuant to Order 8 made 30 September 2024 in the sum of $2,420,650 due on 23 December 2024 pending determination of the wife's appeal. The husband's undertaking ensures that the wife's appeal, if successful, is not rendered nugatory. The G Street real property will remain in specie albeit legally held by the husband and not the wife and hence available to be potentially adjusted back to the wife if her appeal is successful and the matter remitted. As I understand his position, he will give that undertaking as a condition of the application for a stay being dismissed.
During the hearing of the stay application, the husband further advised that he would permit the wife to remain in occupation of the G Street property pending determination of her appeal. That further favours the balance of convenience in favour of the husband and ensures that the wife and the children will continue to occupy the house, pending the exhaustion of her rights on appeal.
CONCLUSION
By way of summary, I have reservations as to whether the Notice of Appeal discloses sufficient merit to attract appellate intervention.
I am mindful:
(a)That by way of the primary reasons, findings were made as to the failure of the wife to comply with her obligations pursuant to ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The rules have the effect of being orders of the Court.
(b)That the wife's conduct in not executing the authority to discharge the mortgage and the potential undertones that carry with it an attempt to achieve a forensic advantage for the purposes of the stay application.
(c)Of the lengthy period these parties have been engaged in the litigation, now being in excess of four years.
The wife identifies that she will agree to a condition of any stay that she would pay all mortgage repayments in the event the husband redrew the $933,437 from the existing NAB facility secured against the G Street property, then permitting him to apply those funds to discharge his temporary overdraft as part of the Vukasin Investment Pty Ltd facilities identified earlier in these reasons. She further indicated that she would pay all outgoings, utilities and insurances on the property going forward.
Notwithstanding the wife's proposal, in the circumstances there is some capacity for further dispute and mischief arising should that pathway be pursued. In that shadow, cast against circumstances where:
(a)The primary orders gave the wife the opportunity to progress the retention, at her election, of the G Street property by way of the sequential processes canvassed at trial. She has failed to do so; and
(b)The undertaking is given by the husband as a condition of the balance of the application for stay being dismissed, such that the subject matter of the appeal, identified as the G Street property in specie, will not be rendered nugatory. The property will be retained and not be sold, with the wife and her children having continued capacity to occupy it; and
(c)The husband will suffer financial prejudice if the title of the G Street property is not transferred to him,
I find that the balance of convenience falls in favour of the husband.
The husband consents to Orders 9, 10 and 11 made 30 September 2024 being stayed pending determination of the appeal. Such order will be made. Having regard to each of the undertakings proffered by the husband, the balance of relief as to the stay of the orders made 30 September 2024 as sought, save as to costs, will be dismissed.
THE STAY OF THE HEARING OF THE HUSBAND’S COSTS APPLICATION OF THE SUBSTANTIVE PROCEEDINGS
The wife seeks a stay of the hearing of the costs application made by the husband currently listed for hearing on 6 December 2024. I am not minded doing so. The application for costs of the substantive proceedings prosecuted by Mr Passerini remains listed for hearing on that day. The evidence to be canvassed by the wife in meeting the costs applications of both the husband and Mr Passerini listed for hearing on that day will not be substantially different of greater, nor will the costs be incurred in engaging in the costs hearing at that time engaging with the relief sought by the husband and Mr Passerini. By way of contrast, the separation of evidence and hearing days for each cost determination, being Mr Passerini’s costs application alone, and then at a later time the costs application of the husband alone, subject to the wife's success or otherwise on appeal, is significantly outweighed by maintaining the existing regime to determine each of the costs of the substantive proceedings simultaneously.
COSTS OF THE STAY APPLICATION
Each of the husband and Mr Passerini sought costs of the stay application. Each party agreed that reasons for judgment as to costs were not required. Orders will be made for the wife to pay the husband’s costs fixed in the sum of $8,000 and to pay Mr Passerini’s costs fixed in the sum of $1,800 by 24 December 2024.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 28 November 2024
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