ORJIT and YADU

Case [2022] FCWA 180

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ORJIT and YADU [2022] FCWA 180

CORAM: O'BRIEN J

HEARD: 22 AUGUST 2022

DELIVERED : Ex tempore

FILE NO/S: [REDACTED]

BETWEEN: MS ORJIT

Applicant

AND

MR YADU

Respondent


Catchwords:

STAY OF OPERATION OF ORDERS - Where the primary orders of this Court compel the husband to execute documents to transfer a specified property to the wife, consistent with final property orders made by the [South African Court] to which he consented - Where the husband's appeal against the primary orders was dismissed by the Federal Circuit and Family Court of Australia (Division 1) - Where the husband has filed in the High Court an application for special leave to appeal against that dismissal - Where the present application seeks a stay of the primary order pending determination of the special leave application and, if special leave is granted, the appeal - Where the application if granted would in effect stay the orders of the intermediate appellate court - Where there is no power to make the order sought - Where in any event there is no merit in the application - Application dismissed with costs.

Legislation:

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr D Klicker
Respondent : Mr F Robertson

Solicitors:

Applicant : Beacon Family Law
Respondent : Fahey Mwenda D'Adamo

Case(s) referred to in decision(s):

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Anderson & Senior (Stay Appeal) (2013) FLC 93-556

Cape & Cape (2013) FLC 93-549

Commissioner of Taxation v Multiflex Pty Ltd (2011) 82 ATR 724

Daebo International Shipping Co Ltd v The Ship Go Star (No 3) [2012] FCA 1475

Grassby v The Queen (1989) 168 CLR 1

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

Langley & Tarelli (No 3) (2021) FLC 94-060

Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76

Millar and Millar (1983) FLC 91-326

Molier and Van Wyk (No. 2) (1981) FLC 91-001

Orjit and Yadu [2021] FCWA 204

Patrick Stevedores Operations No 2 Pty Ltd and Ors v Maritime Union of Australia and Ors (1998) 72 ALJR 869

Perlman v Perlman (1984) 155 CLR 474

Re The Duke Group (in liq) and Corporations Law of South Australia; Gerah Imports Pty Ltd v The Duke Group (in liq) (1994) 119 ALR 401

The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220

Yadu & Orjit [2022] FedCFamC1A 79

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orjit and Yadu has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to…

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ORJIT and YADU [2022] FCWA 180
Case
[2022] FCWA 180
Decision Date

CaseChat Overview and Summary

This case involved an application by Mr Yadu, the husband, for a stay of the operation of certain orders made by the Family Court of Western Australia. The wife, Ms Orjit, had applied for final property settlement orders which were made by the Court. The Court ordered the husband to execute documents to transfer a specified property to the wife in line with final property orders made by a South African Court to which the husband had consented. The husband appealed against the primary orders and his appeal was dismissed by the Federal Circuit and Family Court of Australia (Division 1). He then filed an application in the High Court for special leave to appeal against that dismissal. The present application sought a stay of the primary order pending determination of the special leave application and, if special leave is granted, the appeal.

The court was required to decide whether it had the power to grant the husband's application for a stay of the primary order and, if so, whether the application had merit. The court held that it did not have the power to grant the application for a stay of the primary order. The court noted that the appeal had already been determined by the intermediate appellate court and that there was no merit in the application for a stay. The court dismissed the application with costs.

The court's reasoning was that the application, if granted, would in effect stay the orders of the intermediate appellate court. The court held that it did not have the power to make such an order. The court further held that, in any event, there was no merit in the application because the husband had not demonstrated any grounds for a stay of the primary order. The court dismissed the application and ordered the husband to pay costs to the wife.

Orders

Orders of the court

Orders

60 There will be the following orders:

1. The Form 2 application filed by the Respondent, [Mr Yadu], on 28 July 2022 be and is hereby dismissed.

2. The Respondent must pay costs to the Applicant, [Ms Orjit], fixed in the sum of $1,000.

These reasons are the reasons for decision delivered on 22 August 2022, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

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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