Pearson and Pearson (No 2)

[2020] FamCA 684

FAMILY COURT OF AUSTRALIA

PEARSON & PEARSON (NO. 2) [2020] FamCA 684

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application by husband seeking a stay of a costs order pending determination of an Appeal – Application for a stay granted subject to conditions – Costs of the parties are reserved – Interest to accrue on the award of costs pursuant to the provisions of the costs order, although not enforceable until such time as the stay is discharged

Family Law Act 1975 (Cth)

APPLICANT: Mr Pearson

RESPONDENT: Ms Pearson

FILE NUMBER: SYC 8557 of 2015

DATE DELIVERED: 25 May 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 25 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingston

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

COUNSEL FOR THE RESPONDENT: Ms McKinley

SOLICITOR FOR THE RESPONDENT: Russell Kennedy Aitken Lawyers

Orders

1. The Costs order made by this court on 6 May 2020 be stayed subject to:-

   (a)the applicant, Mr Pearson, filing and serving a Notice of Grounds of Appeal in respect of that order made on 6 May 2020 within twenty eight (28) days from the date of this order; and

   (b)the stay will continue to the end of that twenty eight (28) day period, if no appeal is lodged and then cease or if an appeal is lodged the stay will continue in place until such time as the appeal is either determined, withdrawn or abandoned.

IT IS NOTED

1. Interest will run on the amount of costs of $136,577.52 in accordance with the times provided in the costs order, although not be enforceable until such time as the stay is discharged.

2. The parties are in agreement that the land at Suburb F is to be sold by the parties by agreement and the funds placed in trust pending the outcome of the appeal/s.

IT IS FURTHER ORDERED

1. The costs of both parties are reserved

2. Any costs application under this order shall be made within twenty eight (28) days after the later of the determination, withdrawal or abandonment of the appeal in relation to the December 2019 substantive order and/or the appeal in relation to the 6 May 2020 the costs order.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Pearson & Pearson 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 HOBART

FILE NUMBER: SYC 8557 of 2015

Mr Pearson

Applicant

And

Ms Pearson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Pearson (‘the husband’) and Ms Pearson (‘the wife’) were engaged in proceedings in the Family Court to set aside a property order which was made in about 2007.  Those proceedings were heard by me last year, and on 6 December 2019 I published Reasons and made orders:-

   (a)dismissing the husband’s application to set aside the 2007 orders;

   (b)dismissing all other extant applications except for costs,

   (c)directing that any costs application ought to be made in accordance with the family law rule; and

   (d)that those rules provided for costs applications to be made within a specific period of time.

2. Shortly after the delivery of those Reasons and the making of those orders, the husband filed an appeal in the Full Court, but has not sought a stay of that order until May of this year.  The wife applied in January 2020 for a costs order, and this Court made some directions in January 2020 for written submissions so those costs could be considered.  No application was made for stay of that order in the light of the appeal.

3. Submissions were made.  Each of the parties engaged in the process of determining costs, and on 6 May 2020, I published Reasons and I made costs orders on an indemnity basis in a specific sum.  Following that order being made, the application which is being heard today was filed by the husband on 12 May 2020.

4. In accordance with the request of the husband, this matter was listed urgently and listed for today.  Directions were made for the wife, should she wish to, to file any material on or before last Thursday.  She did not do so, although a letter of January 2020 to the husband’s solicitors was tendered today without objection, and it is Exhibit 2.

5. The husband also tendered the exhibits to his affidavit sworn 12 May, which was filed at the same time.  The husband was represented by counsel and the wife by her solicitor.  The parties appeared through the medium of Microsoft Teams, albeit that the technology of the wife’s solicitors did not enable visual attendance, but enabled her audio attendance.  The husband and his solicitor were present in the same room as counsel during submissions.

6. In terms of the relief sought, the husband does not seek relief sought in part of his application; that is, a stay the orders made by me in December last year, and that makes sense as it was a dismissal, and there is no utility in staying that order.  It will be a matter for the Full Court to determine whether it sets aside that order, varies that order or dismisses the appeal.

7. The second order is that made on 15 January 2020 in relation to the costs application of the wife.  Neither party sought from this Court an extension of time under the rules to argue costs until after the appeal, and accordingly this Court was obliged to act in accordance with the application, and set out a schedule and timetable which the parties complied with, and Reasons for Judgment were delivered. 

8. The husband quite properly is not pursuing that order, because any pursuit of that order would, in any event, be moot, and his primary concern is the order made on 6 May 2020 in relation to the indemnity costs.

9. I am told by counsel for the husband that the cost order would evaporate once the appeal in respect of the substantive matter was determined, if it was determined successfully.  I am not sure that this matters as a matter of law.  The order would still be in existence, and there would still need to be an application to the Full Court to set that order aside.  No appeal has been lodged in relation to the costs order, although the period of time for filing an appeal has still another week or so to run.

10. Much of the submissions of counsel for the husband related to the substantive appeal, he said, and I accept his submission that the appeal is not without merit.  I accept the bona fides in relation to the appeal.  I am not sure that the appeal has a strong enough chance of success, as is asserted by counsel for the husband, although perhaps trial judges are always cautious or should be cautious about commenting on the chance of success.

11. The relevant principles include, of course, the onus of establishing a proper basis for stay.  A person who has obtained a judgment is entitled to the benefit of that judgment; a person who has obtained judgment is entitled to presume the judgment is correct, and the mere filing of an appeal is insufficient to ground a stay.

12. The Court has powers to grant a stay on terms that are fair to all parties, and weighing the risk that an appeal may be nugatory if a stay is not granted.  In this case, there was no submission to that respect, and of course there has to be some preliminary assessment in this stage in respect of the strength of the proposed appeal.  I accept that the appeal is likely to be heard later on this year as the Full Court has adopted a fairly constructive approach in terms of hearing appeals by way of Microsoft Teams and delivering those appeals in that way. 

13. Given the existence of the appeal, it seems to be that there ought to be a stay of some description.  However, the stay would have to be subject to some conditions.  The first of those is that within 28 days from today’s date, an appeal is filed by the husband in respect of the costs.  I do not think it would be appropriate for a stay order to be put in place without an appeal being lodged by the husband in respect of that order.

14. The second, as I raised with counsel for the husband, is I intend to note that if the appeal in respect of the substantive order is unsuccessful, and presumably the appeal in relation to the costs order is unsuccessful, then interest should run on the amount in accordance with the Family Law Rules 2004 (Cth).

15. In terms of costs, the last thing I want to do is create yet another appeal.  I intend to reserve the costs of both parties for any application filed within 28 days of the appeals being finally determined, and I express that it is appeals finally determined in the plural rather than the singular. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 25 May 2020.

Associate:     

Date:              16 June 2020