FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Piroozi & Piroozi (No 2) [2023] FedCFamC1F 554
File number: SYC 4175 of 2019 Judgment of: BRASCH J Date of judgment: 3 July 2023 Catchwords: FAMILY LAW – STAY APPLICATION – Where the husband filed a Notice of Appeal against final property orders made – Where the husband seeks a stay of orders in relation to the sale of property and spousal maintenance subject to appeal – Where the wife opposes the stay application – Where the husband has not established on balance that he can keep the home – Where the husband puts on no evidence when the appeal might be heard –Where a partial stay of the final orders is granted on conditions Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
B & the Estate of Coburn and Ors [2020] FamCA 548
Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; [1986] HCA 13
Friscioni & Friscioni [2009] FamCAFC 43
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kellner & Kellner [2019] FamCA 139
State Central Authority & Ustinov (No.2) [2008] FamCA 368
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 3 July 2023 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Godden Lawyers Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYC 4175 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PIROOZI
Applicant
AND: MS PIROOZI
Respondent
order made by:
BRASCH J
DATE OF ORDER:
3 JULY 2023
THE COURT ORDERS THAT:
1.The following orders will be stayed pending completion of the husband’s Appeal being NAA 154/2023 filed 6 June 2023: Order 5(d) and (e) of the order of 11 May 2023.
2.The proceeds of sale of the Suburb T property after the payments required by Orders 5(a), (b) and (c) of the 11 May 2023 order, are to be retained on trust for the parties:
(a)In the Controlled Monies Account of the wife’s solicitor; and
(b)Both the husband and wife are restrained from directing the wife’s solicitors from distributing any of the controlled funds other than as required by orders of the Court or written agreement.
THE COURT FURTHER ORDERS BY CONSENT THAT:
3.The parties’ costs of the husband’s Application in a Proceeding sealed 20 June 2023 is reserved to the primary judge, to be joined with the wife’s costs application which is presently stayed pending the husband’s appeal.
THE COURT NOTES THAT:
A.The effect of this Order is that the sale of the Suburb T property may proceed on the terms provided by the 11 May…
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- Piroozi & Piroozi (No 2) [2023] FedCFamC1F 554
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- [2023] FedCFamC1F 554
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CaseChat Overview and Summary
The court was required to decide whether there were grounds to grant a stay of the orders pending the determination of the appeal. The primary considerations were whether the wife was entitled to the benefit of the judgment and the presumption that the judgment was correct, and whether the mere filing of an appeal was sufficient to grant a stay. The court also had to weigh the risk that the appeal may be rendered nugatory if a stay was not granted. Additionally, the court had to assess the husband's bona fides in filing the application for a stay.
The court found that the wife was entitled to the benefit of the judgment and the presumption that the judgment was correct. The filing of an appeal alone was insufficient to grant a stay. The court accepted that the husband's application was bona fide, as he genuinely wanted to challenge the orders. However, the court also noted that if the stay was not granted, the wife would be deprived of the final fruits of the litigation, including spousal maintenance. The court found that there was a real risk that a successful appeal may be rendered nugatory if a stay was not granted, as the wife would not receive spousal maintenance during the period of the appeal. Consequently, the court decided to grant the husband's application for a stay of the orders pending the determination of the appeal.
The court ordered that the orders made by the trial judge be stayed pending the determination of the appeal. The husband was required to provide security for the wife's costs of the appeal, and the wife was required to pay the husband's costs of the stay application.
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