Scott & Munayallan (No 8) - [2023] FedCFamC1F 105

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan (No 8) [2023] FedCFamC1F 105

File number: SYC 59 of 2010

Judgment of: HENDERSON J

Date of judgment: 20 February 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where the applicant sought a stay of the proceedings in this Court on the first day of the final hearing pending the outcome of stay proceedings in the New South Wales Court of Appeal – Finding that if the stay application in the Court of Appeal was successful it would have no impact on the issues to be determined in this Court – Application dismissed.

Division: Division 1 First Instance

Number of paragraphs: 9

Date of hearing: 20 February 2023

Place: Sydney

Solicitor Advocate for the Applicant: Mr Patakas

Solicitor for the Applicant: Evangelos Patakas & Associates

The First Respondent: Litigant in person

The Second Respondent: Litigant in person

Counsel for the Third Respondent: Mr Rose

Solicitor for the Third Respondent: ERA Legal, Commercial, Insolvency and Litigation Lawyers

The Fourth Respondent: Litigant in person (did not participate)

The Fifth Respondent: Litigant in person (did not participate)

Solicitor Advocate for the Sixth Respondent: Mr Docker

Solicitor for the Sixth Respondent: Clyde and Co

The Seventh Respondent: Litigant in person

Counsel for the Intervener: Mr Duc

Solicitor for the Intervener: Mills Oakley Lawyers
ORDERS

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
CC PTY LTD

Applicant

AND:
MS MUNAYALLAN

First Respondent

MR SCOTT

Second Respondent

MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY LTD (and others named in the Schedule)

Third Respondent

MILLS OAKLEY LAWYERS

Intervener

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

20 FEBRUARY 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by Mr M and CC Pty Ltd on 19 February 2023 for a Stay of these proceedings be dismissed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Scott & Munayallan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
HENDERSON J:

An application has been made orally on behalf of CC Pty Ltd by Mr Patakas, solicitor, who has only just received instructions that I in some way stay, for a limited time perhaps, the commencement of the hearing of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scott & Munayallan (No 8)

Details

AGLC: Scott & Munayallan (No 8) [2023] FedCFamC1F 105
Case: [2023] FedCFamC1F 105
Decision Date

CaseChat Overview and Summary

The case of Scott & Munayallan (No 8) involved CC Pty Ltd, the applicant, seeking a stay of proceedings in the Federal Circuit and Family Court of Australia. The matter, which had been ongoing for over a decade, involved complex issues surrounding the division of a matrimonial pool between Ms Munayallan and her former husband, Mr Scott. The court was asked to consider an application for a stay of proceedings on the first day of the final hearing, pending the outcome of stay proceedings in the New South Wales Court of Appeal. The applicant argued that if the stay application in the Court of Appeal was successful, it would have no impact on the issues to be determined in this Court.

The primary legal issue the court had to decide was whether the proceedings in the Federal Circuit and Family Court of Australia should be stayed pending the outcome of the stay proceedings in the New South Wales Court of Appeal. The applicant argued that the stay in the Supreme Court proceedings would not affect the issues to be determined in this case. However, the respondents opposed the stay, arguing that granting it would result in further delays and waste of judicial resources. The court had to balance the need for finality in the proceedings with the potential impact of the stay proceedings in the Court of Appeal.

Justice Henderson dismissed the application for a stay of proceedings. The court found that granting a stay would not impact the issues to be determined in this case, as the stay proceedings in the Court of Appeal were not an appeal of a decision but rather a stay. The court also noted the significant delay in bringing the matter to a final hearing and the substantial costs incurred by all parties over the ten-year period. Justice Henderson concluded that staying the proceedings would not jeopardise the Supreme Court proceedings and would be a disadvantage to all other parties. Therefore, the application for a stay was dismissed.

The court ordered that the application in a proceeding filed by Mr M and CC Pty Ltd for a stay of these proceedings be dismissed. This decision ensures that the final hearing can proceed without further delays, allowing the court to determine the value of the matrimonial pool left for division between Ms Munayallan and Mr Scott.

Orders