STONE & STONE

[2013] FamCAFC 134

FAMILY COURT OF AUSTRALIA

STONE & STONE [2013] FamCAFC 134

FAMILY LAW – APPEAL – PROPERTY − STAY OF PROCEEDINGS – refusal by trial judge to grant stay – husband appealed – where the husband’s principal argument in favour of the stay was that while he would be obliged to sell property to satisfy the order in favour of the wife, the order appointing the wife as trustee to sell all of his property portfolio to satisfy the order would amount to a “fire sale” of those investments from which it would be difficult for him to recover financially – application for leave to appeal granted – order stayed.

Family Law Act 1975 (Cth)

APPELLANT: Mr Stone

RESPONDENT: Ms Stone

FILE NUMBER: SYC 6953 of 2009

APPEAL NUMBER: EA 82 of 2013

ORDERS MADE: 22 August 2013

JUDGMENT DELIVERED: 3 September 2013 PLACE DELIVERED: Sydney

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bryant CJ, Ainslie-Wallace & Johnston JJ

HEARING DATE: 22 August 2013

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 19 June 2013

LOWER COURT MNC: [2013] FamCA 479

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Todd

SOLICITOR FOR THE APPELLANT: McDonnell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: Diana Perla & Associates

Orders as made on 22 August 2013

1. The appellant’s application for leave to appeal is granted.

2. The operation of Order 4 of the Honourable Justice Fowler on 18 April 2013 be stayed until 22 December 2013 or until the hearing and determination of the appeal, whichever shall be the earlier.

3. The costs of this appeal shall be treated as costs in the substantive appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone & Stone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 82 of 2013
File Number: SYC 6953 of 2009

Mr Stone

Appellant

And

Ms Stone

Respondent

REASONS FOR JUDGMENT

1. On 22 August 2013 the Full Court made orders granting a stay of an order made by Fowler J on 18 April 2013.  We indicated that we would deliver brief reasons for the making of that order.  These are the reasons.

2. On 18 April 2013, Fowler J made orders in property proceedings between Mr Stone (“the husband”) and Ms Stone (“the wife”).  The husband appeals those orders.

3. On 29 May 2013 the trial judge heard an application by the wife for costs of the proceedings between the parties, and relevantly to this appeal, an application by the husband for an order staying the operation of Orders 1 and 4 made by his Honour on 18 April 2013 pending determination of his appeal against those orders. Order 1 provided for the husband to pay $1,670,435 to the wife within two months from the date of the orders.  Order 4 provided that, in the event that the sum specified in Order 1 (inter alia) was not paid, then within 24 hours of the default the wife shall forthwith be appointed trustee for sale of the various properties and from the net proceeds received, to receive the sum specified.

4. The husband offered to pay the wife a sum of $480,000 as a term of the granting of a stay. 

5. The trial judge refused to order a stay.  The husband appealed against his Honour’s refusal to stay those orders.  The husband has since proffered and the wife accepted, the sum of $480,000.

6. As the argument on the stay proceeded, it became clear that the husband’s principal argument in favour of the stay was that, while he would be obliged to sell property to satisfy the order in favour of the wife, the order appointing the wife as trustee to sell all of his properties to satisfy the order would amount to a “fire sale” of those properties from which it would be difficult for him to recover financially.  The husband contended that, if a stay was granted, he could sell such properties as required in an orderly way.

7. Given that concession and being persuaded that the appeal is arguable, it was suggested to the parties that a stay of Order 4 for a limited time may be an appropriate order in the circumstances and to determine the appeal.  Both parties were content if that order was made. 

8. It is however to be observed that the order for stay, being for four months from the date of the appeal hearing, is intended to permit the husband to take what steps are required to satisfy the order in the wife’s favour consistent with his submissions.  It should not be thought that, having had the benefit of the stay, it is necessarily open to the husband to return to the court and seek an extension of that order.

Costs

1. As is usual we sought submissions from each party on the question of the costs of the appeal.  It was agreed that the costs of this appeal should be costs on the principal appeal.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace and Johnston JJ) delivered on 3 September 2013.

Associate: 

Date: 3 September 2013