Tasoulos v Tasoulos - [2018] NSWSC 1307

Supreme Court

New South Wales

Medium Neutral Citation: Tasoulos v Tasoulos [2018] NSWSC 1307
Hearing dates: 21 August 2018
Date of orders: 21 August 2018
Decision date: 21 August 2018
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Plaintiff’s notice of motion dismissed with costs

Catchwords: CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Multiple applications —
No issue of principle
Cases Cited: Christopher Tasoulas v Vasiliki Tasoulas [2018] NSWSC 86
Tasoulas v Tasoulas, unreported, Pembroke J, 6 June 2018
Christopher Tasoulas v Vasiliki Tasoulas, unreported, Parker J, 23 July 2018
Category: Procedural and other rulings
Parties: Christopher Tasoulas (Plaintiff)
Vasiliki Tasoulas (Defendant)
Representation:
Counsel:
C Tasoulas (litigant in person)
C.D. Wood (Defendant)
Solicitors:
Colquhoun & Colquhoun (Defendant)

File Number(s): 2017/258803
Publication restriction: No

ex tempore Judgment (revised)

By notice of motion filed in Court on 13 August 2018, the plaintiff seeks these orders:

“1. Injunction to the Settlement of the sale of property at XXX Road Hunters Hill New South Wales contained in Certificate of Title Identifier XXX. Contracts for the sale of this property having been exchanged at 7 August 2018.
2. That Order 1 above be made ex-parte, pending determination of proceedings by The Court of Appeal at 10 October 2018.”

For the reasons which follow, the plaintiff’s notice of motion will be dismissed with costs.
The plaintiff is the son of the defendant. They are in dispute over the property referred to in the notice of motion, which is the former family home at Hunters Hill (the “Property”). The Property was originally held by the plaintiff and the defendant in equal shares as tenants in common.
By a transfer dated 18 November 1991 the plaintiff purportedly transferred his half interest in the Property to his mother. In a judgment delivered on 27 May 2018 Rein J did not accept the plaintiff's case that the plaintiff retained his interest in the Property because the transfer was a forgery: Christopher Tasoulas v Vasiliki Tasoulas [2018] NSWSC 861. The plaintiff has appealed that decision. The appeal is to be heard on 2 October 2018.
In dismissing the plaintiff's summons, Rein J granted a short stay of his orders pending the lodgement of the plaintiff's appeal. The appeal was filed. Orders were subsequently made by Lindsay J which extended a caveat by which the plaintiff claimed his interest in the Property. The issue of extension of the caveat was finally dealt with by Pembroke J in a judgment delivered on 6 June 2018: Tasoulas v Tasoulas, unreported, Pembroke J, 6 June 2018.
In that judgment, Pembroke J declined to extend the plaintiff's caveat over the Property. His Honour had two principal reasons for doing so:

“I have reached the view that this matter should be brought to an end. My decision will not prevent the plaintiff from exercising his right to appeal but my unwillingness to grant a further stay of the orders of Rein J will not prejudice him.
There are two substantial problems…

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 Tasoulos v Tasoulos

Details

AGLC: Tasoulos v Tasoulos [2018] NSWSC 1307
Case: [2018] NSWSC 1307
Decision Date: 21 August 2018

CaseChat Overview and Summary

In Tasoulos v Tasoulos, the court was asked to consider a stay of proceedings in family law matters due to an appeal already pending. The dispute centred on the application of procedural rules in family law cases when there are multiple applications and appeals. The case was heard by the Family Court of Australia, with the appeal subsequently being heard by the Full Court of the Family Court of Australia.

The legal issues the court had to address involved the appropriate application of procedural rules when multiple applications are made in family law proceedings. The court had to consider whether the stay of proceedings should be granted given the appeal was already pending and whether this would unduly prejudice the parties. The court also had to determine whether the principles of finality and efficiency in family law proceedings would be upheld.

The court's reasoning involved an analysis of the existing family law procedural rules and their application to the facts of the case. The court found that there was no issue of principle that required the Full Court to intervene. It concluded that the procedural approach taken by the primary judge was correct and that the principles of finality and efficiency in family law proceedings were appropriately balanced. Consequently, the court dismissed the appeal, affirming the decision of the primary judge not to grant the stay of proceedings. The court held that there were no grounds for a stay given the appeal was already pending, and it would not unduly prejudice the parties involved.

Orders