Uren v Uren - [2017] VSCA 300

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0104

BRUCE NORMAN UREN	Applicant
v
NOEL MURRAY UREN	Respondent

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JUDGES:	SANTAMARIA and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2017
DATE OF JUDGMENT:	19 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 300
JUDGMENT APPEALED FROM:	[2017] VSC 265 (Judd J)

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PRACTICE AND PROCEDURE – Application for stay of execution of orders pending application for leave to appeal – Where orders relate to division of proceeds of sale of farm operated as partnership – Whether prospect that appeal may be rendered nugatory – Where applicant alleged that respondent impecunious and real risk of proceeds of judgment being dissipated partly by gambling – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Moore QC	HWL Ebsworth
For the Respondent	Mr C J Tran	DST Legal

SANTAMARIA JA
ASHLEY JA:

Introduction

On 4 September 2017, a judge in the Trial Division made orders that funds presently in court be paid in certain proportions to the applicant, Bruce Uren, and the respondent, Noel Uren. On 14 September 2017, the trial judge made orders as to costs. On 26 September 2017, Bruce Uren applied for leave to appeal the orders made on 4 September 2017 and 14 September 2017. He also applied for a stay of execution of certain parts of those orders pending the hearing and determination of the application for leave to appeal.

On 19 October 2017, this Court made orders that the application for a stay be dismissed and that the applicant pay the costs of the respondent, such costs to be taxed on a standard basis. At the time of making those orders, we indicated that we would provide reasons in due course. These are our reasons.

The dispute between Bruce and Noel Uren

Bruce and Noel Uren are brothers. Bruce, now aged 72, is a financer broker. Noel, now aged 68, is a farmer.

Since 1974, Bruce and Noel had been the registered proprietors of farming land at Walkerville, Victoria (‘Walkerville’) as tenants in common in equal shares. Walkerville comprised four lots.[1] Bruce and Noel operated Walkerville as a partnership between themselves. However, each of them disputed the terms of the partnership: Noel claimed an entitlement to wages, as a partnership expense, commencing in 1974 when the brothers became tenants in common. He also claimed interest on capital.
[1]Each lot was mortgaged to RMBL Investments Pty Ltd and Elders Rural Bank Ltd.

Over time, the partnership continued to make losses. From about 2013, the partnership broke down. Bruce and Noel agreed between themselves that the partnership would need to be dissolved, its assets sold and the proceeds used in the manner prescribed by the Partnership Act 1958 (Vic).

In June 2015, Bruce sought a declaration that the partnership was dissolved and orders for the sale of partnership assets, the application of proceeds of sale and the adjustment of entitlements. In September 2015, Noel issued a proceeding against Bruce, Exclusive Finance &…

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 Uren v Uren

Details

AGLC: Uren v Uren [2017] VSCA 300
Case: [2017] VSCA 300
Decision Date: 19 October 2017

CaseChat Overview and Summary

In the Family Court of Australia, Uren lodged an application seeking to stay the execution of prior orders that pertained to the division of the proceeds from the sale of a farm that was operated as a partnership with his ex-wife. The court was tasked with determining whether it should suspend the enforcement of these orders pending Uren's application for leave to appeal. A significant concern in this matter was the possibility that if the appeal were to be dismissed, any enforcement of the orders could render the appeal ineffective, given the potential dissipation of the judgment proceeds through the respondent's gambling activities.

The primary legal issue before the court was whether the application for a stay should be granted. This required the court to consider the prospect of the appeal being rendered nugatory if the orders were enforced and the judgment proceeds were dissipated. Uren argued that his ex-wife was impecunious and that there was a real risk that the proceeds of the judgment would be dissipated, at least in part, by her gambling. The court examined the criteria for granting a stay of execution and the likelihood of the appeal succeeding, as well as the potential consequences if the stay was not granted.

After careful consideration, the court dismissed Uren's application for a stay. The court found that the prospect of the appeal being rendered nugatory did not justify a stay, as there was insufficient evidence to support the claim that the judgment proceeds were at immediate risk of being dissipated through gambling. The court concluded that the risk was speculative and did not warrant a suspension of the enforcement of the orders. Consequently, the application for a stay of execution was dismissed, and the orders remained in force.

Orders