Wei and Wei (No 4)
[2020] FamCA 160
•11 March 2020
FAMILY COURT OF AUSTRALIA
| WEI & WEI (NO. 4) | [2020] FamCA 160 |
| FAMILY LAW – PRACTICE AND PROCEDURE – STAY PENDING APPEAL – applicant having no prospects on appeal – relevant legal criteria for grant of a stay considered – none of the criteria met – stay application unmeritorious – dismissed – costs ordered. |
| Family Law Act 1975 (Cth) s 117(2A) |
| Aldridge & Keaton [2009] FamCAFC 106 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Commissioner of Taxation (Cth) v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 Jackson & Balen [2009] FamCAFC 131 Jennings Constructions Ltd & Burgundy Royale Investments Property Ltd (No 1) (1986) 161 CLR 681 Marconi's Wireless Telegraph Co Ltd v Commonwealth (No 3) (1913) 16 CLR 384 Paino v Paino [2007] NSWSC 468 Wei & Wei (No 3) [2020] FamCA 98 |
| APPLICANT: | Mr Wei |
| RESPONDENT: | Ms Wei |
| INTERVENOR: | J Lawyers Pty Ltd |
| FILE NUMBER: | MLC | 530 | of | 2017 |
| DATE DELIVERED: | 11 March 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 11 March 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J. Eley |
| SOLICITOR FOR THE APPLICANT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
| COUNSEL FOR THE INTERVENOR: | Mr G. Holmes |
| SOLICITOR FOR THE INTERVENOR: | J Lawyers |
Orders
The application for a stay of my orders made on 31 January and 24 February 2020 is dismissed.
The husband pay to the intervenor costs of and incidental to the stay application.
The intervenor’s application for Kenna Teasdale to be disqualified from acting on behalf of the applicant husband is adjourned to a date to be fixed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wei & Wei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 530 of 2017
| Mr Wei |
Applicant
And
| Ms Wei |
Respondent
And
| J Lawyers Pty Ltd |
Intervenor
REASONS FOR JUDGMENT
(Ex tempore)
Following the trial of this proceeding I handed down reasons for judgment which required correction in relation to funds in trust, resulting in my publishing of the third in the trilogy of reasons in this case and the last repository of my reasons in Wei & Wei (No 3).[1]
[1] [2020] FamCA 98.
Pursuant to the orders given in that decision, I required the money that was held in various trust accounts to be disbursed as to 65% in favour of the applicant and as to 35% in favour of the respondent. In view of the claim to an equitable lien, I made orders that the claim by J Lawyers was to be met from the sum ordered in favour of the wife as to $133,765.39. The balance of the 35% in the trust account was to be provided to the wife and 65% of the corpus sum in trust was to be paid to the applicant.
The applicant has appealed my decision, as he is entitled to do. However, the applicant seeks an order staying the operation of my orders pending appeal. In essence, he says that if my orders are given effect and performed according to their terms, there will be no funds in the trust account rendering the appeal nugatory.
Mr Eley of counsel who appeared before me on this stay application advanced three propositions in support of the stay.
First, he contended that if the orders were carried out, the orders for the payment of funds to his client would be rendered nugatory.
Second, he contended that I must take into account the grounds of appeal and that they enjoy, at least at this preliminary stage, reasonable prospects of success. Put slightly different, he urged me to accept that the grounds were advanced bona fide and it could not be said that they were utterly hopeless.
Third, in support Mr Eley contended that no prejudice was occasioned to the intervenor, for whom Mr Holmes of counsel appeared, if the orders made were stayed.
Mr Eley relied on the well-known decision in Aldridge & Keaton[2] as well as the decision of the Supreme Court of New South Wales in Paino v Paino.[3]
[2] [2009] FamCAFC 106.
[3] [2007] NSWSC 468.
In opposing the application advanced by the applicant for a stay of my orders, Mr Holmes relied on authority at High Court level in Jennings Constructions Ltd & Burgundy Royale Investments Property Ltd (No 1).[4] That was a stay application in which the High Court had occasion to pronounce upon certain of the criteria that a court that is asked to stay its own orders and reasons must apply. It is utile to extract the observations of Brennan J in the following terms –
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. That was the situation to which this Court adverted in Marconi's Wireless Telegraph Co Ltd v The Commonwealth (No 3).[5]
[4] (1986) 161 CLR 681.
[5] (1913) 16 CLR 384.
Of course, it must be recognised that the decision in Jennings Constructions Ltd & Burgundy Royale Investments Property Ltd (No 1) involved an application for a stay pending the hearing and determination for an application for special leave to appeal to the High Court of Australia. That is not this case, so some of the observations expressed by Brennan J must be tempered with that in mind.
The observations of Barrett J of the Supreme Court of New South Wales in Paino v Paino are also of general application but not specific application in the circumstances of this case, having regard to the fact that different rules govern applications for appeal in the Supreme Court of New South Wales. That said, paragraph 15 of Paino v Paino provides useful, albeit persuasive, guidance to a single judge such as me hearing an application for a stay of trial orders. More applicable to the jurisprudence of this court are the decisions of Aldridge & Keaton and also the decision more recently given in Jackson & Balen.[6] In view of the fact that the plurality in Jackson & Balen drew together the learning in a manner more expansive than was given in Aldridge & Keaton, I propose to apply it. The relevant passage of application in this case is at paragraph 28. It is utile to extract it here –
[6] [2009] FamCAFC 131.
The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd (No 1);[7] Alexander v Cambridge Credit Corporation Ltd;[8] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd.[9]) Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following –
[7] (1986) 160 CLR 220 at [222].
[8] (1985) 2 NSWLR 685.
[9] (1986) 161 CLR 681.
i.the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
ii.a person who has obtained a judgment is entitled to the benefit of that judgment;
iii.a person who has obtained a judgment is entitled to presume the judgment is correct;
iv.the mere filing of an appeal is insufficient to grant a stay;
v.the application must be bona fides;
vi.a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
vii.a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
viii.some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
In support of his contentions for the stay application, particular emphasis was placed by Mr Eley on the proposition that the appeal may be rendered nugatory if the stay were not granted. He also contended that no prejudice was occasioned to the intervenor if a stay was not ordered.
That was to be balanced against the contentions for which Mr Holmes contended in opposition to the stay application. Working through those, as adumbrated by the court in Jackson & Balen, in my view the following emerges –
a)while it is not necessary for special or exceptional circumstances to be shown by the applicant, the applicant must nevertheless establish a proper basis for the stay. I am persuaded that the applicant has a right if he is able to so do, to seek to persuade an appeal court that my decision must be overturned and therefore it is necessary and relevant to examine whether there is a proper basis for the grant of a stay. It seemed to me that the applicant’s primary contention in this whole litigation – that he was entitled to 100% of the proceeds in the account held in trust – was forlorn. It was unrealistic in the extreme for him to so contend, still less maintain that he was ever to be entitled to 100% of the proceeds in the pool. He wishes to vindicate that position on appeal. Whether that transgresses into the basis for his stay application being proper remains to be seen. At this stage I am not persuaded that his grounds enjoy any particular merit on appeal;
b)so far as the next paragraph agitated by the court in Jackson & Balen was concerned, it is trite to say that a person who has obtained a judgment is entitled to the benefit of that judgment. In this case, J Lawyers has been without funds properly due to it for a substantial period of time. Quite properly, it relied on and enforced its equitable lien and its rights over the proceeds ordered to be paid to their former client, the wife. That firm should be entitled to enjoy the benefit of that judgment unless and until it is demonstrated, by pronouncement of an appeal court in this case, that my judgment is wrong. At this stage I am not willing to entertain the prospects that my judgment is erroneous;
c)next, it was said that the mere filing of an appeal is insufficient for the grant of a stay. That much is trite. To consider otherwise would be to permit opportunistic applications commenced by the filing of an appeal so as to operate as a stay, wholly antithetical to the proper administration of justice;
d)next, it was said that the applicant must be bona fides. I accept that the applicant wishes to exercise such rights as he is able on appeal and to that extent, I am willing to presume that he is bona fide in the advancement of the appeal. It is possible for a stay to be granted on terms but no terms have been sought in this case;
e)so far as the last two subparagraphs adumbrated in paragraph 28 of the reasons of Jackson & Balen were concerned, it was said that “a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted” is an important consideration. I agree. This highlighted a point much agitated between the parties. Embedded in the submissions of the applicant, carefully and properly advanced by Mr Eley, was the contention that J Lawyers either lacked the financial wherewithal or had some doubt about whether my orders, if reversed on appeal, would be restored. I am not willing to proceed on that basis. Mr Holmes is correct in contending that his clients are officers of the court and are required to abide by a very high level of ethical propriety at all times and I accept without reservation that they do so;
f)so far as J Lawyers’ financial capacity to meet any order that might be reversed if the applicant’s appeal is successful is concerned, it fell to the applicant and not to J Lawyers to prove any such financial considerations. No evidence was adduced that J Lawyers lacked the financial wherewithal to restore my order if the appeal is successful. Conversely, the applicant put forward no evidence of any description, consistent with its approach in this case, about the lack of financial wherewithal of J Lawyers. I am not prepared to assume that J Lawyers will do otherwise than appropriately comply with an order if the applicant is successful on appeal; and
g)the final consideration is a preliminary assessment of the strengths of the proposed appeal and in particular whether the appellant has an arguable case. It will fall to others to determine whether the applicant has an arguable case. In my view having looked at this case at length and in exquisite detail at trial, I am not persuaded that there is one. But of course, the Full Court is well known to show trial judges wrong in that regard.
For those reasons I dismiss the application for a stay. If the applicant wishes to pursue his application for a stay he can make his application in the appellate court.
Mr Holmes has applied for his client’s costs of successfully opposing this application. Under s 117(2A), one of the factors that goes to a consideration of costs is the success or otherwise of the application. The applicant has been wholly unsuccessful in his stay application and it follows that costs should, in my view, follow the event and I propose to make an order that the applicant pay the costs of and incidental to this application for a stay.
I otherwise adjourn the respondent’s application for disqualification to a date to be fixed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 11 March 2020.
Associate:
Date: 1 April 2020
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