Wei and Wei (No 4) - [2020] FamCA 160

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

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.…

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 Wei and Wei (No 4)

Details

AGLC: Wei and Wei (No 4) [2020] FamCA 160
Case: [2020] FamCA 160
Decision Date: 11 March 2020

CaseChat Overview and Summary

The Honourable Justice Wilson considered an application by the husband for a stay of orders previously made on 31 January and 24 February 2020, in proceedings involving the wife and an intervenor. The intervenor sought costs associated with the stay application, and also applied for the disqualification of Kenna Teasdale from acting for the husband.

The primary legal issue before the court was whether the husband had established sufficient grounds to warrant a stay of the earlier orders. A secondary issue concerned the intervenor's application for costs, and a further issue related to the intervenor's application to disqualify the husband's legal representative.

Justice Wilson dismissed the husband's application for a stay of the previous orders. The court ordered that the husband pay the intervenor's costs of and incidental to the stay application. The intervenor's application for the disqualification of Kenna Teasdale was adjourned to a date to be fixed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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