Xin and Qinlang & Ors

[2020] FamCA 443

FAMILY COURT OF AUSTRALIA

XIN & QINLANG AND ORS [2020] FamCA 443

FAMILY LAW – PROPERTY – application for stay of interlocutory orders concerning sale of property – potential for absence of a stay to render a successful appeal nugatory – prejudice to the Wife of a stay – immediacy of risk to property – entitlement to benefit of previous judgment – application refused  

Family Law Act 1975 (Cth)

Aldridge v Keaton (Stay Appeal) 2009 FamCAFC 106
House v King (1936) 55 CLR 499

APPLICANT: Mr Xin

1st RESPONDENT: Ms Qinlang

2nd RESPONDENT: Mr B Xin

3rd RESPONDENT: Ms Wang

FILE NUMBER: CAC 1782 of 2018

DATE DELIVERED: 3 June 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 3 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr I Coleman, SC

SOLICITOR FOR THE APPLICANT: Hijazi Curran Cameron Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Mr J Haddock

SOLICITOR FOR THE 1ST RESPONDENT: Dobinson Davey Clifford Simpson

SOLICITOR FOR THE 2ND & 3RD RESPONDENTS: Farrar Gesini & Dunn

Orders

1. The application for a stay of the orders of 22 May 2020 is refused and the application in a case filed 28 May 2020 is dismissed.

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 Xin & Qinlang 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 CANBERRA

FILE NUMBER: CAC 1782 of 2018

Mr Xin

Applicant

And

Ms Qinlang

Respondent

And

Mr B Xin and Ms Wang

2^nd & 3^rd Respondents

REASONS FOR JUDGMENT

1. This application concerns the stay of interlocutory orders made in relation to the sale of a property owned by the parties pending the appeal of those orders by the Husband.

2. Orders of 22 May 2020 provide for the Husband to vacate a property at Suburb E in the Australian Capital Territory, for the Wife to be appointed trustee for the sale of that property and for the application of the proceeds of the sale to preserve the parties’ interest in the F Franchise at Suburb H.

3. On 27 May 2020 the Husband applied for leave to appeal the non-procedural orders.  On 28 May 2020 the Husband applied for a stay of the orders to be granted.

4. The Husband offers terms on the stay, being the requirement that he expeditiously prosecute the appeal, and that the parties have liberty to apply on short notice for the variation or setting aside of the stay, should justifying circumstances arise.

5. The principles in relation to such a stay were repeated in Aldridge v Keaton (Stay Appeal) at [18]:[1]

   [1]Aldridge v Keaton (Stay Appeal) 2009 FamCAFC 106

   The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   ·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;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the bona fides of the applicant;

   ·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;

   ·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;

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   ·the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings are a significant consideration.

6. In pursuing the appeal the Husband focussed upon an assessment of the prospects of the appeal, the rendering nugatory of the appeal if a stay is not granted, and as to the prejudice to the Wife if a stay is granted.

7. In addition, the Wife also raised the issue of the Husband’s bona fides, although there is no cogent reason to doubt the bona fides of the appeal, and noted that she is entitled to presume the correctness of the decision under appeal and to reap the benefits of that decision.

The background

1. Briefly put, the judgment the subject of the appeal dealt with competing contentions of the parties as to the need to finance refurbishment of the premises of the F Franchise, and as to the sale of the parties’ property at Suburb E to fund such.

2. It was not contentious that failure to refurbish in accordance with the franchise obligations could result in the loss of the business.  It was not contentious that the parties could seek to have this obligation relaxed, the Wife having successfully done so previously, and the Wife having, in February 2020 again sought such without response from the franchisor.  It was not contentious that the Husband had approached the franchisor on the same topic, without having obtained an extension.

3. The degree of risk that the business would be lost was a matter of contention.

4. It was not contentious that the Husband resides in the Suburb E property.  He asserted that he wishes to retain that property in any property settlement.

The prospects of the appeal

1. The Husband correctly identified that this is not the occasion for the prehearing of the appeal, noting that the grounds pleaded reflect recognised grounds, whatever their merit.

2. The Husband noted that the grounds do not involve a complaint as to the weight given to various matters.  Despite this it may be observed that a number of the grounds appear to be an attack upon the manner of the exercise of the discretion, such attacks being limited by the principles set out in House v The King.[2]

   [2]House v King (1936) 55 CLR 499

3. A number of the grounds make complaint regarding both the factual conclusions reached, and the manner of reaching them.  Those matters in large part relate to a non-contentious aspect of the case, being that it was open to the parties to seek a further amelioration of the requirement to refurbish.

4. No suggestion was made that the sale of the Suburb E property would reduce the pool of property.

5. Complaint is also made as to failure to take adequate regard of the COVID-19 pandemic.

6. I am unable to assess the Husband’s prospects on appeal as strong.  Similarly I am unable to assess his grounds as inarguable.

Rendering the appeal nugatory

1. The Husband correctly identified that the absence of a stay could render a successful appeal nugatory.

2. The current orders permit the Wife to sell the property.  Should she be able to do so prior to an appeal judgment being delivered then, even if the decision the subject of the appeal is erroneous, the Husband would lose the benefit of the successful appeal.

3. This is a strong consideration in favour of the granting of a stay.

The prejudice to the Wife of the granting of a stay

1. Allied to this consideration, the Husband observed that his application for leave to appeal is listed before a judge or registrar on 24 June 2020.  He proposes to pursue expedition at that time.  There is good reason to anticipate that, given the issues at stake in this matter, expedition may be granted.

2. In terms of when an appeal might be heard, the Husband notes the efforts of the Full Court in dealing with matters during the current COVID-19 pandemic. Understandably there was no indication given as to when the matter, even if expedited, might be heard.

3. Also allied to this, the Husband offered that a term of any stay could include liberty to the parties to seek a relisting of the stay should circumstances arise justifying the lifting of the stay, such as a direct indication of imminent action on the part of the landlord of the business to evict the business (or, presumably, action by the franchisor to terminate the franchise).  Presumably that would offer the Wife an opportunity to re-litigate that which was the subject of the orders the subject of this application, if it was not then too late to recover the position with the landlord or franchise holder.  Little assurance can be taken from this offer as practically being protective of the Wife’s position.

4. It may be observed that the question of the prejudice to the Wife of the stay is the same issue agitated on the substantive application the subject of the application for leave to appeal.  The application for the stay involves a revisiting of the same ground covered by the substantive judgment.

5. In those proceedings it was uncontroversial that the business is at risk of being completely lost to the parties under the franchise agreement if the refit does not occur.  The key issue was the immediacy of that risk.  In the context of the Wife having obtained two extensions, and then having been unsuccessful in obtaining a further extension despite having sought it in February, the risk to the asset and the pool was adjudged as sufficient to justify the injunctive relief of the sale of the Suburb E property.

6. Those same factors still persist.

7. As noted above, the Wife is entitled to the benefit of the judgment and to presume it is correct.

8. Although these matters do not remove the risk to the Husband of his appeal being rendered nugatory, they provide a sufficient counterpoint to refuse the relief of a stay of the orders.

9. The Husband’s application for a stay will be refused.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 June 2020.

Associate: 

Date:  3 June 2020