Yusuf & Yusuf (No. 2)
[2021] FamCA 513
•16 July 2021
FAMILY COURT OF AUSTRALIA
Yusuf & Yusuf (No. 2) [2021] FamCA 513
File number(s): PAC 3522 of 2017 Judgment of: FOSTER J Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – where application made by the husband for stay of final property orders pending appeal – where consideration of applicable principles – where stay granted on condition of payment of $50,000. Legislation: Family Law Rules 2004 (Cth) r 22.11 Cases cited: Yusuf & Yusuf [2021] FamCA 116
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Fauna Holding Pty Ltd and Ors & Mitchell [2000] FamCA 548; (2000) FLC 93-024
Jackson & Balen [2009] FamCAFC 131Re Middle Harbour Investments Ltd (in Liq) (unreported, Court of Appeal (NSW), 15 December 1976)
Number of paragraphs: 22 Date of last submission/s: 9 July 2021 Date of hearing: 24 June 2021 Place: Parramatta Solicitor for the Applicant: Mr Malouf of Malouf solicitors Solicitor for the First Respondent: Mr Chidiac of Sanford Legal Solicitor for the Second Respondent: There was no appearance by or for the Second Respondent ORDERS
PAC 3522 of 2017 BETWEEN: MR YUSUF
Applicant
AND: MS YUSUF
First Respondent
MR NOOR
Second Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.Orders made on 12 March 2021 be stayed pending determination of the husband’s Notice of Appeal to the Full Court on condition that the husband cause to be paid to the wife or as she may otherwise direct the sum of $50,000.00 within two months from this date.
2.Liberty to apply as to enforcement of the primary orders of 12 March 2021 in the event of the husband failing to comply with Order 1.
3.That costs of this application for stay be reserved pending determination of the Appeal.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yusuf & Yusuf has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 12 March 2021, Reasons for judgment were delivered and final orders made as to property adjustment in this matter: Yusuf & Yusuf [2021] FamCA 116. The orders were as follows:
1.The husband and wife do all things necessary and sign all necessary documents to forthwith sell the real estate property situate at 1 & 2 B Street, Suburb C being the whole of the land comprised in folio identifier ... by public auction within three months from this date at a reserve price of $1.3 million and that upon sale after payment of agents commission on sale, advertising expenses and legal expenses on sale the net proceeds of sale be paid in the following manner and priority:
(a) as to 40 per cent thereof to the wife;
(b) in payment of any arrears of council and water rates;
(c) in payment of the balance then remaining to the husband.
2. Liberty to apply as to implementation or enforcement of the previous order.
3. The second respondent’s Response in these proceedings be dismissed.
4.The second respondent do all necessary things and sign all necessary documents so as to cause to be delivered to the applicant’s solicitors the certificate of title in relation to the property situate at 1 & 2 B Street, Suburb C being the whole of the land comprised in folio identifier ... within seven days from the date of these Orders.
One of the primary issues at trial was the question of asserted funds advanced by the second respondent to the husband to construct the subject property. In essence, the Court found the arrangement was a sham.
The second respondent’s claim was dismissed and property orders as between the primary applicant wife and the husband were made as above.
On 8 April 2021, the husband filed a Notice of Appeal to the Full Court.
The Grounds of Appeal are succinct as follows:
(1)The primary Judge erred in principle by failing to give proper, genuine and realistic consideration to the merits of the appellant's case with respect to the contributions by or on his behalf by the second respondent;
(2)The primary Judge failed to have regard to a relevant consideration, being the contributions made by or on his behalf by the Second Respondent;
(3)Such further or alternative grounds as the appellant is advised upon publication of the transcript of the proceedings.
The appellant husband seeks that the matter be remitted for retrial.
The present application for stay orders was filed by the husband on 29 April 2021. The husband seeks an unconditional stay order pending determination of his Appeal.
The wife seeks that the stay application be dismissed.
The Stay Application: Discussion
It is well settled that a stay will not be granted lightly or as a matter of course.
The power to order a stay (r 22.11 of the Family Law Rules 2004 (Cth)) is incidental to the right of appeal and derives from the inherent power of the Court to do whatever is necessary to prevent injustice in relation to the proceedings in the Court: Fauna Holding Pty Ltd and Ors & Mitchell [2000] FamCA 548; (2000) FLC 93-024.
In Jackson & Balen [2009] FamCAFC 131 the Full Court said at [28]:
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] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681).
Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
a)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;
b)a person who has obtained a judgment is entitled to the benefit of that judgment;
c)a person who has obtained a judgment is entitled to presume the judgment is correct;
d) the mere filing of an appeal is insufficient to grant a stay;
e) the application must be bona fides;
f)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;
g)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;
h)some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
In Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (supra) the NSW Court of Appeal outlined relevant principles as follows (at 694-695):
It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.
There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties ... The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears ... The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.
...
Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay ... Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay ... Secondly, although courts approaching applications will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution of judgment...
The Court of Appeal also referred with approval to the approach enunciated by Mahoney JA (with whom Moffitt P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in Liq) (unreported, Court of Appeal (NSW), 15 December 1976) (at 2):
Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct ... where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
Contentions
The husband relevantly contends:
(a)The wife has resided elsewhere since 27 November 2016 when she moved out of the former matrimonial home property. It ought to be fairly assumed that the wife appears to have adequately accommodated herself at all relevant times since she ceased to reside in the former matrimonial home property.
(b)At all relevant times before conclusion of the trial and thereafter, the appellant and the children of the marriage namely, Ms D, Ms W, Ms X, Ms Y, Mr Z and Mr AA have continued to reside in the former matrimonial home property and that property has remained unencumbered since the making of the Orders. One of the children, namely Mr BB, also lived at the former matrimonial home property for a period of time but has since married and now lives elsewhere.
(c)The former matrimonial home property, being a fixed asset, cannot be negotiated as if it is a liquid asset. Accordingly, there is no likelihood it can or will be disposed of without either the concurrence of the respondent or further Order of the Court.
(d)The value of the former matrimonial property in the current real estate market for the greater Sydney Metropolitan area is likely to have been maintained, if not also to have increased.
(e)If a stay is not granted and the former matrimonial property is sold at auction in accordance with the Orders, the appeal in so far as the husband seeks the home in specie will be rendered nugatory.
(f)As to issues relating to the “balance of convenience” the appellant submits that:
(i)The wife has remarried and has demonstrated that she has adequate accommodation elsewhere and there is no evidence to the contrary in that regard.
(ii)The appellant and the children of the marriage referred to in Item 7 hereof continue to reside at the former matrimonial home property and it would be a matter of significant dislocation for the appellant and the children if they are required to live elsewhere pending outcome of the Appeal, particularly if his Appeal is successful.
(iii)There is no evidence of there being any immediate risk of damage to the former matrimonial home property or of a sudden and unexpected diminution in its value caused by any currently foreseeable event.
Otherwise, it is contended by the appellant:
(a)The first, and most simply addressed, relates to the costs of the appeal and, more generally, costs in the proceedings. Even if unsuccessful, and the appellant is ordered to pay the wife’s costs of the appeal and/or consequently ordered to pay the costs of the trial, the appellant can undoubtedly meet any order made against him, which order could readily be secured. Having regard to the equity in the former matrimonial home property, there can be no suggestion that a stay could jeopardize the ability of the wife to recover any award in her favour.
(b)The second aspect of potential prejudice to the wife is concerned with delay in receiving her entitlement. There are submitted to be at least two determinative responses to any assertion that prejudice to the wife arising from delay in finalisation of the proceedings should incline the Court to refuse a stay. They are:
(i)The wife has been out of possession of the former matrimonial home property, remarried and, put bluntly and without disrespect, moved on with her life; and
(ii)Any prejudice to the wife resulting from prolongation of the proceedings is likely to be more than offset by the increase in value of the former matrimonial home property or the right to interest on her entitlement at significantly higher rates of interest than the wife could secure in the market place.
The wife, the respondent to the appeal, submits that she is devoid of funds with significant debt including for legal fees. The wife has a prima facie right to assume that the judgment is correct and to be entitled to the fruits of the judgment.
It was further submitted that the husband at trial asserted that he had not been in employment since 1996 and on government benefits from that time. His financial circumstances were the subject of some circumspection at trial. He has no capacity to pay out the wife’s entitlement by borrowing save maybe that the adult children who live in the home may assist him.
The second respondent who asserted at trial a debt owed to him by the husband, a claim that was dismissed, has not appealed that determination.
The husband’s grounds of appeal simply assert that insufficient consideration was given to the contributions made on the husband’s behalf by the second respondent. Yet at trial the claim by the second respondent as to funds advanced was dismissed. An order from which there is no appeal.
The wife properly contends that the husband’s prospects on appeal are not strong but concedes that it cannot be said that the appeal is doomed to fail.
The determination of the appeal in a timely manner is not clear by reason of the uncertainty of the progress of appeals after 1 September 2021. The husband asserts that the appeal may take from six to 12 months to be heard with a judgment to follow thereafter. If remitted for rehearing that process could take 12 to 18 months having regard to the present state of the lists at the Parramatta and Sydney registries. Thus 2023/4 looms as to when any rehearing might finalise.
Importantly, the husband seeks to retain the subject property. At trial he sought an order that he pay the wife the sum of $25,000 and that she transfer her interest in the property to him. Such order as sought by him reveals a complete lack of recognition of the wife’s contributions as set out in the reasons for judgment. She has been shut out of her entitlement in the home for years.
In considering the principles discussed above it is proper that there be a stay of the orders of 12 March 2021 subject to the husband paying to the wife the sum of $50,000 within two months.
Orders will be made accordingly.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 16 July 2021
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