FAMILY COURT OF AUSTRALIA
| ZHAI & NIU | [2015] FamCA 639 |
| FAMILY LAW – PRACTICE & PROCEDURE – Stay Application – Where the husband filed a Notice of Appeal in relation to certain interim orders that were previously made – Where one of those orders restrained the husband from disposing, encumbering or further encumbering any asset of numerous corporations and trusts, other than in the ordinary course of business – Order made conditionally staying that order, to the extent that it precluded the husband from causing or permitting use of the assets of the corporations and trusts in a way that would enable his compliance with a spousal maintenance order – All other applications dismissed – Both parties to bear their own costs of the interim hearing |
| Family Law Act 1975 (Cth), ss 94AA, 117 Family Law Regulations 1984 (Cth), reg 15A Family Law Rules 2004 (Cth), rr 19.04 |
| Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc (1981) 148 CLR 170 Australian Coal & Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 Federal Commissioner of Taxation v Myer Emporium (No. 1) (1986) 160 CLR 220 Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No. 1) (1986) 161 CLR 681 Marriage of Rutherford (1991) FLC 92-255 Strahan & Strahan (interim property orders) (2009) 42 Fam LR 203 |
| APPLICANT: | Mr Zhai |
| RESPONDENT: | Ms Niu |
| FILE NUMBER: | SYC | 8031 | of | 2014 |
| DATE DELIVERED: | 28 July 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 28 July 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR THE APPLICANT: | Kells The Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
Order 14(b)(vi) made on 16 July 2015 is stayed to the extent only that it precludes the Husband from causing or permitting the use of assets of the corporations and trusts referred to in Order 14(a) in a way that would enable his compliance with Order 12.
The parties shall pay his or her own costs of, and incidental to, the interim hearing conducted today.
Otherwise:
a.The Application in a Case filed on 22 July 2015 is dismissed;
b.The Response to the Application in a Case filed on 27 July 2015 is dismissed; and
c.Any and all outstanding interim applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhai & Nui has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC 8031 of 2014
| Mr Zhai |
Applicant
And
| Ms Niu |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 16 July 2015, I determined an interim dispute between the parties in respect of orders sought under both Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”).
On 22 July 2015, the husband filed a Notice of Appeal in respect of the orders made pursuant to Part VIII of the Act;…
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- AGLC
- Zhai & Niu [2015] FamCA 639
- Case
- [2015] FamCA 639
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Order 14(b)(vi) should be stayed to the extent that it prevented the husband from utilising the assets of specified corporations and trusts to comply with Order 12. The court also had to determine the costs of the interim hearing and the fate of outstanding interim applications.
Austin J reasoned that a partial stay of Order 14(b)(vi) was warranted to permit the husband to use the relevant corporate and trust assets for compliance with Order 12. This approach balanced the need to uphold the original orders with the practical reality of the husband's obligations. The court ordered that Order 14(b)(vi) be stayed only to the extent that it precluded the husband from causing or permitting the use of those assets in a manner enabling his compliance with Order 12.
Consequently, the court ordered that the parties bear their own costs of the interim hearing. Furthermore, the Application in a Case filed on 22 July 2015, the Response to the Application in a Case filed on 27 July 2015, and all other outstanding interim applications were dismissed.
Orders
Orders of the court
1.
Order 14(b)(vi) made on 16 July 2015 is stayed to the extent only that it precludes the Husband from causing or permitting the use of assets of the corporations and trusts referred to in Order 14(a) in a way that would enable his compliance with Order 12.
2.
The parties shall pay his or her own costs of, and incidental to, the interim hearing conducted today.
3.
Otherwise:
a. The Application in a Case filed on 22 July 2015 is dismissed;
b. The Response to the Application in a Case filed on 27 July 2015 is dismissed; and
c. Any and all outstanding interim applications are dismissed.
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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