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Matech & Matech [2019] FamCA 36 (31 January 2019)

FACTS:

  • 3 January 2019, the husband filed an appeal against the orders made on 7 December 2018(Matech & Matech(No. 2)  [2018] FamCA 1029)  and requests the orders be dismissed and the parties to “attend at mediation to finalise the proceedings”.
  • The husband is appealing for he believes the Judge failed to take into account the [G Street] property provides equity to allow him to operate his business. Furthermore, the husband states the Judge failed to consider any taxation consequences as a result of the sale of the property.
  • Having filed the appeal on 7 January 2019, the husband sought a stay of the orders, pending the hearing of the appeal.
  • The wife opposes the stay being granted.

ISSUE:

Is there merit to grant the stay order, pending the hearing of an appeal?

HELD:

The court determined the application is to be dismissed. The Husband is also ordered to pay the wife’s cost of the application of stay, this is to be reserved until the trial of the enforcement proceedings, then they can work out the assessments of costs and when payment needs to be paid.

The principles applied to the process of an order, pending the hearing of an appeal, are settled in Aldridge & Keaton (Stay appeal)  [2009] FamCAFC 106 . In this case it emphasises the discretionary nature of the application, which should be decided on its evidence.

The court accepts the husband’s application for stay is genuine, that converting his interest in the G Street property to cash rather than an interest in property, will mean he is unable to use the “equity” for future borrowings to maintain his business as a property developer.

However, the onus is on the husband to establish an appropriate basis for the stay. The husband fails in his affidavit to do this – only making legal allegations.

It was determined by applying the principles and weighing the risk and strength of the proposed appeal, that the husband’s case of appealing the orders for the sale of G property are not strong.

 

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