JUDGE SCATHING OF HUSBANDS LAWYERS, BAD AFFIDAVITS, POOR PLEADINGS, COSTS ORDERED IN FAVOR OF WIFE!
FLAST CASE BRIEF : Kellner & Kellner [2019] FamCA 139 (14 March 2019)
BACKGROUND : De-facto husband after final property orders were made was seeking a stay of the orders pending his appeal. The wife in a smart move sought security for costs as a condition of any stay order that might be made, that way if the case drag's on by way of the husbands actions the costs are covered by the property he is avoiding selling.
ISSUE: The Court consideration of applicable principles – Where a successful appeal would not be rendered nugatory if a stay is not granted – Where the de facto husband’s appeal lacks merit – Where the de facto wife challenges the bona fides of the application
JUDGE LAYS DOWN THE LAW - SCATHING OF HUSBANDS LAWYERS - "Withnalls Lawyers".
The written submissions of the de facto husband filed on 22 February 2019 indicated that the stay was sought “pending the hearing of the husband’s appeal”.
I mention this because curiously in paragraph 1 of the affidavit filed by the de facto husband on 20 February 2019, it is said that the stay is sought until the “outcome” of the rehearing that the de facto husband seeks if the appeal is successful.
That of course is not an order that would be made, and indeed, I doubt that such an order has ever had to be considered by a court in the context of an application such as this.
Unfortunately, it is just one example of the lack of understanding by the de facto husband’s solicitor of what a stay entails, and what information should be put before the court in support of an application for a stay.
JUDGE UNLEASHES OVER BAD AFFIDAVITS, POOR EVIDENCE.
I will delve into some specifics of that later in these reasons, but suffice to say that a significant proportion of the de facto husband’s second affidavit filed on 20 February 2019, and the affidavit of the de facto husband’s son-in-law, Mr KK, also filed on 20 February 2019, was irrelevant to the application as well as being inadmissible not only for that reason, but because no regard was paid to other rules of evidence, such as the rule against hearsay.
"...short of striking out the offending paragraphs, I will be ignoring much of what was contained in those affidavits." !!!!
MORE FURY FROM THE JUDGE ABOUT COSTS:
yet the unfortunate consequence of them being filed is that the de facto wife has unnecessarily filed a responding affidavit, and both the de facto husband and the de facto wife will receive substantial bills from their respective solicitors in relation to the same.
The judge went on with his furious outrage at the husband's lawyers and all the problems with the affidavits and delays not to mention the "substantial bills from their respective solicitors".
HELD : Stay refused – Application dismissed. No exceptional circumstances having been demonstrated in relation to the application for costs and the de facto husband’s stay application, costs ordered in favour of the de facto wife to be assessed on a party/party basis in default of agreement.
Read the judgment here : Kellner & Kellner [2019] FamCA 139 (14 March 2019)