Alexander v Cambridge Credit Corp Ltd

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

S HOLDINGS PTY LTD (and others named in the Schedule)

1. The joinder of the second to fifth respondents is by consent of the wife and the second to fifth respondents.
2. The sixth respondent is joined by consent of all parties.

1. The seventh respondent has been joined by the court.

1. The operation of rule 8.15(3)(e) be dispensed with and the annexures to the affidavits of all parties be admitted into evidence for the purposes of the following applications (and any amendments thereto):

(a) the Application in a Proceeding filed 5 March 2025;

(b) the Application in a Proceeding filed 4 July 2025; and

(c) the Enforcement Application filed 4 July 2025.

1. The wife be at liberty to amend her Application in a Proceeding filed on 4 July 2025.
2. The following parties be joined to the proceedings for the limited purpose of determination of the Application in a Proceeding filed 4 July 2025 (including any subsequent amendments to that application):

(a) S2 Pty Ltd be joined as second respondent;

(b) S Holdings Pty Ltd be joined as third respondent;

(c) S Nominees Pty Ltd in its capacity as Trustee for the Capello Family Trust be joined as fourth respondent;

(d) Mr Y in his capacity as Trustee for Capello Unit Trust be joined as fifth respondent;

(e) Mr Capello in his capacity as Trustee of T Family Trust be joined as sixth respondent;

(f) S Pty Ltd be joined as seventh respondent.

1. By consent, orders 4(a)-(d) of the orders of 25 February 2025 be discharged.
2. The husband's Application in a Proceeding filed 5 March 2025 be dismissed.
3. Paragraphs 1 and 2 of the husband's Response to an Application in a Proceeding filed 31 July 2025 be dismissed.
4. Paragraph 1 of the wife's Enforcement Application filed 4 July 2025 be dismissed.
5. The costs of all parties be reserved.
6. All extant interim and enforcement applications are adjourned for case management before the Honourable Justice Parker on 21 October 2025 at 9.30am (to take place via Webex).

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clearer and easier to read.

1. The application pressed before the court today is the husband's application for a stay of paragraphs 2, 3, 4(e) and 6(b) of orders made by Hartnett J on 25 February 2025. Those orders provide as follows:
   1. By way of partial property settlement, and pursuant to sections 80(1) and 79 of the Family Law Act 1975 (Cth) ("the Act") and within thirty (30) days of this order, the Respondent do pay or cause to be paid to the trust account of Tolis & Co Lawyers, for and on behalf of the Applicant Wife ("the Applicant") a lump sum of $100,000.
   2. Pursuant to section 74 of the Act, the Respondent do pay, or cause to be paid, to the Applicant the sum of SIX THOUSAND DOLLARS ($6,000) per month by way of interim spousal maintenance with such payments to be made directly to the Applicant's nominated bank account commencing on the first Monday following the date of these Orders and on the first Monday of each month thereafter.
   3. Within 21 days of this order, and in the event the Respondent and Applicant cannot agree on a value for the below items, the Respondent do all such acts and things necessary to appoint and instruct [Mr B] of [C] Valuers to value the following property of the Respondent:

...

1. Within 21 days of this order the Respondent provide to the Applicant his updated financial disclosure including but not limited to:

...

(b) Bank statements for the account number [...95] for the period of 18 months prior to May 2021 to date;

1. The husband's application in this regard is contained at paragraph 2 of a Response to an Application in a Proceeding filed by him on 31 July 2025. At the hearing today he pressed that the stay he sought be imposed until the final hearing of these proceedings.
2. The husband had initially sought the discharge of the orders in question, both at paragraph 1 of the Response to an Application in a Proceeding filed 31 July 2025 and at paragraph 1 of an Application in a Proceeding filed by him on 5 July 2025. That application was ultimately abandoned by him and those paragraphs of that application and response respectively will be dismissed.
3. The husband had originally also sought a discharge or stay with respect to orders 4(a) to (d) of her Honour's orders. The wife consented to a discharge of those orders. A stay application with respect to order 6(c) was also abandoned during the course of the hearing.
4. The orders in question were made by her Honour following a contested interim hearing.
5. The application pressed today forms part of a package of applications pending before the court with respect to the orders of 25 February 2025, which include an Enforcement Application filed by the wife and an application filed by the wife seeking joinder of and orders by way of enforcement directed to various third parties, including the husband's brother in several capacities and various entities associated with the husband's family, which for the purpose of these reasons are all referred to collectively as the Capello Group.
6. At the commencement of the hearing this day, orders were made, largely by consent, providing for the joinder of a number of the proposed additional parties for the limited purpose of the pending enforcement applications. It was otherwise agreed by all parties that the husband's applications to discharge and/or stay the operation of the orders of 25 February 2025 should be heard and determined as a preliminary issue and that the applications relating to enforcement would otherwise be adjourned to a later date. As a consequence, the third parties and their representatives were excused from further participation in this hearing.

1. Although the only express powers relating to stays contained within the Federal Circuit and Family Court of Australia Family Law Rules 2021 and/or the Federal Circuit and Family Court of Australia Act 2021 relate to the context of pending appeals and reviews from registrars, it has been recognised that superior courts have inherent power to stay execution of a judgment or order in any situation where the requirement of justice demands it.[1]
2. Relevant considerations include:[2]

(a) the onus is upon the applicant seeking the stay to demonstrate a proper basis for the stay which will be fair to all parties; and

(b) the court has a discretion involving the weighing of considerations, such as the balance of convenience and the competing rights of all parties.

1. The husband's submissions with respect to the stay application largely related to assertions that he is unable to comply with the orders. In relation to the part property and maintenance orders in particular, he asserted that he was simply unable to raise sufficient funds to comply, and that he sought to avoid a circumstance where he would appear to be simply ignoring the court's orders.
2. The husband also questioned the basis for the wife's asserted expenses relied upon for the making of the maintenance order.
3. Counsel for the wife emphasised that the husband had squarely put before her Honour at the interim hearing following which the orders were made his position that he was unable to raise sufficient funds to comply with the orders, and that the husband's submissions in that regard had already been considered by the court prior to the making of the orders.
4. It was submitted that the onus fell on the husband to demonstrate some fact or circumstance had changed to warrant interference with the operation of the orders. I accept this submission, noting that it is not for one judge sitting at first instance to interfere with or overrule the exercise of judicial discretion of another.
5. The husband's asserted incapacity to raise the funds required to satisfy the part property order and the maintenance orders, as well as the issue of the wife's need for the maintenance orders, were addressed by her Honour in her judgment. In particular, in relation to the part property aspect, at paragraph [28] of her Honour's judgment her Honour cited paragraph [27] of the Full Court's judgment in Bing & Bing,[3] which provided as follows:
   1. This is a matter which may become relevant if and when the [party] defaults in the order and an enforcement application is brought. However, the question of enforcement of the order remains a separate question from the propriety of granting the order in the first place.[4]
6. I accept the submission of counsel for the wife that this issue, particularly in light of considerable contention between the various parties as to the extent to which the husband can access funds and resources held within the Capello Group, and the extent to which the non-spouse respondents can and should be required to facilitate this occurring, is an issue properly dealt with in the enforcement context and not by way of a stay.
7. Counsel for the wife submitted, and I accept, that to grant a stay until the final hearing would be to defeat the entire purpose of the orders, which is to provide for financial support for the wife pending that hearing.
8. In relation to the remaining matters, being those relating to disclosure and valuations, the issues raised by the husband related to assertions either that he is unable to comply or that the cost of compliance would not be proportionate. These issues likewise go to enforcement and/or the treatment of these issues at trial rather than providing the basis for a stay, particularly noting that the husband's evidence in this regard is contested.
9. Having regard to these considerations, I am not satisfied that a stay would be fair to all parties, particularly the wife.
10. The husband has not discharged the onus of satisfying me that the interests of justice demand the imposition of a stay. As a consequence, the stay application will be refused.
11. I will also dismiss paragraph 1 of the wife's Enforcement Application filed on 4 July 2025, which seeks the issue of an enforcement warrant, noting that counsel for the wife has indicated that the process of filing such a warrant will be pursued.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Parker.

S NOMINEES PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE CAPELLO FAMILY TRUST

MR Y IN HIS CAPACITY AS TRUSTEE OF THE CAPELLO UNIT TRUST

MR CAPELLO IN HIS CAPACITY AS TRUSTEE OF THE T FAMILY TRUST

[1] Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354.

[2] Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685.

[3] Bing & Bing [2007] FamCA 418.

[4] Bing & Bing [2007] FamCA 418.