Alexander v Cambridge Credit Corporation Ltd

1. the applicant has paid her $836 per week since the making of the orders on 5 March 2020; 2. the applicant offered no explanation for the delay in bringing this application for a stay, having made six months worth of weekly payments since March 2020;

1. after 5 March 2020 the applicant stopped payments for the wife's motor vehicle, internet and other household expenses;

1. her motor vehicle is currently unregistered so she has been forced to borrow other vehicles for transporting her two children; 2. she relies on maintenance to meet the ongoing living expenses of her and her children; 3. she will suffer hardship if a stay is ordered; 4. for the financial year ended 30 June 2019 the applicant's taxable income was in excess of $842,000; 5. the net value of property to be divided is somewhere between $5m and $6m; 6. in her view the applicant's prospects of success on appeal are low; 7. the appeal is likely to be heard in early 2021, possibly February, meaning the applicant will be required to expend approximately $16,000 by way of spousal maintenance in the time between September 2020 and February 2021 and relative to the applicant's previous earnings that sum of $16,000 is modest; 8. the applicant has not produced any financial disclosure since May 2020;

1. any payments of maintenance are capable of reversal at trial if the need arises;

1. the applicant filed his stay application on 31 August 2020 but he did not serve it until 8 September 2020; 2. in the wife's view, the weekly maintenance sum of $836 is modest; 3. the wife suffers from a medical condition which causes tiredness, hormonal imbalance and other consequences and leads to stress; and 4. between 30 June 2016 to 30 June 2019 the applicant's taxable income over those four financial years ranged between over $760,000 and over $840,000.
2. The wife obtained financial information about the applicant after the applicant filed his stay information. That information revealed the following -

1. the applicant's annual profit allocation is $250,000; and 2. his 30 June 2019 taxable income was $842,245; and

1. historically, between May 2014 and May 2019 the applicant's annual profit allocation ranged between $194,000 in 2014 to $250,000 in 2019.
2. The wife deposed to the applicant's financial statement not including his profit allocation and that if he had done so, he had substantial capacity to meet the spousal maintenance sum previously ordered.
3. So far as the applicant's financial irregularities were concerned, the wife deposed to many. They included the following -

1. the applicant applied over $1.6m in liquid assets post separation, unilaterally, to acquire his home in Suburb G; 2. on 20 June 2019 the applicant's interest in E Bank Investment Notes matured deriving for the applicant over $200,000;

1. the applicant expended almost a quarter of a million dollars from his offset account since June 2019 which has limited the amount of funds available to the wife;

1. the applicant reduced his offset account from over $80,000 to a little over $4,000 between late November 2019 and late January 2020 despite a request for restraint in his spending; 2. between May and August 2020 the applicant deposed to expenditures of over $236,000 in respect of which the wife said she had not been provided with disclosure; and 3. the wife stated that she is of the view the applicant's mortgage application for $100,000 was not rejected as he asserted but rather the applicant did not properly complete the loan application documentation.
2. The wife deposed to suffering family violence as well as emotional and financial abuse at the hands of the applicant. The applicant is not legally represented. The provisions of s 102NA of the Family Law Act will be relevant so counsel for the wife should make all relevant enquiries in that regard.
3. The wife put in issue a number of assertions by the applicant made in his affidavit in support of this stay application. Among the more important of them were the following -

1. she disputed that her son Y suffers from ADHD; 2. she disputed a male friend resides with her;

1. the applicant expended significant sums on renovating and on building works at his Suburb G property without the wife's knowledge or approval;

1. the wife denies the applicant has a tax liability (a point I made above) as his employer pays his tax dues; 2. a man called Mr K is the respondent's current partner; and 3. she is concerned the applicant is currently stalking Mr K.
2. In my decision dated 5 March 2020 I addressed the undesirability in making factual findings on an interlocutory application such as that one, or indeed, this. I maintain that view, underpinned as it is by the various authorities I surveyed in Pollard & Nordberg[2] including Marvel v Marvel,[3] Deiter & Deiter,[4] Eaby & Speelman,[5] Salah & Salah[6] and others.
3. That said, it is permissible to proceed on a state of facts that is on the balance of probabilities, more likely than not. One of the matters for me to consider on this application is whether the applicant's assertion in the first sentence of paragraph 12 of his affidavit filed in support of this stay application is more probable than not. In other words, has he demonstrated to the requisite degree of persuasion that by reason of my orders made on 5 March 2020 the applicant is "now in financial difficulty" rendering him unable to comply with the orders made on 5 March 2020 by which he is required to pay $836 per week in spousal maintenance. If he is, I should grant a stay. If he is not, I should refuse the stay.
4. Time and again appeal courts have stated that two important principles operate when an appellant chooses to appeal. First, the person who has obtained the judgment appealed against is entitled to presume that the judgment is correct and, as a corollary to that, the person who has obtained the judgment is entitled to the benefit of that judgment. Second, the mere filing of an appeal is insufficient to grant a stay. To that end, any application for a stay must be made bona fide, that is to say, it must not be made as a tactic or as a weapon to thwart the holder of the judgment enjoying the benefit of the judgment.
5. In two decisions of the Full Court of this court,[7] both in the year 2009, statements of principle were made concerning the proper approach to be adopted in an application for stay. Pursuant to the , the stay application must be heard by the judge who pronounced the orders against which the appeal has been filed. If the trial judge refuses the stay application, the appellant has his, her or its remedies before the Full Court. It is utile to quote the statement of principle as it was set out in -

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:

• 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;
• a person who has obtained a judgment is entitled to the benefit of that judgment;
• a person who has obtained a judgment is entitled to presume the judgment is correct;
• the mere filing of an appeal is insufficient to grant a stay;
• the application must be bona fides;
• 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;
• 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;
• some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case.

1. Importantly, the applicant did not exhibit the notice of appeal by which he intends to challenge my March 2020 orders. I eventually found his notice of appeal. He was granted an extension of time to file his notice of appeal by orders made on 15 May 2020. He filed his notice of appeal on 22 May 2020.
2. In this case the respondent wife is entitled to the benefit of the judgment appealed against and that it is correct, the onus falling to the applicant for a stay to demonstrate that a proper basis exists for the stay. She is also entitled to proceed on the basis that the mere filing of an appeal does not operate as a stay nor is itself a sufficient reason to grant the stay.
3. One of the issues that must be traversed on a stay application is the bona fides of the applicant in bringing the stay application. Here, the wife was particularly sceptical about the applicant's motives. She made the following submissions in support -

(a) The Husband filed his Stay Application on 31 August 2020 in circumstances where the Appeal is likely to be listed for hearing in January 2021 or February 2021, if not before, and has provided no disclosure to support the contention he is unable to continue meeting his obligations until the appeal is heard. It is also not disputed the Husband has been meeting his obligation to pay spouse maintenance since the Orders were made. He has also provided no reason for the delay in bringing his Stay Application;

(b) In circumstances where the Appeal is to be heard in January/February 2021 the quantum of the ongoing maintenance payment up to the expected date of the Appeal would total approximately $16,000, a sum disproportionate to the Husband's income, the net property to be divided between them being between $5m-6m, and of course to the costs that will be incurred by both parties in pressing the application;

(c) Following the making of the Orders the Husband ceased payment of other financial support he was making towards the Wife's household. He no longer meets the pool and internet expenses, he no longer pays for healthcare and he has refused to re-register the family motor vehicle that transports X, leaving it unregistered since mid-2019. This has of course required the Wife to meet those expenses and forced her to borrow vehicles for transport.

(d) It is not in dispute the Wife is unemployed and quite clearly relies upon the maintenance paid by him to meet her ongoing living expenses in circumstances where she is the primary carer of the parties child X and the Wife is the sole carer for her son Y and the Husband does not pay even a dollar towards child support. If the Stay were granted it would clearly visit substantial hardship upon the Wife.

(e) There are more than sufficient assets for the Court to reverse any overpayment of spouse maintenance when the matter is heard at final hearing after the relevant evidence is tested. The authorities make it clear the onus is on the applicant of the stay to establish there is a real risk the he or she cannot be substantially restored to his or her former position, and further that the appeal, if successful, will be rendered nugatory. The Husband has done neither of these things.

(f) The Husband argued at the spouse maintenance hearing that he was unlikely to receive his annual profit share bonus allocation from his employment in May 2020 (just 2 months later). It is now known that he received $250,000. On 30 April 2020 the Wife's solicitors requested details and disclosure of the bonus allocation. No response was received requiring the Wife to file an Application in a Case restraining the Husband from unilaterally disposing of the bonus monies. Only after the application was filed did the Husband provide such disclosure, resulting in further legal cost to the Wife. Not to mention stress in circumstances where she is the primary carer of the parties' young child.

(g) The Husband's behaviour is one of non-disclosure and unilateral disposition of matrimonial funds as detailed at paragraph 28 of the Wife's affidavit. Such behaviour includes expending $249,552 from his E Bank Offset Account, an overt act effectively starving the Wife of funds with which to support herself, her children and this litigation.

(h) Furthermore the Wife contends the Husband has frustrated orders of this Court by not disclosing an application made to employer for a mortgage which was allegedly "rejected". This then required a further application by the Wife and orders were made by Justice Loughnan on 10 June 2020 requiring the parties to jointly make an application for a mortgage secured over the Suburb D property to meet the Wife's outstanding and future legal fees. Again the Husband has frustrated this application by not agreeing to include his gross taxable income for the last 3 financial years. Given the Husband is, on his evidence, a finance professional and Senior Manager of J Corporation is inconceivable he would think it not appropriate to provide evidence of his taxable income for the last 3 financial years to a potential lender as part of a mortgage application. Mere further evidence of his obstructive behaviour and lack of bona fides. And of course will result in further cost to the Wife if she is required to again relists the matter.

(i) Finally the Wife submits his Stay Application is merely the continuation of financial abuse that she suffered throughout the relationship. The Wife made an open offer to the Husband to withdraw the Stay Application on 9 September 2020 however no response was received.

1. To my mind there is a great deal of merit in the wife's contentions about the applicant's bona fides. I say that for several reasons including the following -

1. the applicant delayed for six months in bringing his stay application; 2. the applicant has paid the sums ordered since the orders were made yet he now asserts "financial difficulty", two seemingly inconsistent positions;

1. the applicant filed no evidence to explain the six month delay in bringing the stay application;

1. Mr Schonell contended that no evidence existed to support the lengthy dissertation given by the applicant on 16 September about the operation of certain E Bank facilities and that, had that dissertation been given by counsel, would have amounted to evidence from the bar table; 2. according to the wife, disclosure remains in an unsatisfactory state; and 3. based on the evidence before me on 5 Mach 2020, the applicant as a senior manager of a major Australian corporation was paid a very substantial salary.
2. In his address before me on 16 September the applicant told me he is a tax agent who is very focused on ensuring he is diligent in complying with his tax obligations. He agreed he had made no attempt to enter into an arrangement with the ATO in relation to his PAYG tax obligations.
3. In his written submissions Mr Schonell cited the decision in Coli & Pearson[8] for the contention that the applicant bore the burden of establishing there is a real risk he cannot be restored to his former position and that by refusing his stay application his appeal will be rendered nugatory.
4. Before addressing questions about the appeal being rendered nugatory, it is necessary to address whether the proposed appellant has an arguable case on the appeal. Mr Schonell contended that the decision against which the applicant has appealed is devoid of merit. He said that based on the evidence that was before me on 5 March 2020 the orders were and remain sound. Conversely, the applicant submitted that on the hearing of the application by the applicant for an extension of time to file his notice of appeal Ainslie-Wallace J said his prospects of success on appeal were strong. Mr Schonell submitted that it was most unlikely that on the hearing of an application for the extension of time to file the notice of appeal any comment was likely volunteered about the applicant's prospects of success. How could such a view be offered given that the grounds of appeal were then unknown is the obvious response. Mr Schonell is most likely to be correct on that issue. But in any event, no transcript of the appearance when seeking the extension of time was exhibited. In any event, I am required to make my own preliminary assessment of the strength of the proposed appeal.
5. Since the decision in Medlow v Medlow the test applied by this court in assessing whether an interlocutory decision should have leave to appeal is whether the decision (my decision) is attended by sufficient doubt as to warrant it being reconsidered by a Full Court and whether substantial injustice will result if leave to appeal were refused. Macmillan J applied that approach considering a stay pending appeal in , ultimately dismissing the stay.

1. in several places in that document the applicant embedded a contention that his appeal is near guaranteed to be successful, a proposition to be doubted when made by a litigant in person; 2. his contention that the wife will not suffer any serious adverse effect if the appeal is successful;

1. his dissertation, unsupported by any evidence, about the operation and consequences of a promissory note;

1. his assertion that there being no child support assessment did not equate to his not applying, as he said he had; 2. his contention that as he must pay for gas, electricity, water, council rates as well as entertainment he will have "financial difficulty"; 3. he has ongoing legal fees; 4. he delayed in bringing the application for a stay because he works long hours, he has limited knowledge of this area of the law and the emotional toll has been very high; and 5. he raised what he called motor vehicle issues.
2. Importantly, he addressed in paragraph nine what he called "basis of appeal". It was as follows -

• P&I loan repayments
• Support level during relationship
• Fluctuating claims, credibility of evidence in light of blatant lie to Court on 3 Mar
• COVID-19 impact on profit share pool in 2021
• Inability to support reasonable standard of living without relying on share sales and performance bonus in May 2021

1. I derived very little assistance from his "applicant's case outline", even recognising that he is a litigant in person. Curiously, he purported to rely on a case called Garston & Yeo. When I examined Austlii a case was reported as Garston & Yeo,[11] a case having no relevance whatever to this application.
2. In his address Mr Schonell took me to paragraph 12 of the applicant's affidavit and the table set out thereunder, Mr Schonell pointed out -

1. the reference to "mandatory" mortgage repayment was an exaggeration and no evidence existed to the effect that the applicant had sought to reduce the instalments in accordance with the enforcement moratorium presently offered across Australia; 2. the applicant did not have an existing child support obligation;

1. he did have an existing spousal maintenance obligation;

1. his ATO liability was exaggerated; and 2. his remaining amount was wrong.
2. Mr Schonell submitted that the applicant failed to discharge the onus he bore to make out his application.
3. Let me now go to his proposed appeal grounds. It must be borne in mind that the applicant has already indicated that he proposes to apply to adduce further evidence. That aside, dealing with the existing notice of appeal, several things must be said of that document. First, the applicant must obtain leave to appeal. He will be confronted with the observations in Medlow v Medlow which favoured the statement by French J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd[12] as follows -

The time and resources of the court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties.

1. Even if the applicant is successful in his interlocutory appeal, any such determination will not finally determine the rights of the parties. The s 79 application will do that.
2. Further, in Part C of his notice of appeal the applicant makes a collection of statements that would probably warrant sanction if made by counsel, paragraph 8 being one illustration. Certain latitudes might be extended to a litigant in person but those diminish when one has regard to the senior role the applicant continues to occupy within a major Australian bank.
3. As a general comment on structure, in Part C of his notice of appeal the applicant failed to identify concepts of law which might support his application for leave to appeal. Instead, on a paragraph-by-paragraph basis he marched through my 5 March 2020 reasons making critiques, from his lay perspective, of my reasons. That approach highlights the vice in consuming time and resources of the court in connection with agitating matters which do not finally determine the rights of the parties. His final statement "it is an injustice to the husband to make a spouse maintenance order" seems to highlight his real grievance. I reject that.
4. In Part E[13] of his notice of appeal the applicant purported to record 16 grounds of appeal. They were not grounds of appeal in any legal sense but rather were expressions of his disagreement was various passages of my 5 March 2020 decision. It is almost impossible to distil from any of them circumstances that might amount in fact or in law to an error so as to attract the operation of appellate intervention as canvassed in Medlow v Medlow.
5. His grounds are sprinkled with contentions of law. When on the one hand he is not legally trained yet cites propositions of law in his grounds of appeal, a reader would be forgiven for thinking that one of those positions is wrong.
6. Having read his "grounds of appeal", according to the test prescribed in cases that include and , I am of the view that none enjoy favourable prospects of success. Many are premised on material that was not before me on 5 March 2020. If the applicant is able to persuade an appeal court that he should have leave to adduce new evidence, then his case will be entirely different to the case he ran before me.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 21 September 2020.

[1] Blakeley & Jaine (No 2) [2020] FamCA 141.

[2] [2019] FamCA 365.

[3] [2010] FamCAFC 101; (2010) 43 Fam LR 348.

[4] [2011] FamCAFC 82.

[5] [2015] FamCAFC 104.

[6] [2016] FamCAFC 100; (2016) 56 Fam LR 299.

[7] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 and Jackson & Balen [2009] FamCAFC 131.

[8] [2019] FamCA 321.

[9] [2016] FamCAFC 34; (2016) 54 Fam LR 389.

[10] [2019] FamCA 321.

[11] [2019] FamCAFC 56.

[12] [2000] FCA 1572; (2000) 104 FCR 564.

[13] No Part D was provided.

[14] [2009] FamCAFC 131.

[15] [2009] FamCAFC 106.