Alexander v Cambridge Credit Corporation Ltd

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 the pseudonym Eccheli & Eccheli has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Notice of Appeal filed 14 April 2025 the husband appeals interlocutory financial orders made 4 April 2025. By Amended Application in a Proceeding filed 14 April 2025 the husband seeks a stay of the orders the subject of appeal. The husband's application is opposed.
2. The husband relied on the following documents:

(1) Amended Application in a Proceeding filed 14 April 2025;

(2) Affidavit of the husband filed 9 April 2025;

(3) Affidavit of the husband filed 14 April 2025;

(4) Affidavit of the husband filed 16 April 2025;

(5) Affidavit of Ms V filed 14 April 2025;

(6) Financial Statement filed 16 April 2025; and

(7) Bank Statement Summary document and accompanying bank statements of the wife.

(1) Response to Application in a Proceeding filed 15 April 2025;

(2) Affidavit of the wife filed 15 April 2025;

(3) Affidavit of Mr W, filed 31 March 2025; and

(4) Case Outline document.

1. At the culmination of the hearing, directions were made for the husband to provide to chambers an updating Costs Notice document as to the estimated costs of the appeal by 4.00 pm the following day. The husband complied with the direction and regard has been had to that document.

1. The parties are engaged in contested financial proceedings that commenced with the filing of an Initiating Application by the husband on 21 February 2024. The matter came before me initially on 2 April 2024 where each party sought various interlocutory orders. By judgment delivered 12 April 2024 various orders were made, including orders to the following effect:
   1. The wife is granted exclusive use and occupation as between the husband and wife of [D Street, Suburb E], New South Wales ("the [Suburb E] property").
   2. The husband pay, or cause to be paid, by way of spousal maintenance the monthly repayments of principal and interest pursuant to the [Suburb E] property home loan, and the utilities and outgoings in respect of the [Suburb E] property.
   3. The husband, pending its sale, is granted exclusive use and occupation as between the husband and the wife of [F Street, Suburb G], Queensland ("the [F Street] property").
2. In my reasons for judgment delivered that day cited as Eccheli & Eccheli [2024] FedCFamC1F 234 I recorded the following:
   1. The parties initially commenced cohabitation in [...] 1990, married in [...] 1992, and have three children who are now all over the age of 18 years. In [late] 2015, the parties separated. They divorced [in] 2017, resumed cohabitation in mid-2018, and remarried [in] 2019.
   2. The parties separated on a final basis on 17 November 2023.
   3. The husband is a [professional]. It would appear that the parties arranged their marital relationship on the basis that the husband took charge, and managed all aspects, of their finances.
   4. It seems not in dispute the wife has been the primary homemaker and carer of the three children, and is financially dependent upon the husband. In her Financial Statement she contends that throughout the relationship, she was provided with funds by the husband. The wife says he would transfer her approximately $10,000 a month, and provide her access to a credit card. She contends that these payments continued after separation but were unilaterally ceased by the husband on 3 January 2024.
   5. The parties' finances are complicated. There are numerous companies and trusts that hold a substantial part of their wealth. In the husband's initial affidavit, he asserted the following:

3.1. I am a [professional]. I acquire various residential and commercial premises either personally or via a group of entities collectively referred to as the [Q Group] with several other investors. For asset protection and estate planning purposes, the Wife and I have also purchased various properties in my sole name, in the Wife's sole name or jointly as tenants in common as between myself, or the Wife, and our adult children or either of them.

3.2 Some of the properties that we have purchased in the past are tenanted and yield rental income; however, most properties are purchased for development, such that we are required to meet the holding and development costs until the property can be sold for a profit before we receive any benefit.

3.3. None of the properties in which either myself or the Wife have an interest in our personal capacities are currently producing any rental income. None of the commercial premises in which I have an interest via the [Q Group] are currently deriving profit that is available for distribution to the respective unit holders. Many of these properties are similarly in a state of development.

3.4. I receive a regular salary for the management of the [Q Group], paid to me on a monthly basis in the amount of $22,916, or $5,288 per week (after tax). This is my only source of regular income.

3.5. The personal expenses that I meet for the benefit of myself, the Wife and our adult children are in excess of $35,000 per week. Ordinarily, I supplement my regular income with the available net proceeds of sale from a property, if and when the same becomes available, which are in turn applied:

3.5.1. toward further investment opportunities; and/or 3.5.2. to meet the holding and further development costs of other presently owned properties (including properties owned via the [Q Group]); and/or 3.5.3. toward the personal expenses of the Wife, our adult children and myself.

...

3.8. I accept that I managed our families' financial affairs throughout mine and the Wife's marriage and that there is a level of complexity to our commercial interests in the [Q Group]...

...

1. A key feature of the way that I have managed our family finances is selling current assets in order to realise capital to fund future development projects and meet family expenses. Then once those development projects are complete, I sell them, retain part of the proceeds for family expenses and reinvest the remainder in future development projects, and so the cycle continues. This has been the case since well prior to mine and the Wife's recent separation.

2. The cycle has enabled our family to accumulate wealth and enjoy an affluent lifestyle, but it has always depended upon the Wife and the children complying with requests I have made to purchase or otherwise dispose of assets in their names to maintain our cash flow. If the cycle stops, as is now occurring, we risk defaulting on future obligations and have no liquidity to meet our business and family expenses. Whilst I accept that the Wife and I will be required to separate our financial interests in various assets consequent upon the breakdown of our relationship and on a final basis, we are now facing immediate cash flow issues. Unless funds are released to me in order to meet our business and personal expenses and trade out of our current financial position, I consider it highly probable that my business interests in the [Q Group] and mine and the Wife's personal interests will be adversely affected.

(Affidavit of the husband filed 21 February 2024 p.1-4, p.14)

1. The broad contentions advanced by the husband do not seem to be the subject of challenge. Indeed the wife contended in her Case Outline, in slightly more catastrophic terms, the following:

   1. The Husband has provided only sparse evidence about the financial position of his various enterprises conducted through third party trust vehicles or companies. As to the evidence he has provided, it very clearly demonstrates that these enterprises, being separate property developments or property assets held in special purpose trust structures, are insolvent or, if not, very likely to be. His evidence is that these enterprises cannot meet debts from their own income and financial resources. The commercial basis for his application for use of matrimonial funds is that very reason, yet he acknowledges that immediate and future liabilities will have to be managed carefully without providing any plan.

   2. Given the admitted insolvent or financially precarious position that these enterprises are in, the Court (and the Wife) would expect a full independent accounting and disclosure of the overall position of the assets and enterprises in his control. Yet he provides little to no independent evidence. There is no independent accounting evidence of the financial position of these enterprises or evidence of asset valuations (only his estimates). There is no clear and transparent evidence of unitholder and ownership structures.

   3. This places the Court (and the Wife) at risk of funds being distributed to him in circumstances where there is a prima facie serious insolvency risk with respect to the enterprises in his control. What his evidence plainly calls for is not the use of matrimonial funds to prop up third party enterprises that cannot meet their debts, but the appointment of an administrator to independently assess whether assets should be immediately sold to pay outstanding debts or whether any other form of imminent restructure should take place.

(Case Outline of the wife filed 28 March 2024, p.18 -19)

...

1. The husband, in his Financial Statement, asserts the net assets of the parties have a value of approximately $5,400,000. The state at which the proceedings currently are is such that there has been no independent verification of the various entities referred to in the parties' respective applications, affidavits, and case outlines.

...

1. The wife is suspicious and sceptical of the husbands' actions. She contends that he failed to make adequate disclosure and points to various examples in her Case Outline, at paragraphs 39 to 42. She is also critical of how he has approached her financial need, namely by cutting off her access to money.

2. The husband has not assisted his case by seemingly changing his position and the need for relief during the course of the proceedings. In his first affidavit he proposed that the home occupied by the wife needed to be sold at the earliest possible opportunity in order to reduce debt (affidavit of the husband filed 21 February 2024, para 22.1), only to resile from that position at the hearing some six weeks later in circumstances where, on one view, the asserted financial position remained precarious.

...

1. The wife's case is not without its problems. I accept that the wife has a need for funds to ensure a level playing field in the litigation, particularly in light of her limited knowledge of the parties' financial position, the conceded complexity of these proceedings, and the husband's concession that the wife has a need for interim spousal maintenance noting there is no serious challenge to her asserted personal expenditure of approximately $3,000 per week (Financial Statement of the wife, p.11).

...

1. The wife says she has a limited understanding of the intricacies of the parties' financial affairs. Her Case Outline sets out:
   1. The Wife has an incomplete understanding of the Husband's financial position and the overall matrimonial pool and requires the assistance of a forensic accountant. Her education came to an end in Year 10 and she is heavily reliant on legal and accounting advice: W [35]. She has concerns with the Husband's past use of matrimonial assets for his various businesses and is also concerned with the application of funds for present uses: W [28] - [30]. She has concerns with the Husband's disclosure which appear to be incomplete: W [34], [37]. She is unable to obtain that advice in the proceedings without litigation funding: W [36].

(Case Outline of the wife filed 28 March 2024, p.5)

...

1. I am satisfied that it is just and equitable to make an order that the husband receive the balance of the proceeds of the [H Street] property, after allowance for the money to be retained pursuant to the orders made in favour of the second respondent, and after allowance for the sum required to settle the purchase of the [F Street] property. This should provide the husband with a sum in excess of $950,000. That is a sum sufficient to meet the proportionate share, on a unit holding basis, of the [L Investment Firm] debt while leaving a surplus to meet other expenses. While the husband's senior counsel submitted, from the bar table, that he was instructed there was an arrangement with the other unit holders that the husband meet all of the payment, that seems contrary to the husband's sworn evidence. Even assuming that the husband's earlier evidence was erroneous, it can be remedied by a subsequent application seeking to sell or realise other assets if necessary. As I observed earlier in these reasons, this matter has come on quickly and these orders are in the nature of stop-gap orders. The husband's senior counsel foreshadowed that a further sale of assets may arise and, in light of the wife's counsel's submission, it would be difficult for her to oppose same.

2. I am not satisfied that it is in the interests of justice to make orders that the husband receive the proceeds of sale of the [Region K properties]. To do so would deprive the wife of access to her own capital, in circumstances where she needs funds. The husband's orders concede the wife should receive $100,000 by way of interim costs, and his senior counsel properly conceded that the wife's entitlement for interim funding could be higher. I note the wife's costs memorandum makes a claim for a significantly larger sum, but that includes her estimated costs for the entirety of the proceedings which is unnecessary at this early stage. The wife's Costs Memorandum asserts that she currently is indebted to her lawyers in the sum of $206,000. She has paid nothing toward her legal fees. The husband's costs memorandum discloses that he has paid $109,000 to his legal fees, and there are further moneys held in trust.

...

1. The wife can retain the proceeds of the [Region K properties]. As this is in the wife's name, an order is unnecessary. The wife will simply be accessing her own funds. The Court's intervention is limited to that necessary to make a just and equitable determination, and no further.

2. The wife seeks periodic spousal maintenance of $3,000 a week, and payment of the mortgage and utilities on the [Suburb E] property and the expenses for her car. There is no challenge to the wife's expenses. The issue is whether the wife establishes an inability to support herself adequately. The husband's concession as to the wife's need and his offer to pay was conditional on him having access to the net sale proceeds of the [H Street] property and the [Region K properties]. He contends that, absent receipt of those moneys, he did not have sufficient funds to otherwise meet the expenses of the family.

3. I am not satisfied that the wife has established an inability to support herself adequately, such that she requires a weekly periodic payment of spousal maintenance or the payment of motor vehicle expenses, when regard is had to the capital sum she will have. After payment of her outstanding legal fees, the wife will have at least $320,000 available to her from the net sale proceeds of the first [Region K property], with the balance of approximately $550,000 from the other to come shortly. I am satisfied that, with such an amount, the wife will be able to support herself adequately, without the need for a periodic payment of $3,000 per week in spousal maintenance, or the husband having to meet the expenses for motor vehicles in her possession.

4. I am not, however, satisfied that she will also be able to meet the mortgage payments and utilities for the [Suburb E] property. In that respect I am satisfied that, notwithstanding retaining a capital sum, she will still have a need for spousal maintenance. I am satisfied that the husband will be able to meet those expenses from the capital sum he retains by these orders, the other assets he controls, and from his income.

5. On settlement of the purchase of [F Street] property, the husband will no longer need to pay rent, and, on its sale, the mortgage payments on the [Suburb E] property should reduce by about half. However, I expect he will need to resume paying rent.

6. The husband's assumed moral obligation to pay the rent and expenses of his adult children does not supplant his legal obligation to support his wife, in the event she is unable to support herself. I will make an order that the husband pay the mortgage and outgoings on the [Suburb E] property.

...

1. There appeared to be agreement between the parties that the wife should have exclusive occupation of the [Suburb E] property, and the husband have exclusive occupation of the [F Street] property. Accordingly, I will make orders to give effect to this agreement. There also seemed agreement about some general restraints regarding disposal of assets without notice, and I propose to make the order sought by the husband. There were no submissions about the return of the husband's personal possessions, so I will craft an order that gives effect to what seems, from the competing positions, to be common ground.

1. Subsequent to the making of those orders, the husband assumed occupation of the F Street property and the wife remained in occupation of the Suburb E property.
2. The matter came before the court on 6 December 2024 and again on 14 March 2025 when orders were made to prepare the matter for an interim hearing.
3. Despite the orders recognising that the parties intended to sell the F Street property, no steps were taken to sell the F Street property until approximately March 2025. The reasons for why no action was taken are controversial and need not be explored for the purpose of this application.
4. It is not controversial that until January 2025 the husband continued to make the payments on the mortgage and outgoings for the Suburb E property. Subsequent to that date, he contends that he has faced financial difficulties and is not in a position to continue to make those payments.
5. The matter was listed for an interim hearing on 4 April 2025. At that hearing, the wife sought various interlocutory financial orders including an order pursuant to s 77 of the Family Law Act 1975 (Cth) ("the Act"), orders by way of disclosure, for the sale of the F Street property, and for the husband to vacate the F Street property. The husband also sought various interlocutory orders including the sale of the Suburb E property.
6. On that occasion, the husband contended the wife had not complied with orders and he was not in a position to meet the wife's relief. Ultimately, an adjournment was granted and orders made for the filing of further documents.
7. In addition, orders which are the subject of appeal were made as follows:
   1. The husband to pay the wife pursuant to s 77 of the Family Law Act 1975 (Cth) the sum of $20,000 by way of urgent spousal maintenance; the first sum to be paid as to $10,000 by 4.00 pm on 16 April 2025 and the second sum of $10,000 by 4.00 pm on 23 April 2025.
   2. Orders are made in accordance with paragraphs 15, 16 and 26 of a document titled "Case Outline on behalf of the Respondent Wife" filed 3 April 2025 (marked as Exhibit 1) as set out hereunder:

"[F Street] Property

...

1. That within seven (7) days of the date of these Orders, the Husband shall pay, and continue to pay as they arise, all utilities, rates/levies and all other outgoings in respect of the [F Street] property pending sale and settlement of same including any amounts that are overdue as at the date of these Orders and shall indemnify the Wife and keep her indemnified with respect to such expenses.
2. That within fourteen (14) days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary to market for sale and sell the [F Street] property for the best price reasonably obtainable and, in particular:

16.1. Within seven (7) days of the date of these Orders, the Husband is to vacate the [F Street] property with only his personal belongings and not removing any custom-made furnishings, ensuring that the property is left in a clean and presentable state suitable for inspections by potential buyers.

16.2. The Wife is to:

16.2.1. appoint [Mr W] at [X Real Estate] (the "Agent") to act on the sale of the [F Street] property;

16.2.2. execute all documents requested by the Agent for the sale of the [F Street] property in the Agent's standard terms and with the Agent's standard fees;

16.2.3. give such instructions as are necessary to [Y Lawyers] to act on the sale of the [F Street] property (the "Conveyancer");

16.2.4. instruct the Agent to market the property for sale by way of public auction (the "First Auction") private treaty for a period of weeks or such other period of time as recommended by the Agent, using a listing price as recommended by the Agent, noting that the Agent indicated on 30 July 2024 that the property may sell for between $2,800,000 to $3,100,000 and has recently advised that the Easter period provides optimal opportunity to sell the property due to increased tourism in the area;

16.2.5. instruct the Agent to negotiate and accept an offer made to purchase the [F Street] property; and

16.2.6. provide disclosure to the Husband regarding the sale of the property within a reasonable timeframe.

...

Disclosure

1. That within 7 days of the date of these Orders, the Husband is to respond to the matters raised, to the extent that a response has not yet been provided, and provide all relevant supporting documents in response to the following letters from the Wife's Solicitor:

26.1. Letter of 15 November 2024;

26.2. Letter dated 4 December 2024 identified by the title 'Sale of Matrimonial properties',

26.3. Letter of 3 February 2025,

26.4. Letter of 21 February 2025,

26.5. Letter of 25 February 2025, and

26.6. Letter of 27 February 2025 and

26.7. Letter of 27 March 2025."

1. The Court's power to grant a stay pending an appeal is discretionary and is embodied in part in r 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2. A stay is not ordered as a matter of right. The power to order a stay is incidental to the right of appeal.
3. In order to justify a stay, the party seeking the stay bears the onus of establishing that the circumstances warrant a departure from the general rule that a judgment is presumed to be correct and liable to be enforced (Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 693-694) and a court should not deprive a successful litigant of the fruits of litigation without just cause (Kelly and Kelly [1980] FamCA 88; (1981) FLC 91-007).
4. The principles applicable to a stay in financial proceedings are well settled and are conveniently set out by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 which records as follows:
   1. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). The 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 bona fides of the applicant;
      • 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...
5. There are other relevant considerations which include whether the stay has been brought promptly and is not merely a delaying tactic as well as the period of time during which the stay will be in place.

1. The husband's solicitor submitted that the balance of convenience favoured the granting of a stay and that his appeal would be rendered nugatory if a stay were not granted. Where the husband had already vacated the F Street property and sought the sale to proceed, his solicitor quite properly conceded that the husband no longer pressed that part of his appeal addressing orders selling the F Street property. He nevertheless pressed a stay in relation to orders for urgent spousal maintenance, disclosure, and payment of outgoings in relation to the F Street property.
2. The husband's solicitor submitted that the husband did not have the capacity to meet the urgent spousal maintenance order or meet the outgoings of the F Street property. She submitted that there was no prejudice to the wife as she had sufficient funds available to her to meet her financial needs including having $1,000,000 worth of jewellery, having made large lump sum payments to her adult children, having borrowed funds from third parties, and being able to meet her own financial needs.
3. The wife's counsel submitted that it was questionable whether the disclosure order was an appealable order and that there was no reason why the husband should not comply with his obligations for disclosure where the wife's requests dated back to November 2024.
4. As to the husband's financial capacity, the wife's counsel referred to a ledger recording various loans said to have been made by a Ms V to the husband and the inconsistency in their evidence as to how much was owed. In that respect, Ms V said the husband owed her $1,809,447.25 with accrued interest of $157,873.49 while the husband in his financial statement said that he owes Ms V $93,839.11 together with outstanding interest of $161,577.09. The inconsistency was not explained.
5. Counsel for the wife referred to a ledger reflecting monies said to have been loaned by Ms V that showed a $20,000 credit on 13 April 2025 from Q Pty Ltd, one of the companies controlled by the husband. Counsel for the wife submitted that the payment of $20,000 on 13 April 2025 post-dates the order made 4 April 2025 for the husband to make two payments of $10,000 to the wife by way of urgent spousal maintenance. Counsel for the wife submits that the husband clearly had the capacity to meet the order but just chose not to.

1. The husband's Notice of Appeal contains some eight grounds contending in broad terms error by way of inadequate reasons, the decision was plainly unjust and outside the reasonable exercise of discretion such that it was unreasonable, that the court erred in making an order for urgent maintenance in circumstances where the wife had "orchestrated a position of impecuniosity", made incorrect findings of fact in relation to the maintenance order, and contended bias (it is unclear whether it is actual or apprehended) as well as a failure to comply with r 6.06(4)(b).
2. The husband's appeal is from the exercise of a wide discretion. Absent some exceptions for discrete legal error including jurisdictional error, he must bring his appeal within one or more of the recognised categories for appellate intervention identified by the High Court in House v The King [1936] 55 CLR 499. Where the husband's appeal is from an interlocutory order, he must also demonstrate the orders are attended by "sufficient doubt to warrant being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong" (Medlow & Medlow [2016] FLC 93-692 at 57).
3. Ground 1 contends error by way of inadequate reasons while Ground 2 contends that the decision was plainly unjust. Grounds 3 and 4 address what are said to be errors pursuant to s 72(1) of the Act.
4. The judgment reveals reasons adequate for the matter and issues at hand (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). The principles apposite to spousal maintenance were recently considered in Raymond & Raymond [2024] FedCFamC1A 45 where Austin J reviewed the various authorities to date, in particular that of the High Court's in Hall v Hall [2016] HCA 23; [2016] 257 CLR 490 and Aldridge J in Qin & Donato [2023] FedCFamC1A 223. A distillation of those authorities makes clear that in an application for interim spousal maintenance, the court does not conduct an audit of the parties' expenses or require extensive proof of every expense, that findings need not be precise, and the matter can proceed in a summary way. Even less precision is needed in a case of urgent maintenance where the authorities reveal they are in the nature of stop-gap orders made at a summary hearing (Chapman and Chapman [1979] FamCA 14; (1979) FLC 90-671).
5. Ground 5 is presumed abandoned. Ground 6 contends an assertion of bias while Ground 7 contends that the husband was denied procedural fairness in the way in which the hearing was conducted and in making orders by way of disclosure. At hearing, no submission was advanced by as to these grounds. Where it was not considered worthy of a submission demonstrating asserted error, I do not propose in a vacuum to consider further whether the ground is arguable.
6. I am satisfied that the husband has brought his application for a stay promptly and that it is bona fide. That said, the Reasons are presumed to be correct, and the wife is entitled to the benefit of the judgment. The husband alludes to a contention that his appeal would be rendered nugatory in the event a stay was not granted. Relevantly Harper J observed in Samaras & Allen [2021] FedCFamC1F 20:
   1. ... The High Court has several times indicated that the enjoyment of a right is rendered "nugatory" if it is rendered worthless or seriously undermined: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450, referring to Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 at 647-648, 659.
7. These are interlocutory proceedings, and any payment made can be considered in the final judgment.
8. I am further satisfied that the balance of convenience does not favour the husband despite the submissions of his solicitor. I am satisfied that the husband had and has the financial capacity to meet the orders.
9. The husband's affidavit dated 9 April 2024 records as follows:
   1. I do not have the capacity to pay the Respondent Wife $10,000 by 16 April 2025 and a further sum of $10,000 by 23 April 2023.

...

1. On Saturday 5 April 2025, I asked [Ms V] for a further loan to pay the Respondent Wife. [Ms V] said words to the effect of:

"I cannot afford this amount of money when I am mindful that I need to find funds to loan you $12,000 a month. I am totally against paying [Ms Eccheli] any money in view of what a nasty person she is, her threats to financially destroy my family and her threatening me with anyone who is associated with you will end up in gaol."

1. On 9 April 2025, I became aware after receiving sealed orders from 4 April 2025 court event that I had until the end of week to vacate my home at the [F Street] property. This gives me little time to pack, organise removalists, find alternative accommodation [...] whilst attending to business commitments. I have asked [Ms V] to further loan me monies to assist removalist/relocation costs and to pay the filing fees of transcripts and she paid the filing fee for my appeal in this matter.
2. I do not have any capacity on my credit card to draw $20,000 cash to pay the Respondent Wife, nor any loan facility.

1. Notwithstanding his assertions, Annexure A to the husband's Financial Statement discloses that he paid $20,000 to Ms V on 13 April 2025. Such payment was made at a time when he was subject to an order to pay an equivalent amount to his former spouse. That payment could have just as easily have been made to the wife. He simply chooses not to. The husband has in the last month sworn two Financial Statements, but they continue to remain deficient. The husband's affidavit readily concedes that expenses are paid on his behalf by Ms V. Part F of his Financial Statement, however, records a "Nil". The two propositions are incompatible. The husband otherwise identifies that he has no other expenditure at Item 32 in circumstances where he clearly must have other expenditure. There is an unexplained inconsistency between the amount that he says he owes Ms V and the amount that Ms V says is owed.
2. He would appear to have liabilities under various credit cards but provides no explanation as to how he intends to meet those payments. Likewise, the husband's Financial Statement records he no longer receives a monthly service fee paid by Z1 Pty Ltd but then later in the same document records that he continues to receive a salary paid from Z2 Pty Ltd via AA Pty Ltd, albeit that the Financial Statement does not disclose what that salary is.
3. It is questionable whether the order compelling the husband to do what he is duty bound to do is appealable. The husband has an obligation of full and frank disclosure which is ongoing and continuing. The wife has limited knowledge in relation to the financial matters. The husband's affidavit filed 14 April 2025 records as follows:
   1. I am seeking Order 5 to comply with onerous disclosure requests in respect of my transactions made in the ordinary course of business be stayed.
   2. I am of the view that there is no prejudice to the Respondent Wife if this Order is stayed pending the outcome of Appeal on the basis, the Respondent Wife has received disclosure of my entities, and all personal bank accounts and credit card statements to date as stated in my bundle of documents relied upon in the hearing on 4 April 2025. The Respondent Wife has access to further documents if she requires in the period to determination of the appeal by way of pressing for production of the subpoena, she filed on 18 February 2024 to [BB Accountants], my accountant. On 11 March 2025, [BB Accountants] wrote to the Respondent Wife's solicitor seeking conduct monies of just $1500.00 to comply with the subpoena. Notably this fee is far less than what the accountant would have charged me in making these requests myself and compiling documents.
4. Those paragraphs demonstrate a failure on the part of the husband to understand his disclosure obligation despite having sworn in his financial statement that he understands the nature of such obligation. There is a continuing prejudice to the wife by a failure to disclose.
5. I am satisfied the balance of convenience favours the wife. Assuming the husband were able to point to error given the test on leave is conjunctive, he has not demonstrated that a substantial injustice would be occasioned by the refusal of leave. For these reasons, the application for a stay will be dismissed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.