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

1. By Notice of Appeal filed 25 September 2025, the de facto husband appeals interlocutory injunctive financial orders made 19 September 2025. By Application in a Proceeding filed 26 September 2025 the de facto husband seeks a stay. The de facto husband's counsel during the conduct of the hearing more specifically identified that the orders that were sought to be stayed were in fact Orders 1 and 14.2.1.
2. The de facto husband's application was opposed. For the reasons set out below, the Application in a Proceeding will be dismissed.

1. The parties are engaged in contested financial proceedings that were commenced by the de facto wife on 24 July 2025. In my reasons for judgment delivered on 29 September 2025 cited as Javad & Nitika [2025] FedCFamC1F 691 I recorded the following:
   1. On 24 July 2025, the applicant de facto wife ("the applicant") commenced proceedings for financial adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) ("the Act"). Contained within her application were a series of interlocutory orders by way of injunctions in relation to property of the respondent de facto husband ("the respondent") as well as seeking orders for the payment of valuations and costs. All of the orders were opposed with the respondent contended that there was no necessity for the Court to make any injunctive orders, the applicant failed to establish a prima facie case for relief, and she otherwise had the capacity to meet her share of the costs of any valuations.

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1. The proceedings are very much in their infancy and arise out of a de facto relationship which the applicant's senior counsel conceded was a little over four years, albeit contending that a relevant consideration at the final hearing will be contributions made by her in the period prior to the commencement of the relationship. The respondent contends the relationship is of shorter duration. There are no children of the relationship.

2. Valuations have not been undertaken and the quantum of the pool of assets is disputed with the applicant contending a pool of approximately $17 million while the respondent contends a pool of approximately $8 million. The applicant's senior counsel asserts that a court would at a final hearing divide the pool equally, while the respondent contends that a court would not make any adjustive order. Whether either of these outcomes are ambitious is a matter for determination at a later time.

3. The respondent conducts a civil contracting business involving excavation and construction through an enterprise called J Pty Ltd ("J Pty Ltd") which is owned and controlled by him. The financial accounts for the business disclose, according to senior counsel for the applicant, an after-tax profit of $2.97 million and net equity of approximately $2.45 million.

4. The applicant is the owner of K Group Pty Ltd ("K Pty Ltd") which she contends owns a construction vehicle subject to a lease and conducted the payroll operations for J Pty Ltd. The respondent contends that J Pty Ltd is the owner of the construction vehicle and the party liable under a chattel mortgage.

5. In addition to various items of real estate in the name of the respondent and in the name of companies controlled by the respondent, there are properties in City T, Country U which are in the process of being constructed.

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SERIOUS ISSUE TO BE TRIED/PRIMA FACIE CASE

1. The applicant seeks an adjustment pursuant to s 90SM of the Act. The respondent puts in issue that there is a serious issue to be tried and contends that the applicant has not established a prima facie case for the making of the orders sought.

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1. I am satisfied the applicant has established a prima facie case. As the authorities to which I have referred indicate, she has to merely establish that there is a probability of a claim being successful in some measure. It does not have to necessarily amount to an exact satisfaction of the orders or outcome sought. I am satisfied that her contributions as set out in her affidavit and expanded upon in her counsel's, submissions are such that if the evidence as asserted by her is established then there is a probability that she will satisfy the making of an order pursuant to s 90SM of the Act.

UNDERTAKING AS TO DAMAGES

1. The applicant has proffered an undertaking as to damages. In that respect, I note the observations of the Full Court in Blueseas Investments Pty Ltd v Mitchell and McGillivray [1999] FamCA 745; (1999) FLC 92-856. I am satisfied that the applicant's asset position and the undertaking given provides a measure of protection to the respondent. It was not suggested otherwise by senior counsel for the respondent.

BALANCE OF CONVENIENCE

1. I accept the submissions at paragraphs 23 and 26 of the Case Outline for the applicant as to the impact of the respondent's conduct imperilling her relief. I am satisfied, in light of the establishment of a prima facie case, that the balance of convenience favours the granting of the injunctions but not entirely in the manner sought by the applicant. The orders as made take into account, as set out in the reasons below, the potential for prejudice to the respondent and are no wider or intrusive than is necessary.

2. Exhibit 1 recorded the competing positions of the applicant and respondent in the event that the Court determined that injunctions should be made. Addressing those parts where the parties were at issue, I find as follows.

3. By paragraph 1 the applicant sought a payment to a controlled monies account of $940,000 which the respondent had received from his brother and by paragraph 5 the payment to an account of $356,629.50 being funds that the applicant asserted had been removed by the respondent from an offset account. The applicant relied upon various submissions referrable to the movement of various funds in support of the order. Her senior counsel invited the court to draw a conclusion that the applicant's case was imperilled by the volume of money that has passed through the accounts of J Pty Ltd and otherwise dealt with by the respondent. The evidence is such as to give rise to the possibility that her claim for final relief may be imperilled (Tsiang at [25]). While I am not satisfied that there is a sum of money in accounts sufficient to enable the respondent to comply with paragraphs 1 and 5, I am satisfied on the basis of the submission of senior counsel for the respondent that there are sufficient funds available to the respondent including those in in the J Pty Ltd account to make a payment of $600,000 into a controlled monies account. It was not submitted that the respondent required the whole of the funds in the J Pty Ltd account to meet the needs of the company. I am satisfied that the balance of convenience supported the making of an order requiring the respondent to deposit $600,000 into a controlled monies account.

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1. The applicant sought orders in the terms of paragraph 14 in relation to a construction vehicle and various payments to K Pty Ltd. The applicant contends K Pty Ltd has a liability to meet the lease payments for the construction vehicle. The respondent contends that the construction vehicle is not owned by K Pty Ltd but by J Pty Ltd and as best I understand his case, J Pty Ltd meets the liability. I cannot resolve what should not be an issue. In the event that it is as asserted by the respondent, then there is no prejudice to him by imposing upon him an order to make the payments he otherwise would make. I cannot resolve the dispute on the facts as to who bears the liability. The payments on the construction vehicle are to be made by the husband. It is not however intended that he would make the payment pursuant to Order 14.1.1 in addition to the payment pursuant to 14.2.2. The intent behind the orders is for the payment to be made not to unjustly enrich K Pty Ltd. To that end the orders are amended pursuant to Rule 10.13 to discharge order 14.2.2. The applicant otherwise seeks a payment of $21,284.85 to K Pty Ltd. I am satisfied that it is proper that such an order be made where it does not impose a significant prejudice or financial burden on the respondent in the context of the overall pool of assets controlled by him, where on the evidence the moneys appear to relate to expenses incurred by K Pty Ltd on behalf of J Pty Ltd and is a matter that can be taken into account at the conclusion of the proceedings.

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CONCLUSION

1. These are interlocutory injunctions made at an early stage of the proceedings. Should the necessity arise for the review of these injunctions, either by increasing or restricting their scope, then that can be the matter of a subsequent application albeit potentially at a parties' peril as to costs. At this stage, the orders I have made provide the measure of protection necessary balanced against any asserted prejudice and are no wider than is necessary.

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 de facto husband's counsel submitted that the balance of convenience favoured the granting of a stay and that the appeal would be rendered nugatory if a stay were not granted. The de facto husband contended broadly in relation to Order 1 that the husband had been denied procedural fairness in circumstances where the de facto wife had initially only sought a payment of $500,000 under s 90SM or s 114UB of the Family Law Act 1975 (Cth), but on the afternoon before the hearing, amended her relief by way of Minute of Order to seek an injunction seeking $940,000 be paid into a bank account.
2. Counsel for the de facto husband who appeared on the stay observed that no Amended Initiating Application was filed, submitting that, "in a strict sense her application was not properly before the court" (Outline of Submissions for the Respondent Husband, paragraph 9). This change, it was said, fundamentally altered the principles of the claim and the de facto husband, "had no time to receive advice ...or make any forensic decisions about what evidence would be required to meet such a claim" (Outline of Submissions for the Respondent Husband, paragraph 12).
3. The de facto husband's Outline of Submissions contended more specifically as follows:
   1. The Husband submits that whilst the failure to afford him procedural fairness is an error that will in and of itself grant him relief on appeal, the Husband also submits that in failing to afford him procedural fairness he was unable to properly articulate the following difficulties that Order 1 creates:
      1. The Husband does not have $600,000 in his personal name. At the hearing the Husband's Financial Statement recorded that he had approximately $31,000 in his personal bank accounts. His affidavit filed 1 October 2025 deposes to the following:
         1. That the Javad Family Trust has $1.00 in savings;
         2. That the L Pty Ltd has savings of $2,249.45;
         3. That J Pty Ltd ("J Pty Ltd") has savings of $407,465.06

Leaving aside the question posed below with respect to fiduciary duties, the Husband does not have the capacity to meet Order 1 in any event even in relying upon his authority over certain entities.

So much so is supported by his updated affidavit of 1 October 2025, from [10] through [15].

1. Given the Husband does not have the funds to meet the Order from his personal account, the Court found the Husband could meet the order from funds from other entities including from J Pty Ltd. What is not addressed by the Court - is that the Husband was not afforded an opportunity to answer this in his evidence - the tax implication of utilising any of the funds in J Pty Ltd or a trust to meet the Order.

   1. The Husband would have to receive a distribution into his personal capacity (as the order is not a freezing order) from one of the entities to meet that Order which would carry with it personal income tax. The ATO's "simple tax calculator" calculates that $236,138 is owing on income of $600,000 - that is obviously without talking [sic] into account the Husband's actual income for the year in which the distribution is received. The Husband submits losing such a large amount to tax on a proper accounting of the payment into Coleman Greig's trust account robs Order 1 of all utility; the balance of convenience is not served by incurring tax at such a high rate.

   2. The Court is required by section 90AF(4)(a) to consider the taxation effect of any injunction made by the Court. It did not do so.

   3. The Court, having acknowledged the Husband had no personal funds to meet the payment, has placed the Husband between complying with the Court's orders and complying with his fiduciary duties as a director of J Pty Ltd and as trustee of the trust entities. The Court made no findings that the Husband is the alter ego of any of the entities in his control. Where the Husband gave evidence that he required the funds in J Pty Ltd to meet the companies' obligations including payroll, the Court has impermissibly lifted the corporate veil without making any findings commensurate to do so. This is acutely relevant where the payment would reduce the cash at bank for J Pty Ltd to zero calling the solvency of the entity in question.

1. The de facto husband reiterated that he could not meet the claim as ordered.
2. In relation to Order 14.1.2 the de facto husband repeated the submissions as to procedural fairness, contending that in fact the Court made a final determination. Counsel for the de facto husband otherwise made submissions as set out in a document described as "Outline of Submissions for the Respondent Husband", including that the payment that was ordered was in relation to an agreement between two entities that were not parties to the proceedings, that the de facto wife had no standing to bring an application on behalf of K Pty Ltd, and further:
   1. Fourth, and if the Court finds that the Wife does have standing to bring a claim on behalf of K Pty Ltd, it is not clear under what jurisdiction or power the purported interlocutory injunction is based on:
      1. In order to fall within the definition of a matrimonial cause pursuant to section 4 of the Act, the order needs to be in relation to the "property of the parties". As above, the assets of the companies are not assets of the parties. Beyond that, the construction vehicle 1 is not the asset of K Pty Ltd. In any event, a dispute between two corporate entities over an asset owned by those entities is not a matrimonial cause. The Court has made no findings that the corporate entities are the alter egos of the parties, nor could it have done due to the limited scope of an interlocutory hearing.
      2. Given the problems with finding a matrimonial cause, the injunctive powers under the Act in section 114(2A) or (3) (as asserted by the Wife) are not enlivened as no jurisdiction is being exercised under the Act.

The Wife's evidence at [MSN]-9 supports such a conclusion where the payment is asserted to be payable to K Group Pty Ltd under the "Building and Construction Industry Security Payment Act 1999 (NSW)". The claim is contractual, between two corporate entities, and not proper to be brought before the Federal Circuit and Family Court of Australia for litigation without more steps being taken by the Wife or K Pty Ltd.

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1. Sixth, if the Court does not accept the relief is specific performance, the Court did not apply the proper test for a mandatory injunction. The test is as outlined in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 229 ALR 457 at [ 13] (which the Court referenced in its reasons at [19]):

   1. Whether the plaintiff has shown a serious question to be tried;

   2. Whether the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and

   3. The balance of convenience favours the granting of an injunction;

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1. Seventh, if the Court is against the Husband on each of the above arguments, the Court did not provide any reasons engaging with section 90AF of the Act, nor any adequate reasons.

1. The Notice of Appeal contains five grounds as follows:
   1. That His Honour erred at law by failing to give reasons in relation to all of the orders made.
   2. That in the alternative to Order 1, His Honour erred at law by failing to give adequate reasons in relation to all of the orders made.
   3. That with respect to all of the orders made, His Honour erred at law by making the orders but reserving reasons for the making of those orders.
   4. That with respect to each of Orders 1, 6.7,6.8,6.9, 6.10, 9.4.2 His Honour erred at law by not affording the Appellant procedural fairness in relation to those orders.
   5. That His Honour erred at law with respect to Order 1 as it fell outside the Court's power to make such an order.
2. Counsel who appeared for the de facto husband properly conceded that Grounds 1 and 3 were not pressed.
3. The appeal is from the exercise of a wide discretion. Absent some exceptions for discrete legal error including jurisdictional error, the applicant 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] HCA 40; (1936) 55 CLR 499. Where the appeal is from an interlocutory order, the applicant 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]).
4. Ground 2 contends that the Court erred by failing to give adequate reasons. The inadequacy ground was faintly pressed. The reasons identify the evidence relied upon by the parties, records the competing contentions, and engaged with the arguments and submissions. The reasons clearly reveal to the parties the basis of the determination and justice can be seen to be done. The judgment reveals reasons adequate for the matter and issue at hand (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
5. Grounds 4 and 5 variously contended error by failing to accord procedural fairness to the applicant. In MacCallion & MacCallion [2025] FedCFamC1A 144 the Full Court observed within the context of procedural fairness as follows:
   1. Procedural fairness requires a party to be given a reasonable opportunity to present their case, whether or not that opportunity is taken up (Kioa v West (1985) 159 CLR 550), and just what will be required in a particular case to afford a party procedural fairness will vary according to the facts of the case. Procedural fairness does not involve a fixed body of rules to be applied in a formulaic manner (_Vines v Australian Securities and Investments Commissio_n [2007] NSWCA 75; (2007) 233 FLR 1 at [58]). It is a question of avoiding practical injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]). A failure to properly afford procedural fairness will only sound in relief where that failure is material to the outcome of the case (Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609).
6. At the hearing, the de facto husband was represented by experienced senior counsel and a solicitor who is an accredited family law specialist. No application for an adjournment was made nor was any application made to adduce further or additional evidence. The contention that the de facto husband had no time to seek advice or make forensic decisions sits inconsistently with the way he conducted the case in not seeking an adjournment, not seeking to adduce any evidence, and pressing his response to the de facto wife's relief. Accepting that his senior counsel submitted that her client did not have on any evidence in relation to the order seeking $940,000, the inference is that it must presumably have been a forensic decision to proceed, to not seek an adjournment, and to not seek to adduce evidence as to an inability to meet the order sought. Such inference arises in the absence of a ground asserting a miscarriage of justice arising from the incompetence of counsel and solicitor. The de facto husband's now complaint smacks of dissatisfaction with the result rather than the process.
7. I do not accept the submission that the de facto husband was unable to meet the de facto wife's case, nor does he have $600,000, nor the capacity to meet Order 1. The de facto wife was initially seeking $500,000. No part of the de facto husband's case contended he could not meet an order of that magnitude. The now asserted contention that he could not meet an order for $600,000 is only advanced after he was unsuccessful. No such submission was advanced by his senior counsel at the hearing.
8. The submission that the de facto husband would have to receive a distribution from the company carrying with it a taxation impost and consequently the Court was required to consider s 90AF(4) of the Act are all submissions that were not advanced by his senior counsel at the hearing. The submissions are specious as they ignore and fail to engage with the evidence that the de facto husband had the capacity to meet the order.
9. As the solicitor advocate for the de facto wife submitted, the financial accounts for J Pty Ltd (the de facto husband's company) for the period ended 30 June 2025 disclose that the company owes the de facto husband $754,694.84 and that the accounts show the company has a substantial surplus of assets over liabilities sufficient to enable the company to pay the loan account in full. The husband's affidavit did not reveal that he had disposed of this asset nor did his financial statement.
10. Counsel for the de facto husband chose not to engage with this submission in addressing his submissions in reply. I do not accept that there is any merit to the submission that the de facto husband does not have the capacity to meet the order made.
11. The submissions made by counsel for the de facto husband in respect of a stay of Order 14.2.1 are in their entirety submissions that were not advanced at trial. The order as cast imposes an obligation upon the de facto husband. Even assuming the de facto husband was able to establish error, the application would face insurmountable difficulty demonstrating a substantial injustice.

1. The de facto wife is entitled to the benefit of the judgment and entitled to presume the judgment is correct. I am satisfied that the de facto husband has brought his application for a stay promptly. As to bona fides his submission that he does not have the capacity to comply with the order is plainly inconsistent with the evidence.
2. For the reasons given, the prospects of success on appeal on the basis of the submissions advanced in support of the stay are considered poor. The de facto 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.
3. I am not satisfied that the de facto husband's submission is open. The $600,000 is to be paid into an account and will be available at the final hearing so the appeal is not rendered nugatory. The quantum of the payment pursuant to Order 14.2.1 is modest in the context of the pool of assets asserted by the de facto husband. I am satisfied that the balance of convenience does not favour the grant of a stay.
4. The application of the de facto husband will be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.