Johnson v Cressy & Ors [2009] VSCA 123

2 We further note that by summons dated 4 May 2009, the second and third respondents have filed an application seeking that the applicant's Notice of Appeal be struck out as incompetent insofar as it relates to the second and third respondents on the basis that it does not comply with R 64.05(1) of the Rules; or alternatively, that it was not served within time. Pursuant to R 64.03(1) of the Rules, this matter has been listed for hearing on 3 June 2009.

3 The applicant seeks orders to the effect that all of the orders made by the learned trial judge in the course of handing down his judgments in Proceeding No. 9965 of 2007 on 11 February 2009, and on 25 February 2009, be stayed pending the Court of Appeal handing down its judgment in this appeal from those proceedings including without limitation:

(a) Orders made by the trial judge on 25 February 2009 to the effect:

1. That the applicant pay to the first respondent $105,000;

2. That the net proceeds from the sale of the applicant's property situated at 166 Queen Street, Altona ('Altona property') be paid to the first respondent; and

3. That the applicant's property at Hawkhurst Court be sold and the net sale proceeds be paid to the first respondent up to an aggregate amount no greater than the sum of $105,000.

(b) Orders that the Prothonotary of the Supreme Court effect the sale by auction of the property by 31 May 2009.

(c) Orders made by the trial judge on 25 February 2009 and on 2 December 2008, 5 December 2008, 12 December 2008, 5 February 2009, 9 February 2009, 10 February 2009, and 11 February 2009 to the effect that the applicant be required to pay any of the costs of any of the respondents or any of the third parties called upon (successfully or otherwise) to give evidence as witnesses in those proceedings.

Factual Background and Summary of Proceedings

4 This summary is derived from the judgment in Cressy v. Johnson (No. 3) ('Reasons').[1]

5 The applicant is a solicitor who had a romantic relationship with the first respondent, Ms Cressy (hereafter referred to simply as 'the respondent'), between 1998 and 2007.[2] During this time they lived together as a couple at two Geelong residences, a South Yarra premises, a Point Cook premise and then at an Altona premise.[3]

6 The applicant was the main income earner in the relationship and took upon himself the responsibility for payment of the expenses relating to the properties. The respondent, on the other hand, assumed the responsibility for the care of her three children, one of which was alleged to be a child of the relationship.[4]

7 This application arises out of the proceeding in which the respondent made a claim against the applicant under Part 9 of the Property Law Act 1958 for an adjustment of the interest in seven properties of which the applicant was the registered proprietor.[5] In the alternative, at trial the respondent sought a declaration that the applicant held those properties purchased in his name on a constructive trust on behalf of himself and the respondent.

• 2 Dorrington Street, Point Cook;
• 10 Hawkhurst Court, Hoppers Crossing;
• 12 Lisa Court, Hoppers Crossing;
• Inverloch Drive, Point Cook;
• 166 Queen Street, Altona;
• Unit 9/2 Gibson Street, East Caulfield; and
• 7A Endeavour Street, Torquay.

9 The applicant counterclaimed by pleading the following causes of action: damages arising out of alleged fraudulent representation, damages arising out of two caveats, and claiming further that the respondent stole documents and other items from him between the years 1995 and 2007.

10 At trial, the applicant joined a second defendant to that counterclaim, David Hanlon a solicitor, and a third defendant to the counterclaim, Harwood Andrews Pty Ltd, a firm of solicitors of which Mr Hanlon is a member. They are the second and third respondents respectively to this application. The substantive proceedings were heard during the period 2 to 5 and 9 to 12 December 2008, 5 February 2009, and 9 to 11, 13, 16 and 17 February 2009.

11 On 11 February 2009 the learned trial judge upheld an application to dismiss the applicant's counterclaim as against the second and third respondents upon the basis that they had no case to answer in respect of the counterclaim against them.[6]

12 On the same day his Honour ordered that the applicant pay the second and third respondents' costs of the counterclaim in the substantive proceedings, including reserve costs, upon a solicitor/client basis. That order was made upon a number of grounds which were set out in further reasons for judgment of the trial judge dated 11 February 2009.[7]

13 On 25 February 2009 his Honour delivered judgment in the substantive proceedings.[8] The reasons are summarised below.

Summary of the reasoning of the learned trial judge

14 At trial, most of the evidence was in dispute. On the issue of the credibility of each party, whilst his Honour generally regarded the respondent's evidence to be credible, he regarded the applicant to be an unreliable witness.[9]

15 The first issue in respect of the respondent's claim under Part 9 of the Property Law Act 1958 was whether the applicant and respondent were domestic partners between the years of 1998 to 2007. After lengthy discussion, his Honour held that the applicant and the respondent's relationship satisfied the definition of a domestic relationship under the relevant section.[10]

16 The next question his Honour considered was whether the respondent had established an entitlement to an adjustment of the interests in the properties of which the applicant was the registered proprietor, pursuant to s 285 of the Property Law Act 1958. In order to determine this point, his Honour, following Kardos v Sarbutt[11] was required to:

i. identify and value the property, or the properties, which may be the subject of an adjustive property order;

ii. evaluate and balance the respective contribution of the parties which typically results in an apportionment between the parties on a percentage basis of the overall contributions made by them; and

iii. determine what order is required sufficiently to recognise and compensate the applicant's contributions.

17 After summarising the information that could be gleaned from the evidence in respect of the value of the seven properties,[12] his Honour turned to the issue of the parties' contributions. His Honour considered their respective contributions to the purchase of the properties, the role of the applicant in the purchase of them, the parties' contributions to renovations, repairs, and works to the properties, mortgage payments, utilities payments, insurances and the like, contributions to household expenses and contributions as homemakers and parents to the welfare of the family.

the [applicant] has assumed an onerous burden in respect of the mortgage commitments for the properties. That burden, and the financial risk carried by him, must be given full value. Conversely, the [respondent] has assumed principal responsibility for the care of the children, and, during the period of the relationship, she contributed substantially to the day to day expenses of the household. Taking all those matters into account, and bearing in mind the admonitions of the Court of Appeal to give full value to the contribution of the homemaker and parent, in this case I am satisfied, for the purposes of s 285(1) of the Property Law Act, that the contributions of the [respondent] and the [applicant] were equal. In reaching that conclusion, I take into account the ongoing and continuing contribution by the [respondent] as parent and homemaker for the three children, and the lack of any financial or other contribution by the [applicant] since about late 2007.[13]

19 Having assessed the respective contributions of the parties to be equal, his Honour determined that the relevant pool of benefits

derived by the [applicant] from the financing and re-financing of the Caulfield property, the amount of superannuation saved by him during the relationship, the proceeds of the sale of the vehicle, the net equity in the Hawkeshurst [sic] Court property, and the net proceeds of the sale of the Queen Street property, totals approximately $210,000.[14]

20 Accordingly, his Honour made orders that the applicant pay to the respondent half of this, that is the sum of $105,000.

21 With regard to the issue of the constructive trust, the respondent claimed that the applicant held his interest in the seven properties on trust for the applicant in equal shares from the conclusion of their joint relationship. His Honour's finding in this respect was relevant to part of the counterclaim made by the applicant against the respondent. His Honour found as follows:

I would make a declaration that the [applicant] holds his current legal ownership of the properties at 2 Dorrington Street, Point Cook, 7 Inverloch Drive, Point Cook, 10 Hawkeshurst [sic] Court, Hoppers Crossing, 166 Queen Street, Altona, and Unit 9, 2 Gibson Street, East Caulfield, on a constructive trust as to one third for the [respondent]. The [respondent] would also be entitled to a declaration, on her alternative claim, that the monies paid into Court upon completion of the sale of the property at Altona be paid, as to one third thereof, to the [respondent], and as to the balance to the [applicant].[15]

22 Thus his Honour found that the respondent was entitled to a one-third interest in the properties at Point Cook, Hoppers Crossing, Altona and East Caulfield.

23 We now turn to the applicant's counterclaims at trial. The learned trial judge dismissed the applicant's counterclaims in succinct and it might be said powerful terms.

24 The applicant pleaded that he was induced into an agreement with the respondent under which he permitted the respondent and her mother to occupy a number of properties free of rent or on a concessional rental basis. The applicant pleaded that he was induced into this agreement by the fraudulent misrepresentations of the respondent. This allegation, as it turned out, related to the respondent's return to work as a sex worker and was not supported by any evidence. It was dismissed.[16]

25 The second claim by the applicant was that the respondent fraudulently and maliciously executed and registered Caveat No. AF085952B, claiming a beneficial interest in the six properties then owned by the applicant. His Honour found that 'the [applicant] has failed to prove any fraud or malice on behalf of the [respondent] in executing and lodging the caveat.'[17]

26 The applicant further pleaded that the respondent procured Harwood Andrews, the solicitors, to fraudulently and maliciously execute and trigger Caveat AF066328D claiming a beneficial interest on behalf of Harwood Andrews in the Altona property. Again, this allegation was unsupported by evidence of fraud or malice and was dismissed by the trial judge.[18]

27 In respect of the above two counterclaims, as his Honour found that the respondent did have an equitable interest in the respective properties the subject of the counterclaim, the caveats were entitled to be lodged.[19]

28 In relation to the applicant's counterclaim that the respondent stole documents and other items from him, the trial judge found that:

it is clear that the [respondent] took possession of the [applicant]'s documents and two mobile telephones, on 16 November 2007 at the Dorrington Street premises, without the permission of the [applicant]. In doing so, she committed a trespass to the [applicant]'s goods.[20]

29 However, as the applicant had not proved that he sustained any loss or damage as a result of the removal by the respondent of those goods, nominal damages of $25 in respect of the trespass committed by the respondent were awarded.[21] His Honour rejected the applicant's claims for exemplary damages and also his abuse of process action in tort.[22]

30 On 11 March 2009 the applicant filed a Notice of Appeal in respect of the judgments.

31 In the current application, as already outlined, the applicant seeks a stay of the orders made in December and February last. The orders made on 25 February 2009 were to the effect that:

1. The applicant pay to the respondent the sum of $105,000.

In order to secure payment to the respondent of this sum, his Honour further ordered:

2. The net proceeds of the sale of the applicant's property situated at 166 Queen Street, Altona be paid to the respondent; and

3. The property situated at 10 Hawkhurst Court, Hoppers Crossing be sold by public auction within 60 days and out of the net proceeds thereof after deduction of any amount due to the mortgagee of the property of any other amounts secured over the property and of the costs of the sale of the property, there be paid to the respondent a sum which, when added to the net proceeds of the sale of the Altona property so paid to the respondent, results in the payment to the respondent of an amount no greater than the sum of $105,000.

32 The further orders directed that the sale 'be conducted by an agent selected by the Prothonotary'. His Honour also directed that the applicant pay the costs of the respondent for the claim and counterclaim including any reserve costs, up to and including 11 December, on a party/party basis and thereafter on a solicitor/client cost basis.

33 The time for the sale of the Hawkhurst property was later extended by the trial judge who ordered on 9 April 2009 that the property be auctioned on or before 31 May 2009.

34 We note that no relevant orders were made on 2 or 5 December 2009. On 12 December 2009 the trial judge made orders to the effect that the matter be adjourned to 9 February 2009 and that the applicant pay the costs of the respondent on a solicitor/client basis.

35 Eight orders were made during the period 5 to 10 February 2009 all of which set aside subpoenas served on the following parties: Mr Richard Anderson, Ms Lisa Newcomb, Mr Colin Twig, the Legal Services Commissioner, Mr Peter Berry, Ms Katherine Reese, Mr Richard Ingleby, Mr Graham Devries, and Mr James Turnbull. In addition, the applicant was ordered to pay the costs of the applications of Mr Anderson, Ms Newcomb, Mr Twig, the Legal Services Commissioner and Mr Berry to have the subpoenas set aside.

36 On 11 February 2009 the trial judge made orders directing that the applicant pay the costs, including any reserve costs of the second respondent, David Hanlon, and the third respondent, Harwood Andrews, on a solicitor/client basis.

37 By this application, the applicant seeks a stay of the order directing that the Hawkhurst Court property be sold and for the proceeds of sale from the Altona property be paid to the respondent and further that the costs orders directing that the applicant pay the costs of the first, second and third respondents and other third parties be stayed.

38 Before proceeding to the consideration of the stay application, it is appropriate to recite the documents filed by the applicant in support of this application. They were: an affidavit sworn 22 April 2009 by the applicant together with extensive exhibits, written submissions dated 8 and 14 May 2009, further submissions filed by the applicant on 14 May 2009 together with an additional affidavit sworn by him on that day.

39 The power to order a stay will only be exercised where special or exceptional circumstances exist.[23] Such circumstances will exist where there is a real risk that the appeal, if successful, will be rendered nugatory. Special circumstances will exist where there is a real risk that it will not be possible for a successful applicant to be restored substantially to his former position if the judgment against him were executed.[24] It is essential to show serious injury to the applicant.[25] It is not sufficient to rely on an argument that the judgment below might be wrong; that is, that the appeal might succeed.[26]

40 We turn then to the applicant's submissions. At the outset it is to be observed that the affidavit sworn 22 April 2009 and filed by the applicant in support of his application for the stay is laced with assertions in the nature of his personal belief or opinion as to errors made by the trial judge, in particular errors of fact. He also deposes as to his belief that unless a stay is granted, the circumstances relied upon will give rise to harm. However, the matters relied on constitute no more than bare assertions. There are no facts or evidence put before the court, or matters deposed to on the basis of information other than the applicant's belief, to support the his submissions. We note that the applicant is a solicitor and he might be readily expected to comprehend the obligations of a deponent of an affidavit in support of an application such as the present.

41 In his affidavit sworn 22 April 2009, the applicant submits that, 'substantial harm and grief will be caused to me and to others if this Honourable Court does not grant the orders that I am seeking in my Summons'. By way of explanation the applicant submits that his wife and children, the respondent, the Prothonotary, and third parties with interests in the Hawkhurst Court property will suffer harm and grief if the property is sold because:

1. The property will be a sold in a 'ridiculously short period of time' and by a 'ridiculous method' which will mean that it is likely that the property will be sold for less than its real value;

2. The respondent is likely to be the victim of misconduct by her legal representatives, Berry Family Law, because those lawyers intend to retain the sale proceeds for their own benefit, as legal costs; and

3. The respondent would suffer harm because if the property is sold the applicant will be unable to let the respondent reside in the property.

42 In the course of oral submissions, the applicant relied upon five points. First, he asserted that the trial judge failed to have regard to independent evidence at the trial. The applicant relied upon the evidence of the neighbour, the managing agent and also the residential tenancy leases relating to other properties. He also relied upon the birth certificate of the child of the respondent and himself, asserting that it was conclusive evidence of his address and the address of the respondent. Consideration of these matters in the context of the reasons delivered by the learned trial judge, reveals that his Honour carefully analysed the evidence presented by the applicant in the course of determining the outcome of the claim by the respondent at trial.[27] Furthermore, when the applicant in the course of submissions before us was called upon to articulate the particular items of evidence that he asserted were not taken into account by his Honour, he was unable to identify them.

43 The second point made by the applicant was that the trial judge made an errant description of the evidence in the reasons for judgment. On proper analysis of this submission, it is apparent that the applicant failed to take account that his Honour, to a large extent, in his reasons for judgment made an assessment of the credibility of the applicant against the respondent. As the trial judge, his Honour had the benefit of observing the witnesses firsthand and determined the matter of credit on that basis. In this respect, his Honour was in a better position than this Court. In any event, there were no matters to which our attention was directed that would indicate that his Honour made errors with respect to his assessment of the credit of the parties. The findings were open to his Honour.

44 The third, and indeed related, point made by the applicant was that the findings of credit against the applicant were misconceived and wrongly made by the learned trial judge. We would reiterate that his Honour had the benefit of the observations of the witnesses, but in particular the applicant and the first respondent, firsthand at trial.

45 The fourth matter raised by the applicant was that the judge was misled by the respondent's deceits in believing the respondent over the applicant. This in effect is the same as the second and third point and again we would reiterate that the trial judge had the benefit of the observations of the parties firsthand.

46 The fifth matter submitted by the applicant in the course of his oral submissions was, in effect, the assertion that there had been a denial of justice. The argument was put that it was inconceivable that properties would have been put in the name, or an interest acknowledged, in the name of the respondent, given her psychological condition. However these were matters of findings of fact by the trial judge and there is no basis put to us upon which an appellate court would reasonably interfere with those findings.

47 In essence, the five points made by the applicant in the course of oral submissions were to the effect that the findings by the trial judge were against the weight of the evidence. Having had the benefit of considering very carefully his Honour's reasons and the aspects of the evidence to which the applicant was invited to direct our attention, we could not be so satisfied for the purposes of the present application. It follows that thus far the arguments put forward by the applicant as to the merit of his appeal are not made out.

48 There were additional matters raised by the applicant in the course of argument. The applicant contended that his Honour failed, in his reasons for judgment, to take account of the financial earnings of the applicant over the relevant periods. However, his Honour in fact did give consideration to those matters.[28] The consideration of earnings of the applicant demonstrate to the contrary the point purported to be made by the applicant in the course of submissions. It follows that we are not persuaded on this point.

49 We now turn to the question of whether the appeal will be rendered nugatory if the property is sold. While special circumstances justifying the grant of a stay may be recognised where the subject matter of the appeal is in substance irreplaceable,[29] those special circumstances do not exist in the present matter.

50 The applicant appears to be primarily submitting that the Prothonotary will sell the land for less than its market value. The applicant advances no evidence to support this allegation. Moreover, if the applicant is successful in his appeal, he would be entitled to be repaid the proceeds of sale. There is no evidence that if he was reimbursed he would be unable to purchase a similar investment property in a similar area. Further, there is no evidence or even a suggestion that he is at risk as to repayment of the proceeds of sale. The fact that the property may have a special significance to the applicant, and none has been made out, would not ordinarily justify a direction that the Prothonotary be prevented from exercising the power of the sale.[30]

51 The applicant's assertions that the respondent would suffer harm at the hands of the lawyers as a result of the property sale are also unfounded. The applicant tendered letters from Berry Family Law to the respondent relating to legal costs as evidence of their intentions to possibly defraud the respondent of her money. This correspondence does not make out the point, which may well be regarded as nonsensical.

52 Similarly, the applicant's submission that the respondent would suffer harm because if the property is sold, the applicant will be unable to let the respondent reside in the property is misconceived. In any event, it was not a basis upon which the respondent herself purported to assert prejudice.

53 The applicant further deposes in his affidavit of 22 April 2009 that if the proceeds of the Altona property are paid to the respondent, substantial harm and grief would occasion third parties. Again, there is no evidence to support these allegations. In addition, the applicant deposes that it would detrimental to the settlement of the 'lawful and successful dispute' with the applicant's mortgagee if the sale proceeds are transferred to the respondent. The prospect of such an inconvenience to the applicant does not amount to special circumstances warranting the grant of a stay.

54 This Court knows little on this application about the financial circumstances of the respondent at this time and therefore it is unknown whether the respondent would be unable to repay any sale proceeds of the Hawkhurst Court and Altona properties that she may receive. This Court may avoid the possibility that, if the applicant is successful on appeal, the appeal will be rendered nugatory by directing the proceeds of sale be held by the respondent's solicitor on trust until the determination of the appeal.[31] However such relief was not sought and there is no basis upon which we would consider such a course at this time.

55 We now turn to the prospects of success, or the merits point. The Notice of Appeal filed by the applicant is extremely long and incomplete. Indeed there is specific reference to numerous sections of the grounds of appeal where the expression, 'to be completed' appears. It is difficult therefore to comprehend the basis upon which many of the grounds are asserted. It is to be observed that the Notice of Appeal largely, if not wholly, attacks the judgment below on the basis of the findings of fact made by the trial judge. However, there is no expansion of the bases of those assertions in the affidavits or submissions in support of the present application.

56 The applicant's Notice of Appeal is almost 50 pages long and includes a glossary. The document contains unsubstantiated allegations against the first respondent and her counsel at trial and is often repetitive. It is to be noted that the trial judge described the applicant's 'almost obsessive mind for detail'.[32] In the Notice of Appeal, the applicant submits that the trial judge erred:

1. In fact and in law in holding that the applicant appeared in person;

2. In fact and in law in entertaining an application that the court appoint a litigation guardian to represent the applicant;

3. By ruling that Proceeding No. 9665 of 2007 and No. 9263 of 2008 not be heard together;

4. In fact and in law by failing to make any rulings in respect of the applicant's application that the court take due recognition of certain Federal Magistrates' Court orders affecting him;

5. In fact and in law in failing to investigate and failing to take actions to protect the applicant. That the Federal Magistrates' Court orders were causing him real and serious hardship and strain;

6. In fact and in law in finding that the applicant was not substantially disadvantaged in presenting his case because of his and Sutton Lawyers' lack of familiarity with litigious proceedings;

7. In fact and in law in generally accepting the evidence of the respondent;

8. In fact and in law in not drawing a Jones v Dunkel[33] inference against the respondent;

9. In fact and in law in finding that the evidence of the respondent was supported by her mother;

10. In fact and in law in drawing adverse inferences about the applicant's credibility at trial from his evidence;

11. In fact and in law in finding that the only documents tendered in relation to the purchase and finding of the properties were introduced by the applicant;

12. In making his findings on the unreliability of the applicant's evidence;

13. In fact and in law in holding that on the second day of the proceeding, the applicant objected to the respondent's application to amend her statement of claim;

14. In fact and in law in concluding that the contributions of the respondent and the applicant were equal; and

15. In fact and in law in concluding that a domestic relationship existed.

57 It is to be noted that from page 38 onwards the Notice of Appeal is set out in note form.

58 Most of the grounds of appeal listed seek to overturn findings of fact, especially findings of fact relating to the credibility of the applicant and the respondent. However, the applicant fails to provide any evidentiary bases for his allegations. Appeals against findings of fact are notoriously difficult to overturn on appeal, unless the trial judge has made an obvious material error.[34] At present, these grounds of appeal do not identify any clear error in the determination of the facts.

59 The applicant's grounds of appeal can, in essence, be summarised as follows:

1. The trial judge erred in finding that the applicant and the respondent lived together in a domestic relationship at the relevant properties;

2. The trial judge erred in concluding that the contributions of both parties to the relationship were equal; and

3. The trial judge erred in dismissing the applicant's counterclaims at trial.

60 We turn then to the domestic relationship finding. After lengthy discussion[35] of the issue, his Honour states that:

based on the evidence which I have detailed at some length, I am satisfied that the [applicant] did cohabit with the [respondent] at the addresses at Illouera Grove, Geelong, Gheringhap Street, Geelong, Nicholson Street, South Yarra, Dorrington Street, Point Cook, and Queen Street, Altona, during the periods from late 1998 to about Easter 2007.[36]

61 His Honour proceeds to accept that from time to time the applicant stayed overnight at other places and slept overnight at offices in the city. His Honour continues:

However, in my view his substantial place of residence, throughout that period, was at the addresses to which I have just referred. I am also satisfied that, during that period of time, the [applicant] lived at those residences because he was in a relationship with the [respondent]. The relationship was a sexual relationship. There was clearly a degree of financial dependence or inter-dependence between the parties. The [respondent] relied on the [applicant] to pay the mortgage expenses, the rental expenses (when they were living at Gheringhap Street and South Yarra), rates, insurances and the like relating to each property. As I shall indicate later in these reasons, I also accept that the [applicant] provided some financial support to the [respondent]. On the other hand, the [respondent] was the prime carer for [their child], as well as for her own two sons, to whom the [applicant] readily became a father. The [respondent], the [applicant] and the three children shared a number of outings and interests together, as conceded by the [applicant] in his evidence. Mrs Gail Cressy and Mr Enright both regarded the [respondent] and the [applicant] as living together as a couple. Thus, the relationship bore the hallmarks of a domestic relationship indicated in the factors specified in s 275(2) of the Property Law Act. I am satisfied, on the balance of probabilities, that the [respondent] and the [applicant] did live together as a couple on a genuine domestic basis for the period commencing late 1998, and terminating at about April 2007.[37]

62 The conclusions of the trial judge on the existence of a domestic relationship create difficulties for the applicant. They are findings of fact on the evidence. As matters stand, we would not be persuaded as to the applicant's prospects of success on that point.

63 Turning then to contributions. His Honour discusses this issue in detail.[38] Again, on the evidence extensively discussed by his Honour, the conclusion that the contributions each party made to the relationship were equal was open to him.

64 Turning to the counterclaims matter. At trial the applicant's counterclaims were not supported by any evidence. Again, the trial judge's reasoning on these points are not shaken or seriously challenged by the applicant's submissions. To recapitulate therefore, the nature of the grounds of appeal and their efficacy is difficult to comprehend, given the form of the Notice of Appeal. However, approaching the matter as generously or favourably to the applicant as we might, his prospects of success with respect to the fundamental findings of the domestic relationship contributions and the counterclaims do not demonstrate sufficient prospects of success to satisfy the first limb of the test for the purposes of granting a stay.

65 Turning to the second limb of the test, there is no evidence to support the assertions made by the applicant as to the risks if the property is sold on 31 May 2009. We observe that there is no evidence before the Court to show that the applicant faces a real risk that in the absence of a stay the appeal will be render nugatory if the applicant succeeds. Most obviously, the applicant has not made out on any basis that he would be unable to recover back from the first respondent, or indeed any of the respondents, the amount of the judgment which may be paid as a result of the sale of the property.

66 It follows that the application for a stay of primary orders of the trial judge is refused.

67 In addition, the applicant seeks a stay of numerous costs orders made against him. The applicant makes no submissions as to why he should not pay these costs orders immediately. He has had every opportunity to make submissions both in writing and orally. He has not done so on this point. Presumably he would submit that the respondents would be unable to repay these costs should he be successful on appeal.

68 This matter is one in the absolute discretion of the Court[39] and the Court may refuse to grant a stay of execution for costs if the inability of the respondent to repay them in the event of the appeal succeeding is not shown.[40] If the inability of the respondents to repay the costs is demonstrated, a stay of execution on the order for costs may none the less be refused if the solicitors for the respondents undertake to refund the costs should the ordered be reversed.[41]

69 The applicant has not demonstrated cogent reasons for granting the stay of any of the cost orders against him. Further, in light of his weak prospects of success on appeal, as already described, we would not be persuaded to exercise the discretion to grant a stay a costs orders made against him and we would dismiss the application to stay the relevant costs orders.

70 It must be further observed that in the course of oral submissions, the applicant informed us that he had taken out second mortgages on the property. The identity of the mortgagee, the date of the mortgage (save that it was entered into on 2 December 2008, on the eve of the trial) and related matters were not relayed to the court. It was further stated by the applicant that the property was in the possession of the second mortgagee. We are not seized with these matters. If anything untoward has arisen, then the parties or the Prothonotary would properly approach those matters. Otherwise these aspects, as we say, are not before us.

71 However, the first respondent relied on the applicant's submitted dealing with the property as a further reason to not grant the stay. We are not in a position to deal with this aspect. As we have refused the stay application, it is in any event unnecessary for us to deal with these matters. However, a copy of these reasons will be made available to the Prothonotary.

72 Further, during the course of argument, counsel for the first respondent drew our attention to two exhibits at trial. The first was a letter dated 21 January 2008, to Challenger from the applicant (exhibit L at trial). The second document was a letter dated 21 January 2008 to Royal Guardian, again from the applicant (exhibit 35 at trial). In each of the documents, statements were made to the effect that the mortgage charges with respect to the properties would be amortised to capital thereby running down the interest of the applicant in the property, or so it was asserted.

73 It was submitted for the first respondent that if the stay was granted and control of the property returned to the applicant, who had stated his intention of not meeting mortgage payments as described in the two letters just averted to, the potential interest and entitlement of the respondent would be reduced. We would consider that it is appropriate to treat this matter in the same way as the previous matter with respect to the second mortgage. We further note that the applicant in response, submitted that in any event he dealt with the properties only prior to judgment and therefore there was no question of any improper dealing. Again, these reasons will be provided to the Prothonotary who may properly approach such matters.

74 For the reasons stated, we will dismiss the summons.

[1] [2009] VSC 52.

[3] Ibid [104]. This evidence of the respondent was accepted by his Honour.

[5] Pursuant to s 285(1) of the Property Law Act 1958, the Court is empowered to make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable having regard to the contributions made by either of the parties to the relationship.

[6] Cressy v Johnson (No 2) [2009] VSC 35.

[7] Cressy v Johnson (No 2) [2009] VSC 42.

[8] Cressy v Johnson (No 3) [2009] VSC 52 ('Reasons').

[9] Ibid, [105] - [111]; [124] - [126].

[11] [2006] NSWCA 11; (2005) 34 Fam LR 550, 558.

[23] Cellante v G Kallis Industries Pty Ltd [1991] VicRp 99; [1991] 2 VR 653.

[24] McBride v Sandiland [1918] HCA 59; (1918) 25 CLR 369, 375.

[29] Maher v Commonwealth Bank of Australia [2008] VSCA 122, [24] - [26].

[30] Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 14, [32].

[31] See for instance, Ninety-Fourth Highwire Pty Ltd v State Electricity Commission (Vic) (Unreported, Ormiston J, 31 August 1991, No 2198/91, BC9100628).

[33] [1959] HCA 8; (1959) 101 CLR 298.

[34] Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, 304.

[39] Becker v Earl's Court Ltd (1911) 56 Sol Jo 206.

[40] Barker v Lavery (1885) 14 QBD 769.

[41] Morgan v Elford (1876) 4 Ch D 352; Grant v Banque Franco-Egyptienne (1878) 3 CPD 202; Wilson v Church (No 2) (1879) 12 Ch D 454, 458. See also Tuck v Southern Counties Deposit Bank (1889) 42 Ch D 471; Hood Barrs v Crossman [1879] AC 172.