Nguyen v Corbett (No 5) [2019] NSWSC 934

Nguyen v Corbett (No 5) [2019] NSWSC 934

The stay was refused because Mrs Corbett did not show that refusal would render her appeal nugatory, the evidence did not establish that she could avoid sale of the property in any event given the existing costs order, continuation of the stay risked prejudice to Mr Nguyen, and her asserted appeal case for a 100% entitlement to the Baulkham Hills property under s 79 of the Family Law Act 1975 (Cth) had no realistic prospect or was very weak. The evidence was insufficient to justify extending a stay that had already continued for more than a year.

Jurisdiction
Australia
Judgment Date
22 July 2019
Procedural Posture
Civil Procedure Application for Stay of Proceedings Pending Appeal / Notice of Motion Filed 19 July 2019 Following Dismissal of Cross Claim
Outcome
The cross-claimant's Notice of Motion filed 19 July 2019 was dismissed.
Legal Topics
['stay Pending Appeal' 'prospects of Success on Appeal' 'family Law Act Property Adjustment' 'receiver and Sale of Property' 'costs']
['civil Procedure' 'equity' 'family Law' 'property'] ['stay Pending Appeal' 'prospects of Success on Appeal' 'family Law Act Property Adjustment' 'receiver and Sale of Property' 'costs']

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Procedural Posture

Civil Procedure Application for Stay of Proceedings Pending Appeal / Notice of Motion Filed 19 July 2019 Following Dismissal of Cross Claim

Legal Issues

  1. 1 ['Whether the stay of the make-available order and receivership orders should continue pending an appeal to the Full Court of the Family Court.' "Whether refusal of a stay would render Mrs Corbett's appeal nugatory or cause sufficient prejudice by requiring her to vacate the Baulkham Hills property." 'Whether continuation of the stay would prejudice Mr Nguyen as creditor and cross-defendant.' 'Whether Mrs Corbett had sufficient prospects of establishing on appeal an entitlement to 100% of the Baulkham Hills property under s 79 of the Family Law Act 1975 (Cth).' 'Whether discretionary factors supported further continuation of a stay already extended for more than a year.']

Ratio Decidendi

The stay was refused because Mrs Corbett did not show that refusal would render her appeal nugatory, the evidence did not establish that she could avoid sale of the property in any event given the existing costs order, continuation of the stay risked prejudice to Mr Nguyen, and her asserted appeal case for a 100% entitlement to the Baulkham Hills property under s 79 of the Family Law Act 1975 (Cth) had no realistic prospect or was very weak. The evidence was insufficient to justify extending a stay that had already continued for more than a year.

Court Disposition

The cross-claimant's Notice of Motion filed 19 July 2019 was dismissed.

Orders

  • ["Order that the cross-claimant's Notice of Motion filed 19 July 2019 be dismissed." "Order that the cross-claimant pay the cross-defendant's costs of that Notice of Motion and of the cross-claimant's earlier Notice of Motion filed 24 June 2019."]