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

Supreme Court New South Wales

Medium Neutral Citation: Nguyen v Corbett (No 5) [2019] NSWSC 934 Hearing dates: 22 July 2019 Date of orders: 22 July 2019 Decision date: 22 July 2019 Jurisdiction: Equity Before: Parker J Decision: The cross-claimant's Notice of Motion filed 19 July 2019 be dismissed. 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. Catchwords: CIVIL PROCEDURE — Stay of proceedings — Pending appeal – application for stay of judgment pending appeal – where by appeal cross-claimant will seek orders under the Family Law Act 1975 (Cth), s 79A, entitling her to the whole of the family property and attributing the whole of the relevant debt to her husband – whether refusal of a stay and consequent sale of property would render cross-claimant's right of appeal nugatory – whether cross-claimant would suffer prejudice if stay refused by requirement to vacate family home – whether cross-claimant would nevertheless be required to vacate property as costs judgment of principal proceedings was not subject of the appeal - where cross-claimant's legal costs appears funded by family members but no evidence adduced of resources to satisfy costs judgment of principal proceedings – prospects of success of appeal - whether cross-claimant likely to establish entitlement to whole of property where she adduced no further evidence or explanation for her husband's prior paying down of mortgage instead of satisfying debt to creditors – discretionary factors. Legislation Cited: Conveyancing Act 1919 (NSW), s 37 Family Law Act 1975 (Cth), s 79A Cases Cited: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28 Category: Procedural and other rulings Parties: Ai Nhon Nguyen (Plaintiff/Second Cross-Defendant) Avelina Corbett (First Defendant/Cross-Claimant) James Edmund Corbett (Second Defendant/First Cross-Defendant) Representation: Counsel: RW Tregenza (Plaintiff) D Reynolds (First Defendant/Cross-Claimant)