Another misguided appeal was decided by Aldridge, Carew & Behrens JJ in Kostić & Vaughan (No 3) [2025] FedCFamC1A 221.  In that matter both the applicant and second respondent were self-represented litigants whilst the first respondent and the ICL filed submitting notices.

The substantive proceedings were between the first respondent wife and second respondent husband.  The applicant, a friend of the husband, was a third party and therefore required leave to appeal.  In those substantive proceedings an Order was made requiring the applicant to withdraw a caveat on a one lot of a two lot property in South Australia, in respect of which there had been interlocutory orders made on 10 July 2025 requiring its sale. 

The necessity to sell that property came about as a result of the husband defaulting on earlier orders to facilitate an interim payment to the wife of $50,000.  The 10 July 2025 Orders had also included an order preventing the husband from instituting further proceedings against the wife without leave of the Court.

Almost immediately the husband lodged a caveat over the Lot to be sold, necessitating an urgent application by the wife as the property was listed for auction in August 2025.  The husband and wife then agreed, on 28 July 2025, to an amendment of the previous orders for interim distribution of the proceeds of sale.  The following day the applicant then lodged a caveat over the subject Lot on the asis that the Vaughan Super Fund, a self-managed super fund (SMSF) had an interest in that property and therefore a caveatable interest.  The Wife then filed an Application in a Proceeding for the removal of the caveat and there were then further orders made on 6 August 2025 for a removal of the caveat and restraining the applicant from taking steps to essentially thwart the sale.

An Application in an Appeal and Notice of Appeal was filed by the applicant on.  That Notice of Appeal was amended four times before the eventual appeal hearing.

Their Honours opined that the appellant needed to satisfy two requirements and answered those as follows:

Is the decision at first instance attended by sufficient doubt?

In determining this reference was had to the grounds of the appeal.  There were 7 grounds of the Notice of Appeal, the thrust of the applicant’s argument, with which the husband agreed, here was that the Lot belonged to the SMSF.  However, in the substantive proceedings the husband had not offered sufficient evidence that the SMSF held any interest in that Lot.  It was therefore not incumbent upon the Judge to determine that such an interest was held.  The primary Judge had appropriately considered all necessary matters and generally in a way most favourable to the husband but could not be satisfied that there was any impediment to a sale of the Lot.

Their Honours were “…not satisfied that the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny.”[1]

That substantial injustice would result if leave [to appeal] were refused, supposing the decision to be wrong

There is no merit in any of the proposed grounds of appeal but, even if there were, the applicant has failed to establish that any substantial injustice would result if leave were not granted. The applicant’s potential interest of $1,500 will be secured by the retention of the balance of the proceeds of sale.[2]

Leave to appeal was refused and the Fourth Amended Notice of Appeal, filed
13 November 2025, dismissed.

[1] Kostić & Vaughan (No 3) [2025] FedCFamC1A 221 at [64]

[2] At [64]