Almasi and Lee
[2017] FamCAFC 168
•27 April 2017
FAMILY COURT OF AUSTRALIA
| ALMASI & LEE | [2017] FamCAFC 168 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Application to adjourn appeal hearing – Two years since appeal filed – Agreed property the subject of the appeal has little or no equity – Substantive property settlement proceedings being heard in the near future – Appeal hearing adjourned on the basis the appellant meets the mortgage payments – No order as to costs. |
| Family Law Act 1975 (Cth) |
| Gabel & Yardley (2008) FLC 93‑386 |
| APPELLANT: | Mr Almasi |
| RESPONDENT: | Ms Lee |
| FILE NUMBER: | PTW | 2876 | of | 2014 |
| APPEAL NUMBER: | WA | 15 | of | 2015 |
| DATE DELIVERED: | 27 April 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 27 April 2017 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 14 April 2015 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kitto |
| SOLICITOR FOR THE APPELLANT: | Kitto & Kitto |
| COUNSEL FOR THE RESPONDENT: | Mr Speigl |
| SOLICITOR FOR THE RESPONDENT: | Victoria Park Legal |
Orders
(1)The hearing of the appeal be adjourned, pending delivery of judgment in the substantive property settlement proceedings between the appellant and the respondent.
(2)The respondent be granted liberty to seek the urgent relisting of the appeal before the Honourable Justice Thackray in the event of default by the appellant in payment of the mortgage over the home.
(3)The appellant provide to the respondent on a monthly basis a bank statement or other conclusive written record confirming payment of the mortgage in relation to the home.
(4)Paragraph 2 of the Response to an Application in an Appeal filed 3 April 2017 be dismissed.
(5)By consent, there be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Almasi & Lee has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 15 of 2015
File Number: PTW 2876 of 2014
| Mr Almasi |
Appellant
And
| Ms Lee |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This appeal comes before me today as a single judge in accordance with a delegation given by the Chief Justice. The background to the appeal is well set out in the ex tempore judgment given by Magistrate Tyson on 14 April 2015, and it is unnecessary for me to say anything more by way of background.
Paragraph 5 of the orders her Honour made stated:
Until further order of the Court, the First Respondent [the wife] will be appointed sole trustee [for] sale of the [home], registered in the name of the Applicant [the husband].
Her Honour gave clear – and might I say – logical reasons why that order was appropriate, in circumstances where she was effectively enforcing an earlier consent order for the sale of the property, which was followed by a subsequent machinery order, also made by consent, to affect the sale of the property.
The husband was aggrieved by her Honour’s orders and filed a Notice of Appeal in time on 7 May 2015.
History of the Appeal
It has been over two years since the appeal was filed. The Notice of Appeal was subsequently amended on 20 May 2015. The matter came before me for a directions hearing on 7 August 2015, and I ordered that the appeal be listed for hearing before me on 3 December 2015.
On 23 November 2015, the court received a letter from the solicitors representing the appellant, noting that due to an administrative error within their office, they had missed the deadlines for the filing of the summary of argument and list of authorities. The letter also drew attention to the fact the parties had been arranging an informal without prejudice conference. The letter requested that the appeal be adjourned to allow the parties to attempt to resolve all property related matters and avoid future litigation. The letter was counter-signed by the solicitors acting for the respondent. I was asked to make orders in chambers giving effect to the agreement.
On 26 November 2015, I issued orders from chambers vacating the appeal hearing on 3 December 2015 as requested but I also ordered that the matter was not to be relisted until after the parties had attended an informal conference and they had certified in writing that the matter would be ready for hearing in the event a further date was allocated. The orders went on to lay down the timetable for the filing of the submissions and lists of authorities in the event the appeal was relisted for hearing.
There the matter sat until 12 September 2016, when the court received correspondence from the respondent’s solicitors advising the parties had attended an informal conference on 19 August 2016 and were unable to resolve the outstanding issues.
The respondent’s solicitors indicated they were of the firm view that the appeal relating to the interim orders should proceed before the readiness hearing of the substantive property settlement proceedings listed for March 2017, and gave unavailable dates. The Appeal Registrar responded on 14 September 2016, drawing attention to paragraph 2 of the orders made on 26 November 2015 relating to written certification that the matter would be ready for hearing and also seeking unavailable dates of counsel for the appellant.
No response was received to that correspondence until 24 November 2016. In this correspondence, the respondent’s solicitor certified the respondent was ready to proceed and provided unavailable dates. The matter was then referred to me in chambers. On 6 December 2016, I directed the matter be relisted for hearing before me today. On 1 March 2017, the appellant filed an application in an appeal, seeking that today’s listing be vacated pending delivery of judgment in the substantive property settlement proceedings which are slowly making their way through the court below.
The application also sought a stay of the orders made by Magistrate Tyson. Rule 22.11(3) of the Family Law Rules 2004 (Cth) provides that a stay needs to be determined by the judicial officer who made the order, if they are available. In the supporting affidavit, the appellant provided market appraisals of the property that was the subject of the Magistrate’s order, and the subject of the appeal. The appellant also drew attention to the fact that his solicitors had placed a charge over the property to secure his legal fees. It was also represented to the court that in the event the property was sold at the anticipated price of around $450,000, there would be a deficit of approximately $117,000. (In the course of argument today, counsel for the appellant properly acknowledged that the charge the appellant’s solicitors had placed over their client’s property could not stand in the way of any success that the respondent might have in obtaining some interest in that property.)
The affidavit went on to say that:
· the appellant and his mother live in the property;
·the children of the parties visit there from time to time, and have a room in the home;
·the property is in a convenient location in relation to the children’s school and the respondent’s house where the children primarily live; and
·the appellant asserts the property is the only major asset of the relationship.
I am also told from the bar table today there is a significant issue between the parties concerning ownership, beneficially, of a property held in the name of the respondent’s parents which is the focus of the litigation below.
In summary, the appellant’s position was that the hearing of the appeal ought to be further postponed until after the determination of the property settlement proceedings, in which the appellant will now be seeking that he retain the property, given it has no equity.
Although there is no mention of it in the affidavit in support of the application for an adjournment, it is the appellant’s case that he fell into arrears some time ago in relation to payment of the mortgage because of the loss of his previous skilled employment. Subsequently, he obtained less skilled employment and has been meeting the mortgage payments. This does not appear contested.
In response to the adjournment application, on 3 April 2017 the respondent filed a response seeking the dismissal of the application in an appeal, that the charge against the property be withdrawn, and an order for costs.
The order relating to the charge is not an order that could be made on appeal, and would need to be pursued in the court below. I note, however, that it is probably unnecessary for that claim to be pursued given the concession that has been made on the record today that any debt owed by the appellant to his solicitors cannot prejudice the respondent’s entitlements.
In her affidavit in response to the adjournment application, the respondent drew attention to the history of the matter, the making of the orders by consent and the conduct of the appellant, which seemed to have thwarted a sale of the property contrary to the previous intention of the parties and the consent order made in this court.
Although objection has been taken to the form of the evidence provided by the respondent, it nevertheless was the high point of her case that if the property was sold, the commission paid and the mortgage discharged, there would be $9,844 available for placement into the interest-bearing account into which the monies were to be deposited pursuant to the Magistrate’s order. The respondent stated it had always been her case that the sale of the property would discharge the mortgage, thereby preventing any further defaults, and preserving the net value of the property.
Submissions
Turning then to the submissions that have been made by the parties in support of and in response to the application for an adjournment. I have to say, with the greatest of respect, that many of them are entirely misconceived.
The fundamentally important thing in the appellant’s submissions is that on 22 March 2017 the matter was listed into the callover to be held in the Family Court of Western Australia on 26 May 2017, with a view to the matter proceeding to trial in July or August 2017.
The submissions go on to say that there is no benefit to either party in selling the property because there is no equity, Further, the “only certain outcome of the sale” would be a significant disruption to the appellant, his mother and the children, the incurring of sale fees and the appellant and his mother being forced to obtain alternative accommodation. Importantly, the submission goes on to say that if the home was to be sold, the sale could not be undone.
The appellant’s submission went on to say that neither party had prosecuted or opposed the appeal with any vigour, the parties having focussed on the proceedings below. The appellant further submits that the respondent might not be acting in good faith in seeking to relist the appeal at this stage, given the matters already referred to.
In response, the respondent says that if the appeal is not decided quickly, the appellant could default on the mortgage again, or could encumber or charge the property, thereby further diminishing the equity. The respondent also draws attention to the fact that the cost-benefit of the sale of the property is largely immaterial, given that was the position at the time the consent orders were made. Of course, matters have changed since then as the appellant was not then living in the property. The appellant subsequently moved into the property when the respondent moved out. It might be inferred that she moved out because she anticipated the courts orders were going to be complied with; the property was soon to be sold; and she would have to look for alternative accommodation.
The respondent’s submissions go on to make some pertinent remarks about the proposition that neither party had pursued the appeal with any vigour. In the course of the oral submissions today, the respondent’s solicitor properly conceded at the very commencement of his submissions that there is little equity in the property. On a good day, it seems there might be $10,000. On a bad day, there may be nothing.
The respondent’s solicitor also properly conceded that their client did not stand to gain much from the sale and repeated that her primary concerns were about the future conduct of the appellant; that he might further diminish the value of the property by defaulting on the mortgage and may further encumber the property, evidenced by his permitting his solicitors to register a charge.
Those were the principal reasons why the respondent was concerned about the appeal not being heard and the earlier order not being enforced. The appellant’s solicitor has asked the court, effectively, to step back and look at the bigger picture: that this is a property with effectively no, or very little, equity, it has been the home of the appellant and his mother since February 2015 and it is the home the children visit from time to time. There would clearly be very significant disruption to the appellant and his mother, and to a lesser extent the children, in the event the property was sold. This is to be measured against the benefits to the respondent of the sale and the enforcement of the court’s consent orders. Those benefits, in my view, are largely illusory in circumstances where it is not disputed that the appellant is presently paying the mortgage.
Further, as I have indicated today, the only basis upon which I would permit the adjournment of the appeal is with a requirement that the appellant continue to meet the mortgage payments. The other benefit of the property not being further encumbered is also somewhat illusory in circumstances where the property is already either fully encumbered or almost fully encumbered.
A further material consideration in determining the merits of the adjournment application is the power of the court at the final hearing to set aside the consent order relating to the sale of the property. No useful authorities were cited to me in relation to this issue. The relevant case is Gabel & Yardley (2008) FLC 93‑386 in which the Full Court held that it is, in fact, open to a court at a final hearing to set aside or vary what could be loosely described as an interim order for property settlement. It is therefore a highly material consideration that it is the appellant’s intention to seek to retain the property, now that he has employment and has been living in the property for in excess of two years while these proceedings have been slowly making their way both through the court below and the appellate system.
It might be thought that in circumstances where there is effectively no equity in the property the appellant would have little difficulty in persuading a trial judge that he ought to be able to retain the property. That is entirely a matter for the trial judge. It being sufficient for present purposes to record again, that even without regard to s 79A of the Family Law Act 1975 (Cth), it is open to the appellant to seek to set aside that order.
When I stand back and weigh up the competing considerations, it is apparent to me that the interests of justice would be served by the appeal being adjourned and allowing the matter to be resolved at first instance. In arriving at that decision, I have had regard to the fact that there has now been such an effluxion of time and a change of circumstances that I should not treat this matter in the way that I initially thought I might. It is very clear what should have happened. The parties consented to an order and the Magistrate handed down a decision which seemed to have significant merit. I take those matters into account. But I cannot disregard the effluxion of time since those events.
In those circumstances, I intend to adjourn the hearing of the appeal on the basis that I indicated earlier, with the appellant having to meet the mortgage payments. The orders therefore are:
1.The hearing of the appeal be adjourned, pending delivery of judgment in the substantive property settlement proceedings between the appellant and the respondent.
2.The respondent be granted liberty to seek the urgent relisting of the appeal before the Honourable Justice Thackray in the event of default by the appellant in payment of the mortgage over the home.
3.The appellant provide to the respondent on a monthly basis a bank statement or other conclusive written record confirming payment of the mortgage in relation to the home.
4.As I do not have the power, I will dismiss paragraph 2 of the Response to an Application in an Appeal filed 3 April 2017. The parties have already agreed that the Magistrate’s order will not be enforced pending the determination of the appeal and the parties do not seek costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 27 April 2017.
Associate:
Date: 21/8/17
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