BAILEY & RADCLIFFE

[2015] FamCA 730

FAMILY COURT OF AUSTRALIA

BAILEY & RADCLIFFE [2015] FamCA 730

FAMILY LAW – PROPERTY – Property settlement – Where final property orders had already been made – Where the applicant seeks orders pursuant to s 79A to vary the substantive orders – Where the respondent opposed the s 79A application – Where the wife submitted that it was impracticable for a part of the substantive order to be carried out – Where court found that the wife had not established that she did all things necessary to carry out the substantive orders – Where the application was dismissed – Where the court held the view that is was just to make a costs order - Where the court ordered that the applicant pay 80 percent of the husband’s costs on a party-party basis.

Family Law Act 1975 (Cth) ss 79A, 117

La Rocca (1991) FLC 92-222

APPLICANT: Ms Bailey

RESPONDENT: Mr Radcliffe

FILE NUMBER: SYC 7363 of 2012

DATE DELIVERED: 30 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 30 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Beazley Singleton Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Gayle Meredith & Associates

Orders

1. That the wife’s application for an adjournment is dismissed.

1. That the Application in a Case filed on 20 July 2015 as amended is dismissed.

1. That the wife pay 80 per cent of the husband’s costs of these proceedings as agreed or as assessed on a party party basis.

1. That the husband’s Response to an Application in a Case filed on 28 July 2015 is adjourned with liberty to re-list it on 14 days’ notice to the Court and to the other party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bailey & Radcliffe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7363 of 2012

Ms Bailey

Applicant

And

Mr Radcliffe

Respondent

REASONS FOR JUDGMENT

1. This immediate application is an application to adjourn an application for orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”), to vary order 4 of the final property orders made on 29 April 2015, by substituting 7 August 2015 for 10 June 2015.

2. To facilitate understanding of this adjournment application, it is necessary to provide some background.  On 29 April 2015 substantive property orders were made in proceedings between these parties.  Those substantive orders included the following orders, firstly paragraph 2 as follows:

   2.That on or before 27 May 2015 the wife shall pay to the husband the sum of $550,470 being

   2.1$400,470 on account of the alteration of the parties’ interest in property, pursuant to section 79 of the Family Law Act 1975; and

   2.2$150,000 in satisfaction of the wife’s obligation pursuant to a Deed of Release entered into by the parties contemporaneously with these Orders.

3. The other important substantive order is paragraph 4 of the orders, which provides as follows:

   4.In addition to the payment in paragraph 2 above, that on or before 10 June 2015 the wife shall:

   4.1      pay to the husband the sum of $1,238,400.00; and,

   4.2do all things and sign all documents necessary to effect a discharge in full of all liability of the husband in respect of all encumbrances registered on the title to the property situated at [B Street, Suburb C] (“the [Suburb C] Property”) including but not limited to:

   4.2.1   St George Portfolio Loan #...;

   4.2.2   St George Home Loan #...;

   4.2.3   St George Share Trading Loan #...; and

   4.2.4   St George Loan Account #...;

   save that the husband shall be solely liable for any moneys owing in respect of all and any credit card facilities in his sole name and shall ensure that any amount owing in respect of the same is paid out prior to such discharge.

4. There is no issue that on 29 April 2015 the wife paid the husband the $150 000.  On 26 May 2015 the wife paid the husband $400 470.  It is common ground that a transfer prepared by the wife’s solicitor was delivered to the husband’s solicitors. 

5. On 10 June 2015 the wife’s solicitors wrote to the husband’s solicitors informing the husband that the wife was “ready, willing and able” to settle with the husband that day, and that the required funds were in the solicitor’s trust account.  The wife’s solicitors also advised that they were awaiting confirmation from St George Bank that St George Bank could settle that day, and inquiring about the amount of the payout.

6. This letter was responded to by a letter from the husband’s solicitors, informing the wife’s solicitors that by close of business that day, that is 10 June 2015, they required a bank cheque in the amount of $1 238 400, that they needed to sight that the Discharge of Mortgage was in registrable form, and they confirmed the mortgage identification number as bearing identification V776288 secured on the Suburb C property.  They said that upon receipt of the cheque and upon sighting the Discharge of Mortgage form, they would hand over the Transfer document.  They also sought details of the place where settlement would take place.

7. The wife was unable to settle that day. 

8. The application originally returnable today was an Application in a Case filed on 20 July 2015 by the wife.  It sought orders which, in effect, would have required modification of the substantive orders, to extend the date of 10 June 2015 to 7 August 2015 to enable the wife still to pay the husband for his interest in the former matrimonial home, and requiring the husband to transfer his interest therein upon receipt of such a payment.

9. Today learned counsel for the wife sought leave to amend the original application in a case by no longer pressing it in its original form, but to now seek orders pursuant to s 79A, and particularly s 79A(1)(b), to vary order 4 of the substantive orders, that is the 29 April 2015 orders, to substitute “7 August 2015” for “10 June 2015”.

10. Learned senior counsel for the husband did not oppose leave to amend the application in a case as sought, that is in the new form. But he informed the Court and the wife that the husband opposed the s 79A application.

11. Counsel for the wife during final submissions said that the wife was able to rely on s 79A(1)(b) of the Act. This provision is as follows:

    Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

    (b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out, the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

12. It is submitted on behalf of the wife that this is what has happened in this case.  That is, that it has been impracticable for a part of the order to be carried out because, so it is alleged, the wife could not pay the husband on 10 June 2015 because the St George Bank, who was the existing mortgagee, could not settle the matter that day because they had misplaced the certificate of title. 

13. It was submitted on behalf of the wife that the court should interpret the concept of impracticability as Kay J did in the case of La Rocca (1991) FLC 92-222, involving circumstances that could not reasonably have been contemplated, and that in such circumstances, whilst impossibility is not the test and impracticability is, it may then become just and equitable to change the orders.

14. It was submitted that the wife could not have reasonably contemplated that the existing mortgagee, St George Bank, would not be able to locate the certificate of title. 

15. The evidence by Mr D, an employee of the St George Bank, was to the effect that as at 12 June 2015 the certificate of title had been misplaced in the Bank’s offices and could not be located.  In my view, this did not assist the wife in relation to the situation as at 10 June 2015.  Learned counsel for the wife then sought an adjournment to provide the wife an opportunity to seek further evidence from the St George Bank.

16. The adjournment application was opposed.  Learned senior counsel for the husband submitted that it could not reasonably be said that the evidence now contemplated would not have reasonably been available to the wife, and that there was no reasonable explanation for such evidence not having been put before the Court.  It was further submitted that the wife’s evidence was silent about when the wife actually asked St George about the availability of the certificate of title. 

17. Learned counsel for the wife then tendered a document which had been completed by the wife, which had been sent to the St George Bank.  It is on a form which clearly is a form which is produced as part of the business records of the St George Bank.  It is headed Request to Amend an Existing Security.  And that sets out relevant details, including the details of the wife and her solicitor.  In the document, under a box headed “Other Instructions”, it says:

    St George to provide all documents required for transfer of title to take place on or before 10 June 2015.

18. There are various details of a relevant bank account.  On the form there is also included the following information:

    The property, [B Street, Suburb C] is to be transferred from joint ownership by [Ms Bailey] and [Mr Radcliffe], to sole ownership by [Ms Bailey], as per family law consent orders of 29 April 2015.  The residential loan the three portfolio loans will be cleared on 10 June 2015.  This is a critical date.

19. The form was dated 20 May 2015.  That is a few weeks roughly, prior to the deadline of 10 June.  Learned senior counsel for the husband submitted that there was no explanation in the wife’s evidence about what other endeavours had been made by the wife with the St George Bank to achieve settlement on 10 June. 

20. In my view, the wife has fallen short in terms of the evidence required to establish her case.  That is, she has not adduced details of conversations or communications she or her solicitor had with officers of the bank.  The Court is left in the position where apart from the issue of the certificate of title, it does not know whether the wife did all those things necessary to be able to successfully achieve a settlement on 10 June 2015. 

21. In all the circumstances, in my view, it is not appropriate to grant the adjournment application. 

22. Accordingly, I order that the Application in a Case filed on 20 July 2015 as amended be dismissed.

Costs

1. In relation to costs the usual position is that set out in s 117(1) of the Act, namely, that each party to proceedings pay their own costs. That is subject to a power given to the court in s 117(2) to make a costs order where the Court considers it just to do so upon a consideration of the relevant matters in s 117(2A).

2. The application is on the basis that the wife has been wholly unsuccessful and that it should have been clear to her from the outset that the application would be unsuccessful.  That provision has been made under the substantive orders for a just and equitable settlement between the parties and that that involved a compromise between them.

3. On the other hand, the application for costs was opposed.  It was said that the wife has suffered considerably financially in order to be able to borrow moneys in the vicinity of $1.8 million in order to endeavour to be able to extend the period to comply with the substantive orders.  It was submitted that clearly the money which is required to service those borrowings is substantial and that in all the circumstances, particularly considering that financial aspect of the matter and the overall financial circumstances of the party, that no costs order is appropriate.

4. Clearly, the wife has been wholly unsuccessful in the proceedings.  As was submitted by learned senior counsel for the husband, she has been at all times in receipt of legal advice.  It was her decision ultimately to endeavour to go down this path and endeavour to effect a change to the orders.  The husband also has suffered considerably in terms of financial cost.  And it is the case that the husband has been wholly successful and one would think in those circumstances, a costs order would follow that event.  But as was pointed out by Mr Johnston for the wife, the wife elected to take this course, but she has done it at considerable financial cost.

5. In my view this is a matter where in the exercise of the Court’s discretion, it is just to make a costs order.  However, in the overall context of the financial proceedings and the financial situations of each of the parties, in my view the appropriate amount of cost is 80 percent on a party-party basis.  So I propose to order that the wife pay 80 percent of the husband’s costs of these proceedings as agreed or as assessed on a party-party basis.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 30 July 2015.

Associate:     

Date:              7 September 2015