Banis and Anor and Baghti and Ors

[2016] FamCA 595

FAMILY COURT OF AUSTRALIA

BANIS & ANOR & BAGHTI AND ORS [2016] FamCA 595

FAMILY LAW – ENFORCEMENT OF ORDERS – Issue of a Third Party Debt Notice – Where the applicants seek orders that a Third Party Debt Notice be issued pursuant to Part 20.4 of the Family Law Rules 2004 (Cth) – Where the applicants were interveners in final property proceedings between the husband and the wife – Where the amount owed to the applicants exceeds what is being sought by way of the amount in the Third Party Debt Notice – Where the proceedings have a long history – Where it is appropriate to make the orders sought – Orders made for the issue of a Third Party Debt Notice.

Family Law Rules 2004 (Cth) – Part 20.4, r 20.30

1st APPLICANT: Mrs Banis

2nd APPLICANT: Ms Banis

1st RESPONDENT: Ms Baghti  

2nd RESPONDENT: Mr Baghti

3rd RESPONDENT: Ms M Baghti

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 13 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 13 May 2016

REPRESENTATION

SOLICITOR FOR THE 1^ST & 2^ND APPLICANTS: Mr McDonell, solicitor of McDonell Milne Toltz Family Lawyers

FOR THE 1^ST RESPONDENT: Attendance excused

FOR THE 2^ND RESPONDENT: No appearance

FOR THE 3^RD RESPONDENT: No appearance

Orders

1. That pursuant to Part 20.4 of the Family Law Rules 2004 the Court issue a Third Party Debt Notice in triplicate requiring that Ms Baghti pay to Mr and Mrs Banis the sum of $91,080 which she would otherwise be required to pay to Mr Baghti pursuant to order 43 of the orders of this Court of 22 August 2012.

2. That the payment by Ms Baghti to Mr and Mrs Banis of $91,080 be a discharge of any obligation she may have for payment to Mr Baghti pursuant to order 43 of the orders of 22 August 2012.

3. That in relation to the application by Mr and Mrs Banis for the payment of costs by Ms M Baghti, reasons for judgment are reserved to a date to be advised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Banis and Anor & Baghti & Ors 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 2145 of 2009

Mrs Banis

1^st Applicant

And

Mr Banis

2^nd Applicant

And

Ms Baghti

1^st Respondent

And

Mr Baghti

2^nd Respondent

And

Ms M Baghti

3^rd Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr and Mrs Banis (“the applicants”) for a Third Party Debt Notice to be issued pursuant to Part 20.4 of the Family Law Rules 2004 (Cth). The application goes back further than an Amended Application in a Case filed by the applicants on 14 November 2014 and it has taken a long time to arrive at this point. I will set out some brief history about the matter shortly.

2. The respondents to the application are Ms Baghti (“the wife”) and Mr Baghti (“the husband”).  I am satisfied that reasonable steps have been put to put those persons on notice.  Ms Baghti was before the Court on the last occasion, a matter of weeks ago, when I adjourned the matter to today.  The orders on the last occasion were sent by my Associate to both Ms Baghti and also to Mr Baghti.  Mr McDonell, the solicitor for the applicants, has sent a letter to Mr Baghti and to Ms M Baghti informing them that this Third Party Debt Notice application would be heard today. 

3. The particular orders which are sought, as I say, are sought by the Amended Application in a Case filed on 14 November 2014. These are that pursuant to Part 20.4 of the Family Law Rules 2004 (Cth) and in particular, under Rule 20.32 the Court issue a Third Party Debt Notice in triplicate requiring that Ms Baghti pay to … Mrs Banis (and) … Mr Banis the sum of $91 080 which she would otherwise be paying to Mr Baghti pursuant to order 43 made by Fowler J on 22 August 2012.

4. There are other orders sought also and these are that the applicants would be entitled to a caveat on the property interest of Ms Baghti, that payment by Ms Baghti to Mrs Banis and Mr Banis of $91 080 be a discharge of any obligation she may have for payment to Mr Baghti pursuant to paragraph 43 of the orders made by Fowler J on 22 August 2012.  There is also an order sought that Mr Baghti would pay the costs of these proceedings and that there be a final assessment of costs in favour of the applicants in the amount of $2447.50, being costs on an indemnity basis.

5. As indicated above, the applicants were interveners in final property proceedings between the husband and the wife.  On 22 August 2012 in such final property proceedings, Fowler J made the following order, paragraph 43:

   (43)The wife pay to the husband on settlement of the sale of the former matrimonial home an amount of $91,080 and the wife is thereupon declared as against the husband the legal and beneficial owner of her interest in the property situated at and known as [T Street, Suburb A].

6. On 27 November 2012, Fowler J made the following order: 

   (3)The husband is to pay the interveners’ costs of and incidental to the proceedings as agreed or assessed, such costs to be on an indemnity basis for the purpose of the hearing.  That is to say from the date of the commencement of the hearing to the conclusion of it, otherwise the costs be on a party and party basis.

7. On 2 September 2014, Senior Registrar Campbell assessed the costs payable by the husband to the applicants in the amount of $109 160. 

8. There was subsequently a review and an appeal. 

9. The present application came before me on 4 December 2014.  The wife indicated that she consented to the orders sought.  There was no appearance by the husband.  The husband’s sister, Ms M Baghti, attended and sought leave to intervene.  I made various directions and adjourned the application to 23 February 2015.  On that occasion I listed the matter for hearing on 7 April 2015.  Ms M Baghti filed an amended application and an affidavit and Mr Baghti filed a response and an affidavit.

10. On 7 April 2015 Ms M Baghti applied for an adjournment, which application I dismissed.  I also dismissed her application for leave to intervene.  I reserved judgment in the Third Party Debt Notice proceedings, that is the immediate proceedings. 

11. On 16 April 2015 I ordered that the orders made on 7 April 2015 be stayed pending hearing of an appeal which Ms M Baghti undertook to the Court that she would file that day.  As it turned out, in fact she did not file the appeal until some weeks later.  That appeal was dismissed on 10 December 2015 and Ms M Baghti was ordered to pay the costs of the applicants in the amount of $3336.62.

12. Clearly the applicants still seek their Third Party Debt Notice and this is consented to by Ms Baghti.  There is no response of any utility before the Court by Mr Baghti, so that that application is now before the Court on an undefended basis, certainly so far as Mr Baghti is concerned.  As I have indicated, it is consented to by the other respondent, Ms Baghti. 

13. Part 20.4 of the Family Law Rules 2004 (Cth) provides for third party debt notices. Rule 20.30(b) provides:

    This Part applies to:

    …

    (b)money payable to a payer by a third party on the date when the enforcement order is served on the third party.

14. As I have said, paragraph 43 of the orders requires that the wife pay to the husband that amount of $91 080. 

15. What the applicants are now seeking is that instead of the wife paying that amount to Mr Baghti, that by way of the issue of the Third Party Debt Notice that payment now be made to them. 

16. These proceedings have a very long history.  It is clear that there is a greater amount of moneys which are owed by Mr Baghti to the applicants than the $91 080.  As I have said, there is the sum of $109 160 for the assessed costs.  There was $1433 being a costs order made by Rees J on 20 February 2015.  There was the amount of $2447.50, which was the order that I made on 23 February 2015.  There is also the order which was made by Ryan J on 8 May 2015.

17. So there is an amount owed by Mr Baghti to the applicants of $113 850.  Clearly, that exceeds what is being sought by way of the amount in the third party notice. 

18. In my view, in all the circumstances and particularly considering the amount of time that it has taken to arrive at this position, it is appropriate to make the orders sought. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 May 2016.

Associate:     

Date:              23 June 2016