BANNISTER & PERGOLESI

[2017] FamCA 1163

FAMILY COURT OF AUSTRALIA

BANNISTER & PERGOLESI [2017] FamCA 1163

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

Transfer of Land Act 1958 (Vic)

APPLICANT: Ms Bannister

RESPONDENT: Mr Pergolesi

FILE NUMBER: MLC 3959 of 2018

DATE DELIVERED: 7 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska SC

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Dickson QC with Mr Atkinson

SOLICITOR FOR THE RESPONDENT: Coote Family Lawyers

Orders

1. That all outstanding applications for final and interim relief are adjourned to a date to be fixed to be advised by the case management judge as soon as is practicable.

2. That her Honour is requested to provide a timetable by order for each party to file material prior to the designated interim hearing date.

3. That the costs of both parties this day be reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel, to attend.

2. That the reasons for the adjournment be made available as soon as practicable.

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 Bannister & Pergolesi 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3959 of 2018

Ms Bannister

Applicant

And

Mr Pergolesi

Respondent

REASONS FOR JUDGMENT

1. On 6 June 2018, this matter was listed in the Judicial Duty List.  It is a dispute that arises out of a de facto relationship between the applicant and the respondent.  Both parties were represented by senior counsel.

2. The applicant filed the application to commence the proceedings on 13 April 2018 seeking generic property orders as well as interim orders that effectively covered the field.  The application was made returnable in the senior registrar’s list on 4 May 2018.

3. Of significance to the present issue is the fact that the respondent indicated that there was a dispute about the date of the parties’ separation albeit that the issue is when the relationship ended or, in another sense, when the relationship broke down irretrievably.

4. In her application, the applicant said that the relationship came to an end in February 2018 but the respondent’s reply indicated that it was “no later than May 2015”.  There is clearly therefore a dispute but that issue can be resolved by an application for leave to bring proceedings out of time if the respondent is correct and depending upon what the reference to “no later than” means.

5. The parties have lived in one property from 2012 onwards but it could not be concluded from the written material that they agree that there was a de facto relationship for all of that period subsequent to 2012.  Indeed, it would seem they lived in houses belonging to the other.

6. Orders were made on 4 May 2018. The respondent has now filed an application for the court to determine (by declaration under s 90RD of the Family Law Act 1975 (Cth)) just what the duration of the de facto relationship was. Undoubtedly, if it was less than two years, the applicant has a difficulty because of jurisdictional considerations.

7. The orders provided for the filing of material but for reasons that remain unclear, the respondent complained that only on 5 June 2018, his lawyers received the documents referred to in the orders of 4 May.  That material included an affidavit by a solicitor purporting to give (it seems to me) expert advice about a potential sale of a property.

8. That property in which the applicant was living is owned by (or under the control of) the respondent. He has executed a contract for its sale and the settlement is in August. There are problems associated with the land upon which the property stands and it was the opinion of the solicitor advising the applicant that the certificate of title would not be ready in time for the proposed settlement. None of that problem was mentioned in the relevant notification under s 32 of the Transfer of Land Act 1958 (Vic). All of that apparently led to the applicant through her solicitors serving a subpoena on the conveyancing lawyers whose only document produced a contract of sale. There was no correspondence or any other calculations and/or advice. When I inquired of senior counsel for the applicant whether the conveyancing lawyers were challenged about the inadequacy of compliance with the subpoena, she responded by saying that they accepted that that was the only document on the file. That evidence is being used to corroborate or support an assertion by the applicant that this sale by the respondent to an acquaintance of both parties, is a sham. Her allegation, as contained in the affidavit, contains no material upon which I could confidently say this is a sham.

9. The property is apparently contracted to be sold for $7.5 million and there is little dispute that there is at least a $5 million encumbrance upon it.  The equity for the respondent is therefore something over $2 million.  To stop the sale, which is what the applicant wants the court to ultimately order, would give rise to all sorts of issues with the purchaser unless of course, this is a sham.  Senior counsel for the applicant asserted that the applicant’s case is that she has found a scrap piece of paper upon which there is a cryptic note, in what she recognises as the respondent’s handwriting, to say that he could sell the apartment and lease it back.  That too was a document upon which she intended to rely.  That assertion however was responded to by the respondent who indicated that notes had been sitting on his desk since 2012 and that no inference could be drawn from it.  He denied that he intended to do anything of the kind contemplated by the applicant. 

10. The nub of the application before the court was for an adjournment on the basis that the respondent wanted to deal with the assertion that this was a sham and indeed that the contract would not proceed.  The late notice, and I suspect, non-compliance with the orders of the court for filing, gives rise to questions of the entitlement of the respondent to respond with evidence.  In my view, it is a critical issue before the other matters can proceed.

11. Senior counsel for the applicant said that the court should contemplate proceeding with the application for leave out of time on the assumption that what the respondent said about the ending of the relationship was correct. However, I am not convinced that the statement of the respondent about the relationship ending “no later than” May 2015 resolves that problem. In my view, the respondent’s material is inadequate in that respect and needs to be clarified so that it can be clear just what issues the court has to deal with under s 90RD or alternatively, s 44(6) of the Act.

12. I indicated that I was prepared to hear the matter in a few days’ time but senior counsel for the applicant indicated that that would not be sufficient time for her client to file material.  I am not sure why that is the case and having regard to the discussion between bench and bar, it would have been far more efficacious for me to retain the matter to avoid another judge having to deal with the whole matter all the way through.  As there could not be agreement as to the date which would have had the application heard by me within the next few days, there is no alternative other than for me to adjourn the proceeding to the case management judge to determine an appropriate time for another judge to hear the case, preferably before August, when the contract of sale is due to settle.

13. This particular adjournment arises out of the fact that the applicant filed material at the very last moment and even if the respondent was on some form of notice that it was going to happen, it does not enable the court to have all of the information before it to deal with the raft of relief that the applicant seeks. 

14. In my view, natural justice requires that the respondent have the appropriate time for that responding material to be provided. 

15. Accordingly, I propose, and have advised the parties accordingly, to notify the case management judge that a hearing is needed before another judge with a timetable for filing so that this sort of situation does not occur again.  I have otherwise reserved the costs of both parties and certified for senior counsel.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 June 2018.

Associate: 

Date:  7 June 2018