Baum and Lokare (No 3)

[2019] FamCA 868

FAMILY COURT OF AUSTRALIA

BAUM & LOKARE (NO. 3) [2019] FamCA 868

FAMILY LAW – ENFORCEMENT OF ORDERS –Where counsel for the Applicant wife made an ex parte Application pursuant to rule 20.54 of the Family Court Rules 2004 that a warrant for the possession of property issue requiring the Respondent’s caretakers to vacate the property and give vacant possession of the land to the purchases of the property – Where the Respondent was subsequently served on the day of the hearing and notified of the hearing time – Where Orders were made on 12 March 2019 for the sale of the property – Where a contract for sale has been entered into that requires vacant possession of the property – Where urgency of the Application is established – Where, pursuant to rule 1.12 of the Family Law Rules 2004, the Court dispenses with the seven (7) day service requirement under rule 20.54(1)– Orders made for a Warrant for possession of the property – Orders made for Costs in favour of the Applicant. 

APPLICANT: Ms Baum

RESPONDENT: Mr Lokare

FILE NUMBER: DNC 17 of 2013

DATE DELIVERED: 21 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 21 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fowler

SOLICITOR FOR THE APPLICANT: Corbett Jessop Law

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT

Orders

THE COURT ORDERS THAT:

1. To the extent that is necessary to give effect to the following Orders, pursuant to r 1.12, I dispense with the operation of the rules including rule 20.54(1).

2. That within 24 hours of the making of this Order, the Respondent husband shall vacate NN Street, Town B, Northern Territory, being the land described in Certificate of Title ("the NN Street, Town B property") and thereafter not enter upon the NN Street, Town B property. Further, the Respondent shall do everything in his power to assist any party or parties occupying the NN Street, Town B property to similarly vacate the NN Street, Town B property within 24 hours of the making of this Order.

3. That pursuant to r 20.54(2) of the Family Law Rules 2004 (Cth), the Court issues a Warrant for Possession of the NN Street, Town B property authorising an Enforcement Officer to enter the NN Street, Town B property and give possession of the NN Street, Town B property to the Wife or her nominated agent and such warrant is issued in the form attached to this Application, or in such other form as determined by the Court.

4. That Order 3, with respect to the Warrant for Possession of the NN Street, Town B property, be stayed for a period of 24 hours from the time of the service of this Order on the Respondent and the Applicant notify the Sheriff of this Court in the event of the Husband's compliance with Order 3 within that time.

5. That the Husband be restrained from lodging or causing any third party to lodge on his behalf, a lapsing or non-lapsing caveat and/or registering a mortgage against the NN Street, Town B property.

6. That within 24 hours of the making of this Order the Husband remove all motor vehicles, caravans, personal effects and other items belonging to him which are located on the NN Street, Town B property.

7. That failing the Husband's compliance with Order 6, within 24 hours of the date of these Orders the Wife be entitled to dispose of any and all items that may belong to the Husband located on the NN Street, Town B property.

8. The wife is to cause the Orders made today to be served upon the Respondent by way of electronically forwarding the Orders to the husbands last known email address(es). 

9. The wife is to cause to occupants of the NN Street, Town B property to be served with a copy of these Orders as soon as is reasonably practicable but no later than by midday on 22 November 2019, by way of either personal service or by leaving a copy of the Orders under the front door of the NN Street, Town B property.

10. The Respondent is to pay the Applicant’s costs as assessed or determined.

THE COURT NOTES THAT:

A.        This matter was called outside the body of the Court three (3) times.

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 Baum & Lokare 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 SYDNEY

FILE NUMBER:  DNC 17 of 2013

MS BAUM

Applicant

And

MR LOKARE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an ex parte Application by Ms Baum (“the Applicant”) to give effect to Orders I made on 12 March 2019. Those orders included Order 21 which required the parties to do all acts and things and execute all documents as may be required to list for sale and sell the property located at NN Street, Town B, Northern Territory, being the land described in Certificate of Title (“the NN Street, Town B property”). While the matter is dealt with as an ex parte Application, it is noted that the Respondent has been served by the Applicant’s solicitor with a copy of the Application and supporting Affidavit by way of email sent at approximately 10 am this morning.

2. The evidence presented in an Affidavit by the solicitor for the Applicant, dated 20 November 2019, satisfies me that Mr Lokare (“the Respondent”) has not taken the necessary steps to give effect to Order 21.  Further, as a result of that inaction on the part of the Respondent, a Registrar of the Court has acted, in accordance with Order 26 of the Orders made on 12 March 2019, to execute all deeds and documents in the name of the Respondent and has done all acts and things necessary to effect the sale of the property.  In that respect, a contract for the sale of the NN Street, Town B property has been executed.

3. The purchaser and the Applicant have reached agreement for settlement of the purchase to take place tomorrow, being 22 November 2019. It is a term and condition of the contract for sale that, in order for settlement of the sale to be effected, the purchaser requires vacant possession of the property. I am therefore satisfied that a situation of urgency exists, and in those circumstances, pursuant to r 1.12 of the Family Law Rules, it is appropriate to dispense with the operation of r 20.54(1) which requires that seven (7) days’ notice to be given of a Warrant for the Possession of real property before it can be enforced.

4. In so doing, I note that the Respondent has been requested, on a number of occasions, to take such steps as are necessary to give effect to the sale of the property.  I further note that the occupants of the property, who were referred to during the course of the proceedings as persons who are caretakers of the property on behalf of the Respondent, have on at least three occasions been given notice of the Orders of 12 March 2019 and, specifically, the requirement for the property to be sold and, in order to give effect to that sale, for them to vacate the property.

5. In that context, evaluating the prejudice to the Applicant if the property was not to be sold in accordance with Orders made on 12 March 2019 and potential prejudice to the Respondent and the occupants, I am satisfied that the balance favours the Applicant who, in these proceedings, is seeking nothing more and nothing less than steps that would give effect to the Orders the Court made on 12 March 2019.

6. Accordingly, having regard to those circumstances and having regard also to the submissions made by counsel for the applicant, the substance of which I respectfully agree with and accept, I am satisfied that it is appropriate to make the orders sought in the Application in a Case filed by the Applicant on 20 November 2019, save insofar as orders 3, 5 and 7  will be varied to reflect an obligation on the Respondent rather than third parties and will specify a 24 hour period from the date of service of the Respondent. As earlier noted the operation of r 20.54(1) of the Rules is also dispensed with.

7. In circumstances where I am satisfied that this Application has been necessitated as a result of the Respondent’s failure to comply with Orders of 12 March 2019, I am satisfied it is appropriate to make an order for costs, and therefore, I make an additional order that the Respondent pay the Applicant’s costs in respect to this Application as agreed or assessed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 21 November 2019.

Associate: 

Date:  22 November 2019