BEBBINGTON & BEBBINGTON
[2016] FCCA 2513
•29 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEBBINGTON & BEBBINGTON | [2016] FCCA 2513 |
| Catchwords: FAMILY LAW – Enforcement – Application by the wife to seek machinery provision orders to enable compliance with intent of final property orders – orders require husband to transfer his interest in former matrimonial home to wife for payment of monies and refinancing by wife of mortgage over property – husband seeks application dismissed on basis wife not being ready willing and able to settle on nominated date – husband failed to return executed Transfer in time to enable settlement to occur – husband failed to act reasonably when wife sought to settle on following business day – machinery orders made to enable transfer of husband’s interest to wife in accordance with intent of property orders |
| Legislation: Family Law Act 1975 (Cth) Family Court Rules 2004 (Cth) |
| Cases cited: Baghti & Baghti [2015] FamCAFC 71 Pera & Pera [2008] FamCAFC 87 Slapp & Slapp (1989) FLC 92-022 Taylor v. Taylor(1979) FLC 90-674; 5 Fam. L.R. 289 Cranage & Cranage (1981) FLC 91-039 Taylor and Taylor (1977) FLC 90-226 King and King (1977) FLC 90-299 Kaljo and Kaljo (1978) FLC 90-445 Branchflower and Branchflower (1980) FLC 90-857 McDonald and McDonald (1976) FLC 90-047 Molier and Van Wyk (1980) FLC 90-911 Ravasini & Ravasini (1983) FLC 93-312 Ebner & Pappas & Anor [2014] FamCAFC 230 Subramaniam v Public Prosecutor [1856] 1 WLR 965 Samad v District Court of New South Wales (2000) 50 NSWLR 270; [2000] NSWCA 344 Bing & Bing [2010] FamCA 241 In the Marriage of Cawthorne [1998] FamCA 37 |
| Applicant: | MS BEBBINGTON |
| Respondent: | MR BEBBINGTON |
| File Number: | BRC 10953 of 2015 |
| Judgment of: | Judge Purdon-Sully |
| Hearing date: | 12 May 2016 |
| Date of Last Submission: | 12 May 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 29 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Wiltshire Lawyers |
| Counsel for the Respondent: | Mr Shoebridge |
| Solicitors for the Respondent: | Browns Lawyers |
ORDERS
That the Wife or her agent be at liberty to do all things necessary (including but not limited to registering the stamped Transfer signed by the parties) to effect the transfer of the Husband’s interest in the property situate at the Northern New South Wales property, and more particularly described as Lot 1 in Strata Plan (omitted) (the “Northern New South Wales property”) to the Wife on a date nominated by her but on a date no later than twenty-eight (28) days of the date of this Order.
That the Wife or her agent shall notify the Husband, care of Browns Lawyers of the settlement date to effect the transfer of the Northern New South Wales Property and that for the purpose of the Orders dated 2 December 2015, the date nominated by the Wife to effect the transfer of the Northern New South Wales Property as provided for in Order 1 hereof shall be deemed “The Settlement Date”.
That the Husband do all things and sign all documents necessary to effect the transfer of his interest in the Northern New South Wales property to the Wife within three (3) business days of a request being made by the wife or her agent to do a thing and/or sign a document.
That the Husband vacate the Northern New South Wales property at least two (2) business days prior to the settlement date nominated by the Wife.
That pursuant to s106A of the Family Law Act 1975 (Cth) should the Husband fail, neglect or refuse to sign any document necessary to give effect to these orders within three (3) days of a request by the Wife to do so, then a Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is appointed to sing on behalf of the Husband.
That the Orders sought in the Response filed by the Husband on 14 March 2016 be dismissed.
That written submissions in support of any application for costs be filed within fourteen (14) days of today’s date with any response to be filed by the other party within a further fourteen (14) days thereafter.
IT IS NOTED that publication of this judgment under the pseudonym Bebbington & Bebbington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 10953 of 2015
| MS BEBBINGTON |
Applicant
And
| MR BEBBINGTON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 2 December 2015 Consent Orders were made under s.79 of the Family Law Act 1975 (Cth) (“the Act”) adjusting the property interests of Ms Bebbington (“the wife”) and Mr Bebbington (“the husband”) following the filing of an Application for Consent Orders on 11 November 2015.
Within 45 days from the date of the Orders and contemporaneous with the wife paying to the husband’s lawyer the sum of $33,000 and refinancing the mortgage secured over the property in favour of the (omitted mortgagee) (“the mortgage”) into her sole name the husband was to transfer to the wife his interest in the property situated at the Northern New South Wales property (“the Northern New South Wales property”).
The transfer was not effected on 15 January 2016, the date nominated by the husband that being the 44th day from the date of the Orders (the 45th day being a Saturday):
a)the wife asserting that the husband failed to return a signed Transfer to the wife to enable the incoming mortgagee, the (omitted bank), to arrange settlement on or prior to the 15 January 2016 the settlement date nominated by the husband, and
b)the husband asserting that the wife was in breach of the orders in that she did not pay to the husband the settlement sum, discharge the mortgage and refinance the mortgage into her sole name within 45 days of the date of the Orders.
By Initiating Application filed 16 February 2016 the wife sought orders that would in summary:
a)Enable the wife to use a stamped Transfer held by her lawyers to effect the transfer of the husband’s interest to her in the Tweeds Heads property;
b)Orders that effected the transition of the property from the husband to the wife;
c)Require the husband to reimburse the wife the costs of cleaning the property before settlement, rent paid by her since 15 January 2016 to the date of settlement and her legal costs and outlays.
During the course of the hearing the wife abandoned her application for the husband to reimburse to her rent paid and cleaning costs.
By Response filed 10 March 2016 the husband seeks that the wife’s application be dismissed with costs.
The matter was listed before me by way of first return on 14 March 2016 and then by way of hearing on 12 May 2016.
The matter proceeded by way of hearing without either party requiring cross-examination.
I apologise to the parties for my inability to deliver this judgment earlier.
Relevant background
The wife was born on (omitted) 1972 and is aged 44 years.
The husband was born on (omitted) 1964 and is aged 52 years.
The parties commenced to cohabit in (omitted) 2002, married on (omitted) 2007 and separated on a final basis on 13 September 2014 at which time the wife vacated the Northern New South Wales property, then the matrimonial home. The parties are not divorced.
There is one child of the marriage [X] born (omitted) 2010 now aged 6 years (“the child”).
Pursuant to the consent orders parenting arrangements were also made pursuant to Part VII of the Act which orders inter alia provided for the child to live with the mother and spend time with the father each alternate weekend, for one afternoon after school and for half of the school holidays and on special occasions.
In formalising their settlement both parties were legally represented, the husband by Brown Lawyers (“the husband’s lawyers”) and the wife by Wiltshire Family Lawyers (“the wife’s family lawyers”).
The husband continues to reside in the Northern New South Wales property.
The consent orders
The orders relevant to the issues in dispute are:
29.That within 45 days of the date of these Orders (‘the settlement date’), the Respondent transfer to the Applicant all of his right, title and interest in and to the property situate at the Northern New South Wales property, in the State of New South Wales, more particularly described as Lot 1 in Strata Plan (omitted) (“the Northern New South Wales property’).
30.That in return for and contemporaneously with the transfer referred to in Order 29 hereof the Applicant will:
a.Refinance the mortgage held over the property with (omitted mortgagee) mortgage number (omitted) into her sole name therefore removing the Respondent from any and all liability arising thereunder;
b.From the date of settlement of the transfer of the Northern New South Wales property to the Applicant, the Applicant will be solely responsible for any and all repayments, rates and levies owing with respect to the Northern New South Wales property;
c.Pay to the Respondent via the Respondent’s Lawyer the sum of $33,000 (“the settlement sum”);
31.The Respondent will vacate the Northern New South Wales property on or before the settlement date and shall do all things necessary to ensure the Northern New South Wales property is in a clean and tidy condition on the settlement date.
32.That up to and including the settlement date, the Respondent will pay $225 per week to the (omitted mortgagee) being his portion of the mortgage repayments and will be solely responsible for the payment of any and all outgoings of the property, including but not limited to the rates and levies, insurances and utilities connected to the property.
33.Should the Respondent fail to make payment pursuant to Order 32 of any and all outgoings of the property including but not limited to his portion of the mortgage repayments, all rates and levies, all insurances and all utilities connected to the property up to the settlement date, the sum total of the outgoings not paid by the Respondent at the settlement date shall be reimbursed by the Respondent to the Applicant and for the purposes of reimbursement the Applicant is entitled to deduct from the settlement sum to be paid to the Respondent, such amount as the Respondent has failed to pay pursuant to Order 32.
34.Upon compliance with Order 30 hereof the Applicant will retain free from any and all claims of the Respondent the Northern New South Wales Property.
35.Should the Applicant fail to refinance the mortgage secured against the Northern New South Wales property, the Northern New South Wales Property is to be sold in accordance with Orders 36 to 39 (inclusive) below.
36.For the purpose of preparing the Northern New South Wales property for sale, each of the Applicant and the Respondent shall within 30 days of the Applicant’s default as per Order 29, do all acts and things and sign all documents required to:-
a.List the Northern New South Wales property for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement, the real estate agent shall be as nominated by the then Chief Executive Officer of the Real Estate Institute of New South Wales at the request of the parties or either of them;
b.The list price of the Northern New South Wales property shall be such amount as is agreed between the parties and failing agreement within 14 days after the appointment of the agent in accordance with Order 36(a) above, then the list price shall be the mean of the maximum range of appraisals of three agents who conduct business in and have particular knowledge of the Northern New South Wales area, such appraisals to be obtained by the Applicant and provided to the Respondent;
c.The sale price of the Northern New South Wales property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 95% of the list price shall be accepted by the parties as the sale price; and
d.That upon agreement being reached for the sale of the Northern New South Wales property the parties shall execute the contract of sale and all other documentation required to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent.
37.The proceeds of sale of the Northern New South Wales property shall be paid in the following manner and priority:-
a.To discharge all debt secured by mortgage registration number (omitted) to the (omitted mortgagee), for which purpose the parties shall sign an authority and any other documentation required by the (omitted mortgagee) to discharge the mortgage;
b.Payment of the agent’s commission and advertising and other expenses payable in respect of the sale;
c.Payment of the legal costs and outlays relating to the sale;
d.The balance proceeds thereafter to be divided as to 70% to the wife and 30% to the husband.
38.In the event that the Northern New South Wales property is not sold by private treaty pursuant to Orders 36 and 37 (inclusive) on or before 6 months from the date of these Orders or within such other time as is agreed then the parties shall do all acts and sign all document required to sell the property by public auction, and the following shall apply:
a.The Northern New South Wales property shall be listed with the agent appointed under Order 36(a) above (“the auctioneer”) for sale by auction within a further 3 months;
b.The reserve price for the Northern New South Wales property shall be such amount as is agreed between the parties, and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be determined in the manner specified in Order 36(b) above;
c.The Applicant shall pay to the auctioneer any sums requested for advertising or auction expenses and shall be reimbursed as to one half from the proceeds of sale before any payment in accordance with Order 37 above;
d.The sale price of the Northern New South Wales property shall be no less than the reserve price, but in the event that the reserve price is not reached, the sale price of the property shall be such amount as is agreed between the parties and failing such agreement any offer received after the auction to buy the property at a price which is at least 95% of the reserve price shall be accepted by the parties;
e.That upon agreement being reached for the sale of the Northern New South Wales property, the provisions of Orders 36(d) and 37 above shall apply.
39.In the event that the Northern New South Wales property is not sold at the auction pursuant to Order 38 or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within 3 months after the date of the first auction and every 3 months thereafter until such time as a sale has been achieved and for that purpose the provisions of Order 38 above shall apply save that the sale price of the property shall be reduced by 2% for each successive auction.
40.Pending completion of the sale of the Northern New South Wales property (“the settlement date”):-
a.For the period from the date 45 days from the date of these Orders until the date of completion of the sale of the Northern New South Wales property:
(i)The Respondent shall pay the amount of $225.00 per week in respect of the (omitted mortgagee) mortgage, all of the electricity payments, water rates payments and contents insurance and one half of the house insurance and council rates; and
(ii)The Applicant shall pay the balance of the (omitted mortgagee) mortgage repayments and one half of the house insurance and council rates.
b.Neither party shall further encumber the said property without the consent in writing of the other party (including by drawing upon available funds in the housing loan); and
c.Should either party fail to comply with provision of Order 40 hereof, such reimbursement of the necessary amount shall be made by the defaulting party to the other party from the sale proceeds otherwise payable to the defaulting party pursuant to Order 37.
The wife’s case
It is submitted on behalf of the wife that:
a)Order 30 requires her to refinance the mortgage over the Northern New South Wales property and pay to the husband $33,000 “in return for and contemporaneously with the Transfer” of the husband’s interest in and to the Northern New South Wales property.
b)The wife has been ready willing and able to effect the refinance and payment to the husband in accordance with Order 30 and has attempted settlement on at least 6 occasions.
c)The wife could not effect settlement because:
i)The husband refused to transfer his interest in the Northern New South Wales property on 18, 23 and 24 December 2015;
ii)The husband failed to return a signed Transfer form to the wife to enable the bank to arrange settlement on or prior to the 15 January 2016 the date selected by the husband for settlement.
d)The husband insists at [5(b)] of his affidavit filed 10 March 2016 that it is “the wife’s obligation to within 45 days from the date of the orders pay out and discharge the (omitted mortgagee) mortgage upon the Northern New South Wales property and pay the husband the settlement monies in the amount of $33,000” however the only act that requires the wife to refinance the mortgage into her own name and to pay the husband the sum of $33,000 is the transfer of the husband’s interest in the Northern New South Wales property to the wife which the husband has failed to do.
e)The husband insists at [5(e)] of his affidavit that “in the event that wife fails to pay out the mortgage secured by the Northern New South Wales property and pay to the husband the settlement monies within 45 days of the date of the orders then the Northern New South Wales property be sold…” however Order 35 does not apply if the wife fails to pay the husband his settlement sum but if the wife fails to refinance the mortgage over the property. Further it has no time limit. The only requirement of the wife to refinance the mortgage is “in return for and contemporaneously with the transfer” of the Northern New South Wales property by the husband to the wife which he has failed to do.
The husband’s case
The husband asserts in summary that:
a)He had until 16 January 2016 to transfer his interest in the Northern New South Wales property to the wife.
b)On 5 January 2016 a copy of the signed Transfer was sent to the wife’s family lawyers as opposed to the conveyancing lawyers. There was no objection to that course and no suggestion by the wife’s family lawyers or the conveyancing lawyers that that Transfer document was required by any particular time prior to the settlement date on 15 January 2016 and no evidence from the incoming mortgagee, the (omitted bank) to support any deadline by the Bank.
c)On 7 January 2016 the husband posted the original signed Transfer document to the wife’s family lawyers. The letter was also sent by email that day. There was no communication to the husband’s lawyers on the 7 January 2016 complaining about the letter being sent to the wife’s family lawyers or the timing of the receipt of the Transfer and at no time was there a complaint that the Transfer should be sent urgently to the conveyancing lawyers.
d)The husband asserts that the wife herself invited the problem by engaging conveyancing lawyers to act on the Transfer and where correspondence had been received from the wife’s family lawyers to the husband’s lawyers on 15 and 17 and 30 December 2015.
e)The timing of the delivery of the Transfer by the husband had nothing to do with the failure of the wife to settle on time. The reason the settlement did not take place was that the outgoing mortgagee was not properly engaged to conduct the settlement, known to the wife.
f)For those reasons the wife’s application ought be dismissed.
Material considered
The wife relies upon and I have considered the following documents:
a)Initiating Application filed 16 February 2016
b)Affidavit of wife filed 16 February 2016
c)Financial Statement of wife filed 16 February 2016.
I uphold the objections made on behalf of the husband with respect to the affidavit of Ms S sworn 10 May 2016, sought to be relied upon by the wife and accordingly have not considered the contents of that document.
The husband relies upon and I have considered the following documents:
a)Response filed 10 March 2016
b)Affidavit of husband filed 10 March 2016
c)Financial Statement of husband filed 10 March 2016
d)Affidavit of Ms H filed 10 March 2016
e)Orders of 2 December 2015.
There were exhibits including subpoenaed material.
I have considered the oral and written submissions. I do not propose to respond to every submission made however in reaching a decision I have considered all submissions (Baghti & Baghti [2015] FamCAFC 71 at [63] – [64]).
Legal principles
Whilst having made the consent orders under s.79 of the Act, the Court is functus officio with no power to vary the substance of the orders, it does have the power to make machinery orders to give effect to the orders.
In Pera & Pera [2008] FamCAFC 87 the Full Court (Coleman, May & Boland JJ) outlined the relevant principles at [59] to [61] as follows:
59. In Slapp & Slapp (1989) FLC 92-022 the Full Court discussed the limitations on the power of the Court to vary an order made under s 79 and said at 77,360:
It is not open to a court to make a substantive variation to orders previously made under sec. 79. That proposition can today no longer be doubted. It is based upon the principle, endorsed by the High Court in the case of Taylor v. Taylor (1979) FLC 90-674; 5 Fam. L.R. 289, that an order under sec. 79 is a once and for all proposition.
Such an order can only be varied on appeal or, where the circumstances warrant the same, pursuant to sec. 79A. As counsel for the husband pointed out, the first extension of time can be seen as either an extension by agreement between the parties made by the very authority of the order itself, or alternatively as an exercise of the court's power to vary an order by the consent of the parties pursuant to sec. 79A(1A).
However, the orders made by his Honour on 7 October 1988 were not made by consent and the question therefore arises as to whether those orders affected the substance of the orders or were merely dealing with the machinery aspect of implementing those orders.
60. The applicable principles were similarly referred to by Frederico J in Cranage & Cranage (1981) FLC 91-039 as follows at 76,344:
The Family Law Act confers no power on the Court to vary an order for settlement of property (Taylor and Taylor (1977) FLC 90-226; King and King (1977) FLC 90-299; Kaljo and Kaljo (1978) FLC 90-445; Branchflower and Branchflower (1980) FLC 90-857). The Court has power to set aside a property order only on the narrow grounds set out under sec. 79A, and the parties make no application under that section. Nor has any appeal been brought against his Honour's order.
However, in McDonald and McDonald (1976) FLC 90-047, the Full Court held that “there is ample power to modify the machinery provisions of a property order provided this does not affect the substantive property rights or cause undue hardship to either party”. This view was followed in Kaljo and Kaljo (supra) and more recently in Molier and Van Wyk (1980) FLC 90-911. The Court derives such power from sec. 80 of the Family Law Act. An application might be made for the Court to exercise the power even though liberty to apply had not been reserved expressly.
61. The distinction between a machinery and a substantive order is extensively discussed by the Full Court in Ravasini & Ravasini (1983) FLC 93-312 at 78,126 to 78,127:
Counsel for the appellant referred to McDonald and McDonald (1976) FLC 90-047, Kaljo and Kaljo (1978) FLC 90-445 and Molier and Van Wyk (1980) FLC 90-911 as authority for the power of the Court to make what is termed a machinery order. There is no question of the power of the Court to make what we would with respect suggest is more properly called a consequential order. The real questions are what is the proper definition of a consequential or machinery order and where is the dividing line between a consequential order which may be varied or modified and a substantive order which the Act gives no power to the Court to modify or vary. Counsel for the appellant was unable to refer the Court to any authority on this point but argued the submission rather by comparison with the facts of the cases referred to.
...
It is appropriate then to look at what a consequential order is. The Shorter Oxford Dictionary defines “consequential” as meaning “Following esp. as an effect, immediate or eventual, or as a logical inference”.
The Universal English Dictionary defines the word as “Following as a consequence, on what has gone before, resultant: consequential alteration in wording of a document, those made necessary by others already made.” The same dictionary defines “consequence” as “Event which follows upon something else which is, or appears to be, the cause; a result, outcome of what has gone before.”
A consequential order then, in a property matter, would include an order following logically or of necessity from a prior substantive order.
What a consequential order is not is an order the effect of which is to vary the prior order for property settlement. It is not possible to suggest that even the slightest variation of the original order is a consequence of it. What is being submitted in this appeal is that the original order should be amended not as a consequence of that order itself, not as a necessary follow up of that original order but rather as a consequence of events which have happened in the market place since that order was made rendering the facts on which it was based no longer accurate. (highlighting added)
Discussion
It is trite to say that having asked the Court to make the orders sought by them and those orders having then been made by the Court it was the responsibility of the parties to use their best endeavours to comply with their obligations under and to give effect to those orders.
To that end there is an implicit obligation on the parties to act reasonably at all times (Ebner & Pappas & Anor [2014] FamCAFC 230).
I am satisfied that the wife made all reasonable endeavours to meet her obligations under the orders. Whilst there were a range of disputes between the parties which often sought to cloud the real issue, the principal difficulty in effecting settlement on 15 January 2016 as required by the husband, was the late receipt of the original Transfer executed by him, the husband’s instructions being that he was not prepared to release that to the wife until on or about 11 January 2016, the original Transfer document not in fact received by the wife’s family lawyers (and not her conveyancing lawyers) until 12 January 2016.
Whether the husband was or was not aware of the requirements of the (omitted bank) in terms of turnaround or not, there was no persuasive reason why the husband having signed the original Transfer at least by about 5 January 2016 that document could not have been released to the wife’s lawyers acting on the conveyance to enable them to attend to whatever was needed to be done to ensure settlement occurred on 15 January 2016. There was no prejudice to the husband in doing so. He was entitled to remain in the Northern New South Wales property under the orders, that being the reason he insisted on a settlement date of 15 January 2016.
The submission then on behalf of the husband that he was not informed that the Transfer document was required by any particular time prior to the settlement date must be viewed in the context of his instructions as to when he intended to release the Transfer which had it been released on the 11 January 2016 would have in all probability given the wife time to effect settlement on 15 January 2016.
At all times the husband was legally represented. It is a reasonable inference that his lawyers had some understanding of the conveyancing process by virtue of their retention to act including attending at settlement, confirmed by correspondence passing between the lawyers including the drafting of the Transfer document by way of example, together with the contents of the letters from the husband’s lawyers to the wife’s conveyancing lawyers as follows:
a)11 December 2015 (“Our client will execute a properly prepared Transfer within a reasonable time prior to the settlement date to allow the Transfer to be stamped.”)
b)14 December 2015 (“Our client will comply with his obligations in relation thereto by the provision of a signed Transfer within that time limit in sufficient time for your client to stamp.”)
c)15 December 2015 (“Our client will be signing and releasing the Northern New South Wales property Transfer on or about 11 January 2016 with settlement occurring on Friday 15 January 2016.”)
d)5 January 2016 (“We enclose copy Northern New South Wales property Transfer signed by our client. We intend to forward to you the original copy of the signed Transfer in accordance with our client’s instructions prior to 11 January 2016. This will permit your client a reasonable time to sign the Transfer, attend to stamping therefor in readiness for the settlement to occur on Friday 15 January 2016.”)
The timing estimates of Ms H, a property lawyer and a witness for the husband, make clear that the receipt of the Transfer on 12 January 2016, not the 5 January 2016 when the original document was signed, albeit not released, made organising the settlement on 15 January 2016 problematic for the wife. This was supported by the evidence of the efforts of the wife’s conveyancing lawyers between the 12 and 15 January 2016, to be ready for settlement.
Nor does the Court accept that it was the wife who invited the problem by utilising a firm of conveyancers to act for her. The wife’s family lawyers are family lawyers. They are so titled on their letter head as Wiltshire Family Law. If there was any doubt about the nature of their specialised expertise they go on to refer to themselves as “Queensland’s Leading Family Law Firm”.
The wife’s decision then to engage a specialist conveyancing law firm – the (omitted law firm) – to act on the conveyance was, in the circumstances, unremarkable.
The relevance of the wife’s family lawyers and conveyancing lawyers having the same director, appearing on a website to use some of the same staff and being located at a distance of 20 minutes by car travel is not made out. They are separate legal entities. They operate from separate premises.
Whilst the wife does not depose to when she received a sealed copy of the orders from the Court made on 2 December 2015 the husband’s evidence at [33] of his affidavit filed 10 March 2016 was that he was not aware that the orders were made until 8 December 2016. Both parties thereafter moved forward to implement the orders.
By letter dated 8 December 2016 to the wife’s family lawyers, the husband’s lawyers inter alia sought the Transfer document relating to the Northern New South Wales property for execution by their client.
On 10 December 2016 the wife’s family Lawyers informed the husband’s lawyers that the wife had engaged (omitted law firm) - the wife’s conveyancing lawyers, with respect to “the transfer and refinance pursuant to the consent orders” and that “you should liaise with their office from here forward in relation to the settlement of this matter”.
Those instructions, namely to liaise with the conveyancing lawyers on the conveyancing matter, could not have been clearer.
The husband’s lawyers then notified the wife’s conveyancing lawyers by letter dated 11 December 2015 that the husband was nominating Friday 15 January 2016, the 44th day following the making of the orders, for settlement and that he would not settle earlier as it would be necessary for him to arrange a removalist and alternative accommodation and vacate the property over the Christmas period.
Whilst there were issues to do with the wording of the Transfer document, by about 14 December 2015 the wife’s conveyancing lawyers appear to have sent to the husband’s lawyer a final draft of the Transfer Form for his execution.
Whilst the wife made clear she was anxious to settle before Christmas and nominated dates, the husband’s lawyers in a letter to the wife’s conveyancing lawyers dated 14 and 15 December 2015 reiterated that he would not agree to settlement occurring before 15 January 2016 and that he would not be signing and releasing the transfer document until on or about 11 January 2016. Those were his clear instructions.
Nor was he prepared to vacate the Northern New South Wales property prior to 15 January 2016.
It must be accepted that the husband was not required to settle on the earlier dates sought by the wife. The conveyancing lawyers attempted but failed to obtain the husband’s agreement to effecting settlement on three occasions earlier than 15 January 2016, namely on the 18, 23 and 24 December 2015.
The husband was however entitled to take advantage of the 45 day period permitted him under the orders and he did so.
However the relevance of that evidence in the context of the issues that present is that the husband was aware of the wife’s willingness to settle and do so before 15 January 2016 and that there was no evidence to suggest that he could not have signed and returned to her for a limited purpose the Transfer document before the offices of his lawyers closed down for the Christmas break.
It was an implicit obligation that he ensure the delivery of the original Transfer document executed by him within a reasonable time which permitted settlement to be effected by the date nominated by him.
The husband’s understanding and his acceptance of that fact is clear from the letter from his lawyers to the wife’s family lawyers dated 5 January 2016 wherein he acknowledged that the wife would need “a reasonable amount of time to sign the Transfer, attend to the stamping thereof in readiness for the settlement to occur on Friday 15 January 2016”.
It is further supported by the evidence of Ms H as reasonable timing requirements to effect settlement.
It was underscored by the interruption of the Christmas break with the offices of the husband’s lawyers and the wife’s family lawyers closing on 24 December 2015 up to and including 3 January 2016 and the offices of the wife’s conveyancing lawyers being closed for the same period for that firm being open on 24 December 2015.
I have concluded that the husband did not take all steps reasonably necessary to ensure that the wife had in her possession a signed Transfer to enable her to make the necessary arrangements to provide a duly stamped and signed Transfer to the incoming mortgagee.
Whilst an objection on the basis of hearsay was made on behalf of the husband with respect the wife’s evidence at [37] of her affidavit filed on 16 February 2016, namely that she had been informed by her conveyancing lawyers that “the (omitted bank) requires evidence of the stamped Transfer to be provided to them at least 3 clear days prior to the settlement in order to certify them prior to settlement”, an exception to the hearsay rule is evidence relevant for a non-hearsay purpose (s.60 of the Evidence Act 1995 (Cth)). In my view the wife’s evidence is relevant and admissible not for the purpose of proof of the facts asserted by her but by reason of the inference that can be drawn as to her state of mind in the context of her evidence with respect to the chronology in the lead up to settlement including the actions she took to meet her obligations under the consent orders, relevant facts in issue (see Subramaniam v Public Prosecutor [1856] 1 WLR 965 (common law); Samad v District Court of New South Wales (2000) 50 NSWLR 270; [2000] NSWCA 344 per Beazley, Stein and Heydon JJA (overturned on appeal but not on this point)).
Even if I am wrong in reaching that conclusion it is unclear why the husband took the objection he did where:
a)Contrary to the submission made on behalf of the husband as to the absence of any document from the (omitted bank) that it had imposed a time limit, there is the letter from the (omitted bank) dated 17 November 2015 being Annexure KB8 to the wife’s affidavit where the Bank advises the wife that it “requires 3 business days’ notice before it can pay any part of the amount of the credit”, the amount of credit being $210,000. No objection was made to that evidence.
b)The evidence is that the (omitted bank) had the capacity and was able to effect settlement on Monday 18 January 2016, namely 3 clear days following receipt on 12 January 2016 of the original Transfer document signed by the husband.
c)The evidence of Ms H, the husband’s witness that there would have been time limits and that it was “the uncontested evidence of the wife” that “…. it is a requirement of (omitted bank) to receive a copy of the stamped Transfer at least three days prior to settlement to enable them to certify the loan” (her assertion however that the wife’s evidence to that effect was “unsupported” being incorrect given the contents of the letter from the Bank to the wife dated 17 November 2015, Ms H having been provided with a copy of the wife’s affidavit to which that letter was annexed and Ms H making reference to parts of the wife’s affidavit in her report) with Ms H then opining that the (omitted bank) required a stamped Transfer by 12 January that being the latest date they required it for settlement to occur on 15 January 2016.
d)Finally, the husband’s written acknowledgment not only confirming his understanding of time limits but his stated intention to provide the Transfer to the wife “on or about 11 January” or “prior to 11 January 2016” - depending to which communication one has regard - by inference lending support to the time limits asserted by the wife.
I accordingly place little weight on what Ms B, a conveyancing paralegal told Ms K, the wife’s family lawyer on 16 December 2015 in a one and half line response about the probable timing of any settlement.
Notwithstanding the husband’s written advice to the wife’s family lawyers on 5 January 2016 that he would deliver the original signed Transfer “prior to 11 January 2016”, he did not do so.
The original Transfer, sent to wife’s family lawyers, not her conveyancing lawyers, was not received by the former until 12 January 2016 or by the latter, in its original form, until 13 January 2016 when on the wife’s instructions it was delivered from the offices of her family lawyers to the office of the conveyancing lawyers.
This is notwithstanding:
a)the Transfer having been provided to the husband’s lawyers by the wife’s conveyancing lawyers on 14 December 2015, albeit not signed by the husband until 5 January 2016; and
b)the evidence of Ms H that the stamped Transfer document needed to be with the wife’s incoming mortgagee, the (omitted bank), by the 12 January 2016; and
c)the communication to the husband’s lawyers of 10 December 2015 that the wife had engaged separate conveyancing lawyers to act on the Transfer and the husband’s lawyers acting upon those instructions by communicating with those conveyancing lawyers, for example, between 10 and 15 December 2016. I place no weight on the submissions that the wife lawyers were engaging with the husband’s lawyers. Given the various issues being raised by the parties it was properly within the provenance of family law matters including the interpretation of the consent orders for communication to take place.
The fact that there was a need for communication between the parties lawyers on family law matters would not however have entitled the husband through his lawyers to ignore the wife’s express written instructions to communicate with her conveyancing lawyers on the conveyancing matter.
Nor did it suggest that they should properly and contrary to those instructions, forward to the wife’s family lawyers, not the conveyancing lawyers, under cover of a letter of 7 January 2016 the original Transfer executed by the husband advising them as follows:
We confirm that such Transfer is delivered to your office on the condition that the transfer is used for the purpose of stamping only pending the settlement occurring pursuant to the family court orders on Friday 15 January 2016.
The wife’s family lawyers had no instructions to hold the Transfer for the purpose of stamping or otherwise.
Further whilst that letter was dated 7 January 2016, it was sent by ordinary post and, as earlier noted, not received by the wife’s matrimonial lawyers until 12 January 2016, as evidenced by the receipt stamp on the letter.
The wife’s family lawyers did however email that letter to the conveyancing lawyers and at 9.47am on that day, the conveyancing lawyers then emailed the (omitted bank) in relation to a settlement booking for 15 January. At 10.03am on the same day a copy of the Transfer was also emailed to the Bank.
As earlier noted and on the morning of 13 January the original Transfer was delivered by the wife’s family lawyers on her instructions to her conveyancing lawyers.
I am satisfied on the balance of probabilities that the receipt of the Transfer on 12 January was too late to provide the (omitted bank) with the necessary time they required. The 12 January 2016 was noted by Ms H, the husband’s expert as “the latest date they required it for settlement to occur on 15 January 2016” and on her evidence it was the reason the settlement did not occur on Friday 15 January 2016.
That fact is supported by the (omitted bank) being a position to book a settlement time for the following Monday 18 January, namely three clear days from 12 January, the (omitted bank) informing the conveyancing lawyers on 14 January that they could accommodate a settlement on that date.
The husband’s assertion therefore that he had provided the wife with more than enough time and opportunity to execute and stamp the transfer in readiness for the settlement cannot be accepted.
Putting to one side the possible relevance of whether as asserted in the letter from the husband’s lawyers to the wife’s family lawyers dated 14 January 2016 whether (omitted law firm), the wife’s conveyancing firm was a division of the wife’s family law firm (an email communication from Ms K to Mr Brown of 15 January 2016 asserting to the contrary and the ASIC searches being Annexures MWB34 and MWB36 to the husband’s affidavit confirming the entities were separate with a separate principal place of business), it was clear that the husband’s lawyers were made aware by letter dated 10 December 2015 that the wife had engaged (omitted law firm) to act on the conveyance and that the husband through his lawyers had been requested to “liaise with their office from here forward in relation to the settlement of this matter”.
Their obligation to do so extended to delivering the executed Transfer document to the conveyancing lawyers who had prepared and forwarded it to them, not to the wife’s family lawyers.
It required the husband through his lawyers to do so in the most expeditious way, not by ordinary post, given the approaching settlement date sought by their client and the steps they would have reasonably anticipated would be required of the wife once in possession of the signed Transfer to effect settlement.
Their failure to do so was appropriately termed “entirely unhelpful” by the wife’s family lawyers in an email communication to the conveyancing lawyers on 14 January 2016 as follows:
Hey Ms B
I have received the attached letter from Brown’s Lawyers. Although I have already advised them that we do not act in the conveyance they are still asking that I send them settlement details. I don’t think Mr Brown realises that TLS is a separate entity and that you are based in (omitted), so that sending the transfer to (omitted) was entirely unhelpful and an obvious error.
It was followed up the email from Ms K to Mr Brown, reiterating that it was The (omitted law firm) who was acting on the conveyance with Wiltshire Family Lawyers acting in the family law matter and despite previous advice to his office (omitted law firm) continued to be sent correspondence concerning the family law matters, an assertion supported on the evidence.
The fact however that the husband through his lawyers knowingly and not in error, chose to send by ordinary post the Transfer document to the wife’s family lawyers and not to the lawyers handling the conveyancing on behalf of the wife was confirmed by the husband’s lawyers in writing.
There was no evidence to suggest that the duly executed Transfer document could not have been delivered to the conveyancing lawyers on 7 January - if not the 5 January when the husband signed the Transfer document or after 14 December 2015, to be held by them pending settlement. It would have had no effect on the husband’s nominated settlement date.
The husband through his lawyers must have reasonably known that their actions may have had impacts for settlement in light of the location of the offices of the family lawyer and the conveyancing lawyer, the amount of time it left the wife’s conveyancing lawyers to effect settlement by the date the husband nominated, all of that confirmed on the evidence of Ms H with respect to prudent timetables.
It was the evidence of Ms H that in her experience 7 days (that is from 5 January to 12 January 2016) whilst “not desirable in terms of time”, was sufficient time, for a Transfer to be executed, forwarded for execution by the purchaser and for stamping and provision of the stamped and signed Transfer to the incoming mortgagee.
On her evidence, which I accept, the handing over of the Transfer could have been done on a limited basis there being “no reason for the husband not to hand over the correct Transfer once signed, which was at the latest 5 January 2016. To do so does not in any way authorise use of the Transfer for settlement purposes and it is very common in conveyancing transaction for a signed Transfer to be “borrowed” for stamping purposes (incorrectly often referred to as being “held in escrow”) well before settlement and in fact, in a standard NSW conveyance, being handed over at the same time as exchange of being (entry into) contracts.”
The husband did not do so. His actions after he signed the Transfer on 5 January further reduced an already undesirable amount of time as viewed by Ms H.
I accept the evidence of Ms H that “five days (that is from 7 January when the transfer was actually sent, to 12 January) is a short and difficult time frame. In that regard, I note the husband’s solicitor advised the wife’s family law solicitors, Wiltshire Lawyers, as early as 18 December 2015 that their instructions were the Transfer would not be released until 11 January 2016. Further the letter of 5 January 2015 from the husband’s solicitor to Wiltshire Lawyers again indicated the Transfer has still not been sent.”
She concluded, correctly on all of the evidence, that the settlement did not occur on 15 January 2016 because “the wife’s incoming mortgagee, (omitted bank), were not provided with a copy of the stamped Transfer by 12 January 2016, that being the latest date they required it for settlement to occur on 15 January 2016.”
With respect to the balance of Ms H’s evidence as to what a prudent solicitor should have done to ensure settlement proceeded on 15 January 2016, her evidence must be viewed in the context of:
a)Ms H not having had the benefit of all of the evidence before the Court including significant material under subpoena from the (omitted bank), the outgoing mortgagee, and the wife’s family and conveyancing lawyers.
b)Contrary to Ms H’s reference to the email of 7 January 2016 that there was “no evidence as to the time of day the letter was emailed” the evidence of the wife at [51] of her chronology in her affidavit filed 16 February 2016 details the time of receipt as being 3.45pm.
c)Whilst Ms H is critical of the wife’s family lawyers with regard to what they should or should not have done when they received the letter from the husband’s lawyers by email on 7 January 2016 she acknowledged that those lawyers may not have been aware of the requirements of the (omitted bank).
d)It is probable that her suggestion that the wife should have “immediately” taken issue with the husband’s position and demanded the release of the Transfer, would not have been productive of that desired outcome in light of:
i)the general tenor of the voluminous correspondence passing back and forth between the parties’ lawyers on a range of disputed matters that suggest compromise was unlikely;
ii)the husband’s express instructions that settlement would only occur on 15 January 2016 reiterated for example in the letter of his lawyers of 14 December 2016 (“Please do not write to us again concerning any further proposals by your client in respect of the settlement date as our client is non-negotiable in relation thereto”), and
iii)the husband’s failure to release the signed Transfer on a limited basis on 5 January 2016 or before when he could have done so in the context of his instructions that he would not release the Transfer until “on or about 11 January 2016” on the basis that it would provide the wife with an appropriate amount of time to settle.
It is an inescapable conclusion on the evidence that the despatching by the husband’s lawyers by ordinary post under cover of their letter dated 7 January 2016 enclosing the original Transfer document, albeit signed two days before, was in line with the husband’s clear instructions to his lawyers, namely that the wife would not receive the original Transfer until on or about 11 January 2016.
The husband through his lawyers communicating interchangeably with the wife’s lawyers and the conveyancing lawyers only served to complicate the matter.
In summary, the settlement did not proceed on 15 January 2016 because of the short time frame in which the wife was required to arrange settlement as a consequence of the husband’s refusal to release the signed Transfer to her until on or about 11 January 2016, the original Transfer document arriving in the offices of the wife’s family law solicitors on 12 January 2016.
By the time the document had been received - whether by the wife’s family lawyers or the conveyancing lawyers, mattered not - it did not allow the (omitted bank) sufficient time to effect settlement on 15 January.
Whether the wife’s family lawyers had instructions to act on the conveyance or not (and they did not) and whether they did or did not have an association with the conveyancing firm and whether the distance between the firms was only 20 minutes was irrelevant to the reason settlement did not proceed on 15 January.
The receipt of the Transfer document on 12 January was too late to enable the settlement timetable on 15 January to be advanced by the (omitted bank).
The husband was principally responsible for that because he refused to release the original Transfer earlier than 11 January when he could have done so, on a limited basis, on 5 January, thus maximising the wife’s ability to organise settlement whilst preserving his right to settle on 15 January.
That was the fundamental problem notwithstanding the plethora of other issues that present on the evidence and submissions and the amount of correspondence generated on and after 15 January 2016.
The assertion of the husband in the letter from his lawyers to the wife’s conveyancing lawyers on 15 January 2016 that the wife “had ample time and opportunity to execute and stamp the transfer in readiness for the settlement given the Transfer was sent to your client by our letter dated Thursday 7 January 2016” (incorrectly said to have been received on Friday 8 January 2016), is not supported on the evidence.
Nor is the evidence of the husband at [5(d)] of his affidavit filed 10 March 2016 that “prior to the time limit expiring I transferred to Ms Bebbington my interest in the Northern New South Wales property by signing a Transfer and delivering such Transfer to Ms Bebbington’s lawyers in sufficient time to enable Ms Bebbington to pay out and discharge such mortgage and pay to me the settlement monies” supported on the evidence - putting to one side the inaccuracy of the husband’s assertion that the execution of the Transfer document effected a transfer of his interest in the Northern New South Wales property given the provisions of sections 3 and 51 of the Real Property Act 1900 (NSW)[1].
[1] Pursuant to section 3 “Transfer” is defined as “The passing of any estate or interest in land under this Act whether for valuable consideration or otherwise”.
Having tried and failed to effect a settlement before 15 January 2016 and having then received the Transfer document on 12 January 2016 the earliest time that permitted settlement was 18 January, three clear working days after receipt of the Transfer the wife presenting as ready willing and able to effect settlement following, I accept, as submitted by Ms S for the wife, “a lot of running around to get it done”.
The submission then on behalf of the husband by Counsel for the husband, Mr Shoebridge, that the (omitted bank) was “still chasing from the wife through her lawyers a number of items” is a distraction. It did not ultimately impact on the wife’s readiness and the Bank’s readiness to effect settlement on the 18 January 2016.
Further, lawyers “chasing” a client with respect to a number of items before a Court ordered deadline could not be viewed as being remarkable.
There is no evidence to suggest that the wife did not want to settle before or on the 15 January or the 18 January or thereafter and did not direct efforts to that end.
Whether she and or her lawyers themselves underestimated and/or did not place sufficient weight on a 3 day turnaround or could have done more to explain that to the husband or even failed to inform the husband’s lawyer of any required time frame is ultimately not persuasive of any finding in favour of the husband given the husband’s attitude and clear instructions as to what he was or was not prepared to do as evidenced in the correspondence from his lawyers.
Nor is the absence of the reliance by the wife on any affidavit from a conveyancing lawyer in light of the evidence before the Court.
On 15 January 2016 the wife sought to avail herself of the provisions of s.36(2) of the Acts Interpretation Act which she asserted enabled her to seek settlement on 18 March 2016. However s.36(1) of the Acts Interpretation Act 1901 (Cth) relates to the interpretation of time within legislation, the evidence silent with respect to its application.
The husband refused to settle on 18 January, asserting in a letter from his lawyers dated 15 January 2016 that the provisions of Rule 1.21(5) of the Family Court Rules 2004 excluded the operation of s.36(2) from the Rules of the Family Court.
Whilst the matter was not the subject of submissions and whilst Rule 1.21 of the Family Law Rules 2004 sets out the process by which time is calculated (see Bing & Bing [2010] FamCA 241) that must be viewed in the context of a thing required by the Rules. It did not in any event disentitle the husband from agreeing to extend a settlement date past a date provided in the consent orders.
It was open for him to do so, the proposal of the wife to settle on 18 January being a sensible one which would have expeditiously given effect to the intent of the parties reflected in consent orders issued only the previous month, there being no persuasive evidence as to why the husband now seeks to sell the property and not to a transfer of his interest in the property to the wife, the latter course being the preferred outcome of the parties as evidenced by the consent orders.
Nor did the husband adduce evidence to suggest hardship or prejudice to him by that course given that he had sought time to occupy the Northern New South Wales property to 15 January 2016 to enable him sufficient time to obtain alternative accommodation.
The only prejudice or hardship was to the wife who on her evidence at [54] to [57] of her affidavit detailed the financial impact to her of the husband’s refusal including the payment by her of rent of $390 per week whilst she as at the same time contributing the sum of $225 per week or one half of the mortgage on the Northern New South Wales property, occupied by the husband with the husband paying the balance one half (see Order 39(a) of the consent orders).
Even if I am wrong in concluding that the wife did not have sufficient time to settle on 15 January 2016 because of the husband’s actions or by reason of his contribution to that circumstance, or even if it was the case that the wife’s lawyers or conveyancing lawyers should have informed the husband that the Transfer document was required by a particular time prior to the settlement date on 15 January 2016 there being no evidence of that, and thus provide the husband with an opportunity to change his instructions that he would not release the original Transfer document until on or about 11 January 2016, at all times the husband had an obligation to act reasonably and cooperatively in order to facilitate the wife’s enjoyment of the rights conferred upon her by the consent orders (see Ebner (supra) at [81] - [82] [2]).
[2] Where the Full Court (May, Ainslee-Wallace & Aldridge JJ) observed the particular relevance to family law cases “where parties are obliged to undertake many steps, often in necessary cooperation with the other party, pursuant to order made of the division of their property”
The husband’s failure to agree to a short extension of time to put into effect the orders he sought the Court make was unreasonable where:
a)The intent of the orders was to afford the wife the opportunity to acquire the Northern New South Wales property to be occupied by her and the parties’ then 5 year old child, the wife as primary carer of the children, the evidence of the wife at [25] of her affidavit being that “it was always agreed that I would retain the Northern New South Wales property and given that, the Orders were initially sent to the Court for issue in October 2015”) and where pending settlement the wife was residing in rented accommodation whilst also making a contribution to the mortgage. Contrary to the evidence of the husband at [6] of his affidavit the orders sought by the wife gives effect to the property settlement finally determined by the parties on 2 December 2015.
b)The husband’s proposal to sell the property based on an asserted right to do so pursuant to Order 35 of the consent orders would involve not only costs of sale but potential delay with impacts for the wife.
c)The husband adduced no evidence to suggest that the 45 day period was a critical part of the settlement he effected with the wife or how settlement on the 47th as opposed to 44th day from the date of the consent orders (the next business day with a weekend in between) presented as a material difference for him.
d)The evidence that the wife had sought to settle before Christmas, there being no evidence to suggest that she had not met her obligations to refinance and effect the settlement payment to the husband.
Whilst the husband seeks to rely on the provisions of Order 35 of the consent orders as a basis for the triggering of a sale of the Northern New South Wales property, by virtue of the drafting of that order, a sale can only be triggered on the wife’s failure to refinance the mortgage secured over the property. The wife however secured a loan to enable her to refinance the mortgage, the Bank’s confirmation of that being in evidence. She had secured that finance before the consent orders had issued.
She accordingly did all she reasonably could to give effect to her obligation under the consent orders to refinance the mortgage into her name. The refinancing could not be put into effect however because the husband did not provide the executed Transfer in sufficient time to give effect to the orders and because he thereafter unreasonably refused to agree to a reasonable extension of time to enable the wife to meet her obligations under the orders.
The only requirement of the wife to refinance the mortgage was “in return for and contemporaneously with the transfer” of the Northern New South Wales property by the husband to the wife which he has failed to do
Even if I am wrong in my construction of Order 35 namely that it does not entitle the husband to trigger the sale of the home by way of default the husband should not be permitted to seek an outcome in circumstances where he has, at best for him, contributed to the wife’s inability to meet her obligations under the consent orders and do what he now complains she has not done (see In the Marriage of Cawthorne [1998] FamCA 37 at [265]).
Conclusion
The orders sought by the wife as detailed at 1, 2, 3, 4 and 7 are orders which give effect to the consent orders and the court’s intention as manifested in those orders.
I accordingly make those orders.
I do not propose to make order 6. Whilst the wife did not press Order 5, her application for costs is yet to be determined.
I dismiss the application of the husband.
Written submissions in support of any application for costs should be filed within 14 days with any response to be filed within a further 14 days.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully
Date: 29 September 2016
Pursuant to section 51 – “Upon the registration of any transfer, the estate or interest of the transferor as set forth in such instrument, with all rights, powers and privileges thereto belonging or appertaining, shall pass to the transferee, and such transferee shall thereupon become subject to and liable for all and every the same requirements and liabilities to which the transferee would have been subject and liable if named in such instrument originally as mortgagee, chargee or lessee of such land, estate, or interest.”
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