Berrell and Berrell

[2014] FamCA 311

FAMILY COURT OF AUSTRALIA

BERRELL & BERRELL [2014] FamCA 311

FAMILY LAW – ENFORCEMENT OF ORDERS – Warrant for seizure and sale of property – Where the Husband has failed to comply with final property orders

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Berrell

RESPONDENT: Mr Berrell

FILE NUMBER: BRC 10381 of 2010

DATE DELIVERED: 9 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 9 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: Files Stibbe Lawyers

COUNSEL FOR THE RESPONDENT: Mr Keane

SOLICITOR FOR THE RESPONDENT: Russo Lawyers

Orders

It is ordered by consent

1. That the Respondent Husband pay to the Applicant Wife the sum of:

   (a)$1,098,769.60 being the outstanding amount due to the Applicant Wife (by way of cash adjustment) on 23 May 2014 pursuant to paragraphs 1, 5 and 6 of the 20 December 2013 Orders;

   (b)The outstanding net amount of spousal maintenance, due to the Applicant Wife on or by 23 May 2014, pursuant to paragraph 1 of the 3 May 2011 Orders (as referred to and provided for in Order 10 of the Orders made on 20 December 2013);

   (c)Pursuant to s 117B of the Family Law Act 1975 (Cth) and Rule 17.03 of the Family Law Rules 2004:

   (i)Interest from 19 February 2014 to 7 March 2014 in the sum of $4,349.92 (the prescribed rate of interest being 6 per cent above the 4 December 2013 cash rate of 2.5 per cent pursuant to rule 17.03(a));

   (ii)Interest from 2 March 2014 to 7 March 2014 in the sum of $4.67 (the prescribed rate of interest being 6 per cent above the 4 December 2013 cash rate of 2.5 per cent pursuant to rule 17.03(a));

   (iii)Interest calculable from 7 March 2014 to the date of payment to the Applicant Wife pursuant to this Order.

2. That upon the undertaking to the Court given by the Applicant Wife through her solicitor Mr Lindsay Ian Hall that she shall pay all reasonable fees and expenses associated with the enforcement if they are greater than the amount recovered pursuant to the enforcement warrant issued in accordance with this order, an Enforcement Warrant shall be issued pursuant to Part 20.3 of the Family Law Rules 2004, directing the Marshall of the Family Court of Australia or his nominee, as the enforcement officer, to do all acts reasonably required to seize and sell the property at Unit A, E Street, Suburb F more fully described as Lot …, BUP …, County of …, Parish of …, and for the proceeds of sale thereof to be applied to:

   (a)All the fees and expenses associated with the enforcement;

   (b)The costs of the sale;

   (c)Pay the balance to the Applicant Wife in satisfaction of monies owed pursuant to paragraph 1 of these Orders;

   (d)Pay any remaining balance to the Respondent Husband.

3. That the parties or the enforcement officer shall have liberty to apply to the Court on short written notice.

4. That the Respondent Husband shall pay the Applicant Wife’s costs to be fixed at $12,000.00 payable on or before 23 May 2014.

5. That the warrant lay in Chambers until 23 May 2014.

6. That the parties be at liberty to write to the Associate to Justice Kent to advise of the Respondent Husband’s compliance or otherwise with Order 1 herein.

7. Upon receipt of advice by the Court from the Respondent Husband that he has complied, the Warrant will be discharged by Consent by the Court.

8. Upon receipt of advice that the Respondent Husband has failed to comply the Warrant shall issue to the enforcement officer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrell & Berrell 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 BRISBANE

FILE NUMBER: BRC 10381 of 2010

Ms Berrell

Applicant

And

Mr Berrell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 20 December 2013 for reasons then given, I made final property orders in this matter. Under the framework of the orders the Husband was to provide the Wife, within 45 days of the date of those orders, notice of certain elections he could make under the provisions in the orders to either pay money to the Wife in satisfaction of the orders or transfer property to her.

2. On 16 January 2014 the Husband filed a Notice of Appeal from the orders. However, on 24 March 2014 the Husband filed a Notice of Discontinuance of his appeal. At no time did the Husband apply for a stay of the operation or enforcement of the final property orders that were made.

3. Under the terms of the orders, the 45 day period for notice by the Husband of his election expired on 3 February 2014. On that date the Husband’s solicitors wrote to the Wife’s solicitors confirming that it was the Husband’s election, as provided for in the orders, that he pay cash rather than transfer property, to discharge his obligations under the orders. I simply note in passing, that to the extent that interest is payable upon an order for the payment of money, under the relevant rules of the Family Law Rules 2004 (Cth) (“the Rules”), as from the date that the Husband made his election, clearly the subject orders were, if not before, orders for the payment of money which attract interest under the relevant section of the Family Law Act 1975 (Cth) (“the Act”), s 117B and rule 17.03 of the Rules.

4. On 18 February 2014, the 60 days period for the transfer of property, or in this case, given the Husband’s election for the payment of cash, was the date upon which the Husband was required under the orders to discharge his obligations to pay the money due to the Wife. In any event, on that date, whilst the Husband’s appeal was then still extant, the Husband’s solicitors wrote to the Wife’s solicitors in terms advising that because of his appeal in which the Husband was contending that he ought receive 70 per cent of the property assets and not the 60 per cent I had ordered, if his appeal succeeded he would be obliged to pay the sum of $1,360,817.80 to the Wife.

5. On that basis the Husband caused only that amount to be transferred to the Wife’s solicitor’s trust account, received by them the next day on 19 February. Thus it would seem that, notwithstanding he had not even applied for, let alone been granted, a stay of the orders and notwithstanding the rules, in particular, rule 22.11 which confirms that the filing of a Notice of Appeal does not operate as a stay, the Husband apparently sought to embark on some exercise of the self-granting of a stay in writing to the Wife’s solicitors in those terms and making that reduced payment. 

6. On 11 March 2014 the Wife filed an Application in a Case and an Application for an Enforcement Warrant under the rules leading to today’s proceedings. As mentioned, it was on 24 March 2014 that the Husband filed his Notice of Discontinuance of his appeal.

7. On 7 April 2014, the first return date when the Wife’s application came before me, the parties agreed by consent for the matter to be adjourned to today and that costs be reserved. In the result, on the hearing today, the parties have reached consent as to the orders to be made and they are provided to the Court in draft form. 

8. Chapter 20 of the Rules contains the enforcement provisions in respect of financial orders. Rule 20.01(1) identifies the enforceable obligations to which that chapter applies and plainly, the subject orders meet the requirements. For example, rule 20.05 sets out the types of enforcement orders the Court may make and this includes enforcement in the form of seizure and sale of real property and rule 20.07 sets out the general enforcement powers of the Court. Those powers include the capacity for the Court to declare the total amount owing under the financial order, amongst other matters.

9. I am satisfied on the material filed in the Wife’s case that the requirements for the making of an enforcement order are met. I am satisfied in relation to the provisions for the payment of interest. To the extent that these are matters which the parties purport to consent to, but are not strictly matters of consent, I am satisfied that the Court should exercise its discretion to make orders in terms of the orders in the form now agreed to by the parties.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 May 2014.

Associate:

Date: 16 May 2014