BOOTH & BOOTH

[2016] FamCA 567

FAMILY COURT OF AUSTRALIA

BOOTH & BOOTH [2016] FamCA 567

FAMILY LAW – ENFORCEMENT – Application by the wife for enforcement of final property orders – where the husband opposes the immediate sale of a property on the basis of alleged contamination of the property – where the issue of contamination was dealt with under the final orders – where the husband  has produced no evidence as to new contamination of the property – where communication form the husband following final orders being made demonstrates an intention to frustrate final orders – wife entitled to fruits of the judgment – orders made for the sale of property

FAMILY LAW – COSTS – Application by the wife for costs in a fixed sum – where the husband was wholly unsuccessful – where the husband has engaged in conduct designed to thwart the operation of orders – orders made for costs 

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

APPLICANT: Ms Booth

RESPONDENT: Mr Booth

FILE NUMBER: AYC 468 of 2010

DATE DELIVERED: 17 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Johns J

JUDGMENT OF: Johns J

HEARING DATE: 17 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner

SOLICITOR FOR THE APPLICANT: Richmond & Bennison

COUNSEL FOR THE RESPONDENT: Mr Gough

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. That the wife be appointed Trustee for the husband for the sale of the property at E Street, F Town (“the Sale”).

2. That by 4.00pm on 20 June 2016 the husband pay or cause to be paid to the wife’s solicitors one half of such fees as are required by the Law Society of New South Wales, the President of the Real Estate Institute of New South Wales and the President of the Australian Property Institute to engage them to nominate:

   (a)      The conveyancing solicitor for the Sale;

   (b)      The real estate agent and auctioneer for the Sale; and

   (c)      The real estate valuer to set a reserve price for the Sale.

3. That in the event that the husband fails to comply with order 2 hereof the wife be permitted to appoint:-

   (a)      K Agents as the real estate agent;

   (b)      L Lawyers as the conveyancing solicitor; and

   (c)      Such real estate valuer as nominated by her;

   in respect of the Sale.

4. In the event that either party refuses or neglects to execute any Deed or Instrument required to give effect to these orders, the Registrar of the Court pursuant to s 106A if the Family Law Act may execute such Deed or Instrument in the name of such party and do all acts and things necessary to give validity to the operation of such Deed or Instrument.

5. That the property situate at and known as E Street, F Town be forthwith offered for sale on the same terms and conditions as set out in paragraphs 5(a) to 5(d) of the orders made by Justice Benjamin on 11 November 2015.

6. That if the E Street property remains unsold after the auction then it be sold on such terms and conditions as the selling agent recommends.

7. That the wife do all things necessary to authorise the selling agent to erect an advertising board at the front of the E Street property.

8. That the husband be restrained from:-

   (a)      Defacing or damaging the advertising board at the front of the E Street property in any way whatsoever;

   (b)      Interfering with the selling agent showing prospective buyers around the E Street property;

   (c)      Being present during inspections of the property by prospective purchasers, he to vacate the property no less than 30 minutes prior to inspection;

   (d)      Acting in any way to disrupt the auction.

9. That the wife’s Application in a Case filed 8 April 2016 and the husband’s response to Application in a Case filed 15 June 2016 be otherwise dismissed.

Orders Re Costs

1. That the husband pay the wife’s costs of this day and of her Application in a Case filed 8 April 2016 fixed in the sum of $4,500.

2. That the costs ordered this day and on 7 June 2016 be paid from the husband’s share of the proceeds of the sale of the property at E Street, F Town.

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 Booth & Booth 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: AYC 468 of 2010

Ms Booth

Applicant

And

Mr Booth

Respondent

REASONS FOR JUDGMENT

1. The matter of Booth comes before me today upon the Application in a Case filed on behalf of the wife on 8 April 2016.  That application seeks orders to enforce the final property orders made by Benjamin J on 11 November 2015. 

2. The matter was originally listed before me in a Judicial Duty List on 7 June 2016.  That day, the husband appeared in person.  He saw the duty lawyer on that morning and later in the day sought leave to and was granted leave to file an affidavit in which he deposed as to the reasons why he sought an adjournment of the application that day.  Upon hearing submissions, I granted the adjournment application and orders were made listing the matter before me today.  I set a timetable for the husband to file material.  He has complied with those orders and the matter now comes before me with the husband represented by solicitors and having filed material in which he opposes the orders sought by the wife. 

3. The background to the matter is as follows.  The wife is aged 49 years and is employed as a public servant.  The husband is aged 52 years.  He is a qualified tradesman. 

4. The parties married in 1990 and separated in August of 2010. 

5. There are three children of the marriage, all of whom, as I understand from the material, are over the age of 18. 

6. The property orders made by Benjamin J following three days of hearing plus written submissions provided for the finalisation of the parties’ respective property claims. 

7. The principal asset of the parties, as is evident from his Honour’s reasons for judgment and the orders made by him, is a parcel of commercial real estate situated in E Street, F Town.  The husband has for some years conducted his business from that property.  In addition, an aligned business has operated from that property from time to time. 

8. One of the issues that was before his Honour related to the contamination of that real property and how that property should be dealt with and what adjustments should be made moving forward.  The history of that property is that some time after its purchase the parties entered into an agreement with G Company.  Equipment was installed by G Company at the property.  In subsequent years, it became evident that the site had been contaminated due to operation of the equipment.  After separation, the parties entered into negotiations with G Company as to how the land could be remediated.  By the time of trial, the Environmental Protection Authority (“the EPA”) had issued a report confirming that the property had been decontaminated and effectively had a clean bill of health.  That report issued in about August, 2015.  It is a matter referred to in his Honour’s judgment. 

9. It is evident from his Honour’s reasons that the husband sought the opportunity to continue to retain the E Street property and the orders made by his Honour were framed such that pursuant to certain conditions the husband would indeed have that opportunity.  The husband was required to execute a deed of release between the parties and G Company.  That deed related to the issues around the contamination of the site, and G Company effectively sought a release from the parties with respect to that issue. 

10. Paragraph 3 of the orders of Benjamin J provided that in the event that the husband executed the deed of release he would have the opportunity to acquire from the wife her interest in the E Street property provided, firstly, giving written notice to the wife within six weeks of the date of the orders that he wished to acquire the property and, further, he was required to make payments as are set out in subparagraphs (b), (c), (e), (f) and (g) to the wife as well as to the mortgagee and council in respect of outstanding rates.  Those payments were required to be made by the husband within four months of the date of the orders, that is, by March of this year.

11. In the event that there was non-compliance with those orders, paragraph 5 of the orders sets out what is to happen with respect to the E Street property.  The order provides that in the event that the husband does not sign the deed of release or comply with order 2 then the parties do all acts and things to cause the E Street property to be sold upon specified conditions, which are set out at subparagraphs (a) to (e) of the orders.

12. The position of the wife is that the husband has not complied with the orders.  The deed of release has not been produced as required by paragraph 2 of the orders.  Further, the payments to her have not been made as is required pursuant to paragraph 3 of the orders.  In the circumstances, the wife seeks to move to a sale of the E Street property.

13. The wife has filed two affidavits setting out the history of the matter since the orders were made, those affidavits being her affidavit of 8 April 2016 and her affidavit filed 31 May 2016.  The affidavit of 8 April 2016 provides a detailed chronology of the correspondence and communication passing between the wife’s lawyers and the husband after the orders were made, commencing from 12 November 2015, being the day after the orders were made. 

14. The husband’s solicitor does not take issue with the chronology provided in that affidavit.  It is evident from the email communication directed by the husband to the wife’s lawyers that almost immediately following the making of the final orders the husband was reluctant to accept the decision and, indeed his conduct would indicate that he has acted in a way so as to frustrate completion of the orders.  Further, it is evident from the communications commencing in November 2015 that the husband has persisted with his complaint that the land continues to be contaminated.  For example, at paragraph 6 of her affidavit filed 8 April 2016, the wife deposes that on 12 November 2015 she was informed by her solicitor that the husband sent an email at 4.02 pm that day which stated:-

    After getting legal advice from a commercial we’re not in a position to sign that [G Company] documents and be sent to you as the Family Court have said to do.  Note what is your position with the [contamination].  We are no [sic] in a position going forward with [G Company] case.  We are bring issue back to the Family Law Court.

15. The husband further communicated with the EPA regarding his alleged concerns as to contamination.  For example, at paragraph 8 of her affidavit, the wife deposes as to receiving information on 13 November 2015 as to an email forwarded by the husband to the EPA in which he stated:-

    Dear [Mr O], we had a meet in Sydney three months ago and rised [sic] the issue about may the [contamination].  As [the wife] is no got a commercial lawyer, the issue with her to do with GVM was done and photo taking.

16. The wife sets out in detail further correspondence sent by the husband on an almost daily basis through November and December of 2015 wherein he raises issues with respect to contamination and the like.  Late December seemed to bring some change to the husband’s attitude; he engaged a firm of solicitors to attempt to engage in negotiations with the wife as to how the matter could be concluded.  

17. On 23 December 2015, the husband’s former solicitor forwarded a letter to the wife’s solicitor indicating an awareness of the husband’s obligations under the orders and, further, a commitment, seemingly, to resolve the issues.  It was clear at that time at least that the husband sought to attempt to comply with the orders to make payment to the wife on the basis that he have the opportunity of retaining E Street.  Seemingly, the issues of contamination were not of a concern to him at that point in time.

18. The position of the wife in response to that letter was that she was prepared to provide an extension of time for compliance in order to afford the husband that opportunity.  She agreed to an extension of time to 5 February 2016 to enable the negotiations to continue.  On 3 February 2016, the husband’s lawyers forwarded a proposal to the wife in an endeavour to settle the matter.  That proposal was that the wife be paid a sum significantly less than she would otherwise have been entitled to pursuant to the orders of Benjamin J.

19. Not surprisingly, on 4 February 2016, the wife rejected that proposal and indicated that she sought to move to sell the E Street property in accordance with the orders of Benjamin J.  Thereafter, the husband’s lawyers ceased acting and the husband resumed communicating directly with the wife’s lawyers, again raising concerns as to contamination of the land.  It is evident from the communications that passed between the wife’s lawyers and the husband that he was not of a mind to cooperate with the sale process once the negotiations had broken down.

20. As I have already noted, the husband does not take issue with the history of the communications which is set out clearly in the wife’s material.  The position that is put by him before the Court today is that there should be a stay of the enforcement proceedings so as to ensure that the parties receive the best possible price in respect of the sale of E Street.  It is at least conceded by the husband now that the sale is inevitable.  Nonetheless, it is his position that it should be on his terms rather than as provided by the orders of Benjamin J. 

21. What he seeks is that the land be cleaned and remediated at the joint expense of the parties, that the parties obtain a single expert report as to the market rent for E Street and, further, that the parties enter into a lease in respect of the premises with the husband’s business being the proposed tenant under the lease.  It is said by the husband in his affidavit filed on 15 June 2016 that those orders are necessary as he asserts the land has been re-contaminated. 

22. In support of that position, he relies upon annexure SB1 to that affidavit, which is a letter from an entity known as P Laboratories; at the head of the document the letter is dated 30 April 2016 but at the foot of the page it is dated 14 June 2016.  It would appear in the copy of that letter on the Court file that, in fact, the handwritten date at the foot of the page has been altered and that in fact the document may have been originally dated 30 April 2016.  I did ask the husband’s lawyer whether he had the original of the document which would no doubt clarify the date of the document.  Unfortunately he did not have that original document to hand.  I am not in a position to make a clear finding other than the observations I have made in relation to what seems to be written on the photocopy annexed to the husband’s affidavit.

23. The husband asserts that that document is evidence of contamination at the E Street property.  I do not agree.  There is no evidence as to the qualifications or the expertise of the two parties who have signed the letter.  There is no indication as to what the report states.  It simply provides raw data said to have been collected by those scientists with respect to the property.  There is no report or analysis as to what that raw data means.  It is also noteworthy that the parties have engaged another firm of scientists to assist them with the assessment of the contamination at the site, those scientists having worked with the parties in the period up to August of 2015. 

24. Initially when the husband was communicating with the wife in relation to the alleged contamination, he proposed that the previous firm of scientists be re-engaged to undertake site inspection and analysis.  The wife objected to that course and gave notice to that firm that she did not agree and would not be responsible for payment of any fees in relation to such assessment.  It is against that backdrop that the husband has now engaged another firm of scientists to prepare the material that he has annexed to his affidavit.

25. As to the lease issue, the husband asserts that the parties are likely to achieve a better sale price if the property is tenanted.  The husband is not a commercial real estate agent.  There is no expert evidence before me that would indicate that, in fact, a better sale price would be achieved if the property was subject to a commercial lease.  Therefore, I do not accept the assertions made by the husband in his material.

26. The wife has had the benefit of final orders of this Court since 11 November 2015.  There has been no appeal against those orders.  The wife has entitlements to be paid fixed sums of money pursuant to those orders.  She was entitled to be paid those moneys in March of this year.  She has not received the fruits of her judgment.  The orders she now seeks will progress the matter and enable her to receive payments she is due under the orders and move forward with her life.  The goal of the orders was to achieve financial separation of the parties.  The orders that I am asked to make today will achieve that result. 

27. Given the history that I have outlined as to the husband’s conduct in the aftermath of the orders made by Benjamin J, I am satisfied that it is appropriate that the wife be appointed as the trustee for the sale of the property.  She could have no confidence that the husband would cooperate with the sale given the lengths to which he has gone to frustrate her endeavours thus far. 

28. The wife sought that she be entitled to appoint a named firm of real estate agents and a solicitor.  The orders of Benjamin J set out a process for the appointment of a selling agent, conveyancer and valuer in the event that there was no agreement between the parties.  The wife has previously requested the husband to agree to the appointment of those agents.  He has refused.  She has requested him to engage in a process of writing to the president of the Real Estate Institute of New South Wales to invite them to appoint the selling agent.  The husband has not cooperated with that process. 

29. In the circumstances, what I propose is that the husband be provided with a very small window of time to pay the moneys necessary to appoint the relevant authorities to make the those appointments.  That window of time will close at 4.00 pm on 20 June 2016.  If the husband does not comply with orders requiring him to meet half the costs for the engagement of those authorities, I will make orders permitting the wife to engage her nominated selling agent and conveyancer to complete the tasks necessary to effect the sale of the land.

30. The wife also seeks an order that in the event that the property does not sell at auction that the property be sold on such terms and conditions as recommended by the appointed selling agent.  That departs from the orders originally made by Benjamin J insofar as subparagraph (e) of paragraph 5 contemplated a second auction.  That order was made at a time where it was anticipated that either a payment would be made or a sale process undertaken by March, 2016.  There has been significant further delay as a consequence of the husband’s failure to comply with the orders.  In the circumstances, I agree with the submission made by the wife’s counsel that it is appropriate that the selling agent be in a position to recommend to the wife what should occur in the event that the property does not sell at auction. 

31. The wife also seeks orders restraining the husband from defacing or damaging advertising awnings with respect to the sale and, further, restraining him from interfering with the selling agent showing prospective buyers through the property or acting in any way to disrupt the auction.  For the reasons I have already identified as to the husband’s attempts to frustrate the sale process, I am satisfied that such orders are appropriate and necessary. 

1. There should be no further delay in the completion of these orders.  The wife has already been placed at a disadvantage insofar as she has not had the payments to which she was otherwise entitled to under the orders.  She has been deprived of the fruits of the judgment for some three months now.  All steps should be taken to ensure that the sale is conducted without interference or disruption. 

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

1. The wife makes an application for her costs of this day as well as costs in relation to the application, that is, the preparation of the application.  What she seeks is an order that the costs be fixed in the sum of $4,500.  That application is opposed by the husband. 

2. The question of costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that subject to subsection (2) and other relevant sections the general rule is that each party to proceedings under this Act shall bear his or her own costs. Section 117(2) states that if in proceedings under this Act the court is of the opinion that there are circumstances that justify it doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable rules of court, make such order as to costs and security for costs as the court considers just.

3. Section 117(2A) of the Act sets out the matters that the court should have regard to in considering any order for costs. Particular reliance is placed upon subsections (c) and (d) of section 117(2A) by the wife. In particular, subsection (c) which relates to the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters. Subsection (d) requires that I have regard to whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.

4. The application before me today has arisen due to the failure of the husband to comply with the final orders of Benjamin J made on 11 November 2015.  I have made orders enforcing those orders this day.  The wife has been required to file an Application in a Case.  She has been required to swear two lengthy affidavits in support of that application.  Those affidavits set out in detail, as was required, the communication and correspondence passing between the husband and the wife’s lawyers since the orders were made. 

5. I have already set out some detail in my reasons for judgment the nature and content of that communication.  The thrust of most of the communication emanating from the husband was focused on his resistance of the orders of Benjamin J initially indicating that he would appeal those orders, that he would make an application pursuant to s 79A in respect of those orders and that he would engage commercial lawyers to resist those orders.  His communication is replete with opposition to giving effect to the orders.  I am satisfied that it was appropriate that that material be placed before me today in considering the wife’s application. 

6. I am satisfied that the husband has failed to comply with the orders, that he has engaged in conduct designed to thwart the operation of the orders.  He has recently put material on seeking orders different to those made by Benjamin J.  That material in and of itself caused the wife to incur further costs.  There was delay in the prosecution of her application.  Her lawyers were required to read and consider the material filed.  In the circumstances, I am satisfied that it is appropriate that an order for costs be made. 

7. There was no submission made on behalf of the husband as to quantum.  In the circumstances, I am satisfied that the amount sought by the wife is appropriate having regard to the Rules of Court. 

ORDERS DELIVERED

RECORDED:  NOT TRANSCRIBED

1. The wife has sought that I make a further order that the costs ordered by me this day and on 7 June 2016 be paid from the husband’s share of the proceeds of sale of E Street.  The husband’s solicitor did not oppose an order in those terms.  He agreed that that seemed to be a sensible course having regard to the circumstances of the case.  Accordingly, I will make a further order in those terms.

ORDERS DELIVERED

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 June 2016.

Associate: 

Date:  17 June 2016