BRINKOFF & CHIN
[2005] FMCAfam 421
•25 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRINKOFF & CHIN | [2005] FMCAfam 421 |
| FAMILY LAW – Enforcement Summons – respondent unsuccessful in setting aside order – appeal abandoned – respondent unwilling to comply with order – order for sale of home – costs. |
| Family Law Act 1975 (Cth), s.79A Family Law Rules 2004, rr.22.24, 22.56(1)(d) Family Law Rules 1984, Order 33 Federal Magistrates Court Rules 2001, Schedules 1, 5 |
| Applicant: | dONNA GEVA BRINKOFF |
| Respondent: | HOI TEOW CHIN |
| File Number: | HBF 2359 of 2001 |
| Judgment of: | Roberts FM |
| Hearing date: | 25 July 2005 |
| Date of Last Submission: | 25 July 2005 |
| Delivered at: | Launceston |
| Delivered on: | 25 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Tucker |
| Solicitors for the Applicant: | Grant Tucker |
| The Respondent was not represented. |
ORDERS
That the property at 256 Acton Avenue, Kewdale in Western Australia comprised and described in Certificate of Title volume 1389 folio 789 be sold for the best price that may be reasonably obtained and the proceeds of sale be distributed as follows:
(a)to pay the reasonable expenses of the sale including agent’s commission and legal costs and disbursements
(b)to pay any outstanding rates
(c)to pay DONNA GEVA BRINKOFF the sum of $50,000 in accordance with the Orders of this Court of 12th June 2001 or any balance remaining under that Order together with any interest that may have accrued in relation to that sum in accordance with the provisions of the Federal Magistrates Court Rules 2001
(d)to pay the balance remaining to HOI TEOW CHIN.
That DONNA GEVA BRINKOFF be appointed as the trustee for sale for the purposes of Order No. 1 hereof with authority to decide upon the manner in which the property is to be marketed.
That the parties must do all such acts and execute all such documents as may be reasonably necessary to give effect to these Orders.
That in the event that HOI TEOW CHIN fails or refuses to execute any document necessary to give effect to these Orders the Registrar of the Federal Magistrate Court at Hobart is hereby authorised to execute such documents in his place and any such execution by the Registrar shall have the same force and effect as if the document had been executed by HOI TEOW CHIN.
That the parties have liberty to apply in relation to the execution and enforcement of these Orders.
That HOI TEOW CHIN do pay the costs of DONNA GEVA BRINKOFF of and incidental to the Enforcement Summons filed 6th May 2002 fixed in the sum of $1,987.50.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBM 2359 of 2001
| DONNA GEVA BRINKOFF |
Applicant
And
| HOI TEOW CHIN |
Respondent
REASONS FOR JUDGMENT
The matter before the court is an enforcement summons which was filed on behalf of DONNA GEVA BRINKOFF on 6 May 2002. The respondent to that enforcement summons is HOI TEOW CHIN. The enforcement summons alleges that payment has not been made pursuant to an order of this Court on 12th June 2001 which required the respondent to pay $50,000 to the applicant.
The respondent was initially summoned to appear at the court in Launceston on 20th May 2002. There were a number of appearances in relation to that. However, the respondent sought to have the relevant property order of 12th June 2001 set aside pursuant to section 79A of the Family Law Act. That application was made in the Family Court of Western Australia. Consequently, the matter was taken out of the list with liberty to the parties to restore the matter to the list.
The sequence of events after that is that the application by Mr Chin pursuant to section 79A of the Family Law Act was dismissed by Her Honour, Penny J. Mr Chin then appealed to the Full Court of the Family Court of Australia. He was required to file appeal books in proper form but he did not comply with that requirement. The appeal was listed for hearing on 29th November 2004. Pursuant to Rule 22.24 of the Family Law Rules 2004, Mr Chin was obliged to file the appeal books within 56 days of a procedural hearing but he did not do that. That 56 day period expired on 11th November 2004. The appeal was taken to have been abandoned pursuant to Rule 22.56(1)(d).
The result of that is that the enforcement summons which had been taken out of the list is still alive, and upon application by Ms Brinkoff the enforcement summons was re‑listed. Mr Chin was given appropriate notice of that and Mr Chin, when he has appeared in this court here in Launceston, has always appeared by telephone. Mr Chin appeared by telephone in relation to the directions that were given on 19th May 2005. At that time the enforcement summons was listed for hearing today as a special fixture, and the court noted that Mr Chin could appear by telephone.
Mr Chin has appeared by telephone today and, because he does not dispute that he has not paid the sum of $50,000 required by the order of 12th June 2001, it became clear that there was no need for Ms Brinkoff to give any evidence.
Mr Chin was sworn and was examined in relation to the matter. He made it very clear that he would not be paying the sum of $50,000.
He was asked whether he knew whether the court has power to sell the home in which he is living, which is also the subject of the order of 12th June 2001. That order also required that upon payment of the sum of $50,000, Ms Brinkoff was to transfer her interest in that property to him. When was asked whether he knew whether the property could be sold, Mr Chin stated that that cannot be done.
Order 33 of the former Family Law Rules 1984 has been directly incorporated into the Federal Magistrates Court Rules 2001 (see Schedule 5). It relates to enforcement of monetary obligations and it is quite clear that the options available are, not only a further order for payment of any arrears or unpaid amount, but also include;
·a garnishment order;
·an order for seizure and sale of personal property;
·a sequestration order;
·an order for seizure and sale of any interest in land; and
·any other such order that the court thinks is necessary to enable the enforcement of its order.
So the ability on the part of the court to enforce its order by selling the relevant property is clearly available.
When he was examined it became very clear that Mr Chin does not have any particular respect for the way the matter has been dealt with throughout the court processes and he certainly has no respect for Ms Brinkoff's lawyer, Mr Tucker. Indeed, Mr Chin forwarded to the court a document (which has not been properly filed) in which he accuses Mr Tucker of criminal acts. I do not necessarily need to refer to that document, because he did just that in his evidence today when being examined by Mr Tucker. He said quite plainly this is a criminal action that he was not going to be an accessory to, and when he was asked whether he was aware that the Sheriff may eject him from his home he indicated that he would take it to whatever higher authority he could, which included going to the Queen. He suggested that a criminal lawyer should get Mr Tucker indicted and he stated on a number of occasions that the matter should go to mediation.
He completely misses the point in relation to this matter. What he appears not to understand is that the order of this Court of 12th June 2001 is a final order for property settlement. He has attempted unsuccessfully to have that order set aside and he has attempted unsuccessfully to appeal that decision. Consequently, the order is a valid order, which this Court has been asked to enforce.
Mr Chin made it quite clear on a number of occasions that he has absolutely no intention of paying the sum of $50,000 or any interest that may have accrued. More than once he made what I consider to be a remarkable statement that Ms Chin owes him money. I am not quite sure how he comes to that conclusion in relation to a property settlement, as it appears to me that he is in possession of all the property.
It was also clear to the Family Court of Western Australia that Mr Chin just does not accept the legal position.
When Mr Chin made his submissions to me after Mr Tucker had suggested that there should be an order for sale of the property, his reaction to that was:
·that Mr Tucker should be struck off;
·that it was illegal;
·that it was criminal:
·that Mr Tucker has no understanding of the law;
·that Mr Tucker should be sent to a correctional centre to help him mend his ways; and
·he repeated that mediation was the option that the Court should adopt.
All of that fails to take account of the fact that Mr Chin played no part in the proceedings when they were initiated. The Court was quite satisfied that he knew about the proceedings but was simply putting his head in the sand and taking no notice of them. The order was made after an undefended hearing. Mr Chin had his opportunity to ask for mediation at that time but now, four years later, is far too late to be asking for mediation.
I also note that when the section 79A application came before Penny J, she appeared to be of the view that, not only was the order appropriate, if anything, it was relatively light in relation to what Ms Brinkoff was owed.
Conclusions
I have considered what I now need to do with the matter. It seems to me that I do not have power to re-open the property proceedings and start back at the beginning again to appoint a mediator. I am bound by the requirements in Order 33, which now contained in Schedule 5 to this Court's rules.
It is also perfectly clear that some enforcement action needs to be taken because Mr Chin just will not cooperate.
I contemplated a garnishment order in relation to money that he has in the bank but I do not believe that I have sufficient detail to name the garnishee properly. Mr Chin indicated that the Court knew about his money in the bank. The Family Court of Western Australia may know about it, but I do not. Consequently, the only asset that can be attached, so to speak, is the property in which Mr Chin is currently living. He is a joint owner of that property with Ms Brinkoff and it seems perfectly clear to me that the only appropriate order available is that the property be sold.
I therefore propose to make an order that it be sold, and that when it is sold, the funds realised by that sale pay the reasonable expenses of the sale, pay out any outstanding rates, and then pay Ms Brinkoff the sum of $50,000 in accordance with the order of 12th June 2001 (or any balance that may then be remaining) together with any interest that may have accrued in relation to that order in accordance with the provisions of this Court's Rules. Thereafter, any balance that may remain is to be paid to Mr Chin.
I also propose to appoint Ms Brinkoff as a trustee for the purpose of the sale with authority to decide how the property will be marketed so that she will be able to decide whether it should be auctioned or sold by private sale.
I will make an order that the parties must do everything that is necessary, which includes signing of documents, in order to give effect to the orders. I will also make an order that in the event that Mr Chin fails or refuses to execute any documents then the Registrar of this Court at Hobart is able to sign such documents on his behalf.
I will also grant liberty to apply because, given the history of this matter, I have absolutely no doubt that Mr Chin will not be cooperative.
I suspect at some stage it may be necessary for the appropriate officer of some Court in Western Australia to become involved to enforce the sale. However, Mr Chin would be well advised to cooperate with the sale, or find the $50,000 and whatever interest is payable to meet the obligation.
Costs
The application now before the court is an application for costs of and incidental to the enforcement summons and today's hearing.
The financial circumstances of the respondent are that he is a pensioner. He is residing in the former matrimonial home that I will order be sold. From the sale Ms Brinkoff needs to be paid the sum of $50,000, plus what will no doubt be a substantial sum in relation to interest under the Court's Rules. There is in my view only one person who can be blamed for interest that has accrued between 12th June 2001 and now. That is Mr Chin because he has not paid the sum of money. He has made unsuccessful applications to the Family Court of Western Australia, one of which was dismissed, and an appeal which he in essence abandoned by not complying with the requirements of the Court.
The next factor I need to consider is the conduct of the parties in relation to the proceedings and also whether they were necessitated by the failure of a party to comply with orders. Quite clearly enforcement proceedings are necessitated by a failure of a party to comply.
In terms of the conduct of the proceedings, I can only say that Mr Chin's conduct in these proceedings has been outrageous. He makes scandalous allegations of a criminal nature against a lawyer, who as I see it, is only trying to do what is in his client's best interests. That is his duty. He has continued to make those scandalous allegations even while I have been talking.
The conduct of the matter by Mr Chin has been atrocious. Indeed, from time to time he has even hinted that the Court might be involved in some conspiracy against him.
It is quite clear that he has been wholly unsuccessful in the proceedings and it seems to me that in relation to enforcement proceedings there almost needs to be a very good reason why costs should not follow the event. No such reason has been forthcoming. Indeed no reason at all has been forthcoming from Mr Chin.
The costs to be paid are calculated in accordance with Schedule 1 as follows:
Stage 7 – Enforcement Application
$580.00
Half day hearing fee
$685.00
Advocacy loading
$342.50
Two short mentions
$380.00
Total
$1,987.50
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
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