Castelli & Castelli (No 2)

[2023] FedCFamC2F 1708

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Castelli & Castelli (No 2) [2023] FedCFamC2F 1708

File number(s):	PAC 866 of 2021
Judgment of:	JUDGE STREET
Date of judgment:	6 December 2023
Catchwords:	FAMILY LAW – PROPERTY – joinder application – severing securitisation orders made
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 2 Family Law
Number of paragraphs:	7
Date of hearing:	6 December 2023
Place:	Sydney
Solicitor for the Applicant:	Smythe Wozniak Solicitors
First Respondent:	Appeared in person
Solicitor for the Second Respondent:	MinterEllison Sydney

ORDERS

PAC 866 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CASTELLI

Applicant

AND:

MR CASTELLI

First Respondent

V CORPORATION

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	6 DECEMBER 2023

THE COURT ORDERS THAT:

1.V Corporation be joined as a Third-Party Respondent in these proceedings.

2.V Corporation discharge registered dealing … being mortgage loan reference …27 held as security over B Street, Suburb D being folio identifier … upon payment of the sum of $340,362.57 within 14 days of today’s date and thereafter the amount of interest and costs accrued from today’s date if not paid within the 14 days.

3.V Corporation do all acts and things do all acts and things necessary to sever any cross-collateralisation between B Street, Suburb D and any other liability, including but not limited to, Mr Castelli and any other property.

4.The remaining mortgage, being mortgage loan number …22, is wholly the sole liability of Mr Castelli.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These are property proceedings that were commenced on 19 February 2021 arising out of a marriage between 1977 and 1991 with the parties remaining under the same roof for quite some period.  The Court made final property orders on 10 May 2023, and facilitated a process, if it became necessary, for the joinder of a creditor, being V Corporation, and the severing of the overlapping securitisation by V Corporation of interest in relation to poverty, the subject of orders under section 79.

2. The application for joinder of V Corporation was filed on 10 November 2023, and up until today there had been opposition, as I understand it, to the resolution of the matter.  Consensually today Ms Lomas on behalf of V Corporation has indicated that V Corporation doesn’t oppose but doesn’t consent to the orders which have been discussed with the court identified in the application.  There was a change sought in relation to order 2 so as to delete the reference to the registered mortgage sought by V Corporation.  There was also a change sought to order 5 so as to simple refer to the loan account.

3. In relation to order 2, there was a further change sought by V Corporation, which was to identify the sum currently outstanding, being $340,360.57.  The Court indicated it was minded to make an order that facilitated the amendment to that amount, provided the respondent pay within 14 days, and thereafter in accordance with the ongoing interest and fees as of today’s date.  V Corporation informed the court through Ms Lomas that no part of the outstanding amount reflects costs in these proceedings and that it is the ordinary rate that has been applied in respect of the change in the amount since the time of the making of the application on 6 November 2023.  The Court assumes the amount has actually been accumulated since the making of the orders back in May.

4. The respondent appeared and identified that he wanted to have discussions with the parties. The Court could see no utility in facilitating that step. V Corporation is the banker of the respondent, and he can take steps to communicate with the bank as he wishes. This Court made final orders in relation to property, and the orders being made in this regard are to facilitate the enforcement of the orders that were made, and to address the issues arising under Part VIIIAA and section 90AE of the Family Law Act 1975 (Cth) in relation to the creditor V Corporation.

5. So far as Mr Castelli’s request for a referral to obtain Legal Aid representation, the Court can make recommendations for a referral for legal assistance, but it is entirely within the court’s providence to determine whether any such referral should be made.  The Court can see no proper basis in the circumstances of this case for the making of any such referral and declines to do so.  In relation to the proposed orders in terms of 1, 2, 4 and 5, the Court has taken into account the principles in relation to joinder identified in Jordan & Sutton (No 2) [2022] FedCFamC1F 850, from paragraphs [38] – [44]. The Court has ample power to make an order for joinder in relation to Part VIIIAA of the Act. V Corporation is clearly a necessary party and it is proper to make the order for joinder in the circumstances.

6. The Court has also taken into account the principles in relation to section 90AE of the Act as discussed in Jordan & Sutton supra by the learned judge at [32] – [34]. The proposed order in relation to the severing of the cross securitisation in the present case is something clearly arising in relation to the marriage in respect of the property of the parties that have been the subject of the final orders made by the Court. The Court is amply satisfied that it has power under section 90AE of the Act to make orders of the kind being sought in the application in the proceedings, given the absence of active opposition by V Corporation that is sufficient for the purpose of addressing and making of the orders in the circumstances of the present case.

7. The Court is satisfied that it is an appropriate matter in which to exercise the Court’s powers under section 90AE of the Act in the fashion identified in the proposed orders to remove the cross-securitisation interest in respect of the loan account. The applicant is assuming responsibility for leaving V Corporation with its security interests that it may hold in relation to the other loan account by the respondent. Accordingly, for these reasons, the Court has made the following above orders.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street.

Associate:

Dated:       20 February 2024