Corbis & Bouchard
[2024] FedCFamC2F 1435
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Corbis & Bouchard [2024] FedCFamC2F 1435
File number(s): MLC 5800 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 September 2024 Catchwords: FAMILY LAW – Enforcement application - $80,000 from settlement held in trust – one party, without agreement, undertook work on the former matrimonial home – interpretation of orders – whether unilaterally chosen work with “selling conditions” – whether unilaterally chosen work within “jointly” market – whether oral application pursuant to section 90SN(1)(a) & (c) to set aside orders sought to be enforced should be accepted – oral application accepted – no miscarriage of justice – section 90SN application dismissed – order to give effect to final orders made – costs ordered Legislation: Family Law Act 1975 (Cth) ss 79A and 90SN(1)(a) & (c)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.07
Division: Division 2 Family Law Number of paragraphs: 33 Date of hearing: 18 September 2024 Place: Melbourne The Applicant: In Person Counsel for the Respondent: Mr Kordos Solicitor for the Respondent: Tait Lawyers ORDERS
MLC 5800 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CORBIS
Applicant
AND: MS BOUCHARD
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application of the Respondent, Mr Corbis, to set aside the Orders of 7 June 2022 pursuant to Section 90SN(1)(a) and (c) of the Family Law Act 1975 (Cth) and in reliance upon the many other allegations contained in his affidavits filed 12 July 2024 and 23 August 2024 be and is dismissed.
2.Pursuant to Rule 11.07(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) that within 7 days of these Orders, the Applicant and Respondent do all acts necessary and sign all required documents to enable the payment of the funds held in the trust account of ‘B Conveyancing’, in the following manner and contemporaneously;
(a)The sum of $26,471.16 to the Respondent (‘the Respondent’s share’);
(b)The balance of $53,528 of the Applicant, Ms Bouchard;
(c)From the Respondent’s share, the sum of $15,000 be deducted and paid to the Applicant (on account of costs of these proceedings as fixed herein).
3.In default of the Respondent doing all acts and things and executing all such documents as are necessary to give effect to these Orders, the principal of Tait Lawyers (Solicitor for the Applicant) be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and do all such acts and things necessary to give validity and operation to these orders.
4.The Applicants costs of these proceedings be fixed at the sum of $15,000.
5.To the extent that there are any further conveyancing costs, they be borne in proportions of 43% by the Respondent and 57% by the Applicant and be deducted from the payout of shares otherwise due to the parties.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
The matter of Corbis and Bouchard comes before me, originally listed solely for the issue of the enforcement of the orders made on 7 June 2022 (“the 7 June 2022 orders”). The Respondent, Ms Bouchard born in 1964 (“Ms Bouchard”), seeks that those orders be carried out in full effect. The parties commenced cohabitation in about 2002, and that relationship ended sometime in late 2018, and the Applicant, Mr Corbis born in 1973 (“Mr Corbis”) issued proceedings in May of 2019. Hence in terms of the orders made, they are styled where Mr Corbis is the applicant and Ms Bouchard is the respondent.
The proceedings commenced in May 2019 and were resolved, at least initially, on 7 June 2022, when orders were submitted to the Honourable Strum J, requesting that he make orders by consent in chambers. He did.
Orders made in 2022
The orders provided that the Suburb D property be sold within 60 days, and that upon sale, the total property of the parties be divided 57/43, effectively a formulaic approach. The orders helpfully recited what each party's superannuation was, and recited what each party's assets and liabilities were. The orders also recited in annexure B (by a slip recited as annexure A in the orders, but nothing turns on that and it is a de minimis slip) that the net assets retained by the applicant Mr Corbis (or his “keep”) was $100,257.22 and those retained by Ms Bouchard (or her “keep”), $194,459.54.
The property in Suburb D was eventually put up for auction. There was no order prohibiting either of the parties from bidding at the auction, and the applicant to the original orders, Mr Corbis, placed the highest bid and the property was sold to him for $2,504,000.
Thereafter, all hell broke loose as the parties disagreed about (or the coming to fruition of the parties' disagreement) about how the property should have been represented for sale, and at whose expense.
The auction of the property actually occurred in late 2023. The auction was delayed because Mr Corbis determined that it was in the best interests of everybody that he undertake repairs to the property. The 7 June 2022 orders do not refer to any renovations or repairs being undertaken. Order 4 of those orders is as follows:
4. For the better implementation of the sale:
4.1.The parties ensure that the property is placed on the market for sale on or before [mid] 2022;
4.2.the parties make all arrangements and do all such acts and things and sign all documents necessary to hold a sale by public auction on or before [mid] 2022 (unless the property has been sold by private treaty beforehand);
4.3.the listing price and the reserve price, the choice of the selling real estate agent, and the other terms and conditions of the sale, unless agreed upon by the parties, be determined by or as proposed by the President of the Real Estate Institute of Victoria or his nominee, and the parties appoint the selling agent on or before [mid] 2022;
4.4.The parties jointly market the property for sale in a manner calculated to attract the optimum sale price in the shortest practicable time, and without limiting the generality of the foregoing:
4.4.1Ensure that the property is presented in a neat and tidy and marketable condition at all times the property is on the market;
4.4.2.Each comply with the reasonable recommendations of the selling agent as to the asking or reserve price, and the terms and conditions of sale,
4.4.3.The Respondent ensure that the selling agent is able to access the property for the purposes of allowing inspection by prospective purchasers at all reasonable times;
4.5.The parties appoint [Ms C] of “[E Conveyancing]” to conduct the conveyance upon sale;
4.6.Pending completion of the sale the Respondent pay as and when the same fall due all rates, taxes and apportionable outgoings in relation to the property and indemnify the Applicant in respect of any such amounts unpaid as at the completion of the sale.
(emphasis added)
Suburb D property repairs
The events following the making of the orders have troubled the parties to this day. It was recommended or suggested by the selling agent that some repairs or preparation for sale be undertaken. Ms Bouchard asserts that she obtained a quotation to undertake the work as recommended in the sum of $15,000. Mr Corbis obtained three quotes for what he said were the works recommended by the selling agent, that were in the sum of $35,000 to $60,000 dollars. Ms Bouchard never agreed to those figures. Mr Corbis never agreed to the $15,000 repairs.
Mr Corbis decides to do the repairs himself
Along the way, and in any event, notwithstanding the three quotations Mr Corbis had obtained, he determined it was in everyone's best interests if he undertook the work, and that he would charge himself and Ms Bouchard what he regarded as his reasonable charges. It is undisputed that Mr Corbis thereafter, over some many months, undertook works to the property. Ms Bouchard says she never agreed to those works, and that Mr Corbis chose what works were to be done. Mr Corbis says that the works that he undertook on the property, notwithstanding the clearly communicated disagreement by Ms Bouchard were, he says, recommended by, or at least undertaken in consultation with the selling agent.
The nightmare of repairs: Intervention order results
I am satisfied that the selling agent would not have disagreed with anybody about what works were to be done. I am prepared to infer that the sale of this property would have been a nightmare for the selling agent as he negotiated between Mr Corbis and Ms Bouchard. The nightmare involved the obtaining or seeking of intervention orders to prevent Mr Corbis undertaking works on the property whilst Ms Bouchard was still living in it. Eventually an intervention order was obtained that prevented him from attending. I will not recite all of the controversies along the way, but I am satisfied that each party regards themselves as having acted properly and reasonably at all times.
Cost of repairs and interest dur determined by Mr Corbis
Mr Corbis is a tradesperson. I accept, as he says, of 20 years' experience, and I accept he has relevant qualifications. It is also Mr Corbis' position that he is a self-employed tradesperson: he is not registered, and he does not hold a licence for building works. Mr Corbis concedes that for doing works to any member of the public up until early 2022, those works could only be undertaken to a total of $5000, and thereafter to a total of $10,000. Ultimately, Mr Corbis undertook work on the property and asserts that the total value of his invoices was a bit less than $55,000, which he describes as a ballpark figure, because that figure includes some interest as calculated by himself, at the rate of about 12.2 per cent, which he has determined is a reasonable interest rate to charge.
Common Ground: there was no agreement about anything
There was no contract entered into as between Mr Corbis and Ms Bouchard, nor could there have been pursuant to the building law of the state of Victoria, and that is common ground. It is also not disputed that Ms Bouchard never agreed to the works to be undertaken by Mr Corbis. It is also not disputed that Ms Bouchard never agreed that the works be undertaken by Mr Corbis at all. Mr Corbis regards Ms Bouchard's disagreement with the quantum of the works, the cost of the works and the fact that he should undertake it, as unreasonable in all of the circumstances, given his considerable personal skills in repairs and maintenance.
Mr Corbis has, in 2024, rendered two invoices to Ms Bouchard, and each of them includes some interest calculation. They can be described as the 57 per cent invoice, which is in the sum of $24,278, and the 100 per cent invoice in the sum of $9,179. The 100 per cent invoice is based on Mr Corbis' assessment of the costs of the repairs that he undertook that should be attributed to the occupation of the property by Ms Bouchard following separation, in the four odd years between then and now. The 57 per cent invoice was calculated by Mr Corbis based on the orders of 7 June 2022.
It is common ground that in a commercial decision to obtain agreement between the parties, that when settlement of the sale came to transpire (which occurred in early 2024) Ms Bouchard agreed that apart from her overall calculated 57 per cent, Mr Corbis should obtain and retain a further $20,000 on account of his claims in the proceedings agitated at that time, including his agitation about the costs of repairs that he had undertaken. I note in passing that the $20,000 was duly paid to Mr Corbis, and that that sum represents double the amount that could be legally charged by a non-registered builder to a member of the public.
Mr Corbis interprets order 4.3 & 4.4
Mr Corbis has calculated, in great detail, every aspect of the claims that he makes. He relies upon order 4.3 recited above, as authority under the orders that meant, as he says, the real estate agent (who is not a witness there is no evidence from him in these proceedings) having been jointly appointed by the parties, that meant that the provisions of 4.3 applied to any recommendations that the real estate agent made in regard to the repairs on the property, because Mr Corbis interprets the orders that the selling agent and conditions of sale, unless agreed upon by the parties, be determined by the president of the Real Estate Institute of Victoria, and the agent is a member of the Real Estate Institute of Victoria. Therefore, he says, that means order 4.3 means that what the real estate agent said about the repairs was binding on both parties.
There is no evidence, apart from what Mr Corbis says, about what the real estate agent said about repairs, or about what the real estate agent ever said. However, at this point, I am accepting and proceeding on the basis that the real estate agent either agreed with Mr Corbis’ assessment of what needed to be done, or acquiesced in it and recommended some or all of the actual works that were undertaken. However, there is nothing in order 4 that can be interpreted by any stretch, that would mean that the works to be undertaken fell under the umbrella of order 4.3 or 4.4. That is, parties jointly market the property.
Even if it was thought that repair works fell under the phrase of "jointly" market the property in a manner calculated to attract the optimum sale price in the shortest practical time, included works as recommended, it is common ground in this case that there is nothing "jointly" about the works undertaken.
Somehow, and it may be by the insistence of Mr Corbis or the acquiescence of Ms Bouchard, Mr Corbis undertook considerable work. When boiled down, Mr Corbis ultimately says there are, in terms of the works, Ms Bouchard owes him $33,457, being the total of the 100 per cent invoice and the total of the 57 per cent invoice, less the $20,000 that he has already received, which would mean that she owes him approximately $13,000.
Land tax: a minor error but already paid
In addition to that, he points out and says that by the orders, Ms Bouchard was to pay the whole of the land tax relating to that property, and that the conveyancing agent insisted (though the matter was agitated prior to the settlement) that the land tax was treated as an off-the-top encumbrance which the parties bore in the proportions of 57/43. It is not disputed that $1,180.70 is Mr Corbis's 43 per cent of the land tax that was taken out of the proceeds, which according to my interpretation of paragraph 4.6, should not have been, and should have been adjusted against Ms Bouchard. However, I am satisfied that that issue of the land tax was in issue prior to the settlement of the sale.
Ms Bouchard made what she describes as a commercial offer of $20,000 to get Mr Corbis to settle. Hence, her case is that the $20,000 that she paid was to cover the work that he did, notwithstanding she never agreed to it, and notwithstanding she never agreed that he would do it, and any other claims outstanding at the time of settlement, including the rates and land tax aspect. By paying $20,000 from her funds to Mr Corbis, if the $1,180 is deducted, that gives $18,820. That would mean the cost of the works that she was paying for was (or allowing) was a not inconsiderable sum.
Further, there is nothing in the orders that say Mr Corbis is entitled to charge Ms Bouchard interest at a rate chosen by him. So if the orders stand, the sum that Mr Corbis has already received are more than the orders required to be paid, and more by a considerable margin.
$80,000 kept aside
When the property settled in early 2024, by agreement between the parties, $80,000 was kept aside in a trust account pending the decision of this court as to how that was to be distributed.
The section 90SN application
Ms Bouchard seeks that $80,000 be divided so that the net assets are divided 57/43 between the parties. Mr Corbis says it cannot be divided that way because the entirety of the 7 June 2022 orders should be set aside, on the basis that a miscarriage of justice occurred and after my drawing of section 90SN of the Family Law Act 1975 (Cth) (“the Act”) to Mr Corbis’ attention, he pointed to 90SN(1)(c), being that Ms Bouchard had defaulted in her obligation under the orders to cooperate with him about the works to be done.
Section 90SN Varying and setting aside orders altering property interests
(1)If, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
…
Doing the best that I can, and treating his application to set aside the orders as an application under 90SN(1)(c) and also 90SN(1)(a) (as Mr Corbis now presses), “a miscarriage of justice by a reason of fraud, duress, suppression of evidence, including the failure to disclose relevant information and the giving of false evidence or any other circumstances”, it is conceivably possible at a stretch, to put Mr Corbis' assertion that he was unaware of the state of the property (having not been in it for four years at the time of the making of the orders) that that was somehow a failure to disclose relevant information. I am not satisfied that that is made out. That would need to be made out on the balance of probabilities. That is, I would need to have comfortable satisfaction that that has occurred. The evidence does not disclose same.
Section 79A includes:
Section 79A Setting aside of orders altering property interests
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
…
It is settled law that whether under section 79A (married parties) or 90SN (de facto parties), the miscarriage of justice under section 79A or see section 90SN(1)(a) must relate to the judicial process that resulted in the obtaining of the orders. Mr Corbis has candidly described to me the negotiation process where the parties both represented ended up with 7 June 2022 consent orders, with a 57/43 per cent position, with a sale at a particular date. He describes, as his understanding of it, that Ms Bouchard wanted a 70/30 split, he wanted a 50/50 split, and then at a point in time not long before the orders were made, he changed his position to seek a 45/55, and Ms Bouchard changed her position to seek 58/42, and then there was unsurprisingly a meeting between those two parameters at 57/43.
Mr Corbis pressed his case under section 90SN(1)(c). All parties regarded this hearing before me, though listed in a duty list of interim hearings, as a final hearing of their competing allegations. I can only make the orders Ms Bouchard seeks or enforce the orders of 7 June 2022 if I dismiss Mr Corbis' section 90SN application to set aside the orders.
Mr Corbis and application for setting aside accepted
Whilst it might be regarded, in some quarters, as being overly generous to treat Mr Corbis’ position as an application for final orders in regard to section 90SN, and treat today's hearing as encompassing his application as well, notwithstanding questions about compliance with earlier orders, I have determined that it is just and equitable and in the interests of both parties and in the interests of justice that I proceed to hear this dispute finally, hence Mr Corbis has been successful in persuading me to hear his section 90SN application on a final basis.
Section 90SN application dismissed
Neither of the parties wish to cross-examine the other. I am not satisfied on the evidence, taking Mr Corbis’ case at its highest, that there has been a miscarriage of justice either under section 90SN(1)(a) or under section 90SN(1)(c). Hence, I dismiss his application to set aside the orders of 7 June 2022.
The enforcement application
Returning then to the enforcement position. I am satisfied that the case as pressed by Ms Bouchard’s solicitor is appropriate, and falls within the rules, and my powers under rule 11.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Rule 11.07 General enforcement powers of court
The court may make an order:
(a)declaring the total amount owing under an obligation; or
(b)stating that the total amount owing must be paid in full or by instalments and when the amount must be paid; or
(c)for payment of a child support liability (see rule 11.03); or
(d)for enforcement of an obligation to pay money (see rule 11.05); or
(e)in aid of the enforcement of an obligation; or
(f)to prevent the dissipation or wasting of property; or
(g)for costs; or
(h)staying the enforcement of an obligation (including an enforcement order); or
(i)requiring the payer to attend an enforcement hearing; or
(j)requiring a party to give further information or evidence; or
(k)that a payer must file a Financial Statement; or
(l)that a payer must produce documents for inspection by the court; or
(m)dismissing an application; or
(n)varying, suspending or discharging an enforcement order.
I am satisfied that it is just and equitable, proper, and in the interests of justice that I make the orders as pressed by the solicitor on behalf of Ms Bouchard.
I considered Ms Bouchard’s application for costs and gave short and separate reasons for ordering Mr Corbis to pay the fixed sum of $15,000 from his part of the $80,000 held.
Having examined in discussion with counsel and Mr Corbis the careful calculations about how to split the remaining $80,000 to give effect to the 57/43 overall split, I was satisfied that the amounts pressed by Ms Bouchard were correct.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 October 2024
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