DELACEY & REDWOOD (No.3)

[2021] FCCA 444

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELACEY & REDWOOD (No.3) [2021] FCCA 444

Catchwords:
FAMILY LAW – Ex tempore ruling in respect of enforcement of orders made at conclusion of trial in September 2020.

Legislation:

Transfer of Land Act 1958 (Vic), s.89A

Applicant: MS DELACEY

Respondent: MR REDWOOD

File Number: DGC 2126 of 2019

Judgment of: Judge Burchardt

Hearing date: 3 March 2021

Date of Last Submission: 3 March 2021

Delivered at: Dandenong

Delivered on: 3 March 2021

REPRESENTATION

Advocate for the Applicant: Ms Walters

Solicitors for the Applicant: Sterling Walters Lawyers

Counsel for the Respondent: In Person

Solicitors for the Respondent: Not Applicable

Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 4 March 2021

ORDERS

1. That within 30 days of the date of these Orders (the date):

   (a)the Husband pay to the Wife the sum of $224,650 (payment) pursuant to Order 16 of the Final Orders dated 23 September 2020 (Final Orders) together with penalty interest calculated in accordance with the Family Law Rules accruing from 23 October 2020 until the date the payment is made;

   (b)the Husband do all things necessary to cause the Wife to be released as guarantor of the mortgage encumbering the real property at E Street, Suburb F, Victoria (E Street, Suburb F property); and

   (c)after paragraphs 1a & b are complied with, the Wife shall remove her caveat lodged against the E Street, Suburb F property.

2. That in the event that the whole of the payment in Order 1 has not been made within 30 days, the real property be forthwith sold altogether out of Court (“the sale”) pursuant to orders 3 to 6 inclusive.

3. The Wife be appointed as attorney for the Husband and be permitted to execute all deeds and documents in the name of the Husband and to all acts and things necessary to give validity and operation to these Orders.

4. The wife shall forthwith do all such acts and things and sign all such documents as may be required to put the real property situated at E Street, Suburb F, Vic on the market for sale by private treaty with a licensed estate agent to be nominated by the president of the REIV with the reserve price to be nominated by the agent.

5. That the parties equally share the costs of marketing and sale for the real property.

6. Upon the settlement of the sale of the real property, the proceeds of sale will be applied:

   (a)First, to pay all costs, commissions and expenses of the sale;

   (b)Second, to discharge the mortgage and any other encumbrance affecting the real property;

   (c)Thirdly, to pay all outstanding council rates, water charges and fees;

   (d)The wife’s costs of $2,750; and

   (e)The balance be divided between the parties so that the husband receives 55% of the property pool and the wife 45 per cent in accordance with the Court’s judgment at paragraph 130, with the pool adjusted to reflect the actual net proceeds of sale.

7. Pending the sale:

   (a)The Respondent have the sole right to occupy the property;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders;

   (c)The parties be equally liable for the maintenance of the property including mortgage, council rates, water charges and fees associated with the property; and

   (d)Neither party shall further encumber the real property without the consent in writing of the other party

8. There be liberty to apply in respect to the implementation of the orders for the sale of the property.

9. In the event the property is not sold pursuant to these Orders, the Husband pay the Wife’s costs of 3 March 2021 fixed at $2,750.

IT IS NOTED that publication of this judgment under the pseudonym Delacey & Redwood (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2126 of 2019

MS DELACEY

Applicant

And

MR REDWOOD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 23 September 2020 I gave final judgment in this matter and made a number of property orders.  Pursuant to order 16, the husband was to pay the wife $224,650 within 30 days.  In default of payment, there were orders 17 to 21 which included, inter alia, the parties forthwith selling the property out of court, with an agent appointed by the president of the REIV under private sale and the agent to fix the reserve. 

2. The husband appealed and on 30 October 2020 I dismissed his application for a stay of those orders.  At that time he informed me he had approval to pay the wife out.  Relevantly, I found that the dissipation of assets, which was the essential point pressed by the husband, would not occur and I referred to authority and to the rights of the successful party to have the fruits of their success.  I noted other relevant matters, of course, as well.

3. On 23 February 2021 the wife filed an application in a case for enforcement. She has filed an affidavit with that application. She deposed to a directions hearing before Strickland J in the appeal matter on 15 December 2020 and I note that she made a section 89A application pursuant to the Transfer of Land Act1958 (Vic) seeking the removal of the caveat which the husband had failed to remove, notwithstanding I had ordered him to do so by orders made on 11 December 2020. There was another hearing before Strickland J on 8 February 2021. The husband has asserted that there may have been some form of agreement reached, but from the fact of this application it is clear that that is not the case.

4. On 2 March 2021 the husband filed an affidavit in which, as I indicated, he asserted that there was some sort of agreement that rather than the sale of the property he enter into some form of bond.  But I note that he says he has no capacity to obtain finance approval because he has recently obtained new work.  In the matter before me today he repeated his general fears of dissipation of assets on the wife’s part and he expressly confirmed that, in substance, what he is seeking is a stay.  And I note that it is really on, effectively, the same grounds as those raised when I rejected the application in October last year.

5. I should note that he makes complaint in his affidavit of the possible eviction of him from his home, but it should be noted that the removal of the husband from his home was expressly contemplated in the default orders made as long ago as September last year.  In my view, the wife is entitled to the fruits of her success at first instance.  But that leaves for consideration the form of orders that should be made to effect it. 

6. I have the minutes of orders sought by the wife in front of me.  Order 1 gives the husband 14 days to pay the final amount ordered.  But it also seeks that he do all things necessary to release the wife as a guarantor of the mortgage in relation to the property and notes that the wife will remove her caveat once that is complied with.  I would regard the 14 days as reasonably generous given the lapse of time.  But if the husband is to be given any sort of realistic chance of complying - and, I note, notwithstanding his assertion today that he will not be able to get finance - it will need more than 14 days.  I propose to alter the order in order 1 to be 30 days from the date of these orders, not 14.

7. I note the default provisions proposed by the wife.  Order 2 requires the husband to do things to enable the sale to occur, and then envisages the husband staying in the property until sale.  There is a further order in default of compliance.  In my view, the orders proposed by the wife are unnecessarily complex.  I have no doubt at all given the history of the matter that the husband will not comply, so the orders I propose to make are as follows - and they are essentially a reworking of the orders made in default in September last.

8. In default of payment, I propose to make the order sought in order 4(a) of the wife’s minute.  So that there will be order 1, payment of the sum, as in the wife’s minute order 1.  Order 2 will be the order 17 of the orders made in September, amended to read:

   that in the event of the whole of payment in order 1 has not been made within 30 days, the real property be forthwith sold all together out of court pursuant to orders 3 to 6 inclusive. 

9. Order 3 will be in terms in the sub (a) of the order 4 proposed by the wife.  So it will simply read - and I will move straight to it:

   The wife be appointed as attorney for the husband and permitted to execute all deeds and documents in the name of the husband and to do all acts and things necessary to give validity to the operation of these orders.

10. There will then be an order 4 in terms of order 18 proposed in September, but it will now read:

    The wife forthwith do all such acts and things and sign all such documents as may be required to put the real property situated at E Street, Suburb F on the market for sale by private treaty with a licenced estate agent to be nominated by the president of the REIV with the reserve price to be nominated by the agent.

11. 5 will be the parties equally share the costs of marketing.  6 will be the order 20 proposed last year which deals with the receipt of the proceeds of sale.  And the seventh order will be the husband remaining in the property and paying the mortgage until the sale takes place.  In my view, that is the most appropriate way to proceed.  But I am also going to grant liberty to apply in respect of the implementation of the orders for the sale of the property.  In the event that there is any default by the husband of any sort, then the matter can be brought back on short notice and I will sort any problems out as they may arise.

12. The Court will engross those orders given that they are a bit of a mishmash of the various documents.  In my view, they represent a far more practical way of proceeding given the circumstances.  So those will be the orders of the Court.

RECORDED  :  NOT TRANSCRIBED

1. This application has only been rendered necessary by the husband’s failure to comply over a considerable period of time with orders that were made in September last year.  He tells me today he is now in employment which is more remunerative than he was at the time of the judgment.  There is no good reason why the wife should be out of pocket and the claim for $2,750 is eminently reasonable in the circumstances.  I will alter the proposed order 6, that upon settlement of the sale of the real property the proceeds will be applied first to pay cost commission;  second, discharge the mortgage;  thirdly, council rates, water charges, fees;  and then (d) the wife’s costs of $2,750.  And then the clause that was (d) will become (e) for the balance divided 55/45.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 9 March 2021

Addendum

A.Since these reasons for judgment were given in open court, my chambers have been besieged with further correspondence from the parties. The solicitors for the wife sought a default order for their costs in the event that the property was not sold. As this was plainly something I would have ordered had it been raised at the time I made that order pursuant to the slip rule.

B.In subsequent emails Mr Redwood has sought that a costs order not be made against him save in the event the property was sold. He has professed a lack of understanding of how the matter devolved in court. Contrary to Mr Redwood’s emails, it was my clear intention that he pay the wife’s costs of the hearing on 3 March 2021. I made an order which had the likely effect of making the style of payment more certain but in the event that the property is not sold (I personally have no doubt that it will be) the wife will not be defeated in any further application she makes to enforce the costs order in her favour.