Denning and Denning (No. 2)

[2008] FamCA 452

FAMILY COURT OF AUSTRALIA

DENNING & DENNING (NO. 2) [2008] FamCA 452

FAMILY LAW – ORDERS – Non-compliance with orders to remove caveats on real property

APPLICANT: MR DENNING

RESPONDENT: MRS DENNING

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 2 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 2 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S.L. Johns

SOLICITOR FOR THE APPLICANT: Maeve O’Brien & Associates

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That in the event that the wife does not sign the withdrawals of caveat specified below by 11.45am this day, that pursuant to s 106A(1) of the Family Law Act1975 an officer of the Court shall be appointed to execute the withdrawals of caveat on her behalf in accordance with paragraph 16(d) of the orders of the court dated 12 March 2008, being withdrawals of caveat in respect of the properties situate at and known as:

   (a)Unit 4/57;

   (b)Unit 1/59; and

   (c)Unit 1/46.

2. That paragraph 19 of the orders dated 12 March 2008 shall be varied to include paragraph 19(f) as follows:

   “(19)     That until further order, sums held in the trust account be applied as follows:
   …

   (f)In payment of any arrears of mortgage repayments due to Columbus Capital and/or Permanent Custodians in respect of the mortgages secured over the real properties situate at Units [1/46], [2/46] and [3/46] (being the sum of $7,417.38, as at 24 April, 2008) together with any enforcement costs incurred in respect of the said arrears.”

3. That the husband’s application in a Case filed 26 may 2008 shall be otherwise dismissed.

4. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

5. That the wife shall pay the husband’s costs of 29 May 2008 fixed at $1,750 and the costs of this application of $2,524, a total of $4,274, such sum to be paid ultimately from the wife’s share of the property settlement.

IT IS NOTED that publication of this judgment under the pseudonym Denning & Denning is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

MR DENNING

Applicant

And

MRS DENNING

Respondent

REASONS FOR JUDGMENT

1. I have before me today the husband's application filed 26 May 2008 which is effectively to enforce orders made by Brown J on 12 March 2008.  There are two aspects to his application. 

2. One is in relation to withdrawals of caveat ordered by Brown J with the expectation that the wife would execute those. That has not occurred, and he now seeks an order pursuant to s 106A(1) of the Family Law Act for an officer of the court to execute those documents. 

3. The other aspect is in relation to the payment of arrears of mortgage.  The parties own eight properties.  They have very high mortgage commitments.  There are arrears of mortgages at the moment in the sum of between $7,000 and $14,000.  The precise sum is not available today, but what is clear is that the mortgagee is threatening to foreclose, so that it is of the utmost urgency that the arrears be paid.  What is sought is that one of the properties that is in the process of being sold pursuant to Brown J's orders should have the proceeds held in trust as ordered by her Honour, but with an amount released in order to meet the arrears of mortgage.  That way, the parties can set about the orderly sale of the other properties in accordance with Brown J's orders, rather than having a mortgagee sale. 

4. So far as that first aspect is concerned, the withdrawals of caveat, the situation is extraordinarily simple and straightforward.  Her Honour's order was entirely clear in paragraph 16(d) of the Orders.  The wife was to execute those withdrawals of caveat.  I am satisfied that ample opportunity has been given to the wife to do that.  She was until recently represented by a solicitor.  She was certainly represented by that solicitor and by counsel at the hearing on 12 March this year.  Despite various requests, the withdrawals of caveat have not been forthcoming. 

5. Today the wife says that she is prepared to sign them. I will give her a brief opportunity to do that. The husband's solicitor has prepared the relevant documents. They are at court. I will give the wife a very short time after this case is finished to sign those documents. In the event that for any reason she does not, then the documents should be signed pursuant to s 106A of the Family Law Act.

6. There is one withdrawal of caveat that is absolutely pressing in that the relevant property has been sold pursuant to her Honour's earlier order, but the settlement could not go ahead a few days ago, because the withdrawal of caveat was not available.  The purchasers issued a notice of intention to rescind the contract dated 27 May 2008.  It gives 14 days for the sale to be completed, so that matter is urgent. 

7. Another two withdrawals of caveat relate to the two other properties that her Honour ordered be sold.  It is entirely reasonable that if the wife does not sign those today, an officer of the court should do so, to avoid any future problem to the currently pressing one. 

8. The other aspect before me today is in relation to the arrears of the mortgages, as I have noted.  It is entirely reasonable in my view for the monies that will be received from the sale of the first property to be distributed so that the arrears can be met.  The potential calamity of the mortgagees foreclosing on the mortgage can be avoided. 

9. So I propose making the order in that respect.  It is in entirely reasonable form.  It seeks to amend her Honour's orders slightly because her Honour did order that the mortgage instalments be met, but at that point the issue of arrears was not an issue before her.  I have explained to the wife that in due course, when there are property proceedings or final orders being considered, the fact that these arrears were paid out in this way will be part of what is taken into account. 

10. I propose making the orders as sought.  Otherwise, the husband's application will be dismissed.

11. Costs are a discretionary matter for me under the Family Law Act.  Section 117 deals with the question.  It gives me the discretion to order costs, taking into account a range of matters.  One of those matters is whether or not a party has been wholly successful or unsuccessful.  This is a clear and straightforward case for me.  Orders were made, they have not been complied with.  The husband has by necessity appeared today to prosecute those orders, or his claim for them, and in my view he should receive costs.  He should also receive his costs for the conciliation conference which could not go ahead in the standard form because the wife was suddenly without legal representation.  Time was spent with the Registrar though, specifically trying to resolve what are very, very simple matters today and sadly they were not resolved.  I should say it is clear that the wife did have legal representation to the extent of having the duty lawyer arranged for her by Registrar Moser on that day. 

12. I propose ordering the sum as sought, but I propose ordering that it come ultimately from the wife's share of the matrimonial assets so that she need not find the money at this stage.

13. I shall add to the orders an order that the wife shall pay the husband's costs of 29 May 2008 fixed at $1750 and the costs of this application fixed at $2524.  That is a total of $4274, such sum to be paid ultimately from the wife's share of the property settlement.

14. The orders will be prepared by the court. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  2 June 2008