Gadd and Gadd

[2007] FamCA 143

FAMILY COURT OF AUSTRALIA

GADD & GADD [2007] FamCA 143

FAMILY LAW – PROPERTY – Failure to comply with consent orders

APPLICANT: MRS GADD

RESPONDENT: MR GADD

FILE NUMBER: HBF 1187 of 2005

DATE DELIVERED: 12 February 2007

PLACE DELIVERED: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 12 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Trezise

SOLICITOR FOR THE APPLICANT: AT Legals

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. THAT upon the wife’s application filed 23 November 2006 IT IS DIRECTED that the husband forthwith comply with order 4 made 19 September 2006 by payment of the principal sum of $50,000.00 to the wife on or before 4.00pm Friday 2 March 2007 together with interest on that sum of $1,708.22 up to 12 February 2007 and thereafter $14.93 per day together with the costs of this application of some $1,756.00.

2. THAT pending payment by the husband of the amounts provided in this order that he be and is hereby restrained from disposing of or encumbering his interest in property S (“the [S] property”).

3. THAT in the event that payment has not been made by 2 March 2007, the husband’s interest in the S property be transferred to the wife as trustee for sale and the wife be given all necessary powers to bring about the sale of the husband’s interest in the S property including but not limited to:-

   (a)    taking appropriate proceedings for sale of the property as a joint owner within the domestic laws of the State of Tasmania;

   (b)    listing the property for sale;

   (c)    incurring reasonable expense in relation to the sale of the property and any reasonable expense in relation to the proceedings in the Supreme Court of Tasmania for sale of the property.

   IT IS DIRECTED

4. THAT once the S property has been sold that out of the husband’s share of the net proceeds of sale is paid any amount due to the wife under this order including order 4 made 19 September 2006 and any legal costs and real estate agent’s costs reasonable incurred by the wife in exercising her powers under this order.

5. THAT the husband execute all documents and do all other things necessary to effect the transfer of the S property to the wife as trustee on or before 4.00pm on 2 March 2007 and further on submission to a Registrar of this court setting out that the husband has not complied with this order a Registrar is authorised to sign any document necessary to give effect to this order on behalf of the husband.

   IT IS FURTHER ORDERED

6. THAT on the application of the wife I order that the husband pay the wife’s costs of this application of $1,756.40 in accordance with this order.

   IT IS FURTHER DIRECTED

7. THAT a sealed copy of this order be served each upon the husband at his last known address and his brother at T and such other address as the wife believes the brother resides.

8. THAT liberty to be given to the husband and brother to apply to have this matter re-listed on the giving of seven days notice to the wife and the Court.

9. THAT all applications in a case are dismissed.

   IT IS CERTIFIED

10. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBF 1187  of 2005

MRS GADD

Applicant

And

MR GADD

Respondent

REASONS FOR JUDGMENT  

1. This is an application in a case filed by the wife on 23 November 2006, seeking orders against the husband in relation to his alleged failure to comply with consent orders made by this court on 19 September 2006 that he pay the sum of $50,000, together with interest, to the wife, and that the husband pay the wife's costs of and incidental to these proceedings.

2. In terms of that application, I note that the husband was served with the application on 19 December 2006 and in that regard the wife relies on an affidavit of Mr E filed 22 December 2006 and sworn on 20 December 2006.  Attached to that is an acknowledgment of service which the husband did not sign.

3. There is a further affidavit of the process server, whose name is in fact Mr M, if the record could be amended to show that. He says, "[The husband] declined to sign the acknowledgment of service" and gives parity in relation to some service dates, and also confirms that he is the same person as he served on 26 October 2005, which involved the commencement of these proceedings, at which the husband participated.

4. I am satisfied that the husband was aware of these proceedings.  The husband was called outside the court at about 10.15 today and again at about 11 am.   There was no appearance by him.

5. The wife relies upon the orders made by consent on 19 September 2006 and an affidavit of Ms T filed in this court of these proceedings filed 23 November 2006.  In that affidavit the applicant says that the orders were made on 19 September 2006, or Ms T says the orders were made on that date; that letters were sent to the husband's lawyers and that the order has not been complied with.

6. I am satisfied on the material before me that the husband was aware of the need to comply with the orders and has not complied with the order. 

7. In his financial statement filed 22 February 2006, the husband discloses an interest in a property at S, and a title search on that property was tendered during the course of proceedings, which is exhibit A. 

8. In that document it shows that the husband and his brother are the owners of the property, which is a house at S, as tenants in common in equal shares.

9. The wife seeks orders to enforce the obligation to pay money under rule 20.0.5 in that she be appointed trustee for the purpose of sale of the husband's interest in that property to recover the $50,000 to which she is entitled under the orders, plus interest which up to date is $1708.22 and continuing from 13 February 2007 at $14.73 per day.

10. She also seeks an order for costs, and I am informed that the costs incurred at the present time on a practitioner-client basis amount to some $1756.40.

11. In terms of the application for costs, I have considered the matters under section 117 and note that these proceedings were wholly brought about by the failure of the husband to comply with an order of this court. 

12. Accordingly I will be making an order that he pay the whole of the costs on a practitioner-client basis and I am satisfied that the amount claimed is fair and reasonable in the circumstances of these proceedings.

13. I am also satisfied that it is appropriate to appoint the wife as trustee for the purpose of sale of this property so that she can receive the money to which she is entitled under the consent orders made on 19 September 2006, which are orders the husband has an obligation to pay but has not paid.

14. However, I intend to give the husband a short amount of time to comply with the order and to avoid the costs, both emotional and financial, of proceedings to sell his interest in the property at S.

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              21 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GADD & GADD