Gade and Jabbar (No.21)

[2019] FCCA 906

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.21) [2019] FCCA 906

Catchwords:
FAMILY LAW – Property – Enforcement.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Gade & Jabbar (No.15) [2018] FCCA 2041

Gade & Jabbar (No.17) [2018] FCCA 2492

Gade & Jabbar (No.20) [2019] FCCA 865

Jabbar & Gade (No.2) (2018) FamCAFC 154

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 2 April 2019

Date of Last Submission: 2 April 2019

Delivered at: Newcastle

Delivered on: 8 April 2019

REPRESENTATION

Solicitors for the Applicant: NLS Law

The Respondent: In person

ORDERS

1. The application in a case filed on 1 March 2019 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.21) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 11 May 2018 I made final property settlement orders in respect of a dispute between Mr Gade & Ms Jabbar.

2. The orders provided inter alia for Mr Gade to refinance the mortgages secured over properties at Property A and Property B and to pay Ms Jabbar a sum of money and provided that upon those things occurring Ms Jabbar was to transfer her interest in both properties to him.

3. Ms Jabbar resides in the Property A property. The Property B property is tenanted.

4. Ms Jabbar appealed the orders but the appeal was dismissed on 8 February 2019.

5. On 1 March 2019 Mr Gade filed an application in a case seeking orders that:

   ·Ms Jabbar vacate a property at Property A within 24 hours.

   ·If she failed to do so a warrant of possession issue.

   ·Any costs of cleaning the property and any repairs and maintenance necessary in connection with Ms Jabbar’s removal from the property be paid by Mr Gade in the first instance and reimbursed to him from Ms Jabbar’s entitlement pursuant to the final orders.

   ·Pursuant to s. 106A of the Family Law Act 1975 the Registrar of the Federal Circuit Court be appointed to sign documents required to effect the transfer to Mr Gade of her interest in the property.

   ·All amounts paid for by Mr Gade or which Ms Jabbar was ordered to pay pursuant to order 9(b) of the orders made on 11 May 2018 be reimbursed to Mr Gade from Ms Jabbar’s entitlement pursuant to the orders.

   ·Ms Jabbar pay Mr Gade’s costs of and incidental to this application with the costs to be deducted from Ms Jabbar’s entitlement pursuant to the 11 May 2018 orders.

6. The application was supported by an affidavit affirmed by Mr Gade asserting that his solicitors had sent a letter to Ms Jabbar on 11 February 2019 asking her to vacate the property and she had failed to do so.

7. The application was given a return date of 9.30am on 1 April 2019 and the application and affidavit were served on Ms Jabbar personally on 13 March 2019.

8. Ms Jabbar did not file a response to the application. However on 27 March 2019 she filed an application in a case seeking an order that I be “disqualified for the case” (sic) and that until further disposal of that application no further orders be made in the case.

9. Mr Gade’s solicitor and Ms Jabbar attended court on 1 April 2019. Ms Jabbar had not served a copy of her application in a case and supporting affidavit on Mr Gade’s solicitor and I directed that she hand him a copy. I informed her that I needed to determine this application first and asked her to make submissions in support of her application.

10. Ms Jabbar made statements to the effect that she wanted everything put off for seven days. I informed her that I was not prepared to do that but said that I would put it over to the following day when I expected her to be in a position to make submissions in support of her application.

11. On Tuesday 2 April 2019 I heard submissions from the parties in respect of the application that I recuse myself and I dismissed it.[1] I then stood the matter in the list and indicated that I would come back to Mr Gade’s enforcement application later in the morning.

    [1][1] Gade & Jabbar (No.20) [2019] FCCA865

12. When the matter was called on later in the morning Ms Jabbar was called and did not answer the call. I was informed that she had left the building.

13. I considered it appropriate to hear the application in Ms Jabbar’s absence. She had been served on 13 March and had not filed a response. She was aware that I intended to deal with the application and had not remained at court. The application concerned enforcement of property orders which had been made 11 months earlier and Mr Gade was entitled to have the application dealt with expeditiously.

14. I raised with Mr Gade’s solicitor the issue of whether he needed the orders at all because I had made orders on 4 September 2018 for Ms Jabbar to vacate the property and for a warrant of possession to issue if she failed to do so. Ms Jabbar had appealed those orders as well as the final property and parenting orders made on 11 May 2018. I had in my mind that following the Full Court decision of 8 February 2019 the orders I made on 4 September 2018 requiring Ms Jabbar to vacate the property might still be in force.

15. Mr Gade’s solicitor seemed to also be of the same understanding. He made very limited submissions on 2 April 2019 and I reserved my decision, being in the middle of a busy duty week.

16. A review of the orders made in this matter both by this court and the Full Court makes it clear however that the 4 September 2018 orders are no longer in force and the evidence in Mr Gade’s affidavit is insufficient to justify me making the orders he seeks.

Background

1. After Ms Jabbar filed her appeal against the 11 May 2018 orders she applied for a stay of the property orders. I refused to grant a stay.[2]

   [2] Gade & Jabbar (No.15) [2018] FCCA 2041

2. Ms Jabbar appealed my refusal of the stay and sought expedition of this appeal. On 8 August 2018 the matter came before Ryan J who consolidated this appeal with the appeal against the 11 May 2018 orders and ordered that the hearing of the appeals be expedited.[3]

   [3] Jabbar & Gade [2018] FamCAFC 154

3. On 29 August 2018 Mr Gade filed an application in a case seeking an order that Ms Jabbar be required to vacate the Property A property. The basis on which he sought those orders was first that Ms Jabbar was refusing to allow access to the property so that a valuation could be carried out, which his bank required to be done before giving approval for him to refinance the mortgage and second that Ms Jabbar was not paying the mortgage or outgoings which she was required to do while she remained in occupation of the property.

4. Ms Jabbar opposed the application but after hearing submissions I made orders on 4 September 2018 for her to vacate the property and for a warrant of possession to issue if she failed to do so. My principal although not my only concern was the non-payment of the mortgage which could have resulted in the bank re-possessing the property.[4]

   [4] Gade & Jabbar (No.17) [2018] FCCA 2492

5. Ms Jabbar applied for a stay of those orders and by an order made on 4 October 2018 I refused to grant a stay.

6. Ms Jabbar appealed both the 4 September 2018 orders and my refusal on 4 October 2018 to stay those orders.[5]

   [5] Appeals EA121/2018 and EA128/2018

7. These appeals were heard by Justice Ryan on 24 October 2018. She allowed Ms Jabbar to file fresh evidence concerning her willingness and ability to pay the mortgage and she set aside orders 1 & 2 of the orders I made on 4 September 2018 and Order 1 of the orders I made on 4 October 2018. Justice Ryan made orders concerning Ms Jabbar placing funds into trust so that the mortgage would be paid until the appeal against the 11 May 2018 orders was heard and determined.

8. The appeal against the 11 May 2018 orders and the appeal against my refusal to grant a stay of the property orders were heard on 26 November 2018 and on 8 February 2019 orders were made dismissing the appeals.

9. However the dismissal of those appeals did not revive the 4 September 2018 orders which had been discharged as a result of the decision in appeal numbers EA121/2018 and EA128/2018.

10. The orders concerning the property which remain on foot are the 11 May 2018 orders and those provide inter alia that Mr Gade refinance the mortgage and pay Ms Jabbar a sum of money and that upon those things occurring Ms Jabbar transfer her interest in the Property A and Property B properties to Mr Gade.

11. Ms Jabbar will be obliged to vacate the Property A property once Mr Gade fulfils his obligations because she will cease to be an owner with any legal right to remain in the property but the 11 May 2018 orders do not require her to vacate prior to that.

12. If the 11 May 2018 orders are to be carried into effect a fresh timetable for payment and refinancing needs to be set by way of this court making machinery orders and Ms Jabbar will have to be given a right to be heard in respect of that application.

13. Mr Gade has to date made no application in that regard and his affidavit filed on 1 March 2019 contains no evidence in support of his application for Ms Jabbar to vacate the property in advance of him refinancing and paying her a sum of money other than to state that on 11 February 2018 his solicitors sent her a letter requesting that she vacate the property within 24 hours and that she had refused to do so. He does not repeat in that affidavit claims about non-payment of the mortgage or inability to obtain access for a valuer to value the property.

14. In those circumstances I have no option but to dismiss the current application in a case.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     8 April 2019