Galani & Galani
[2021] FamCA 229
•22 April 2021
FAMILY COURT OF AUSTRALIA
Galani & Galani [2021] FamCA 229
File number(s): MLC13970 of 2020 Judgment of: WILLIAMS J Date of judgment: 22 April 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Wife sought Summary Dismissal of Husband’s Application to set aside a sale of property where final orders were made in March 2017 – consideration of principles applicable to summary dismissal – application heard and determined in the absence of the applicant husband when no explanation provided why he could not appear on the date of hearing – husband called and telephoned by the court and no response – a order made for summary dismissal. Legislation: Family Law Act 1975 (Cth) s 45A
Family Law Rules 2004 (Cth) r 10.12
Cases cited: Ebner & Pappas [2014] FamCAFC 229
Friar & Friar [2011] FamCAFC 71
Lindon v Commonwealth (No.2) [1996] HCA 14
Ritter & Ritter and Anor [2020] FamCAFC 86
Number of paragraphs: 67 Date of hearing: 13 April 2021 Place: Melbourne Counsel for the Applicant: No Appearance Solicitor for the Respondent: Ms Carson, Solicitor Solicitor for the Respondent: Kennedy Guy ORDERS
MLC13970 of 2020 BETWEEN: MR GALANI
Applicant
AND: MS GALANI
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
13 APRIL 2021
THE COURT ORDERS THAT:
1.The Initiating Application and Application in a Case both filed by the husband on 16 December 2020 are dismissed.
2.Any written submissions as to costs, which shall not exceed 5 pages, shall be filed and served within 28 days, with a copy to be emailed to the Associate to Justice Williams.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Galani & Galani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
This matter was listed for determination in the Judicial Duty List on 13 April 2021.
The substantive proceeding, which is the subject of consideration, is the husband’s Initiating Application filed 16 December 2020 and the wife’s Response filed 15 March 2021.
In his application, the husband seeks that the sale of a property situated at B Street, Suburb C, which was sold pursuant to a contract of sale dated 21 August 2020, be set aside.
The wife seeks that the husband’s Initiating Application should be summarily dismissed pursuant to rr 10.12(a), (c) and (d) of the Family Law Rules2004 (Cth), and that the husband pay her costs of the proceeding on an indemnity basis.
BACKGROUND AND PROCEDURAL HISTORY
There is a long and acrimonious history of litigation between the parties.
On 24 March 2017, final orders were made in the Federal Circuit Court of Australia in proceeding MLC7430/2015 by Judge Harland, disposing of the respective property applications of the parties (“the March 2017” Orders). The March 2017 Orders were amended on 12 April 2017 pursuant to the slip rule.
On 24 November 2017, the husband appealed against the March 2017 Orders. On 6 April 2018, orders were made by the Honourable Justice Strickland dismissing both the husband’s Application in an Appeal and his Notice of Appeal. An Order was also made for the husband to pay the wife’s costs of and incidental to the appeal.
On 2 July 2018, Orders were made by Judge Harland in the Federal Circuit Court, pursuant to an enforcement application of the wife, providing for the wife to have the sole conduct of the sale of a property situated at D Street, Suburb C, and for the husband to pay her costs. The March 2017 Orders provided for both the husband and the wife to sell the D Street property.
On 11 October 2019, Orders were made by Judge Bender dismissing a Further Initiating Application filed by the husband on 13 August 2019, which sought to set aside and vary the final property Orders of March 2017. The Orders of 11 October 2019 also provided for the wife to have the sole conduct of the sale of a property situated at B Street, Suburb C and for the husband to pay her costs.
On 8 November 2019, the husband filed a Notice of Appeal against the Orders made on 11 October 2019. On 9 April 2020, Orders were made by the Honourable Justice Strickland dismissing the husband’s Notice of Appeal and providing for the husband to pay the wife’s costs of the appeal.
On 17 June 2020, Orders were made by Judge Bender, disposing of the wife’s enforcement application, which varied the March 2017 Orders, to provide for the husband’s removal from B Street, Suburb C.
On 21 August 2020, the wife entered into a Contract of Sale for the B Street property. Settlement of the sale took place on in late 2020 and the wife’s entitlement to the proceeds of sale was distributed to her. There was some resistance by the husband to receiving his share of the proceeds of sale.
On 16 December 2020, the husband filed an Initiating Application seeking to set aside the sale of B Street on the basis that it was not a bona fide sale and to enable him to have sufficient time to refinance the property, to pay the balance of monies owing to the wife.
On 1 March 2021, the parties attended a Case Assessment Conference before Registrar Litterick. On that day orders were made adjourning the husband’s application to the Judicial Duty List on 13 April 2021 and procedural orders for the wife to file and serve a Response and affidavit. Notations to those orders were made as follows:
AND IT IS NOTED THAT
A. The Registrar has recommended to the Applicant that he should obtain independent legal advice as a matter of priority.
B. The Respondent asserts that the sale of the subject real property was completed in December 2020 and asserts that the Applicant has either failed or refused to take his share of the sale proceeds.
C. The Respondent has foreshadowed that she will be seeking a summary dismissal and costs on an indemnity basis and the Applicant has indicated that this should have been filed previously along with a Financial Statement.
D. This matter is not yet transferred to the Federal Circuit Court on the basis of the Respondent’s foreshadowed application and the listing of this matter on 13 April 2021.
E. At the end of the Case Assessment Conference the Applicant started making inappropriate comments and submissions that were not relevant to the substantive issues and did not cease doing so when requested by the Registrar such that the Registrar muted the Applicant and informed him that the Registrar was concluding the Case Assessment Conference as the applicable case management issues had been addressed and the above orders/notations pronounced.
HUSBAND’S FAILURE TO ATTEND ON 13 APRIL 2021
The husband did not appear at the hearing on 13 April 2021.
On 9 April 2021 at 9:57AM, my associate forwarded an email to both parties advising that the Judicial Duty List on Tuesday, 13 April 2021 would be conducted face-to-face in court in Melbourne.
In response to that email, the husband forwarded an email to my associate at 10.33AM as follows:
Dear Associate to Judge Willaims,
Confirmation was sent 2 days ago that a request for adjournment was made.
Case Co-ordinator Ms F requested I ask the other party for consent to the adjournment.
I have not yet received a reply, however I do not expect they will agree, but whether they do or don't agree, I am unable to attend, and reiterate that proceeding on Tuesday will be unproductive and I am unable to attend.
I request a new date approximately 5 weeks from now.
On 12 April 2021 at 15:16PM, my associate forwarded the husband an email:
Dear Sir,
When communicating with a Judges’ Chambers you must include the other party/parties in any communications.
The matter will proceed in the absence of an agreement between the parties to adjourn the matter.
At 12:04AM on 13 April 2021, the husband forwarded a further an email to my associate setting out his assertions of the factual basis on which the court should make the orders sought by him.
At 11:20AM on 13 April 2021, my associate received a further email from the husband as follows:
I am defending myself. I am not a professional lawyer.
I am not attempting to deceive anybody.
In fact I am trying to defend myself from others who have caused extreme pain and suffering, and who have clearly used unfair tactics to jail me…..
in their attempt to thwart natural justice, and what the court has already highlighted is its judgement and intent…. that is, for me to purchase the property in question, as it is my home and livelihood !
All that is necessary for you to correct my extremely minor oversight in protocol, is for you to either ask me to send a copy of the email to the other party or simply send it yourself.
My apology for my ignorance. The merits of my case do not cease to exist because of my lack of protocol recognition. Please, i request minor assistance to assist the court in arriving at Justice, and stop the injustice that has been perpetrated on myself and my children and my parents.
When the matter was called into court, the husband was called outside the court, however there was no response to the call.
In addition, the husband was telephoned on the mobile number at the foot of his email forwarded to the court at 12:04AM on 13 April 2021. The call rang out and there was no voicemail facility on the phone.
The husband has been aware of the court date since attending the case assessment conference on 1 March 2021. At no stage has the husband provided any explanation why he was unable to attend court on 13 April 2021.
He would also be aware from the correspondence with my associate that the matter would not be adjourned unless both parties consented to an adjournment. Indeed his email at 10:33AM of 9 April 2021 states that he did not expect the other side to agree to an adjournment.
I am satisfied that the husband was aware that his application was not adjourned and remained listed on 13 April 2021, he should have attended to pursue his application and he has not provided any explanation why he was unable to attend.
I am of the view, that it was appropriate to proceed in the husband’s absence and that the application required determination, particularly in the context of the original litigation between the parties having commenced in 2015 and the numerous applications to the court and two failed appeals, subsequent to final orders being made in March 2017.
Documents relied upon
The husband relied upon the following documents:
(a)Initiating Application filed 16 December 2020;
(b)Affidavit sworn by him filed 16 December 2020.
The wife relied upon the following documents:
(a)Response to Initiating Application filed 15 March 2021;
(b)Affidavit of Georgina Carson, Solicitor filed 26 February 2021.
RELEVANT LEGAL PRINCIPLES
Section 45A of the Family LawAct 1975 relevantly provides:
45A Summary decrees
No reasonable prospect of successfully defending proceedings
(1)The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a)the first party is prosecuting the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
No reasonable prospect of successfully prosecuting proceedings
(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Rule 10.12 of the Family Law Rules 2004 (Cth) provides:
10.12 Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
The principles to be applied in determining whether summary dismissal should be granted are set out by Kirby J in Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251. At [256]:
The approach to be taken by the court to the Commonwealth's application for summary relief is not in doubt:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.21
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action22 or is advancing a claim that is clearly frivolous or vexatious.23
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination.24 Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.25 If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.26 A question has arisen as to whether O 26, r 18 applies to part only of a pleading.27 However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
In relation to the relevant Rules, the Full Court of this Court in Friar & Friar [2011] FamCAFC 71 at [49] and [50] said:
[49]Rules 10.12(c) and (d) of the Family Law Rules 2004 (“the Rules”) relevantly provide that a respondent may apply for “summary orders” in relation to an application on the basis that it is “frivolous, vexatious or an abuse of process” or has “no reasonable likelihood of success”.
[50]The Rules are properly read as supplementing the power of the Court to dismiss frivolous or vexatious proceedings pursuant to s 118(1) of the Act. The Rules are also to be read in the context of the many cases confirming the Court’s inherent power to dismiss or permanently stay an application which cannot succeed, as to which see the authorities discussed in Bigg v Suzi (1998) FLC 92-799 at 84,974.
In Ebner & Pappas [2014] FamCAFC 229, at [60] – [63] the Full Court considered the phrase “no reasonable likelihood of success” as referred to in the Rules. That decision was prior to the amendments to the Family Law Act1975 (Cth). The test is more liberal than hopeless or bound to fail.
In Ritter & Ritter and Anor [2020] FamCAFC 86 at [66], the Full Court said in relation to the material to be taken into account in a summary dismissal application:
[66]The determination of the issue must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608). Indeed the primary judge herself stated at [13] “[t]he Court must consider whether the evidence at its highest and as a matter of law, establishes that the husband has no reasonable prospect of success”.
In determining whether the husband has no reasonable prospect (or likelihood) of success, or whether his application is frivolous, vexatious or an abuse of process, I must, therefore, take the evidence of the husband at its highest, unless I determine that his evidence is inherently incredible or unreliable.
I now turn to the husband’s evidence in support of his application, which is found in his affidavit.
It is not an easy task to ascertain the factual basis of the husband’s complaints against the wife.
His affidavit sets out his view of the plethora of orders which have been made in the proceeding and a commentary surrounding the circumstances of the making of the orders. I will address his criticisms according to the timeframes referred to in his affidavit.
March 2017 Orders
The husband is critical of the wife’s conduct dating from 1991 in relation to the purchase of a property situated at D Street, Suburb C. Despite the husband’s criticisms of the wife’s conduct and lack of evidence, the Orders were made by Judge Harland in March 2017 finalising the property dispute between the parties. Furthermore, the husband’s appeal against those Orders was dismissed by the Full Court on 6 April 2018.
December 2018
The husband is critical of the wife’s conduct of the sale of D Street, notwithstanding that orders were made by Judge Harland on 2 July 2018 enabling the wife to have the sole conduct of the sale and for the husband to pay the wife’s costs of the application before the court.
April 2019
The husband states that he paid the wife a further $195,000, for the B Street property.
October 2019
The husband’s evidence is about his dissatisfaction with the court and his lawyers at the hearing on 11 October 2019, when he sought to set aside the orders of March 2017.
17 June 2020
The husband’s evidence is about his belief prior to the hearing on 17 June 2020, and criticism of the timeframe to enable husband to make a final payment to the wife, imposed by the orders made on that day.
18 June 2020
The husband’s evidence is about his attempts to propose offers of settlement to the wife to enable him to retain the B Street property and obtain finance to pay the wife her final entitlements.
His evidence then refers to his opinion that the wife has relied on both the orders of 11 October 2019 and July 2020 (orders made 17 June 2020 and amended on 9 July 2020), notwithstanding that he asserts that the July 2020 orders are superior to the October 2019 orders, and that they contain conditions that activate/enable the October 2019 orders.
He is also critical of the orders made on 11 October 2019 notwithstanding that he appealed against those orders and that his appeal was dismissed on 9 April 2020, and that he was ordered to pay the costs of the appeal. He asserts that the omission of reference to the formal land titles in the October 2019 orders “did not activate” the October 2019 orders and “therefore the condition met in the July 2020 orders does not mean that the October 2019 orders have been reactivated”. It is difficult to follow this line of argument, which concludes that the July 2020 Orders needed to be included in the Contract of Sale (of B Street) together with the orders of October 2019, and the fact that they were not included, demonstrates that the contract of sale was not bona fide.
1 July 2020
The husband’s evidence is that date was in the court ordered deadline. Presumably that is a reference to Order 2 of the Orders of 17 June 2020 (as amended on 9 July 2020) for a warrant of possession issue evicting the husband from the B Street property, in the event he has not paid the balance due to the wife on or before 1 July 2020.
10 July 2020
The husband deposes that he received a copy of the amended orders on 10 July 2020.
24 August 2020
The husband’s evidence is that the Contract of Sale for the property was signed on 24 August 2020 and that he was incarcerated for breaching an intervention order. He states that “the property is far as I have determined was not advertised for sale”, although he does not depose to any enquiries that he may have made or any independent evidence to support that proposition. He also asserts “there is significant suspicion that it is a related party transaction”, although there is no evidence in support of a belief that suspicion.
10 September 2020
The husband’s evidence is that he queries whether any “action” can take place with regard to the B Street property as the orders of March 2017 “stipulated that action regarding B Street is only to take place once 2 weeks after D Street settlement occurs”.
14 September 2020
The husband’s evidence is that he received by email a copy of the Contract of Sale on that day, with previous requests having been ignored.
28 October 2020
The husband’s evidence is that the conveyancer emailed him on that day and that the conveyancer “believes the October 2019 Orders are the latest and only orders relating to the property”. He reiterates that the contract is not bona fide because of the failure to include the July 2020 Orders from the Contract of Sale and therefore the sale of the property is “illegitimate” and “against the express wishes of the prime vendor on title with 85% equity of the property”.
15 December 2020
The husband deposes to having advised the conveyancer on this date that the Contract of Sale was not bona fide and that he wished to make immediate payment to the wife and that he was entitled to do so in accordance with the Orders of July 2020 (Order 1). He also sought contact details of the purchaser, which request was declined by the conveyancer.
16 December 2020
The husband’s evidence is that he wrote to the wife’s solicitors confirming his assertion that the Contract of Sale was not bona fide and his desire to pay the balance of funds owing to the wife.
18 December 2020
The husband states that was the scheduled settlement date of the property.
DISCUSSION
What can be distilled from the husband’s affidavit, is that he asserts the Contract of Sale is not “bona fide” because of the omission of a copy of the orders of July 2020, he has a belief that the property was not advertised and suspicions that the property was sold to a related party.
The husband’s own evidence demonstrates a complete misunderstanding of the sequence of Orders made by the Court. The Orders of March 2017 provided for the property at D Street to be sold and for a distribution of the proceeds of sale of that property between the husband and the wife. Additionally, paragraph 4 of those Orders provided for the husband to pay the wife the sum of $600,000 within 14 days of the settlement of D Street, and if he did so, the wife was required to transfer her interest in B Street to the husband.
Paragraph 6 of the Orders provided that in the event the husband did not pay the wife the sum of $600,000 within 14 days of the sale of D Street, then each party was required to do all things necessary to sell the B Street property and for the net proceeds of sale of B Street to be divided equally between the parties. The mechanics of the orders are entirely unremarkable.
The Orders of 2 July 2018 varied the sale process of the D Street property so that the wife was entitled to solely conduct the sale of that property.
The Orders of 11 October 2019 provided for a sale of the B Street property to be conducted solely by the wife, and for the husband to vacate the property, presumably in circumstances where the husband had failed to pay to the wife the $600,000 he was obliged to pay to her within 14 days of the settlement of D Street. Those orders are clear and unambiguous.
The orders of 17 June 2020 (as amended on 9 July 2020) provided the husband with a further opportunity to pay to the wife the balance of the $600,000 owing to her, pursuant to the March 2017 Orders, and that if he did so by 1 July 2020, the wife was required to transfer her interest in B Street to the husband. On the other hand, if the husband failed to pay to the wife the sum of $257,025.51, being the balance of the $600,000 ordered pursuant to the March 2017 Orders, then a warrant would issue evicting the husband from the property. The orders are also clear and unambiguous and do not in any manner attempt to fetter or restrict the wife’s capacity to conduct a sale of the B Street property, in accordance with the Orders of 11 October 2019, which were unsuccessfully appealed by the husband.
The fact that the July 2020 Orders were not included in the Contract of Sale, does not affect the wife’s authority to sell the B Street property, nor the bona fides of the Contract of Sale. His interpretation of the Court Orders varying the March 2017 Orders is incorrect and is inherently unreliable.
The husband’s evidence referred to in the preceding paragraphs about the events between March 2017 and December 2020 is historic in nature and pertains primarily to his dissatisfaction with past court orders, two of which he has unsuccessfully appealed. That evidence does not support the current application before the Court. It is obvious that the husband is aggrieved by the wife’s sale of the B Street property and that he considers he should have been afforded the opportunity to refinance the property and pay the wife the funds remaining owing to her. However, in June 2020, over 3 years after the March 2017 orders, Judge Bender provided him with a further opportunity to pay the funds owing to the wife, and that was on or before 1 July 2020. The husband did not avail himself of that further opportunity and the wife was entitled to unilaterally sell the B Street property, having been empowered to do so by the orders of 11 October 2019. The husband is the architect of his own current dilemma.
The husband’s assertions that the Contract of Sale was not bona fide because a copy of the July 2020 Orders was not included in it, the property was not advertised and that his suspicions that the property was sold to a related party, without any independent or objective evidence to support the latter two assertions, in my view, leads to the conclusion that his application to set aside the Contract of Sale is mischievous and frivolous and has no reasonable prospect of success and is entirely unmeritorious.
The property proceedings between the parties commenced in 2015, with final orders having been made in March 2017. Four years have now elapsed since the finalisation of the respective property applications and since that time there has been a continual default by the husband of his obligations pursuant to the March 2017 Orders. There have been numerous applications to the Court, including enforcement proceedings initiated by the wife, an unsuccessful application by the husband to vary and set aside orders and two unsuccessful Appeals by the husband.
To permit the husband to proceed with this current application, which has no reasonable prospect of success, would be unjust for the wife. She has been subjected to numerous unmeritorious applications by the husband and has had to issue multiple enforcement applications to ensure her entitlement to orders made four years ago. She would also be likely to incur considerable costs resulting from the current application. There is also a risk that the husband would be ordered to pay the wife’s costs following an unsuccessful application by him. The Court would also be burdened with further wasted time, in determining the current application.
Accordingly, I intend to make orders summarily dismissing the husband’s Initiating Application.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 23 April 2021
7
2