Goudarzi and Bagheri (No 3)

[2016] FamCA 982

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI (NO 3) [2016] FamCA 982

FAMILY LAW – PROPERTY – Stay – Whether previous orders of the Court should be stayed – Where there has been a previous stay – where the conditions of the stay were not met – where the orders sought to be stayed are on appeal – Where the previous stay order is on appeal – Where there is a determination pending as to the reinstating of the appeal in relation to the stay

Family Law Act 1975 (Cth)

APPLICANT: Ms Goudarzi

RESPONDENT: Mr Bagheri

FILE NUMBER: SYC   7646 of 2008

DATE DELIVERED: 18 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 31 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Richardson

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

Vacating the property

1.     On or before 1 January 2017 the wife is to vacate the former matrimonial home, being the property situate at and known as 2 Q Street, Suburb R in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier … [Suburb R property] and thereafter is restrained from returning to the said property, pending further order.

Writ of possession

2.     Subject to Orders 3 and 4, a writ of possession issue as follows:

To the Marshal of the Court, to all officers of the Australian Federal Police and to all officers of the Police Force of the State of New South Wales, where by an order of this Court made on 18 November 2016, it was ordered that the Applicant, Ms Goudarzi, should on or before 1 January 2017 vacate the premises situate at and known as 2 Q Street, Suburb R in the State of New South Wales YOU ARE HEREBY DIRECTED for the purpose of giving effect to the said order at such time and with such assistance as you may require and if necessary by force to enter upon the said property being the land more particularly described in Certificate of Title folio identifier … and cause Mr GG, the trustee for sale pursuant to order 6 hereof to have vacant possession and to cause the Applicant, Ms Goudarzi to vacate the said property.

3.     That the execution of the writ of possession pursuant to Order 2 is stayed until 18 January 2017.

4.     That the writ of possession pursuant to Order 2 is to be executed (on or after 18 January 2017) conditional upon the husband first filing an affidavit in the Registry of the Family Court of Australia at Sydney, no earlier than 16 January 2017, deposing to the fact that the wife has not vacated the Suburb R property in compliance with Order 1.

5.     That the writ of possession pursuant to Order 2 cease to have effect 12 months from the date of the order.

Appointment of trustee for the sale of the property

6.     Mr GG is appointed as trustee [the Trustee] for the sale of the property situated at and known as 2 Q Street, Suburb R in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier … [Suburb R property].

7.     Each of the parties is to transfer and assign to the Trustee the Suburb R property and the parties execute a Memorandum of Transfer [the Transfer] to be prepared by Mr S of T Legal [the solicitor] of the parties' interest in the Suburb R property within 7 days of a copy of these Orders being personally served upon the Trustee. 

8. In the event that the wife fails to execute the Transfer and to redeliver the Transfer to the solicitor within 7 days of receipt of the Transfer, the Registrar is appointed pursuant to section 106A of the Family Law Act 1975 to execute the Transfer in the name of the wife and to do whatever other acts and things as may be necessary to give validity and operation to the Transfer. 

9.     The appointment of the Trustee is subject to the following provisions:

9.1Ms HH of II Real Estate [the agent] is to be engaged as the agent acting on the sale of the Suburb R property;

9.2Mr S of T Legal [the solicitor] is to be the solicitor appointed to act for the vendor on the sale of the Suburb R property;

9.3the Trustee may incur advertising expenses in respect of the proposed sale up to an amount of $23,997.50;

9.4the Trustee may incur costs for cleaning, redecorating or improvement of the presentation of the Suburb R property for the purposes of sale to such amount as may be advised by the agent but not exceeding an amount of $10,000;

9.5the Trustee may enter into an appropriate agency agreement with the agent provided that the commission agreed upon does not substantially exceed the recommended scale of the Real Estate Institute of NSW;

9.6the Trustee is authorised to enter into a contract for sale in such terms as advised by the solicitor;

9.7liberty is reserved to the Trustee to apply to the Court with respect to the terms and conditions of the sale or further directions in the event that it proves necessary.

10.    The husband and the wife shall within 14 days of receipt of any request from the Trustee pay all such moneys as requested by the Trustee regarding the sale of the Suburb R property in equal shares and in the event that either party does not pay his or her share [the first party], the other party [the second party] may pay the first party’s share.

11.    Upon completion of the sale of the Suburb R property, Trustee shall disburse the sale proceeds in the manner and in the priority as provided for in the Orders made on 4 April 2016 save that the Trustee shall cause the following payments to be made prior to payment of the balance to the husband and the wife:

11.1the Trustee shall deduct from the first party’s share of the sale proceeds the amount paid by the second party on behalf of the first party and pay such amount to the second party;

11.2the Trustee shall deduct from the wife’s share the amount as required to meet in full the costs of his appointment.

12.   The husband is to forthwith provide to the Trustee a copy of the orders made 4 April 2016 herein.

13.    The wife is to pay the husband’s costs of opposing her Application in a Case filed by her on 23 August 2016. Such costs are to be as agreed or as assessed in the absence of agreement.

14. The wife is to pay the husband’s costs of his Amended Response to Application in a Case filed 20 October 2016. Such costs are to be as agreed or as assessed in the absence of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Goudarzi & Bagheri (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7646 of 2008

Ms Goudarzi

Applicant

And

Mr Bagheri

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application in a Case filed by the wife Ms Goudarzi on 23 August 2016. That application seeks the following order “Registrar’s Orders 26/7/2016 be set aside.” The application is supported by an affidavit sworn 23 August 2016 and filed that same day. The wife also tendered in Court a document, the truth of which was attested by her taking an affirmation in court and attesting to the truthfulness of the document which was dated 31 October 2016. The document was admitted subject to relevance. It is to be noted that the respondent submits the document titled 31 October 2016 and tendered by the wife has no relevance at all to the proceeding now under consideration.

2. The respondent Mr Bagheri relies upon an Amended Response to an Application in a Case which was filed on 20 October 2016. That response seeks a number of orders, including an order requiring the wife to vacate the former matrimonial home at 2 Q Street, Suburb R, and the issue of a Writ of Possession for execution in the event of the wife failing to vacate the property if so ordered. The husband also seeks the appointment of a trustee for sale of the former matrimonial home and should that not be granted, seeks alternate orders implementing the sale of that property. The respondent supports his response document with an affidavit sworn and filed 13 October 2016. The wife opposes those orders being made.

3. The husband provided to the court a two page case outline document together with a short chronology of relevant events.

Background

1. On 4 April 2016, Justice Cleary made orders, which included property orders, and published her reasons.

2. On 29 April 2016 the wife filed an Appeal against the Final Property Orders, together with an application seeking a stay of the property orders made on 4 April 2016.

3. On 31 May 2016, Justice Cleary granted a stay order subject to condition. The stay order is as follows:

   1.   Until determination of proceedings number EA66 of 2016, the operation of Orders 3, 4, 5 and 6 of the Orders made on 4 April 2016 be stayed subject to and conditional upon the wife paying, as and when due, each of the following:

   1.1Loan repayments for the St George Bank residential loans, being account numbers … and …;

   1.2Strata levy payments to the Owners of Strata Plan No. … relevant to the property situated at and known as [2 Q Street, Suburb R] (“the [Suburb R] property”);

   1.3Council and water rates in respect of the [Suburb R] property.

   2.   In the event the wife fails, neglects or refuses to pay the sums set out above, when due, and the default remains for 7 days, the stay shall stand discharged.

   3.   The husband’s costs of and incidental to this Application shall be determined by the outcome of the appeal proceedings.

   THE COURT NOTES THAT:

   (A)The wife will likely be compelled to draw upon the loan facility.

4. There is no issue that the wife has failed to comply with the conditions of the stay. As can be seen by the order of 31 May 2016, failure to comply with those conditions rendered the stay order discharged. As at the date of this hearing there clearly is no operative stay order in relation to the orders made by Justice Cleary on 4 April 2016.

5. On 22 June 2016, the wife filed a Notice of Appeal against the orders made by Cleary J (the stay order) on 31 May 2016.

6. Following the filing of the wife’s appeal against the stay orders, she was required to take particular action in relation to that appeal by filing specified documents on or before 20 July 2016. There is no issue that the wife failed to comply with that direction. By letter dated 21 July 2016, the Appeals Eastern Region Registrar notified the wife that her appeal against the stay orders was deemed abandoned.

10.On 4 August 2016, the wife filed an application in the Full Court seeking to reinstate the appeal against the stay orders of 31 May 2016. That application was heard by Justice Ryan of the Appeal Division on 7 September 2016 and as at the date of hearing this application, judgment had not been delivered. That continues to be the case as at the date of these reasons. Even if the application to the Full Court is granted, it would not assist the wife at this time as there is no current stay order in place.

11.Both parties agreed that should judgment from the Full Court be delivered (in relation to the hearing of 7 September 2016) prior to the time that I deliver the reasons in this matter, I could take into account in this matter the terms of any order made by the Full Court.

12.The application for review of the Registrar’s order made on 26 July 2016 is misplaced, in that the court record discloses that the Registrar made no order on that date. The Registrar did, however, on 26 July 2016, sign documents on behalf of the wife, which documents were tendered to the Registrar and said to be required pursuant to the orders of Justice Clearly made 4 April 2016.

13.The documents executed by the Registrar pursuant to s 106A of the Act were as follows:

a.Sales inspection report and auction agency agreement;

b.Standard costs disclosure;

c.Standard Costs agreements;

14.The Sales inspection report and auction agency agreement effectively engaged II Real Estate Pty Ltd, to act on the sale of the property, being the former matrimonial home on 1 Q Street, Suburb R. The other documents related to the same engagement of the agent.

15.The submissions of the husband are succinct and can be summarised as follows. Orders were made on 4 April 2016, being final property orders at the conclusion of a six day hearing. The orders provided, inter alia, for the sale of the former matrimonial home at 2 Q Street, Suburb R. The orders further provided that pending its sale, the husband was to be responsible for the payment of loan repayments to St George Bank in respect of two loans against the property. He was also to meet one half of the strata levies.

16.The wife has appealed those orders. There has been no application to expedite the hearing of the appeal.

17.On 31 May 2016, Justice Cleary granted the wife’s application for a stay of the property subject to condition. The wife failed to meet those conditions.

18.The wife filed an appeal against the making of the stay orders. On or about 21 July 2016, as a result of default on the wife’s part to comply with rules and/or directions of the Appeals Division Registrar, the wife’s appeal against the stay order was “deemed abandoned”. The wife made an application to the Full Court (Justice Ryan) to have her appeal reinstated. Justice Ryan heard that application on 7 September 2016 and judgment is reserved.

19.The husband submits that the wife’s application is misconceived. The Registrar made no determination or order which can be the subject of review. The documents executed by the Registrar have been provided to the husband’s solicitors.

20.The husband seeks orders which will implement the orders of Justice Cleary as there is no operative stay order. The orders he seeks will see the wife removed from the former matrimonial home and the property being marketed through a trustee for sale.

21.The wife’s submissions go largely to the merit of her appeal against the final orders made by Justice Cleary. Her case is that she cannot afford to meet the conditions of the stay order imposed by Justice Cleary. The document she tendered to the Court on 31 October 2016 contains an extensive history of the proceeding. The wife makes serious allegations against the husband claiming his involvement in criminal activity. She makes serious allegations against the legal representatives of the husband. She claims the husband was involved in sexual activities of different natures, which she has specifically described.

22.The wife set out in her document of 31 October 2016 a case which she proposes to bring in relation to s 79A of the Act. She has not yet instituted any such proceeding.

23.The wife annexed to her document photocopies of other documents including emails, receipts, invoices and reports.

24.At its highest, the document of 31 October 2016 serves to support the wife’s case that she cannot afford to meet the conditions imposed upon her by the order of 31 May 2016.

25.As the current orders now stand, unless and until the wife’s appeal against the stay orders is heard and determined, there is no current stay order. As a consequence, the wife was required by the orders of 4 April 2016 to join with the husband in the sale of the former matrimonial home. She has not done so, and she seeks to have that order set aside, as best I understand the nature of the appeal against the final orders. The orders the wife seeks, in the notice of appeal filed by her on 29 April 2016, include the following:

4.    “the entire pool of asset be transferred to my name and I be allowed to pursue the respondent in the US, [Country U] and other countries for defrauding me and the legal system of those countries.”

26.The order sought by the wife on the Appeal must be assumed to include the transfer to her of the husband’s interest of the former matrimonial home. Such an outcome, however, could only be achieved by the wife, at this time, if there is a stay of the order for the sale of the former matrimonial home made by Justice Cleary on 4 April 2016.

27.The husband has had the benefit of an order made on 4 April 2016. Those orders provided for the parties to cause the Suburb R property to be sold forthwith.  By order 6.1 of 4 April 2016, the husband was required to pay the loan repayments to St George Bank. The husband was also ordered to pay one half of the strata levies. Both those payments are substantial. Seven months have now expired since that order was made. The delay in the sale of the Suburb R property is onerous on the husband.

28.The wife made it clear in her submission and also in the document she tendered in Court that she opposes the sale of the Suburb R property. She will not vacate the property, so much is clear from her words and actions evidenced in this matter. Her stand has led to a circumstance where the husband is forced by her action to seek the enormously invasive order for a writ of possession to issue and be executed so as to remove the wife from the Suburb R property. Such orders are rarely made because the order is rarely required, in my experience.

29.In the circumstances above set out, I propose to exercise the discretion of the Court in making the enforcement orders sought by the husband. I propose to provide for the wife to be given 28 days to vacate the property. If she has not done so by that time then the husband may provide the evidence of such circumstance to the Court and the writ of possession can then be executed as and from 18 January 2017. Such timing is reasonable given the end of year timing of the proposed orders. The wife, as the orders of 4 April 2016 illustrate, is the owner of three other properties, including one at 1 Q Street, Suburb R. She also has income received from rental of those properties.

30.The husband seeks the appointment of a trustee for sale. Given the stand taken by the wife in relation to this application it is clear the wife will not respond to requests form the husband to undertake actions necessary to affect the sale of the Suburb R property.

31.The trustee proposed by the husband is Mr GG. The husband has annexed to his affidavit a consent by Mr GG to act as the trustee, together with a copy of his curriculum vitae. Those documents demonstrate Mr GG is highly credentialed and suitable to be appointed as a trustee for sale of the Suburb R property.

32.The husband seeks an order for the wife to meet the costs of the trustee for sale. He seeks that order in circumstances where I am satisfied the appointment is necessary to ensure compliance by the wife with the orders made by the Court on 4 April 2016. There is no stay order in place because the wife has failed to comply with the conditions of the stay.

33.I am satisfied, having read the affidavit material and the tendered material provided by the wife, that she will not vacate the property at Suburb R so that the property may be sold without at least the necessity for a writ of possession providing for serious action to be taken against her should she fail to comply with the order requiring her to vacate the property. I am further satisfied that the wife will resist and possibly obstruct the orderly marketing of the Suburb R property because she does not accept the order made on 4 April 2016 which requires the sale of that property. In such circumstances , the only available recourse to the husband has been to seek the appointment of a trustee for sale. In such circumstances the husband should not have to bear the cost of the trustee and it is therefore appropriate to provide an order for the cost to be paid by the wife.

34.The husband seeks the wife pay his legal costs of both defending her Application in a Case which sought orders of the Registrar be set aside and also the cost of the orders he sought for the appointment of the trustee for sale and the issue of a writ of possession.

35.Costs applications require the Court to conduct such a hearing pursuant to s 117 of the Act. Section 117(2A) provides a list of matters to be considered by the court when hearing a cost application.

36.The financial circumstances of the parties are set out in detail in the reasons provided on 4 April 2016. Each of the parties will retain assets of significant value as a consequence of the orders made on 4 April 2016. The wife is to receive 65 per cent of the net sale proceeds of the Suburb R property and the husband is to receive 35 per cent of same. Those percentage figures will translate into significant and substantial sums of money. I am satisfied that the financial circumstances of each party would not prevent a cost order being made against the wife as sought by the husband in this case.

37.The other significant fact which is relied upon by the husband is the total failure of the wife’s application.  There was no order made by the Registrar which could have been set aside on the wife’s application. There is no stay order in place as the wife failed to comply with the conditions of the stay, which had been granted by Cleary J, on 31 May 2016. The wife stated that she was unable to comply with those conditions and had not done so. Consequently the wife has been wholly unsuccessful with her application which was entirely misconceived. In such circumstances an order for the payment of the husband’s costs of that application should be made and I propose to make that order.

38.The husband has continued to meet the payments required to be met by him under the orders of 4 April 2016 (which expenses include the St George residential mortgage repayments which the wife was required to pay by the order of 31 May 2016 as a condition of the stay).

39.The wife’s appeal against the orders of Cleary J made 4 April 2016 has not been expedited. There is no information provided by the wife to give any indication when that appeal might be heard in the absence of expedition.

40.The wife is occupying the Suburb R property. The husband is required by the order of 4 April 2016 to meet specified outgoings associated with that property pending its sale. The wife appears to have no motivation to move from the property pending the completion of her appeals by the Court. Justice requires the Court take the action sought by the husband.

41.The husband has also been successful in his application which is contained in his Amended Response to an Application  in a Case. He has been really left with no other option than to take the action he has and seek the orders he has sought. He should have his costs of that application also met by the wife and I will so order.

42.Accordingly I make the orders set out at the commencement of these reasons.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 18 November 2016.

Associate: 

Date:  18 November 2016