Gregor and Gregor and Ors

[2009] FamCA 1171

FAMILY COURT OF AUSTRALIA

GREGOR & GREGOR AND ORS [2009] FamCA 1171

FAMILY LAW – INJUNCTIONS – Writ of Possession

Family Law Act 1975 (Cth) ss 79, 90AE(2), 90AE(3), 90B and related Pt VIIIAA, s 114(1), 114(3)

B Pty Limited and Ors & K and Anor (2008) FLC 93-380

APPLICANT: Ms Gregor

1^ST RESPONDENT: Mr Gregor

2^ND RESPONDENT: Mr Gregor (Snr)

3^RD RESPONDENT: Mrs Gregor (Snr)

4^TH RESPONDENT: C Investments Pty Limited

FILE NUMBER: SYC 2951 of 2009

DATE DELIVERED: 3 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 22 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Jo-Anna Moy, Solicitor

COUNSEL FOR THE 1^ST RESPONDENT: Mr J. Lloyd, SC

SOLICITOR FOR THE 1^ST RESPONDENT: McLachlan Thorpe Partners

COUNSEL FOR THE 2^ND & 3^RD RESPONDENTS: Mr Kearney

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS: Malcolm Johns & Company

COUNSEL FOR THE 4^TH RESPONDENT: Mr Campton

SOLICITOR FOR THE 4^TH RESPONDENT: Newnhams Solicitors

Orders

1. That the wife, the husband and C Investments Pty Limited forthwith do all things and sign all documents necessary to deliver vacant possession of the property known as and situate at M in the State of New South Wales being the whole of the property identified as folio identifiers …, …, … and … (the “M property”) to the second and third respondents.

2. That in the event of non-compliance with the above order within seven days of the date of these orders, the second and third respondents have leave to apply for issue of a Warrant for Possession of the M property authorising and permitting an enforcement officer to enter and give possession of the M property to the second and third respondents.

3. In the event that any party refuses or neglects to execute any deed or instrument required to give effect to these orders a Registrar of the Court pursuant to section 106A of the Family Law Act may execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of such deed or instrument.

4. That the above orders shall not commence operation until 27 January 2010.

5. That all costs are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2951 of 2009

MS GREGOR

Applicant

And

MR GREGOR

1^st Respondent

And

MR GREGOR (SNR)

2^nd Respondent

And

MRS GREGOR (SNR)

3^rd Respondent

And

C INVESTMENTS PTY LTD

4^th Respondent

REASONS FOR JUDGMENT

Introduction and applications

1. These are interlocutory proceedings.  There are substantive proceedings which involve an application to set aside a binding financial agreement.  Those are proceedings brought by Ms Gregor to whom for convenience I shall refer as “the wife”.  There are various respondents to those proceedings.  The first respondent is Mr Gregor to whom for convenience I shall refer as “the husband”.  The second and third respondents are the husband’s father and mother.  They are Mr Gregor (Snr) and Mrs Gregor (Snr).  For convenience I shall refer to them as “the second and third respondents”.  There is a fourth respondent and this is a corporation C Investments Pty Limited.  I shall refer to the corporation as “the fourth respondent”.

2. These interlocutory proceedings arise out of the substantive proceedings, the second and third respondents having been joined as parties in those proceedings. 

3. The second and third respondents seek the following orders:

   1.That the Wife, the Husband and [C Investments] Pty Limited forthwith do all things and sign all documents necessary to deliver vacant possession of the property known as and situate at [M property] in the State of New South Wales being the whole of the property identified as folio identifiers […], […], […] and […] (the “[M] property”) to the second and third respondents.

   2.That in the event of non-compliance with (the above order) within seven days of the date of these Orders, the second and third respondents have leave to apply for issue of a Warrant for Possession of the [M] property authorising and permitting an enforcement officer to enter and give possession of the [M] property to the second and third respondents.

   3.In the event that any party refuses or neglects to execute any deed or instrument required to give effect to these orders a Deputy Registrar of the Court or his appointee pursuant to section 106A of the Family Law Act may execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of such deed or instrument.

   4.That the wife and husband forthwith pay to the second and third respondents the costs of these interlocutory proceedings on an indemnity basis.

   5.That the wife shall provide to the second and third respondents particulars as to the legal and factual contentions to be relied upon by the wife in support of the relief sought by the wife against each of the second and third respondents both personally and in their respective capacities as officeholders of the fourth respondent.

4. The application by the second and third respondents in this regard is supported by the fourth respondent company.  The application is not opposed by the husband.

5. On the other hand the wife seeks the following orders:

   1.That the application for interim relief sought by the second and third respondents be dismissed.

   2.That the wife serve a request for disclosure of documents on the husband, second, third and fourth respondents by no later than 30 October 2009.

   3.That the husband, second, third and fourth respondents serve a verified list of documents on the wife by no later than 13 November 2009.

   4.That the wife file and serve a Statement of Claim on the husband, second, third and fourth respondents by no later than 11 December 2009.

   5.That the application of the husband, namely orders 1, 3 and 4 sought by him in the Response filed on 9 September 2009 under the heading “interim relief” be adjourned to a date at the Court’s convenience. 

Background matters

1. The background matters are as follows. The husband was born in 1957. The wife was born in 1961. Accordingly, they are 52 years and 48 years of age respectively. They married in 2002 and they separated on 14 May 2009. On 17 May 2002, prior to their marriage, they made a Binding Financial Agreement pursuant to s 90B of the Family Law Act 1975.

2. There are no children of the marriage but the husband has four children, the youngest born in November 1992.  The wife has two children by her former marriage.  The wife’s children lived with the parties during the marriage.  The wife’s elder child continues to live with her. 

3. At the time of their marriage each of the parties owned property of significant value.  The Financial Agreement identified such property.  In the case of the husband this was property with a total net value of $1 986 636.  The Financial Agreement recorded the husband as also having financial resources with a total value of $429 951.  On the other hand the Financial Agreement recorded the wife as having property with a total value of $871 530. 

4. The Financial Agreement, amongst other matters, included provisions relating to acquisition by the parties of future property.  Paragraph 21.1 provided as follows;

   It is the intention of [the husband] and [the wife] to purchase a home for themselves, [the husband’s] children and [the wife’s] children (“the family home”).

5. In mid 2002 the parties commenced looking for a suitable property to purchase as a family home.  Eventually they located such a property at L and it was purchased for $1.8M.  The whole of the purchase price and stamp duty were paid initially by C Investments Pty Limited.

6. The husband and wife took occupancy of the home in approximately early April 2003.  In May 2003 the wife sold her home at B for $540 000. Upon settlement she paid $500 000 to C Investments Pty Limited and deposited $26 454 into the joint account of the husband and the wife.

7. In mid 2007 the husband and wife decided that they would prefer to reside in the City.  They decided to sell their L home and purchase a home in the City.  The L property sold in December 2007 for $2.65M.  The husband, the wife and the wife’s two children then moved into a rented apartment in the City.

8. In approximately January 2008 the husband arranged payment of $648 568 from the net proceeds of sale of the L property into the wife’s bank account.  It is clear that the wife informed the husband that she expected to receive a higher amount from the proceeds of sale.

9. In any event, after three months living in the city, the husband, the wife and the wife’s children moved to live in a rented apartment.  The husband and wife inspected several properties in the M area with a view to purchasing an apartment.

10. In approximately early September 2008 the husband informed the wife that he had purchased the M property.  In fact this property had been purchased by the husband’s parents and the corporation C Investments Pty Limited as tenants in common in equal shares.  This corporation is the trustee of the C Trust.

11. From this time until shortly before the parties separated, rent of $3250 per month was paid from the joint account of the husband and the wife to the C Trust.

12. In March 2009 the wife found out that the M Property had been purchased in the names of the husband’s parents and the corporate trustee.

13. In April 2009 the corporate trustee, C Investments Pty Limited, gave written notice to the husband that the rent was overdue and if not paid immediately steps would be taken to evict the husband.  There was a lease between the husband and the C Trust.

14. On approximately 10 May 2009 the husband informed the wife that the owners of the property were no longer prepared to subsidise the rent and that they would have to move.

15. On 14 May 2009 the husband notified the C Trust that he accepted the offer to terminate his lease of the property at the end of May.  That day the parties separated.

16. On 20 May 2009 the wife filed an Application for Final Orders in this Court seeking orders to set aside the financial agreement and an order that the husband pay her a specified amount by way of property settlement.

17. On 21 June 2009 the husband moved out of the M property.

18. On 2 July 2009 the wife filed an Amended Application for Final Orders joining the husband’s parents and the corporate trustee C Investments Pty Limited as respondents in the proceedings.  In her Amended Application the wife seeks an order to set aside the financial agreement and other orders including an order to the effect that the husband’s parents and C Investments Pty Limited transfer their interests in the M property initially to the husband and for him to transfer it to the wife.

19. On 3 July 2009 the husband’s parents and C Investments Pty Limited filed a Statement of Claim in the Supreme Court of New South Wales seeking an order for the issue of a writ of possession of the property.

20. On 23 July 2009 the wife filed an Application in a Case in this Court seeking orders to restrain the respondents from prosecuting their proceedings in the Supreme Court and asking this Court to make an order that she be given the exclusive occupancy of the M property until further order.

21. The Supreme Court proceedings were heard in August 2009.  On that day the Supreme Court made an order for a stay of the Supreme Court proceedings until further order.  The Supreme Court took the view that because there were pending substantive proceedings in this Court between the parties to the Supreme Court proceedings, this Court would be in a position to be able to determine the issue that was before the Supreme Court.  The Supreme Court decided that it would be unreasonable for the wife to have to go to the expense of filing a defence in the Supreme Court proceedings, at least unless she failed to pursue diligently the Family Court proceedings..

22. On 16 October 2009 the wife filed a Notice of Discontinuance of her Application in a Case in this Court.

Submissions on behalf of the Second and Third Respondents

1. It is submitted that there is ample power under s 114(3) of the Family Law Act 1975 to make the orders sought by the second and third respondents.

2. It is submitted that there is no basis upon which the wife can properly resist the application by the second and third respondents having regard to the following matters:

   ·The fact of the interests of the respondents in the property which interests give rise to a right of the respondents to possession of the property to the exclusion of any other party, including the wife;

   ·The absence of any claim by the wife against the respondents for occupation of the property pursuant to the Family Law Act 1975 or otherwise;

   ·The position adopted by the wife in the proceedings before the New South Wales Supreme Court, which proceedings have been stayed on the wife’s application; and

   ·The absence of any substantive claim by the wife against the respondents in these proceedings pursuant to the Family Law Act 1975 or otherwise.

3. In relation to the first of these matters it is submitted that there is no issue that each of the second and third respondents is the registered proprietor of a one-third interest in the property, the other one-third interest being held by the fourth respondent as trustee for the C Trust.  It also appears that there is no issue that each of the second and third respondents are beneficially entitled to their respective interests.  It also appears that there is no issue that the interests of the second and third respondents arise consequent upon their providing from their sources two-thirds of the purchase price of the property at the time of its purchase in approximately September 2008. 

4. In relation to the second aspect of this submission, as indicated above the wife had previously filed an application in a case seeking an order that she be granted exclusive occupancy of the M property but she subsequently withdrew this application as indicated above. 

5. In relation to the third aspect, the wife successfully had the proceedings in the New South Wales Supreme Court stayed on the basis that there were substantive proceedings between the same parties in this Court and that the issue before the New South Wales Supreme Court could be dealt with in the context of the Family Court proceedings. 

6. In relation to the last part of the submission the wife in her Amended Application for Final Orders has sought an order to the effect that the financial agreement be set aside. The wife also sought that the Court would then go on to make an order that pursuant to s 90AE of the Family Law Act 1975 the second and third respondents do all things and sign all documents necessary to transfer to the husband the whole of their interests in the M property. It was submitted that this is not an order which the Court would be able to make because there is no power under s 79 or s 90AE of the Act to do this. The submission was that if there is no basis on which the Court would be able to make a substantive order altering the interests of the second and third respondents in the M property then clearly the injunction power would not be available to support the wife’s case.

Submissions on behalf of the wife

1. There was a general submission to the effect that the Court did not have jurisdiction to make the order sought by the second, third and fourth respondents.  I must say that this was an unexpected submission in circumstances where it had been argued on behalf of the wife that the Supreme Court proceedings between the parties should be stayed on the basis that the Family Court had jurisdiction to deal with the question of the possession of the M property.

2. In any event, I am satisfied that there is jurisdiction to make the orders sought pursuant to s 114(3) of the Act.

3. The thrust of the submission on behalf of the wife opposing the orders sought by the second, third and fourth respondents was as follows.  The wife has a good case for the setting aside of the financial agreement which would then open the way for orders to be made pursuant to s 79 of the Act for property settlement.  The husband had informed the wife that he had purchased the M property for them and after they had taken up residence in the property the husband had informed the wife that he had purchased the property in the name of the C Trust which really belonged to him.  The wife would be pressing the Court to make orders which would ultimately result in the M property being transferred to her.

4. It was submitted that in these circumstances it would be premature for this Court to deal with rights of the wife to occupy the property especially when the relevant evidence could not be tested at this time.  In circumstances where the wife ultimately sought a transfer of the property to her it was submitted that it would be unjust to make the orders ought by the respondents because this could remove from the Court the possibility of being able to make a proper substantive order.

Submissions on behalf of the fourth respondent

1. It was submitted that it is mischievous on the part of the wife to submit that the Court has no jurisdiction to make the orders sought.  If the wife seriously considered the Family Court to lack such jurisdiction then it was an abuse of process for the wife to file her application in the Supreme Court for a stay of those proceedings.

2. The fourth respondent supported the application for the relief sought by the second and third respondents.

Conclusion

1. As indicated above, in my view, this Court has jurisdiction pursuant to s 114(3) of the Act to make the orders sought by the second and third respondents. As was submitted by learned counsel for the second and third respondents, having been joined as parties to the substantive proceedings the second and third respondents can invoke the Court’s jurisdiction to make orders under s 114(3) of the Act. Sub-section 114(3) provides to the effect that a court exercising jurisdiction under the Act in proceedings, other than proceedings to which s 114(1) applies (which does not include proceedings such as the immediate proceedings), may grant an injunction, by interlocutory order or otherwise in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

2. I must say in relation to the orders sought for possession of the M property I accept the general thrust of the submissions on behalf of the second and third respondents.  It is clear that they are the registered proprietors of a one-third interest each as tenant-in-common of the M property.  It is also clear that the funds used for the purchase of their interests were provided entirely from their own sources.  The wife does not take any issue with this.

3. The wife’s case really appears to rely on her application for the orders sought in her Amended Application for Final Orders that pursuant to s 90AE of the Act the second and third respondents transfer to the husband their interests in the property. In my view, this is not an order that the Court would be able to make for the reasons articulated in the submission of learned counsel for the second and third respondents.

4. Learned counsel drew to my attention the decision of the Full Court of this Court in the case of B Pty Limited and Ors & K and Anor (2008) FLC 93-380. In that case the Full Court considered the meaning of, amongst other provisions, s 90AE(2), s 90AE(3) and related provisions in Pt VIIIAA of the Act. Sub-section 90AE(2) of the Act provides as follows:

   In proceedings under section 79, the court may make any other order that:

   (a)directs a third party to do a thing in relation to the property of a party to the marriage; or

   (b)alters the rights, liabilities or property interests of a third party in relation to the marriage.

1. In the B Pty Limited case (above) the wife was seeking an order to the effect that third party trustees make a capital distribution in favour of the husband in a sum deemed by the Court as being appropriate. 

2. The Full Court said as follows at page 82,797:

   … in so far as the words in s 90AE(2)(b) “property interests of a third party in relation to the marriage” may be unclear, we note again the object of the Part in s 90AA, namely to allow the Court to make orders under s 79 that is directed to the property interests of a third party in relation to the property of a party to a marriage. 

   The Full Court went on to say:

   The orders sought by the wife against the trustees seek, not to divide, but to increase the present property of the parties. 

   The Full Court went on to say as follows at page 82,798:

   … In our view, all that s 90AE(2)(b) does, of relevance to the wife’s claim here, is to enable the court to adjust the property interests of a third party for the purpose of effecting a division of the present property of the parties to a marriage, between those parties. Only in the sense that altering interests may leave a bundle of rights or interests that are consequent upon the alteration, may the exercise of power create interests, but these “new” interests will be the residue of what already existed at law.  Except in this sense, the sub-section does not create a new cause of action derived from rights not previously known to the law.  In this sense, the subsection resembles a machinery provision though in our opinion it is more than that. 

3. On the basis of this interpretation, in my view, there is no power for the Court to make the order to the effect that the second and third respondents (or even the fourth respondent) transfer their interests as tenants-in-common in the M property to the husband or any other person for that matter. 

4. In these circumstances, in my view, the wife does not demonstrate even an arguable case for relief which could support any proper defence by her in relation to the interlocutory application before me.  This leaves the wife in the position that she is occupying the property owned by the second and third respondents without any basis at law for doing so.  That is, she has no interest in the property, she has no lease or licence in relation to it, nor any order of a court which might permit her to occupy the property.  Accordingly, in my view, the applicants have established the basis for the orders sought by them and it is appropriate for the Court to make such orders. 

5. Having said this, the orders are pursuant to the Court’s injunction power and other matters also need to be considered in the exercise of the Court’s discretion.  Clearly on the one hand the owners of the property are anxious to achieve vacant possession of their property as soon as possible.  But clearly the wife has needs.  The property has been her home now for more than a year and it is also occupied by her son.  He has special needs.  The wife said that he does not respond well to change and that he has had a number of changes in his residence over recent years.  In any event it is a difficult time of year being so close to Christmas and the wife will have to undertake the task of endeavouring to find other accommodation for herself and her son.  Also relevant, in my view, to the exercise of the Court’s discretion in making orders is the fact that the respondents appear to have permitted the wife, certainly until March 2009 to labour under the impression that the M property was owned by the husband or an entity under his control.

6. In all these circumstances, in my view, a proper exercise of the Court’s discretion in this regard requires that the wife have some time in order to be able to locate appropriate accommodation for herself and her son and to remove herself and her possessions from the M property.  In my view, the order should take effect as from 27 January 2010. 

Other matters

1. In her Minute of Order the wife sought some orders about disclosure and other matters related to the substantive proceedings.  These included the question of whether the application for setting aside the financial agreement or parts thereof should be heard as a discrete hearing independently of s 79 proceedings.

2. In my view, these are matters for direction by the Judge in whose docket these proceedings will be included.

3. I note that Registrar Crawford will be reviewing the matter by telephone at 11:00 am on 14 December 2009.  I shall leave this aspect of the proceedings to the learned Registrar for consideration and any appropriate directions.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar Johnston

Associate:     

Date:              3 December 2009