Greig and Trott

[2013] FamCA 686

FAMILY COURT OF AUSTRALIA

GREIG & TROTT [2013] FamCA 686

FAMILY LAW – Property; de facto relationship; applicant fails to prosecute claim where respondent disputes jurisdiction.  Application dismissed.  Costs orders made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Greig

RESPONDENT: Ms Trott

FILE NUMBER: MLC 2163 of 2013

DATE DELIVERED: 23 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 August 2013

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Holmes

SOLICITOR FOR THE RESPONDENT: Campbell & Shaw

Orders

1. That the applicant do all things to cooperate with the respondent to ensure that the current mortgage encumbering the real property at B Street, Suburb C is discharged by the respondent refinancing the said mortgage into her name alone.

2. That pursuant to s 106A of the Family Law Act 1976 (Cth), in the event that the applicant fails to sign any necessary document to give effect to paragraph 1 of these orders, a registrar is authorised to sign any document in the name of the applicant to give effect to that order.

3. That the applicant pay the respondent’s costs of these proceedings fixed in the sum of $6900.

4. That the application of the applicant filed 23 March 2013 is dismissed.

5. That the response of the respondent filed 23 May 2013 is otherwise dismissed.

6. That the applicant have leave to seek to set aside these orders if by 4.00pm on 13 September 2013, he files and serves an application in a case supported by an affidavit setting out:

   (a)    why he has not attended the Court this day;

   (b)    how he justifies the assertion that the Court has jurisdiction to make the orders he seeks; and

   (c)    to the extent that he can satisfy the jurisdictional question, what precise orders he would seek.

7. Failing the application being so listed, the applicant’s application filed 25 March 2013 stands permanently dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the respondent serve a copy of these orders on the applicant as soon as practicable by post and electronically to the addresses set out in the Notice of Ceasing to Act and in due course, serve by the same method a copy of the reasons for judgment this day.

3. That the reasons be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Greig & Trott 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 MELBOURNE

FILE NUMBER: MLC 2163 of 2013

Mr Greig

Applicant

And

Ms Trott

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Greig, to whom I shall refer in these reasons as the applicant, seeking financial orders against Ms Trott, to whom I shall refer as the respondent.

2. The application was filed in this court on 25 March 2013, returnable on 28 March 2013.  This morning, in response to an application in a case that was filed on 16 August, but also a conciliation conference hearing at 9.15 this day before Registrar Sikiotis, the matter has been brought before me, because the applicant has failed to appear.  In addition, he has failed to comply with some interlocutory orders that were made on 28 May.

3. I am urged today to put an end to this proceeding, and I propose to do that, but to give the applicant an opportunity within 14 days to seek to set aside the orders I am about to make if he can produce an affidavit to explain a number of things.  The first of those things will be why he is not here today.  The second is to show cause as to how this court has power to make the orders he seeks, having regard to the way in which his application was framed.  That second point is of some significance, because it was drawn by a lawyer who was acting for him.

4. The background of this case is very simple.  The applicant set out that in early March 2012, he commenced a de facto relationship with the respondent.  In his view, the “date of final separation” ended in mid January 2013.  By a response filed on 23 May this year, the respondent did not set out whether or not she agreed with that duration, but in an affidavit filed 16 August, she says that the relationship was for a period of seven months, it beginning in June 2012 and then she says:

   We separated on 15 January 2013.

5. One of the difficulties with determining the power and jurisdiction of the court to make orders relating to the financial matters arising out of the ending of a de facto relationship is that it is not when parties separated, nor when their relationship breaks down that is relevant, but rather, when the relationship ended.  The Act does not define when a relationship ends, but one can infer that when people separate, it is usually after some period of turmoil and, more often than not, their relationship has ended before that.

6. The applicant says that the relationship was for approximately nine months and the respondent says seven months.  To found an application for the court to be able to exercise its power under the legislation, parties to a de facto relationship have to satisfy the court that their relationship was of two years duration, unless one of the other exceptions to that ground is made out.  In his application, the applicant pleaded that he had made substantial contributions, presumably to the property of either of the parties, and that a failure to make an order or declaration in his favour would result in serious injustice to him.

7. In respect of that ground, as pleaded, the respondent denied that substantial contributions had been made, and that even so, whatever the contributions were, they would not create an injustice for the applicant.  In an affidavit which I am satisfied the applicant has received, the respondent said that at the time that the relationship commenced, she owned the property at B Street in Suburb C, which was then subject to a mortgage to the Westpac Bank.  She said that the applicant moved in with her and, at his request, she agreed to extend the mortgage over the property to enable renovations and extensions, as well as to purchase a larger vehicle to accommodate the applicant and his children.

8. It would appear that the mortgage taken out was a joint mortgage, but, on the evidence I have, it was not suggested that the legal interest of the respondent in the property was changed.  Thus, the bank must have been satisfied not only about its security, but also about the capacity of the applicant to fund whatever the obligations were.

9. The respondent went on to say that the increase in the mortgage was made on the understanding that he would contribute to one half of the repayments, but he failed to do so.  I think I can safely conclude that not much turns on that, because in a space of seven to nine months, repayments on a mortgage of the extent referred to by the respondent would not be all that significant.  And, in any event, no doubt the respondent would have been arguing that the applicant had the benefit of a roof over his head, along with the provision of accommodation for his children at various times.

10. As I pointed out, his application was premised on the basis of substantial contributions, and that an injustice would incur if he was not in some way compensated for his contribution.  It is significant that there has been no apparent alteration to the legal title.  One would have thought that in a very short space of time like that, if the applicant and the respondent had intended for the applicant to have a legal interest, at a time when they were borrowing significant moneys from a bank, they would have done something about it.  In addition, as I have pointed out, the contribution seems to have been of a relatively modest nature, rather than a substantial contribution.

11. There is no definition of substantial contributions in the legislation, but I think I can use some common sense and presume that “substantial” means very large, affecting the capital value in some way. 

12. In any event, the case was before the court, and clearly on 28 May, the registrar made various orders to get the matter further down the litigation pathway. 

13. It is noticeable that on 28 May, two significant things occurred.  The first was that the orders were endorsed with a notation that the respondent agreed to the various orders without prejudice to her right to argue that there was no jurisdiction in relation to the application generally.

14. The second thing that was that the registrar noted that there was a significant question whether there was a de facto relationship at all.  In either event, the registrar accepted that orders should be made of an interlocutory nature because both parties were represented on the day.

15. Orders were then made for a conciliation conference to take place on 23 August, which is this day, and a variety of other orders of a discovery nature.  One of those orders was for the applicant to obtain a valuation at his cost of the property, and the respondent was obligated to make the property available for that valuation. 

16. Attached to the affidavit of the respondent today, is the correspondence flowing from those orders.  The respondent sought details within time, as did the applicant’s solicitors.

17. Also within time, the respondent’s solicitors provided that information.  It appears that the applicant’s solicitors did nothing further about responding to the request for documents, and were certainly out of time to do so.  But on 24 June, they then made reference to two market appraisals not having been enclosed in previous correspondence, and they requested those.  On 9 August, nothing further having happened, the solicitors acting for the applicant filed a notice of ceasing to act, indicating that they had told the applicant that there was a conciliation conference listed at 9.15 this day, and providing not only his postal address but also his email contact details as well. 

18. At 9.15 this morning, the registrar’s bench sheet notes that the matter was called and as late as 9.40 am there was no appearance of the applicant.  That, of course, has to also be seen in the context of the application in the case filed on 16 August, which was also returnable this day.  An affidavit of service has been filed by a person who says that the application in a case supported by the affidavit were posted and sent by electronic means, and the electronic address and the personal address are consistent with the details in the notice of ceasing to act provided by the applicant’s former solicitors.

19. Putting all of that together, it would seem that the applicant has not decided to take any further part in the proceedings.  He has had the opportunity to do so.  He has no doubt been made fully aware that the very nature of the relationship and any argument about financial entitlements, has been put in issue by the respondent.  For some reason or other he has decided that he does not want to participate further.  But just in case there is some logical reason why he is not here today, I propose to give him 14 days to redress the problem, bearing in mind that he will be putting the respondent to significant inconvenience and no doubt cost.

20. I propose, therefore, to dismiss his application and make an order that he cooperate with the respondent to ensure that the mortgage is discharged, and I would have thought that he would be very pleased about that because it is a personal obligation of his. In relation to a debt in which he seems to have no real interest.  To the extent that the applicant decides that he is not going to participate and cooperate in any way, I will make an order under 106A of the Act for the registrar to sign any necessary document in the name of the applicant to ensure that these orders are effected. 

21. That then leaves the question of costs.  The respondent seeks costs on an indemnity basis and the figure of just over $11,000 was posited as the appropriate amount. 

22. In discussions with counsel for the respondent, I have pointed out my dilemma in relation to the power to make an order for indemnity costs.  There is little question about the court’s power but the recent decision of the Full Court in Prantage & Prantage would suggest that the circumstances really have to be quite exceptional, rather than just unusual.  As counsel for the respondent pointed out, this is really a case where the applicant is making a bit of “try-on”, to use the language of counsel and on the facts that I have detailed, that seems remarkably close to what seems to have happened. 

23. On that basis, it seems to me that the respondent has been put to significant inconvenience and incurred significant costs.  Whilst I cannot do anything about the fact that costs may, in fact, be more than what I can provide to her, the starting point is still that this is a jurisdiction (because of s 117 of the Act), where each party is required to bear their own costs.  That rule, however, may be departed from in circumstances where the Court is satisfied that it is just and fair for the Court to make someone pay costs but there must be justifying circumstances. 

24. In this case, it is quite clear that the respondent has been given notice about all of the dispute as to jurisdiction but also about the opportunity to come along and plead his case.  In respect to both of those matters, he has failed to do so.  Those, in my view, are circumstances that justify a departure from the principle that each party bears their own costs.  Before making an order for costs, however, the Court must take into account the matters set out in section 117(2A) of the Act.  The first of those considerations relates to the financial circumstances of the parties. 

25. I have the benefit in this case of having a financial statement filed by the applicant on 25 March 2013, in which he showed that, as a sales manager, he was earning $2746 per week.  Based on the Australian standards of the average weekly wage, he is obviously earning a lot more than what the average person earns.  The applicant also set out that he has superannuation and a motor vehicle and he had a little bit of money in the bank.  I could not conclude on any view that he is impecunious. 

26. Another consideration is the question of the participation in the proceedings and the compliance with various court orders.  As I have already indicated, the applicant has failed to comply with orders and he is certainly not here today.  Another consideration before making an order for costs is whether or not any of the parties is legally aided and there is no suggestion in this case that that principle applies. 

27. A fourth consideration is whether or not one of the parties has been wholly unsuccessful.  It is hard to imagine a case more appropriate for such a statement that someone has been wholly successful where they make a try-on and fail then to turn up to the Court to justify their position, particularly after what has obviously been an exercise where the registrar of the Court has had some discussions with all of the parties and everyone knows what the parameters of the dispute were. 

28. Having regard to all of those matters, I think it is appropriate that an order for costs be made.  I do not have precise details of the costs and it is not necessary that I should have to calculate that but I can use the bill that the respondent has received from her solicitors and I am advised by counsel it is somewhere between seven and nine hours that has been spent by his client in consultation with her solicitors.  In addition to that, the solicitors obviously do a lot of work behind the scenes, including the preparation of documents, the briefing of counsel and corresponding with another solicitor acting for the other litigant. 

29. I can take into account that somewhere around 12 hours of work has been done in a case such as this.  I have also been provided with the details of the disbursements, including counsel’s fees.  Counsel is entitled to charge whatever they like but, unfortunately, the scale somewhat limits what the Court can do in making an order on a party/party basis.  Having regard to all of those matters, I think the appropriate figure is $6900.  In this case, I make the following orders.

ORDERS DELIVERED

1. I will not make any order in relation to the stay of that so they are enforceable forthwith.

ORDERS DELIVERED

RECORDED   :   NOT TRANSCRIBED

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 August 2013.

Associate: 

Date:  6 September 2013