HOOKE & KING

[2015] FCCA 1579

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOOKE & KING [2015] FCCA 1579

Catchwords:
FAMILY LAW – Property – application for exclusive occupancy.

Legislation:
Family Law Act 1975, Section 114

Cases cited:
Stowe & Stowe (1981) FLC 91-027
Sieling& Sieling (1979) FLC 90-627
Ansah & Ansah (1977) 2 WLR 760
Davis & Davis (1976) FLC 90-062
Plowman & Plowman (1970) 16 FLR 447

Applicant: MR HOOKE

Respondent: MS KING

File Number: NCC 2461 of 2013

Judgment of: Judge Myers

Hearing date: 7 May 2015

Date of Last Submission: 7 May 2015

Delivered at: Newcastle

Delivered on: 7 May 2015

REPRESENTATION

Solicitors for the Applicant: Baker Love Lawyers

Solicitors for the Respondent: No Appearance

THE COURT ORDERS THAT:

1. Leave is granted to the solicitor for the respondent to withdraw from the proceedings.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Within seven (7) days of today’s orders the husband shall pay to the (omitted) Bank the base amount of $6,050.00 representing the current arrears owing on the Property G property, and thereafter he shall make repayments on the said mortgage as and when they fall due.

2. Within seven (7) days of today’s orders the husband shall pay to the (omitted) Council the base amount of $9,980.70 representing the current arrears owing as council rates levied against the Property G property situated at and known as Property G and thereafter make all payments to the council for rates, water levies as and when they fall due.

3. Within 14 days of service of personal service of these orders upon the respondent wife the respondent wife shall vacate the residence of the property situated at and known as Property G in the state of New South Wales and thereafter the husband shall have the right to exclusive occupancy of the said Property G property to the exclusion of the respondent wife.

4. Subject to any retail lease or rights under the Retail Leases Act as to any tenant in occupation of the retail premises situated at Property G the husband shall have effective from the time the wife is personally served with a copy of these orders the right to exclusively occupy the premises situated at the Property G property in which the business (business omitted) trading as “(business omitted)” is trading to the exclusion of the wife.

5. The husband have, from the time of service of these orders upon the wife right to exclusively operate and trade the business trading as (business omitted).

6. The wife be prevented by injunction from coming upon the said premises at which the said (omitted) business operates.

7. The wife shall be prohibited by injunction from the date of these orders from selling, disposing of, giving away or otherwise doing anything to diminish, dispose of stock being that of the (stock omitted) from (business omitted).

8. The wife shall be prohibited by injunction from damaging, otherwise disposing of selling or dealing with any of the fixtures and fittings of the (business omitted) business.

9. The wife shall be prohibited by injunction from destroying, disposing of, or retaining any of the records, documents, books accounts or other material or information or documents whatsoever in relation to the operation of the partnership of (business omitted) trading as “(business omitted)”.

10. The wife shall be prohibited by injunction from removing, damaging any information from or otherwise destroying or making inoperable the computer system and computer equipment situated upon the premises at which (business omitted) business operates.

11. The wife be prohibited by injunction from seeking to discourage or disparage any person who is a member of the (business omitted) business from using the business for the purpose of (business omitted) purchasing any retail items and the like.

12. The wife shall vacate the said residential premises in accordance with the orders made today leaving the property in a neat and tidy condition having regards to the current condition of the property subject to fair wear and tear.

13. The wife be restrained from collecting any rent from the business trading as (omitted) from the said premises at Property G.

14. The husband be entitled to visit upon the proprietor of the business trading as (omitted) and instructing them to pay to him as he might authorise or direct the rent payable on the premises.

15. The husband’s costs of these proceedings be reserved.

16. The Conciliation Conference date of 17 June 2015 at 9.30 am is confirmed.

17. Both parties are to attend the conciliation conference in person before the registrar on 17 June 2015.

18. The adjourned directions date listed on 3 July 2015 is vacated.

19. The matter is listed on 3 July 2015 at 9.30 am for directions or undefended hearing where the respondent wife fails to attends upon the conciliation conference.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 2461 of 2013

MR HOOKE

Applicant

And

MS KING

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter that comes before the court in a busy duty list.  The respondent’s solicitor appeared before the court and sought leave to withdrawn in circumstances where he was unable to obtain instructions.  Leave was granted.

2. These are property proceedings in relation to the parties.  The applicant seeks orders for exclusive occupancy of a property and control of business owned by the parties.  The significant assets of the parties in the substantive property proceedings are that of the property in (omitted), being Property G, and that of the business trading as and known as (business omitted).  The Property G property is what is best described as shop premises with residence above.  The concern for the Court today is one where if orders are not made by the Court, the premises will be lost to the mortgagee in possession and possibly the business in circumstances where the Court is aware there is no lease between the parties in their capacity as owners of the business trading as (business omitted) and themselves as owners of the premises.  That is, if the bank moved in, the bank could provide the parties with a notice to vacate which could include them vacating from the business premises as well which is highly problematic given they have no lease, and if one has no lease, one has no business.  A second business operates from one of the two shop premises at the Property G property that trades as (omitted).  The applicant does not seek to disturb the tenure of the (omitted) tenancy other than to collect the rent and apply such to the mortgage.

3. The orders are ones that are sought for the purposes of the preservation of the property of the parties.  In this regard I refer to the case of Stowe & Stowe (1981) FLC 91-027, a decision relating to the types of matter in which the Court might make ex parte orders. In the matter before then Evatt CJ and Murray and Gibson JJ the Court held at page 91-027:

   Ex parte orders are dealt with in regulation 42.  That regulation makes it clear that ex parte orders are to operate only until a specified time until further orders of the Court.  The Court is empowered to give directions as to the service of the order and the hearing of an application for further orders.

   That regulation was considered by the Full Court in the case of Sieling & Sieling (1979) FLC 90-627 where reference was made with approval in Ansah & Ansah (1977) at 2 WLR 760. In that case the Court of Appeal emphasised that if an order was made ex parte, it should be limited in time to the shortest possible period which must elapse before a preliminary hearing could be arranged. It is implicit in the decision of Sieling and Ansah that wherever possible short notice of the proceeding should be given to the respondent.

4. This is a matter in which the respondent has disengaged from the proceedings.  She is not paying or otherwise applying the rent received from the (omitted) business to the mortgage over the (omitted) property.  The respondent is in possession of the premises and operating the (omitted) business.  The mortgage has fallen into arrears, and on the evidence of the applicant the respondent is failing to properly operate the business by failing to open it during what might be regarded as the usual trading hours. 

5. In Ansah, the court set out general principles where the Court

   “must be satisfied that the matter is of such urgency that the applicant’s interests or the interests of the child can be protected only by an immediate order.  It is necessary to balance the likelihood of harm to the applicant against the hardship of the respondent of making an order without hearing him.  The more drastic the order, the more grave must be the risk to be averted and the more important the requirement the respondent be heard at the earliest opportunity.

   An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature that the Court cannot wait even the period of time necessary for short service”.

6. The matter comes before the court today in circumstances of urgency where the loan has not only fallen into arrears but is now in collections with the (omitted) Bank.  The evidence suggests the court will seek to move shortly to obtain possession of the property and thereafter exercise their powers as mortgagee in possession and sell the property.

7. The powers to make an order for exclusive occupancy are found at section 114 of the Family Law Act. Section 114 provides that in proceedings of the kind referred to in part E of the definition of “matrimonial cause” the Court may make such order or grant such injunctions as it considers proper with respect to the matters in which the proceedings relate, including an injunction for the personal protection of property to a party of a marriage; an injunction restraining a party to a marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides; restrain a party in the marriage from entering or remaining in a specified area, being an area in which the matrimonial home or the premises in which the other party to the marriage resides are situated; an injunction restraining a party of the marriage from entering the place of work of the other party to the marriage; an injunction for the protection of the matrimonial relationship; an injunction in relation to the property of a party to the marriage, or an injunction relating to the use or occupancy of the matrimonial home.

8. The Full Court of the Family Court referred to matters which should be considered by a court when deciding whether to give a spouse exclusive use or occupation of the matrimonial home in Davis & Davis (1976) FLC 90-062. In that case the Court said:

   “The criteria for the exercise of the power in section 114(1) are simply that the Court may make such order as it thinks proper.  The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either of the party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or asking for the expulsion from the home of the first party.”

   In Plowman & Plowman (1970) 16 FLR 447 Carmichael J set out a long list of considerations in respect of which judgments for the exclusive use or occupation of the matrimonial home under what was said in section 124 of the repealed Matrimonial Causes Act. In that decision Carmichael J held:

   “Among factors which would determine how the discretion is to be exercised are (a) can the wife adequately be housed elsewhere, is money available either from the wife’s own resources or from the husband to provide for the housing, for whom the husband and wife is it less inconvenienced to move away from the matrimonial home, what are the interests of any children to the parties in the matrimonial home, what are the relevant proprietary rights of the spouse, would a non-molestation order be an appropriate alternative to an order for expulsion, is the possible use of improper methods either by way of intimidation or fraudulent condemnation to prevent the wife from pursuing her rights if the spouse continues to reside in one home, the possible injustice of forcing the husband to establish himself another home or otherwise accept inferior accommodation without just cause.”

   In the case of Davis & Davis (1976) FLC 90-062 the Court held that matters that should be taken into account by the Court when deciding on whether to issue an injunction, giving one spouse exclusive use or occupancy, is the conduct of one party where it may justify the other party leaving the home or in asking for the expulsion of the home of the first party.

9. Again, this is a matter where the Property G premises are those of residential premises upstairs and two retail premises downstairs.  The respondent has been in occupation of the premises now for some time.  The mortgage is significantly in arrears.  The mortgage is in a collection phase.  The bank is ready to move and commence proceedings for the purposes of ejecting the parties from the premises and thereafter exercising their rights as mortgagee in possession and selling the premises.  The respondent’s conduct is this:  she has failed to properly pay the rates, she has failed to properly trade the business, having regards to the applicant’s evidence, and she has failed to properly pay the mortgage payments when they fall due.

10. The Court is concerned that when considering the balance of convenience, that whilst there is some inconvenience or hardship to the respondent, the balance of convenience tips in favour of the husband in granting the orders sought by him in that he seeks to go into and trade the business restoring the mortgage, paying the arrears and outstanding rates.  It is highly unlikely in these proceedings that the wife will be cooperative with him and allow him to trade the business with her.  He seeks occupation of the premises so that he can trade the business and use the income derived from the business to do such things as pay the mortgage and bring the rates up out of arrears.  He seeks occupation of the premises so he is ‘on hand’ to be at the business and trade long hours.  He is a person who cannot drive.  Whilst he lives in a property outside of the town, he is unable to drive to the business each day for the purposes of opening the business, trading a business and closing a business.

11. The respondent has failed to engage in these proceedings she is somebody who, on the face of it, is sitting, simply waiting out her time, waiting for the mortgagee to take possession.  By her own actions she has done nothing to prevent the outcome that is now taking place before the Court today.  She has disengaged from her lawyer failing to provide instructions.  She is disengaged from the proceedings failing to appear.  The Court can simply not wait and allow the mortgagee to exercise its rights and take possession and sell the property.  The Court must act protectively preserving the property of the parties. 

12. So having regards to those cases, having regards to the balance of convenience, having regards to the decision in Ansah and Stowe & Stowe, the court finds that the orders sought by the husband are just and equitable in the circumstances, and the Court makes the following orders.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date:  11 June 2015