Ipsen & Ipsen
[2024] FedCFamC2F 692
•21 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ipsen & Ipsen [2024] FedCFamC2F 692
File number(s): DGC 2961 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 21 May 2024 Catchwords: FAMILY LAW – enforcement of property orders – agreement to give defaulting party another chance to comply with orders – orders for cancellation of title to land pressed by consent Legislation: Transfer of Land Act 1958 (Vic) s 27B(6) Division: Division 2 Family Law Number of paragraphs: 24 Date of last submission/s: 21 May 2024 Date of hearing: 21 May 2024 Place: Melbourne Counsel for the Applicant: Mr McLeod Solicitor for the Applicant: Johnstone and Reimer Lawyers Solicitor for the Respondent: Queenie Thompson and Associates ORDERS
DGC 2961 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS IPSEN
Applicant
AND: MR IPSEN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 MAY 2024
THE COURT ORDERS BY CONSENT THAT:
1.That the Respondent Husband make immediate payment of $237,500 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 1 September 2023 to the Applicant Wife (“the Primary Payment”).
2.That the Respondent Husband make immediate payment of:
(a)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 September 2023 to the Applicant Wife;
(b)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 October 2023 to the Applicant Wife;
(c)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 November 2023 to the Applicant Wife;
(d)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 December 2023 to the Applicant Wife;
(e)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 January 2024 to the Applicant Wife;
(f)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 February 2024 to the Applicant Wife;
(g)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 March 2024 to the Applicant Wife;
(h)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 April 2024 to the Applicant Wife.
(i)$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 May 2024 to the Applicant Wife.
(j)Such further payments pursuant to order 3(f) of the orders made 4th May 2023 with interest as and when such payment falls due.
(“the Secondary Payment”).
3.That within 7 days of the date of these Orders the Respondent Husband do all things and sign all things to give effect to Orders 2, 3f, 9b, 11, 12, 18, 19, 24 and 25, of the Final Property Orders made on 4 May 2023 (“the Final Property Orders”).
4.That within 7 days of these Orders the Respondent Husband vacate the Suburb H Property and provide vacant possession to the Applicant wife.
5.Should the Respondent Husband fail to comply with Order 4 herein, a warrant for possession of the property be immediately issued by the relevant authority and enforced as soon as practicable.
6.That within 48 hours the Respondent Husband provide Certificates of Title of the Suburb D property and Suburb E property to the wife, or evidence of the location of said Certificates if held as surety.
7.That the Applicant Wife, have the authority to and do all things necessary and sign all documents as may be necessary to affect the sales of the Suburb D property and the Suburb E property and the proceeds of sales (“the sale proceeds”) to be applied as follows:
(a)Firstly, to pay all costs, commissions and other expenses of the sale;
(b)Secondly, to discharge the mortgage registered against the Suburb H Property and any other encumbrances over the property;
(c)Thirdly, the balance to the Applicant Wife until all funds owed by the Respondent Husband to the Applicant Wife in accordance with these Orders have been paid; and
(d)Fourthly the Wife’s costs pursuant to Order 10 hereof; and
(e)Finally, the balance to the Respondent Husband.
8.That the balance of the Orders made 4 May 2023 remain in full force and effect.
9.Each of the parties be otherwise restrained from further encumbering the Suburb E Property, the Suburb H Property and or the Suburb D Property save to give effect to these orders.
10.That the Respondent Husband pay the Applicant Wife’s agreed costs and in default of agreement her taxed costs of and incidental to this Application, such payment to be made from the sale proceeds prior to payment to the Husband.
11.The Court orders the Registrar of Titles for the State of Victoria to cancel folio of the Register: Volume … Folio … containing the land in Lot … on Plan of Subdivision … (the Suburb D Property).
12.The Court orders the Registrar of Titles to create a new folio of the Register and Electronic Certificate of Title for the land in Lot … on Plan of Subdivision ….
13.The Court finds and declares for the purposes of subsection 27B(6) of the Transfer of Land Act 1958 that the Applicant Wife or their Australian legal practitioner is the person entitled to control of the electronic Certificate of Title to be created pursuant to Order 12.
14.The Court orders the Registrar of Titles for the State of Victoria to cancel folio of the Register: Volume … Folio … containing the land in Lot … on Plan of Subdivision … (the Suburb E Property).
15.The Court orders the Registrar of Titles to create a new folio of the Register and Electronic Certificate of Title for the land in Lot … on Plan of Subdivision ….
16.The Court finds and declares for the purposes of subsection 27B(6) of the Transfer of Land Act 1958 that the Applicant Wife or their Australian legal practitioner is the person entitled to control of the electronic Certificate of Title to be created pursuant to Order 15.
17.In the event the Husband, has prior to 4.00pm on 14 July 2024;
(a)Made all the payments in these orders in full to the wife (as of 14 July 2024 approximately $275,000);
(b)Transferred the real property at F Street, Suburb H, more particularly described in certificate of title volume … Folio … (“The Suburb H Property”) unencumbered to the Wife;
(c)Vacated the Suburb H Property and provided all copies of all keys to the Wife;
(d)Discharged all and any mortgages, (including but not limited to G Pty Ltd Mortgage No. …) or encumbrances affecting the Suburb H Property;
(e)Discharged all rates, payments, outgoings, land tax and any other sum owing with respect to the Suburb H property; and
(f)Otherwise complied with all his obligations pursuant to these orders and the orders of 4 May 2023,
The Wife will halt the sale process and the parties will otherwise do all things necessary to abide by the 4th May 2023 orders.
18.Certify for Advocacy.
AND THE COURT NOTES THAT THE PARTIES AGREE THAT:
A.Nothing in these orders (and especially Order 17) prohibits the wife from initiating the sales, transfers, cancellation of titles or any other step or provision of these orders.
B.For the avoidance of doubt compliance with orders 11 to 16 is to commence forthwith.
C.The Suburb D property shall be listed for sale in mid-2024 (but will not enter into a sale until after mid-2024)
D.That at Settlement contemporaneously with the Primary Payment and spousal maintenance from 1 September 2023 plus interest and the transfer of the Suburb H Property The Applicant shall forthwith remove the caveats over Suburb D and Suburb E.
E.The Applicant shall provide a General Authority for the Country J properties only in favour of only the Respondent and cancel the general authority in favour of her brother at settlement.
F.The Applicant shall provide to the Respondent the marriage certificate at settlement.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
In the matter of Ipsen, the applicant wife, Ms Ipsen (‘the Wife’), is 67 years of age and is retired. The respondent husband, Mr Ipsen (‘the Husband’), is 71 years and also retired. The parties married in Country J in 1977 and thereafter lived, at some point, in Australia. They separated in August 2019 and property alteration proceedings were issued in this Court on 27 August 2021.
An application for enforcement of orders made on 4 May 2023 comes before me this day. On 4 May 2023, by consent, orders were made that included the following:
The Payment
1.Within one hundred and twenty (120) days of the date hereof (“the Payment Date”), the Respondent Husband pay the sum of $237,500 to the Applicant Wife (“the Payment”).
The [Suburb H] Property
2.Within one hundred and twenty (120) days of the date hereof (“the [Suburb H] Transfer Date”) the Respondent Husband shall do all such acts and things and sign all things as may be necessary to:
a)Transfer his right, title and interest in the property known as and situate at [F Street, Suburb H], more particularly described in Certificate of Title Volume […] Folio […] (‘the [Suburb H] Property’) to the Applicant Wife at her expense; and
b)Repay and discharge mortgage registered to [G Pty Ltd] Mortgage No. […] (“the Mortgage”) and any other encumbrances upon the [Suburb H] Property at his sole expense (“the [Suburb H] Transfer”).
…
4.No later than seven (7) days prior to the [Suburb H] Transfer, the Respondent Husband must provide to the Applicant Wife vacant possession of the [Suburb H] Property including:
a)removing all chattels and personal possessions which he wishes to retain;
b)leaving the property clean and in good repair including all fixtures and fittings remaining in place.
…
[K Pty Ltd]
6.That within 14 days of the completion of orders 1, 2 and 3 hereof, the Applicant Wife shall do all such acts and things and sign all such documents as may be necessary to transfer her shareholding in [K Pty Ltd] to the Respondent Husband and otherwise relinquish any interest she may have, or any office she may hold, in the following:
a)[K Pty Ltd];
b)The [Ipsen] Family Trust; and
c)The [Ipsen] Self-Managed Superannuation Fund (collectively, “the Business Entities”).
7.That the Respondent Husband shall retain the Business Entities and indemnify the Applicant Wife in relation to all liabilities associated with the Business Entities (or either of them) including but not to limited to any past, present and future taxation liabilities and outgoings associated with the Real Properties of the Business Entities (also referred to hereof as the “[Suburb D] Property” and the “[Suburb E] Property”).
…
[Country J] Properties
9. That within one hundred and twenty (120) days of the date hereof:
a)the Applicant Wife shall do all such acts and things and sign all such documents, including but not limited to attending the [Country J] Embassy, as may be necessary to transfer her interest in the properties held jointly by the parties in the country of [Country J] known as and situate at:
i.[Country J] Property No. […] of [City L]; and
ii.[Country J] Property No. […] of [City M] (collectively, “the [Country J] Properties”)
to the Husband, at the Husband’s sole expense.
b)For the purpose of order 9(a) hereof and the avoidance of doubt, the Husband shall be responsible for the preparation of all necessary documents required to complete these transfers and shall provide same to the Wife’s solicitors no later than 14 days prior to requiring her signature upon same (“the [Country J] Transfers”).
…
Default of Order 1
11.Should the Respondent Husband fail to make the Payment in full by the Payment Date pursuant to order 1 hereof, the parties shall jointly do all such acts and things and sign all such documents as may be necessary to place the property known as and situate at [B Street, Suburb D] in the State of Victoria, more particularly described in Certificate of Title Volume […] Folio […] (“the[Suburb D] Property”) on the market for sale within 30 days of the Payment Date (“the Default Sale of [Suburb D]”).
…
13.That upon settlement of the Default Sale of the [Suburb D] property, the proceeds of sale shall be distributed as follows:
a)Firstly, to pay all costs and commissions associated with the Default Sale of [Suburb D];
b)Secondly, to pay to the Applicant Wife however so much of the Payment as is outstanding pursuant to order 1 hereof, in addition to interest on same at the rate outlined by rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021;
c)The balance to be retained by (a company owned by the husband)
…
16.Should the Husband refuse or neglect to sign or execute or return a document within seven (7) days of written request to do so to give effect to orders 11, 12 and 13 hereof, pursuant to s.106A of the Family Law Act 1975 (Cth), the Applicant Wife and/or her legal representatives shall be authorised to execute all documents in the name of and on behalf of the Husband (personally or as Officer Holder of [K Pty Ltd] including in its capacity as Trustee) as are required to give effect to the [Suburb D] Default Sale, including but not limited to all Duties Online forms and PEXA Authorisations.
Default of Order 2(a)
17.Should the Husband refuse or neglect to sign or execute or return a document within 7 days of written request to do so to give effect to order 2 (a) hereof, pursuant to s.106A of the Family Law Act 1975 (Cth), the Applicant Wife and/or her legal representatives shall be authorised to execute all documents in the name of and on behalf of the Husband as are required to give effect to the [Suburb H] Transfer, including but not limited to all Duties Online forms and PEXA Authorisations.
Default of Order 2(b)
18.Should the Respondent Husband fail to comply with order 2(b) hereof, then the parties shall jointly do all things and sign all things as may be necessary to place the property known as and situate at [C Street, Suburb E] more particularly described in Certificate of Title Volume […] Folio […] (“the [Suburb E] Property”) on the market for sale no later than 30 days after the [Suburb H] Transfer Date.
…
20.That upon settlement of the Default Sale of the [Suburb E] Property, the proceeds of sale shall be distributed as follows:
a)Firstly, to pay all costs and commissions associated with the Default Sale of [Suburb E];
b)Secondly, to repay and discharge the Mortgage and any other encumbrances upon the [Suburb H] Property;
c)The balance to be retained by [K Pty Ltd].
…
23.Should the Husband refuse or neglect to sign or execute or return a document within seven (7) days of written request to do so to give effect to orders 18,19 and 20 hereof, pursuant to s.106A of the Family Law Act 1975 (Cth) the Applicant Wife and/or her solicitors shall be authorised to execute all documents in the name of and on behalf of the Husband (personally or as Officer Holder of [K] Pty Ltd including in its capacity as Trustee) as are required to give effect to the [Suburb E] Default Sale, including but not limited to all Duties Online forms and PEXA Authorisations.
…
As is intended and contemplated by the scheme of the Act, and common sense, the parties – both represented by solicitors experienced in family law property division – reached agreement and asked the Court to make those orders by consent. The orders are as recited above. Those orders were made by consent before Judge Howe, with both parties represented by solicitors and counsel. It is clear by the detail in the orders that much thought was given to them.
Those orders provide for a number of things, but the broad scheme was that the Wife was to retain the Suburb H property and to receive a payment of $237,500. She was to receive the Suburb H property unencumbered, but now it is encumbered by a mortgage in the approximate terms of $1.1 million, though it is worth substantially more than that.
The orders provide that in default of a payment being made, the property known as the Suburb D property was to be sold and the proceeds applied to the payment, and then otherwise to the Husband, or as he directs. The Suburb D property is a property– where the registered proprietor is K Pty Ltd.
K Pty Ltd is a company conducted during the marriage of the Husband and Wife for, at least, the purposes of holding real estate. It is common ground in the proceedings before me today that K Pty Ltd is, and can be considered, the alter ego of the Husband. That is, it is, in substance, his vehicle to deal with subject to the law, but as he pleases, and he does not need to consult any other person. It is common ground before me that as at today – however it arose – the Husband is the sole director of that company and sole shareholder. The orders of 4 May 2023 were made on the basis that the company, if it was not already, would become the sole property of the Husband, it being the Husband's alter ego. This was confirmed by order number 6 recited above, whereby in the event the Wife had any interest in that property, she was to relinquish same and transfer all her shareholding and interest that she had in that company to the Husband.
The orders also provided a scheme whereby the Husband was to retain the company and other entities that had been conducted by the Husband and the Wife during their married life together. And so the husband was to retain the company, and a family trust and a self-managed superannuation fund. Those three entities were described as the business entities and were to be retained by the Husband absolutely, to the extent that can happen consistent with law, and he was to indemnify the Wife in regard to any claim arising from those companies. It was clear by the orders that the Wife would not retain any interest in those business entities and that she would relinquish any such interest and/or transfer it to the Husband.
The company also owns, or is the registered proprietor of, property known in these proceedings as the Suburb E property. The Suburb E property is a real estate property at C Street, Suburb E. The title search for the Suburb E property was adduced into evidence this afternoon and marked ‘D’, along with the title search for the Suburb D property, marked ‘C’. They show that the sole proprietor of both properties is K Pty Ltd and that there is no encumbrance, caveat or notice concerning those properties, save for caveats lodged by the Wife who is claiming an implied resulting or constructive trust and purporting to prohibit any dealing with those properties absolutely.
The caveat in regard to the Suburb D property was lodged in late 2019, and the caveat in regard to the Suburb E property was lodged on the same day. Hence, as and from late 2019, the whole world has been aware of the Wife's claim of an interest in that property and are on notice of her claims in regard to that property.
The proceedings before me were interrupted when I made inquiries as to the nature of any other person's interest in the Suburb D or Suburb E properties. I was told, and I accepted (and it has been corroborated by the title searches provided as exhibits C and D, as undertaken respectively at 3.07 and 3.12 pm this day) that no person has any interest in those properties save for K Pty Ltd and the caveat claimed by the Wife.
I made enquiries as to whether there was any equitable mortgage, or claim by anyone, or knowledge of the titles – to either the Suburb E property or the Suburb D property – being lodged with anyone as security for any advance. The solicitor for the Husband took instructions and, when the matter resumed before me, was able to confirm that her instructions were that no person held those titles by way of security or otherwise.
Cancellation of Titles
It is common ground that, as at today, the Husband either has the titles in his possession, or he has them in his power, or he could obtain them into his power or possession if he wished. The unhappy compromise reached in consent orders before me today have a scheme whereby (notwithstanding orders that the Husband deliver up the titles to the Suburb D and Suburb E properties that are in his power or possession, they being the titles where his alter ego, K Pty Ltd, is the registered proprietor) the titles to Suburb E and Suburb D will be cancelled and, following my declaration or order, that the person entitled to those certificates is, as of today, the Wife. The Wife would, and is, as of today, effectively the trustee for sale of those properties for the purpose of having the orders that were consented to on 4 May come to pass. Because the orders that I am requested to make are ordering an otherwise independent state government position, the Registrar of Titles, to do certain actual things, I have been cautious in making such an order.
The common ground position of the proceedings conducted before me is important to me, and I place significant weight on the care with which the respective lawyers have conducted the case, notwithstanding the emotional load that each party bears. It is clear that the Husband is at least irritated, if not upset, at the prospect of having to come to court, to pay lawyers, to negotiate on an enforcement application, when he says he is doing his best to comply with the orders, to ensure that the payment is made and the Suburb H property transferred to the Wife when the mortgage encumbering that property is discharged. That he will make the payments of $2000 per month plus penalty interest as calculated in accordance with the regulations. It is clear that the position that he finds himself in is one of a burden to him. These orders are made on the basis that he is bona fide doing what he can to comply with those orders. The Wife comes before the Court also with a significant burden, and that is the burden of having applied to the Court to enforce the orders that were made by consent back on 4 May 2023.
I am satisfied from the common ground position of the lawyers before me, that the registered proprietor of the Suburb D property and the Suburb E property is well and truly on notice of these proceedings, and on constructive notice by the circumstance that the Husband is the sole director and sole shareholder of the company, and he presses, by his consent to the orders of 4 May 2023 and by his consent to the orders being made before me this day, that he is the alter ego and the controlling force and arm behind K Pty Ltd. I accept that position that he puts before me because the registered proprietor is, in substance, the Husband, and has, in any event, constructive notice of these proceedings, and because it is in the Husband's power as the controlling mind, sole director and sole shareholder to have the company comply with these orders.
If the Husband delivers the titles
The orders are also pressed to be made on the clear common ground position that in the event the Husband complies with paragraph 6 in regard to the Certificates of Title of the Suburb D and Suburb E properties and delivers them to the Wife (of course, if they were delivered to her solicitors prior to the payment being made, they would be delivered on trust pursuant to these orders) the Wife would hold those properties on trust pursuant to the orders that I am asked to make this day, just like the Husband holds his controlling interest in K Pty Ltd on trust pursuant to the orders made on 4 May 2023 and the orders made this day. Hence, unsurprisingly, the orders are pressed before me on the common ground scheme that upon the Husband complying with order number 6 of the orders pressed, the Wife would cease to pursue the cancellation of the title and would request the Registrar of Titles to desist.
In the event that the Registrar of Titles provides the replacement titles to the Wife prior to the payment being received, or at any point after it, these orders are also pressed on the basis that the new titles would be immediately handed over to the Husband, or at his direction, and likely to be handed over either on trust or otherwise to facilitate the further borrowings that he is attempting to make to comply with the orders and discharge the mortgage. In other words, though the Wife will be entitled to the titles pursuant to section 27B(6) of the Transfer of Land Act 1958 (Vic) (‘TLA’), she holds those titles on trust for sale, or alternatively on trust to deliver up to the Husband immediately and contemporaneously upon the payment being made. Section 27B of the TLA provides that:
(6)The Registrar must provide each certificate of title produced under this section to the person entitled to it.
The other scheme within the orders is that if the replacement titles are available to the Wife prior to a settled contract of sale, everyone would be bound by those contracts. Hence, on the scheme intended by the parties, and they having persuaded me that I should make those orders, I cannot see any prejudice to any third party, apart from the trouble and duties to be undertaken by the Registrar of Titles.
It is also common ground that these orders contemplate that the Wife will do all acts and things to cooperate with the Husband in the obtaining of the finance. That begs the question of why the Husband has not already handed over the titles. On other evidence available to me, he was concerned at one point about the Wife's compliance with orders relating to the transfer of the Country J properties. I do not have to decide today why the Husband has not handed over the titles, because it is the common ground position that the unhappy compromise of the orders that I am pressed to make deal with that. There being consequences if order 6 is not satisfied.
I am also satisfied that in the event that these orders were to lead to a miscarriage of justice to any person, that either the Registrar of Titles or the affected person would have standing to make application to vary or set them aside to avoid such miscarriage. However, I place significant weight on the circumstance that, as at this afternoon, there is no apparent quarrel with the title to the properties, including the caveats lodged by the Wife back in late 2019.
I also add that I raised with the parties whether the Registrar of Titles should be a party to these proceedings. The Registrar had helpfully and courteously provided information to the parties, by way of a letter to the Wife's solicitor on or about 3 April 2024, that is exhibit ‘I-003’ to the Wife's affidavit filed 13 May 2024. The parties tell me, and I accept, that these orders are an attempt to follow the helpful guidance of the Registrar of Titles to solving the conundrum that they are in. I am satisfied that the Registrar of Titles is aware of the controversy and indeed the litigation between the parties. In those circumstances, I am satisfied that the Registrar of Titles has notice of the proceedings and that it is unnecessary to insist that the Registrar of Titles be joined as a party to the proceedings. I am told, and I accept, that the parties understand, hopefully correctly, that the Registrar of Titles would prefer not to be joined as a party to the proceedings.
The orders pressed by the parties this day are as follows:
1.That the Respondent Husband make immediate payment of $237,500 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 1 September 2023 to the Applicant Wife (“the Primary Payment”).
2. That the Respondent Husband make immediate payment of:
a.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 September 2023 to the Applicant Wife;
b.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 October 2023 to the Applicant Wife;
c.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 November 2023 to the Applicant Wife;
d.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 December 2023 to the Applicant Wife;
e.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 January 2024 to the Applicant Wife;
f.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 February 2024 to the Applicant Wife;
g.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 March 2024 to the Applicant Wife;
h.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 April 2024 to the Applicant Wife.
i.$2,000 plus interest in accordance with Section 117B of the Family Law Act 1975 (Cth), with such interest accruing daily from 15 May 2024 to the Applicant Wife.
j.Such further payments pursuant to order 3(f) of the orders made 4th May 2023 with interest as and when such payment falls due.
(“the Secondary Payment”).
3.That within 7 days of the date of these Orders the Respondent Husband do all things and sign all things to give effect to Orders 2, 3f, 9b, 11, 12, 18, 19, 24 and 25, of the Final Property Orders made on 4 May 2023 (“the Final Property Orders”).
4.That within 7 days of these Orders the Respondent Husband vacate the [Suburb H] Property and provide vacant possession to the Applicant wife.
5.Should the Respondent Husband fail to comply with Order 4 herein, a warrant for possession of the property be immediately issued by the relevant authority and enforced as soon as practicable.
6.That within 48 hours the Respondent Husband provide Certificates of Title of the [Suburb D] property and [Suburb E] property to the wife, or evidence of the location of said Certificates if held as surety.
7.That the Applicant Wife, have the authority to and do all things necessary and sign all documents as may be necessary to affect the sales of the [Suburb D] property and the [Suburb E] property and the proceeds of sales (“the sale proceeds”) to be applied as follows:
a.Firstly, to pay all costs, commissions and other expenses of the sale;
b.Secondly, to discharge the mortgage registered against the [Suburb H] Property and any other encumbrances over the property;
c.Thirdly, the balance to the Applicant Wife until all funds owed by the Respondent Husband to the Applicant Wife in accordance with these Orders have been paid; and
d.Fourthly the Wife’s costs pursuant to Order 10 hereof; and
e.Finally, the balance to the Respondent Husband.
8.That the balance of the Orders made 4 May 2023 remain in full force and effect.
9.Each of the parties be otherwise restrained from further encumbering the [Suburb E] Property, [Suburb H] Property and or the [Suburb D] Property save to give effect to these orders.
10.That the Respondent Husband pay the Applicant Wife’s agreed costs and in default of agreement her taxed costs of and incidental to this Application, such payment to be made form the sale proceeds prior to payment to the Husband.
11.The Court orders the Registrar of Titles for the State of Victoria to cancel folio of the Register: Volume […] Folio […] containing the land in Lot […] on Plan of Subdivision […] (the [Suburb D] Property).
12.The Court orders the Registrar of Titles to create a new folio of the Register and Electronic Certificate of Title for the land in Lot […] on Plan of Subdivision […].
13.The Court finds and declares for the purposes of subsection 27B(6) of the Transfer of Land Act 1958 that the Applicant Wife or their Australian legal practitioner is the person entitled to control of the electronic Certificate of Title to be created pursuant to Order 12.
14.The Court orders the Registrar of Titles for the State of Victoria to cancel folio of the Register: Volume […] Folio […] containing the land in Lot […] on Plan of Subdivision […] (the [Suburb E] Property).
15.The Court orders the Registrar of Titles to create a new folio of the Register and Electronic Certificate of Title for the land in Lot […] on Plan of Subdivision […].
16.The Court finds and declares for the purposes of subsection 27B(6) of the Transfer of Land Act 1958 that the Applicant Wife or their Australian legal practitioner is the person entitled to control of the electronic Certificate of Title to be created pursuant to Order 15.
17.In the event the Husband, has prior to 4.00pm on 21st June;
a.Made all the payments in these orders in full to the wife (as of 21st May 2024 approximately $275,000);
b.Transferred the real property at [F Street, Suburb H], more particularly described in certificate of title volume […] Folio […] (“The [Suburb H] Property”) unencumbered to the Wife,
c.Vacated the [Suburb H] Property property and provided all copies of all keys to the Wife,
d.Discharged all and any mortgages, (including but not limited to [G Pty Ltd] Mortgage No. […]) or encumbrances effecting the [Suburb H] Property,
e.Discharged all rates, payments, outgoings, land tax and any other sum owing with respect to the [Suburb H] property,
f.Otherwise complied with all his obligations pursuant to these orders and the orders of 5th May 2024,
The Wife will halt the sale process and the parties will otherwise do all things necessary to abide by the 4th May 2023 orders.
18. Certify for Advocacy.
AND THE COURT NOTES:
A)Nothing in these orders (and especially Order 17) prohibits the wife from initiating the sales, transfers, cancellation of titles or any other step or provision of these orders.
B)For the avoidance of doubt compliance with orders 11 to 16 is to commence forthwith.
C)The [Suburb D] property shall be listed for sale [in mid] 2024 (but will not enter into a sale until after [mid] 2024)
D)That at Settlement contemporaneously with the Primary Payment and spousal maintenance from 1 September 2023 plus interest and the transfer of the [Suburb H] Property The Applicant shall forthwith remove the caveats over [Suburb D] and [Suburb E].
E)The Applicant shall provide a General Authority for the [Country J] properties only in favour of only the Respondent and cancel the general authority in favour of her brother at settlement.
F)The Applicant shall provide to the Respondent the marriage certificate at settlement.
I note the form of orders 11 through to 16 is an attempt by the parties to follow the guidance of the Registrar of Titles, and, indeed, the Registrar did point the parties to section 27B(6) of the TLA at item C of her email.
I also raised with the parties today that there is nothing in the original orders that gives some sort of quid pro quo of, “I do not comply with the orders because I do not think you have complied with the order”, and “I would not comply with the orders because I think you might not comply with the order”.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 June 2024
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