Karbines & Karbines

[2009] FamCA 362

FAMILY COURT OF AUSTRALIA

KARBINES & KARBINES [2009] FamCA 362

FAMILY LAW – PROPERTY SETTLEMENT – Enforcement of orders – orders sought by the wife appropriate to give effect to the final orders previously made

FAMILY LAW – COSTS – conduct of the husband – where the husband has ignored orders of the Court and failed to respond to correspondence – costs on an indemnity basis justified

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Karbines

RESPONDENT: Mr Karbines

FILE NUMBER: MLF 2479 of 2005

DATE DELIVERED: 7 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 7 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.L. Jordan

SOLICITOR FOR THE APPLICANT: Maddens Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Self-Represented

Orders

1. The wife has the conduct of the sale of the property at Y Street, G, in the State of South Australia and shall be at liberty to:

   (a)obtain a licensed valuation or market appraisal and fix an advertised or asking price;

   (b)instruct a selling agent of her choosing to conduct the sale by private treaty or public auction or otherwise as she shall solely determine and sign an agency agreement to give effect thereto;

   (c)obtain vacant possession at her sole discretion;

   (d)execute a contract for sale for and on behalf of L Pty Ltd upon such terms and conditions as she shall determine.

2. The husband or his servants or agents are restrained from:

   (a)entering upon or remaining in the vicinity of the property at Y Street, G in the State of South Australia save as otherwise agreed in writing with the wife;

   (b)in any way interfering with the sale of the said property.

3. A Registrar of the Court is authorised to execute a Memorandum of Transfer for and on behalf of L Pty Ltd and any other documents necessary to give effect to the settlement of the sale.

4. The husband pay the wife’s costs on an indemnity basis.

5. All matters are removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2479 of 2005

MS KARBINES

Applicant

And

MR KARBINES

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the Application in a Case filed by the wife on 24 April 2009, in which she seeks orders which can be described as enforcement of the final orders that I made in this matter when I delivered judgment after a lengthy hearing concerning final property settlement proceedings.

2. My final order specifically gave the husband an opportunity to take steps to discharge the security over the Y Street property so that the wife was released from any guarantees in relation to that property and the debts owing in relation to the various entities, but it is clear from the affidavit which is now before me from the wife's solicitors that he has not availed himself of that opportunity.  Specifically, the order I made on 19 December provided:

   “That the husband and wife, as sole shareholders of [L] Pty Ltd, do all things to ensure the sale of the real property at [Y Street, G], and, upon sale, the costs of sale and all moneys payable to Westpac in relation to the company or other entities be paid, with the balance, if any, to go back to the company, [L] Pty Ltd”.

3. The provisions of the order, however, gave the husband 28 days to take steps to discharge the mortgage and take steps to have the wife released from all claims.  That would have prevented the orders for sale coming into effect.

4. The affidavit before me from the wife's solicitors clearly indicates that the wife's solicitors have made attempts to obtain some sort of response or information from the husband as to his proposals concerning the property but they have received no cooperation or information whatsoever.

5. The orders which the wife now seeks would enable the orders I have already made to be put into effect.  Obviously the difficulties previously faced by the wife and her legal advisers are clear from the judgments I have already given in this matter.

6. The husband was served with these proceedings by email, post and facsimile on 28 April 2009.  He is not in attendance today and is not represented.  My Court officer attempted to find out his whereabouts and whether he wished to attend by telephone, as he has done in the past, although there has been no application to the Court for the husband to attend by telephone link.  When the Court officer telephoned his mobile telephone number he was told that the husband was overseas.  When the Court officer dialled the landline number given for the husband it went to an answering machine.  I have therefore proceeded to hear the matter, due to the default of the husband in either attending or filing any appropriate documents in relation to this application.

7. In view of the history of the matter and the material set out in the solicitor's affidavit, the orders which are sought by the wife are appropriate to give effect to the final orders already made, for the reasons already given in my judgment concerning the final orders.

8. The wife seeks an order that the husband pay the wife's costs of this application on an indemnity basis. 

9. The reasons previously given in relation to costs also apply to this application. The behaviour of the husband in ignoring my orders and failing to respond to the requests of the wife form a basis under section 117 (being the conduct of the husband) to justify an indemnity order being made because of the extreme and ongoing conduct namely, the husband's failure to respond to the Court orders or the correspondence from the wife's solicitors.

10. I have suggested that paragraph 2(a) be slightly amended by adding the words "save as otherwise agreed in writing with the wife" so far as it relates to the servants or agents remaining on the property at Y Street. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  11 May 2009