Lake and Brand

[2014] FamCA 613

FAMILY COURT OF AUSTRALIA

LAKE & BRAND [2014] FamCA 613

FAMILY LAW – PROPERTY – Application for removal of caveat – order made for registrar to sign withdrawal pursuant to s 106A – injunctive orders.

Family Law Act 1975 (Cth) s 106A

APPLICANT: Ms Lake

RESPONDENT: Mr Brand

FILE NUMBER: MLC 5385 of 2013

DATE DELIVERED: 5 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 2 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Wightons Lawyers

THE RESPONDENT: No appearance

ORDERS

IT IS ORDERED BY THE COURT THAT

1. The Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to forthwith sign a Withdrawal of Caveat … lodged by the husband in respect of the property known as and situate at B Street, C Town in the State of Victoria more particularly described in the Certificate of Title Volume … Folio … and do all acts and things necessary to give validity and operation to the said Withdrawal of Caveat.

2. The husband be restrained from lodging or attempting to lodge any caveat or otherwise encumbering the applicant wife’s interest in respect of Certificate of Title Volume … Folio ....

3. By 4.00 pm on 18 July 2014 the husband file and serve upon the wife:

   a)   any response to the wife’s application in a case filed 4 June 2014;

   b)     any affidavit in support of the response; and

   c) a financial statement in accordance with the Family Law Rules 2004.

4. As soon as practicable the wife serve a sealed copy of this order upon the husband by pre-paid post addressed to the husband c/- PO Box …, C Town in the State of Victoria 3224.

5. The wife’s costs of this day be reserved.

6. Liberty be reserved to the wife to apply to have her application in a case filed

   
   

   4 June 2014 proceed on an undefended basis in the event that the husband fails to comply with paragraph 3 of these orders.

7. Reasons be delivered as soon as practicable.

8. The wife’s application in a case filed 4 June 2014 be otherwise adjourned to the Judicial Duty List at 10.00 am on 6 August 2014.

IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lake & Brand 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 5385 of 2013

Ms Lake

Applicant

And

Mr Brand

Respondent

REASONS

1. On 2 July 2014 I made orders appointing a Registrar of this Court to sign a withdrawal of a caveat lodged by the husband over the property at B Street, C Town in the State of Victoria (“the C Town property”) in anticipation of settlement of sale of that property. I otherwise adjourned the wife’s application in a case filed 4 June 2014 for hearing in the Judicial Duty List at 10.00 am on 6 August 2014 and ordered that the husband file and serve upon the wife by 4.00 pm on 18 July 2014 any response to that application, any affidavit in support of the response and a financial statement in accordance with the Family Law Rules 2004. On that date I also ordered that reasons be delivered as soon as practicable. These are those reasons.

2. The wife commenced these proceedings in the Federal Circuit Court on 4 July 2013. That application was personally served upon the husband on 15 July 2013. It was listed for mention on 13 August 2013 and at a further mention of the matter on 30 October 2013 the proceedings were transferred to this Court. The parties attended a conciliation conference on 4 March 2014. The matter was not resolved.

BACKGROUND TO THE WIFE’S APPLICATION

1. The wife is the sole registered proprietor of the C Town property in which the parties lived for some two years prior to separation. Following separation K Lawyers, who initially acted for the husband, lodged a caveat over the property on his behalf. On 13 August 2013 orders were made by Judge Hartnett for the sale of the C Town property.  Although the property had been listed for sale since late 2012, there had been no offers and the property was ultimately listed for sale by public auction on 13 April 2014. I was advised by Ms Smallwood of counsel for the wife that the husband attended the auction on that date. The wife deposes that the property was initially passed in at auction but as a result of subsequent negotiations a contract of sale was executed which provided for settlement to take place on 8 August 2014. According to the wife’s evidence, details of the sale together with a copy of the Particulars of Sale page of the contract were sent to the husband on 22 April 2014.

2. The property was sold for $960,000 and is subject to a mortgage. The current balance of that mortgage is approximately $441,000. The wife deposes that she is presently making both principle and interest payments of in total $3,700 per month. The husband has made no contribution to the mortgage payments since November 2012. The wife lives with the child of the marriage, F, in the property acquired by the parties shortly prior to separation at D Street, E Town (“the E Town property”). The wife makes the loan repayment of $3,270 per month. The wife deposes that she is also meeting all of the costs of F’s attendance at G School.

3. It was submitted on behalf of the wife that although the purchasers had proposed settlement as early as June 2014, that they were not prepared to make the necessary arrangements for settlement in the absence of a withdrawal of the husband’s caveat. An early settlement would, for obvious reasons, benefit the wife, relieving her of the obligation to make the mortgage payments. In any event the contract provides for settlement on 8 August 2014 and it is the wife’s case that the failure to meet her obligations pursuant to the contract could result in financial loss and expense, diminishing the property available for division.

SERVICE

1. On 10 June 2014 the solicitors for the wife forwarded a sealed copy of the wife’s application in a case together with her affidavit in support of that application by registered post addressed to the husband at c/- PO Box …, C Town. This was the address provided by the husband in his email to the wife’s solicitor dated 6 May 2013 in which he advised that he would be representing himself.

2. As the application in a case seeks orders setting aside various transactions between the husband, entities associated with the husband and various members of his family, the application in a case and the affidavit in support were also forwarded to the directors of H Pty Ltd and I Pty Ltd, addressed to them at the registered office of those companies J Street, G Town, and by registered post addressed to the husband’s mother, Ms A Brand. The wife’s solicitor deposes that she has received confirmation that the husband’s mother collected the letter addressed to her at 12.20 pm on 13 June 2014. There was no appearance by or on behalf of the directors of H Pty Ltd, I Pty Ltd, or the husband’s mother at the hearing before me on 2 July 2014. Although there was no appearance by or on their behalf, or for that matter by or on behalf of the husband, the husband’s sister was present in the body of the court. This might be coincidental although it seems more likely than not that the outcome of the proceedings will be brought to the attention of at least some of the named respondents.

3. Although the husband has not collected the sealed copy of the application in a case or the affidavit in support, on 22 April 2014 the wife’s solicitor wrote to the husband c/- PO Box …, C Town, enclosing a withdrawal of caveat for him to sign and advising that the proceeds of sale would be held in an interest bearing account on behalf of the husband and the wife and that in the event that he did not sign the withdrawal of caveat that an application would be made to have a Registrar of this Court sign that withdrawal on his behalf.

4. On 5 May 2014 the wife’s solicitors wrote to K Lawyers requesting that they prepare a withdrawal of caveat. On 8 May 2014 they received a reply from K Lawyers advising that they no longer acted on behalf of the husband and in those circumstances any enquires would need to be directed to the husband. The solicitor for the wife further deposes that on 28 May 2014, prior to filing the wife’s application, she forwarded an email to the husband advising him that the purchasers wished to bring settlement forward and requesting that he sign the withdrawal of caveat previously forwarded to him and further advising him of the wife’s intention to apply to have a Registrar sign the withdrawal of caveat on his behalf in the event that he did not return the signed document within the next 7 days.

5. On 29 May 2014 the wife’s solicitor received a reply by email from the husband in which he said as follows:

   Dear [Ms Lake]. I apologise in advance but the only expression I can find to suit your ongoing threats of legal action is …

   “GO GET FUCKED”

   Kind Regards

   [Mr Brand]

6. Finally, the wife relied upon the email forwarded by her solicitor to the husband on 1 July 2014, in which her solicitor said as follows:

   Dear Sir,

   We refer to our correspondence which was posted to you on the 10^th June, 2014. We enclose a copy of that correspondence together with unsigned and unsealed copies of the documents enclosed therein.

   We confirm the Application in a Case will be proceeding before the Family Court of Australia on Wednesday, 2^nd July 2014 at 10.00 a.m.

   We note that you did not attend the hearing of the Application for Divorce listed on the 30^th June, 2014.

   Regards

   Ms L

THE CAVEAT

1. I am satisfied that even if the husband has not collected the documents sent to him by registered mail on 1 June 2014 he is aware of the sale of the C Town property, the proposal to bring settlement forward, the request for him to provide a withdrawal of the caveat lodged on his behalf, that he was provided with a withdrawal of caveat for signing, and that he is aware of the proceedings listed for hearing before me. The husband did not file a notice of appeal against the orders providing for a sale nor has he sought to impose any conditions or restrictions upon that sale or to set aside the contract of sale entered into by the wife. In all of the circumstances, I am satisfied that I should make the orders sought by the wife with respect to the withdrawal of the caveat lodged by the husband so that the wife can attend to settlement of the sale in accordance with the contract.  

2. The wife also sought an order restraining the husband from lodging any caveat or otherwise encumbering the wife’s interest in the C Town property. Although it was conceded by counsel for the wife that the husband’s caveat, having been withdrawn, could not be re-lodged, the wife was concerned about the delays that might be caused by any attempt by the husband, not understanding that to be the case, to lodge a further caveat. There are extant orders for the sale of the C Town property and the investment of the net proceeds of sale. As envisaged by those orders, once settlement of the sale of the property has been completed the proceeds of sale will be preserved pending further order. In the circumstances of this case the order sought by the wife does not prejudice the husband.

OTHER ORDERS

1. The orders sought by the wife in her minute of proposed orders included orders setting aside the transactions between the husband and his family members and the associated entities. Although that application and the wife’s affidavit in support have been served by pre-paid post upon the registered offices of the companies in question affected by those orders and by registered mail upon the husband’s mother, in my view these aspects of the wife’s application do not have the same degree of urgency.

2. In those circumstances and given that it is acknowledged by the wife that the husband is presently sailing somewhere between Sydney and Melbourne, I propose to allow the husband time to respond to the application and adjourn the matter for further hearing in the Judicial Duty List on 6 August 2014.  I have however reserved liberty to apply to the wife to have her application proceed on an undefended basis in the event that the husband fails to comply with paragraph 3 of my orders with respect to the filing of answering material.

3. Finally, the wife in her proposed minute of orders also sought an order that $300,000 of the proceeds of sale of the C Town property be applied to the reduction of the mortgage over the E Town property.

4. Although not referred to in her affidavit the wife has now been advised by the Bank that, the mortgages over the two properties being connected, it intends to apply some of the proceeds of sale of the C Town property to the reduction of the mortgage over E Town. There is no evidence before me as to how much the bank proposes to take at settlement however even if settlement has not taken place by the adjourned date the wife should be in a position by the next hearing to adduce evidence in relation to the bank’s position and the effect upon her ongoing payment of any reduction in the mortgage over the E Town property. Given the matter has been adjourned for further hearing on 6 August 2014 there is likely to be little detriment to the wife in adjourning this aspect of her application to that date.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 5 August 2014.

Associate: 

Date:  5 August 2014