Macasieb v Macasieb

[2018] NSWSC 23

Supreme Court

New South Wales

Medium Neutral Citation:

Macasieb v Macasieb [2018] NSWSC 23

Hearing dates:

30 January 2018

Date of orders:

30 January 2018

Decision date:

30 January 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the Plaintiff for possession of the land comprised in Folio 1/SP32823 being the land situated at and known as 1/247 Parramatta Road, Annandale NSW 2038.

 

2. Judgment for the Defendant for possession of the land comprised in Folio 3/2104 being the land situated at and known as 256 Young Street, Annandale NSW

 

3. Leave to each of the Plaintiff and Defendant to issue a writ of possession forthwith to enforce the judgment each party has obtained but neither writ is to be executed before 13 March 2018.

 4. No order as to costs of the proceedings to the intent that each party is to pay his or her own costs.

Catchwords:

REAL PROPERTY – possession of land – Family Court orders - husband and wife each ordered to give possession of land that the other party was occupying – failure to comply with Family Court orders – orders for possession sought in Supreme Court – no defence by either party to orders sought – whether lengthy stay should be given to execution of writs of possession – hardship – failure of parties to apply to Family Court under “liberty to apply” provision in the orders – length of time since Family Court orders - orders for possession made with leave to issue writs of possession

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Principal judgment

Parties:

Geronico Macasieb (Plaintiff)
Letty Macasieb (Defendant)

Representation:

Counsel:
E P Anderson (Plaintiff)
In person (Defendant)

  Solicitors:
Young & Muggleton (Plaintiff)
Self-represented (Defendant)

File Number(s):

2016/245058

Publication restriction:

Nil

Judgment

1. The plaintiff and the defendant married on 21 December 1975. However, in about 2006 the parties were divorced. They could not agree on a division of the property they had acquired and after a contested hearing in the Family Court orders were made on 10 December 2013.

2. Relevantly for the present proceedings the following orders were made:

(2)   That within two (2) months of the date if (sic) these Orders the husband do all necessary things and sign all necessary documents to transfer to the wife all his right, title and interest in the real estate property situated at 256 Young Street, Annandale, and concurrently with such transfer, the wife do all necessary things and sign all necessary documents so as to procure a discharge of the mortgages presently secured over the said property so as to release the husband from all or any liability in relation to such mortgages.

…

(4)   That within two (2) months of the date [of] these Orders [the] wife do all necessary things and sign all necessary documents to transfer to the husband all her right, title and interest in the real estate property situated at 1/247 Parramatta Road, Annandale.

…

(7)   That concurrently with the transfer of 1/247 Parramatta Road, Annandale to the husband pursuant to Order 4 above, the wife provide to the husband vacant possession of the said property.

(8)   That concurrently with the transfer of 256 Young Street, Annandale to the wife pursuant to Order 2 above, the husband provide to the wife vacant possession of the said property.

3. It appears that orders (2) and (4) were complied with so that, in the result, the property at 1/247 Parramatta Road, Annandale is now in the name of the plaintiff and the property at 256 Young Street, Annandale is in the name of the defendant. However, the plaintiff remains living at 256 Young Street, Annandale and the defendant remains living at 1/247 Parramatta Road, Annandale.

4. By his statement of claim filed 15 August 2016 the plaintiff seeks against the defendant possession of the Parramatta Road property. In a cross-claim filed 8 March 2017 the defendant seeks possession of the Young Street property.

5. In relation to the plaintiff’s claim, solicitors then acting for the defendant filed a defence on 8 March 2017 admitting that the plaintiff was the sole legal owner of the Parramatta Road property but saying that she was not in a position to provide vacant possession. The solicitors acting for the defendant thereafter ceased to act. For reasons that are not clear the defendant filed a further defence on 4 August 2017 saying that she was not in a position to provide vacant possession of the Parramatta Road property until the Young Street property was safe for her and her children to move into. The defence asserted that the Young Street property was neglected by the plaintiff and that it needed work to bring it into a satisfactory condition. Somewhat inconsistently the defence went on to say:

Moreover, the place we are intending to move into has problems and is still under repairs.

It seems that the property there referred to is at 16 John Street, Canterbury.

6. Whilst the defendant still had solicitors acting for her, a cross-claim was filed on her behalf on 8 March 2017 which sought judgment for possession of the Young Street property.

7. Solicitors who had previously acted for the plaintiff ceased to act for him on 7 September 2017. To that point no defence to the cross-claim had been filed. On 10 November 2017 the plaintiff, acting for himself, filed a document entitled “Defence to Cross-Claim”, but the substance of the document was an affidavit by the plaintiff. In that affidavit he admitted to the allegations that the defendant was the sole legal owner of the Young Street property, that the plaintiff was still residing in it and had not provided vacated possession to the defendant. The remainder of the affidavit appeared to be some form of response to an affidavit the defendant had filed on 13 October 2017. Both the defendant’s affidavit and the plaintiff’s response raked over issues that had been determined in the Family Court including making and answering allegations about the state of the properties, and who had paid what for those and other properties that made up the matrimonial pool of property.

8. The proceedings should never have been brought in this Court. Order 12 of the Family Court orders provided as follows:

(12)   That the parties have liberty to apply as to implementation or enforcement of these Orders.

Either party seeking to enforce the possession orders made by the Family Court ought to have applied to the Family Court for leave to issue a writ of possession or some similar enforcement order. Nevertheless, bearing in mind s 56 of the Civil Procedure Act 2005 (NSW), it would not be appropriate now to require the parties to go back to the Family Court.

9. Both on the pleadings and on the basis of the evidence filed, as unsatisfactory as it is, neither party to the proceedings has any defence to the claim the other makes for possession of the property to which each is entitled. The defences in each case and the affidavit material only point to matters to which regard might be had when considering the issue and execution of a writ of possession. However, when regard is had to the fact that the judgment of the Family Court was given on 10 December 2013 and the parties were given two months from the date of those orders to transfer the properties and to provide vacant possession of them, there can be no justification for any further delay in enforcing the orders already made.

10. In one sense, there is no need for this Court to make orders for possession because orders 7 and 8 of the Family Court orders have done that. However, bearing in mind that an order for possession made by this Court is an order in rem, and lest there be any apprehension that the Family Court orders were orders in personam only, I consider that orders for possession of each of the properties should be made.

11. The condition and state of repair of the properties is an irrelevant matter to the making of any order for possession. Nor is it a relevant consideration for the issue of a writ of possession. The defendant claims the property in Young Street is uninhabitable.  She points to photographs which purport to show rubbish in various parts of the property.  There is no evidence of when these photographs were taken.  The defendant says that she has no money and needs assistance to clean up the property.  In her affidavit of October 2017 she sought until January 2019 before she should be required to move.  In her submissions lodged yesterday she sought until April 2019.

12. The defendant in her affidavits and in submissions filed shortly before the hearing seeks to claim compensation for damage which she says has been occasioned to the Young Street property. No such claim was made in the cross-claim filed by her. The basis of the claim for compensation is not identified in either the pleadings or the affidavits.

13. As to any delay in enforcing the possession orders whether by reason of the state of the Young Street property or by reason of delays in completion of the Canterbury property, where the defendant ultimately intends to live, I consider that the parties have had more than adequate time to make any arrangements necessary. Any hardship has been sufficiently compensated by the four year delay since the Family Court orders were made.

14. The failure of either party to apply to the Family Court because of difficulties is a relevant consideration.  So too are the promises made by the defendant to vacate the Young Street property by extended date after extended date throughout 2015 as disclosed in the correspondence, and now by her suggestion, first that she should be given until January 2019, and then until April 2019.  I also have regard to the fact that the property is not uninhabitable at least in the sense that the plaintiff continues to reside there.

15. In my opinion a six week period from the making of these orders is entirely sufficient.

16. In my opinion, each party has had success in the claims being made.  The plaintiff submits that the reason the proceedings had to be instituted in the first place was the continued failure of the defendant to vacate the premises despite multiple requests to do so and despite extensions of time offered by her and accepted by him throughout 2015.  Although I consider that the main cause of the delay in the matter has been the failure of the defendant in that regard, there being no evidence of any delay on the plaintiff's part, these proceedings should not, as I have said, have been commenced in this Court in the first place.  Any delays in complying with the Family Court orders should have been dealt with by an application under the liberty to apply being made to the Family Court.

17. For all of those reasons, I consider that there should be no order as to the costs of the proceedings to the intent that each party should pay his and her own costs.

18. Accordingly, I make the following orders:

(1)   Judgment for the plaintiff for possession of the land comprised in folio 1/SP32823 being the land situated at and known as 1/247 Parramatta Road, Annandale NSW 2038.

(2)   Judgment for the Defendant for possession of the land comprised in Folio 3/2104 being the land situated at and known as 256 Young Street, Annandale NSW

(3)   Leave to each of the Plaintiff and Defendant to issue a writ of possession forthwith to enforce the judgment each party has obtained but neither writ is to be executed before 13 March 2018.

(4)   No order as to costs of the proceedings to the intent that each party is to pay his or her own costs.

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Decision last updated: 01 February 2018