FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Malaka & Lasso [2021] FedCFamC1F 278
File number(s): SYC 5913 of 2017 Judgment of: WILSON J Date of judgment: 10 December 2021 Catchwords: FAMILY LAW – ARBITRATION – application for enforcement of award – husband in default of consent award – husband not permitted to rely on wife’s default when his own default caused or was a precursor to her default – time for executing documents and doing things as provided for under the consent award to be recalibrated. Legislation: Family Law Act 1975 ss 13H, 105 and 106A Cases cited: Bailey & Bailey (No 2) [2018] FamCA 632
Bebbington and Bebbington [2017] FamCAFC 72
McDermott v Black (1940) 63 CLR 161
McKay & Dick (1881) 4 App Cas 251
Secured Income Real Estate (Aust) Ltd v St Martins Investment Pty Ltd (1979) 144 CLR 596
Texts Lewison, K, Interpretation of Contracts, (1989) Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 23 November 2021 Place: Melbourne Solicitor for the Applicant: AS Family Lawyers Solicitor for the Respondent: ALP Lawyers ORDERS
SYC 5913 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MALAKA
Applicant
AND: MR LASSO
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
10 DECEMBER 2021
THE COURT ORDERS THAT:
1.The further hearing of this application is adjourned to 10:00am on 1 March 2022.
2.On or before noon on 24 February 2022 the parties must file and serve –
(a)a minute of proposed orders that give effect to these reasons; and
(b)written submissions in support of the orders proposed.
3.Both parties’ costs of and incidental to this application are reserved.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonyms Malaka & Lasso has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
Following the arbitration of this proceeding, the parties agreed on terms of settlement which the arbitrator approved as a consent award on 14 July 2021. The award was registered by consent on 16 July 2021 and thereby took effect as a decree under s 13H of the Family Law Act. The parties have not complied with certain aspects of the consent award which the husband (the respondent in the arbitration) now wishes to enforce.
Two…
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CaseChat Overview and Summary
The primary legal issues for the court to decide were whether the date stipulations in the consent award were indeed unclear and inconsistent, and if the husband breached the award by not transferring the properties within the specified timeframes. The court needed to construe the consent award to determine the husband's obligations and whether he complied with them. The wife's argument that the husband's failure to transfer the properties warranted a termination of the agreement was not explored by the court.
The court found that the date stipulations in the consent award were not inconsistent or unclear, as they were readily comprehensible. The husband was required to procure the removal of the mortgage from the Suburb F property within seven days of the award, which he failed to do. The husband did not start the process of removing the mortgage until well after the deadline, thereby breaching the award. The court did not address the wife's potential right to terminate the agreement for breach.
The court ruled in favour of the wife, finding that the husband breached the consent award by not transferring the properties within the specified timeframes. The husband did not provide evidence that he had taken any steps to comply with the award, even by the time of the hearing. The court did not delve into whether the wife could have terminated the agreement for breach.
Orders
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Background
Background to the litigation
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Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
On behalf of the husband it was argued in reliance upon Bebbington & Bebbington,[4] that time stipulations should be strictly construed where substantive rights are involved. [4] [2017] FamCAFC31 72. CONSIDERATION Although not in the sequence that the wife’s legal representative argued the point, logically the first issue to be decided is the contention that the date stipulations in the consent award are inconsistent and unclear. At the outset I reject that argument. The consent award was made by the arbitrator upon the parties providing to the arbitrator terms of settlement. Those terms were the product of negotiations between the parties and the parties’ legal representatives. The parties must account for their own authorship of those terms and so any issue about construing the terms is of their own making. Be that as it may, as with any contract (terms of settlement being an accord and satisfaction)[5] the terms should ordinarily be construed according to a plain and ordinary meaning.[6] No inconsistency exists nor lack of clarity in the chosen form of wording in paragraphs one, two and three of the consent award. In one instance the relevant phrase used is “within seven days of the registration of this award”, in one instance the relevant phrase is “within seven days of this award” and in one other instance the relevant phrase used is “within 90 days of the date of this award”. All three dates are readily capable of comprehension. The award was registered on 16 July 2021. While the dates are different, they are not unclear. To the contrary, they are capable of immediate comprehension. The wife endeavoured to demonstrate that inconsistency existed leading to a particular consequence, namely –It is submitted that this inconsistency raises the need for the Court to exercise the proper discretion to enable the just and equitable transfer of the Suburb H property to the Wife/children. [5] McDermott v Black (1940) 63 CLR 161. [6] Lewison, K, Interpretation of Contracts, (2020) Sweet & Maxwell. I do not agree. Paragraphs one, two and three of the consent award suffer from no inconsistency nor want of clarity. Next, the wife argued that the husband failed to transfer both the Suburb F property and the Suburb H property. The fact that the two properties were not transferred seemed to be common cause. The real question is why that was so. It became necessary to construe the consent award. Pursuant to paragraph one, the parties were required to procure the disbursement of funds in court in the manner set out in that paragraph. That had to be done within seven days of 16 July 2021, that is to say, on or before 23 July 2021. Independently, within seven days of the date of the award that is it say, on or before 21 July 2021, the husband was required to do all things and sign all documents to transfer to the wife, unencumbered, his right title and interest in the Suburb F property. At all events, the husband’s obligations incorporated the requirement for him to provide unencumbered title. By definition, that required him, on or before 21 July 2021, to have dealt with the encumbrancer and to have procured the removal of the encumbrance, or at least for the encumbrancer to have to have provided in registerable form the removal of the encumbrance. Here, the husband did not set in train the removal of the encumbrance until well after 21 July 2021. He was therefore in breach of paragraph two from 22 July 2021. Whether the wife could have terminated the agreement for breach was a point not explored before me and so I say nothing further about it. Here, according to the chronological sequence of events taken from Mr OO’s affidavit material, on 11 September 2021 the wife’s solicitors brought to the husband’s solicitors attention that the bank remained on title as mortgagee. The husband should have procured the removal of the mortgage in mid July 2021. Even by September 2021 the husband had done next to nothing to comply with paragraph two. In my view, the evidence given on behalf of the husband about Mr RR’s PEXA registration was a red herring. No evidence of any description had been adduced to indicate the husband had begun, still less completed, the task he promised to do in pursuance of paragraph two of the consent award.