Massalski & Riley

Case [2022] FedCFamC1F 36

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Massalski & Riley [2022] FedCFamC1F 36

File number(s): SYC 496 of 2015
Judgment of: HARPER J
Date of judgment: 4 February 2022
Catchwords:

FAMILY LAW – PROPERTY – De-facto relationship – Where wife is a self-represented litigant – Where final judgment had been delivered in 2019 – Wife appealed final judgment – Appeal dismissed with costs – Wife makes substantive application pursuant to s 90SN of the Family Law Act 1975 (Cth) – Where final property orders provided for subdivision of real property by registration of strata scheme, with wife to retain one lot and husband to retain another lot – Where wife sought injunction on the husband’s sale of his strata lot and stay of costs orders – Where husband’s strata property has now been sold – Injunctive relief otiose.

FAMILY LAW – PRACTICE AND PROCEDURE – Where there are multiple applications before the Court – Husband seeking summary dismissal, prohibition on the wife filing further applications, and enforcement by way of charge for payment of outstanding costs orders – Discussion of principles of summary dismissal – Where the husband has the onus of demonstrating no reasonable prospect of success – Where wife alleges non-disclosure by husband, default by husband in compliance with final orders, and that the relevant property does not fall within the definition of “property” by reason of water damage – Where wife’s contentions are without merit and disclose refusal to accept outcome before trial judge and on appeal – No reasonable prospects of success – Proceedings dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Discussion of overarching purpose of the family law practice and procedure provisions – Whether overarching purpose informs the assessment of whether prospects of success are reasonable – Consideration of whether application of overarching purpose is to be construed by taking account of the Court’s obligation to completely and finally determine matters in controversy set forth in s 43 of Federal Circuit and Family Court of Australia Act 2021 (Cth).

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Abuse of process – Discussion of principles concerning abuse of process – Where wife refuses to accept the outcome of final proceedings and appeal – Principles of fairness and finality apply – Applications by wife apt to bring the administration of justice into disrepute – Summary dismissal ordered.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of costs orders and assessments – Where orders for costs have been made – Where wife’s application for stay of costs order and assessment had previously been dismissed – Jurisdictional basis for a stay not established – Where wife relitigates claim for stay of costs order – Where evidence relied upon for stay application is not new – Application for a stay also an abuse of process – Stay refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to intervene by wife’s ex-partner – Where intervention would be futile due to…

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AGLC
Massalski & Riley [2022] FedCFamC1F 36
Case
[2022] FedCFamC1F 36
Decision Date

CaseChat Overview and Summary

In the case of Massalski & Riley, the parties were engaged in a dispute concerning property adjustment orders made pursuant to s 90SM of the Family Law Act 1975 (Cth). The wife sought further orders under s 90SN, arguing that there had been a failure to disclose and a default by the husband in relation to the registration of a strata plan. The husband applied for summary dismissal of the wife's application, arguing it had no reasonable prospects of success and was an abuse of process. The intervener, the wife's ex-husband, also participated in the proceedings. The court was tasked with determining whether the wife's application for further orders had any reasonable prospects of success and if the application should be dismissed as an abuse of process.

The primary legal issue was whether the wife's application for orders under s 90SN had any reasonable prospects of success, particularly in relation to her claims of failure to disclose and default by the husband. The court also had to consider whether the application was an abuse of process. The wife argued that the husband had failed to organise a strata scheme owner’s meeting as required by the Strata Schemes Management Act 2015 (NSW), forcing her to apply to the NCAT. The husband countered that there was no evidence of default and that any issues regarding the strata plan were being addressed in separate NCAT proceedings. The court needed to evaluate the evidence and arguments presented by both parties to decide whether the wife's application was likely to succeed and if it constituted an abuse of the court process.

The court found that the wife's evidence to support her claims of failure to disclose and default was inherently unreliable and did not establish any reasonable prospect of success. The wife's argument regarding the husband's alleged default in organising the strata scheme owner’s meeting was deemed unconvincing as it relied on events that occurred before the alleged default and did not sufficiently demonstrate any resulting circumstances. The court also accepted the husband's submissions that there was no evidence of default and that the matter of strata plan registration was being handled in separate NCAT proceedings. Consequently, the court concluded that the wife's application had no reasonable prospects of success and was an abuse of process. The husband's application for summary dismissal was granted, and the wife's application was dismissed.

The final orders of the court were that the husband's application for summary dismissal was upheld, and the wife's application filed on 3 December 2021 was dismissed. The court found that there was no evidence to support the wife's claims of failure to disclose and default, and the application was an abuse of process. The court's decision was based on the unreliability of the wife's evidence and the lack of any reasonable prospect of success for her application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This judgment will firstly deal with the husband’s application for summary dismissal of the wife’s substantive application. As explained in the reasons which follow, I am persuaded the wife’s application for orders pursuant to s 90SN has no reasonable prospects of success, is an abuse of process and should be dismissed. I note here that, accordingly, there was no occasion to revisit interlocutory relief restraining the husband from dealing with Unit 2 F Street on 4 November 2021, and in any event it has been sold. For reasons set out later, Mr K’s application must be dismissed and the wife’s application filed 3 December 2021 will also be dismissed.EVIDENCE RELIED UPON The wife relied upon the following documents:(a)Affidavit of Applicant Wife filed 8 Sep 2021;(b)Application in a Case filed 27 May 2021;(c)Affidavit of Applicant Wife filed 13 Aug 2021;(d)Affidavit of ZM re Application pursuant to s 79A;(e)Contempt of Court Combined Application;(f)Exhibit 1 Orders from Tribunal;(g)Exhibit 2 NCAT 21-34254 interim application;(h)Undertaking Exhibit Z-2;(i)Updated orders sought- 14 Aug 2021;(j)Orders of Riordan J made 18 August 2017 (S CI 2016 05260);(k)S CI 16 5260 - Massalski v Riley & Ors – Order from 8 Oct 2020; and(l)Summary of paragraphs to be read from the material submitted by Ms Massalski. The husband relied on the following:(a)Case Outline of Respondent Husband 13 Sep 2021;(b)Case Outline of Respondent Husband 4 Nov 2021;(c)Minute of Orders Sought;(d)Response to Application in a Case filed 27 Jul 2021;(e)Application in a Case filed 28 Jul 2021;(f)Response to Initiating Application filed 23 Aug 2021;(g)Affidavit of Mr ZZ field 27 Jul 2021;(h)Affidavit of Ms AB filed 11 Aug 2021;(i)Affidavit of Ms AB filed 9 Sep 2021;(j)Affidavit of Mr Riley filed 25 Aug 2021;(k)Respondent Tender Bundle 1;(l)Respondent Tender Bundle 2;(m)Financial Statement of Ms Massalski filed 10 Aug 2021;(n)Response to an Application in a Case filed 10 Sep 2021;(o)Affidavit of Mr ZZ filed 10 Sep 2021; and(p)Massalski & Riley [2019] FamCA 1013 – judgment of McClelland DCJ. The intervener relied on the following:(a)Application in a Case to Intervene filed on 31 August 2021;(b)Affidavit of Intervener filed on 31 August 2021; and(c)Correspondence produced by Intervener. The following documents were received into evidence on 19 August 2021 and in chambers: The following documents were received into evidence at interim hearing on 13 September 2021 and 4 November 2021: As indicated above, I will firstly deal with the husband’s application for summary dismissal of the wife’s Initiating Application, first set out in his Response to Final Orders filed on 25 August 2021. On 1 September 2021 the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) commenced. Section 37 of Pt 5, sch 5 of the Federal Circuit andFamily Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) provides that Div 4, Pt 5 of Ch 3 (Case management) of the new Act “applies in relation to a proceeding commenced before, on or after the commencement day,” which was 1 September 2021.

Decision

Reasons for decision

Final judgment was delivered by McClelland DCJ on 10 December 2019: Massalski & Riley [2019] FamCA 1013 (“final judgment”). McClelland DCJ made property adjustment orders pursuant to s 90SM of the Act, having found that a de facto relationship existed between the wife and the husband. The relevant factual background of the matter is set out in the final judgment at [4]–[62]. I will not repeat those facts here, save as necessary for the purposes of this judgment. The final property orders (“final property orders”) of McClelland DCJ can be summarised as follows:(a)Certain aspects of proceedings in the Supreme Court of Victoria between the husband and wife, which the wife had brought and had been transferred to the then-Family Court of Australia, were dismissed;(b)The wife was required to withdraw caveats that she had lodged against a property in Suburb A, Victoria, which is owned by the husband and Mr K, the wife’s ex-husband (“the intervener”), and another property at F Street, Suburb G (“the Suburb G property”), which is owned by the husband and wife;(c)The parties were to complete registration of the strata title subdivision of the Suburb G property with costs to be shared equally, save for fees payable to the Commonwealth Bank of Australia which were to be paid by the husband;(d)Lot 1 of the Suburb G property strata plan be transferred to the wife, and Lot 2 to the husband;(e)The mortgage to the Commonwealth Bank over the property be removed from Lot 1 and secured over Lot 2;(f)That the husband pay the wife a sum of $18,263.50 within fourteen days of her complying with her obligations; (g)That each party was otherwise entitled to property in their name and possession and be responsible for their own liabilities; and (h)Orders under s 109A of the Act. The parties were granted liberty to apply on the question of costs. On 25 May 2020 McClelland DCJ ordered the wife to pay, on a party/party basis, costs of and incidental to proceedings in the Supreme Court of Victoria which had been transferred and determined in this Court, and these proceedings on and from 24 February 2017. On 2 November 2020, Registrar Chayna assessed the costs payable by the wife to be $209,945.25, and that they be paid by 29 January 2021. On 18 January 2021, the wife filed an Application in a Case seeking a stay of the costs order of 25 May 2020 and the costs assessment of 2 November 2020. The wife also appealed the final property orders. The appeal was heard by the Full Court on 20 October 2020 and 6 May 2021. On 5 March 2021, McClelland DCJ dismissed the wife’s application for a stay of the costs orders on the husband’s undertaking not to enforce the orders pending determination of the wife’s appeal. While judgment was reserved in the Full Court, on 27 May 2021, the wife filed a further Application in a Case, seeking a range of orders which will be discussed in more detail below. On 13 July 2021, the Full Court dismissed the wife’s appeal: Massalski & Riley (2021) FLC 94-047 (“Massalski”). Consequently, the undertaking given by the husband to McClelland DCJ on 5 March 2021 has expired and is discharged. It follows that there is no stay of the costs orders made by McClelland DCJ.

Ratio Decidendi

Legal Principle Established

I have reached the same conclusions based on the evidence provided by the wife. The evidence relied upon by her to establish a failure to disclose which could lead to a miscarriage of justice fails to do so, is inherently unreliable, and does not establish any reasonable prospect of convincing this Court that the discretion in s 90SN(1)(a) would be enlivened, nor any reason to exercise it in her favour, even if it was enlivened. The husband having “defaulted on the orders in relation to the registration of the strata plan…(by) failing to comply with the Strata Management Act, Strata Schemes Development Plan” Order 5(b) of the orders of McClelland DCJ made on 24 December 2019 is as follows:(5) Within 28 days of registration of the strata plan for the F Street property, the parties are to do all acts and things and sign all documents required to effect the following:…(b) To hold a meeting of the Strata Committee of the Strata Plan (by proxy if preferred) to pass the necessary resolutions as required by the Strata Schemes Management Act 2015 (NSW). When asked to explain her case under s 90SN(1)(b) in oral submissions on 4 November 2021, the wife argued that the husband defaulted in respect Order 5(b) because he “avoided organising the strata scheme owner’s meeting”, thus forcing her to make an application to NCAT. Somewhat confusingly, the wife claimed she was forced to commence proceedings in order to avoid further proceedings “to protect myself and any potential buyers from further litigation” (Transcript 4 November 2021, p. 12 lines 9–10). When asked to identify the circumstances said to have arisen as a result of the default, the wife pointed to events which took place well before the order in respect of which default was alleged, as she then conceded (Transcript 4 November 2021, p. 12 lines 29–33). She then pointed to the litigation she had commenced in NCAT as the relevant circumstances said to have arisen as a result of the default. As I understood her argument, she contends there should have been an owner’s corporation meeting pursuant to the Strata Scheme Management Act 2015 (NSW), which is the relevant state legislation. She argued the husband failed to organise the necessary meeting and he did so deliberately so that he could sell Unit 2 F Street to unsuspecting purchasers without an Owners Corporation dealing with a range of problems with the property. The husband submits that there is no evidence that he has defaulted on the orders in relation to the registration of the strata plan. The parties are the only two members of the body corporate, given that the strata plan comprises the two lots only, and the said lots are owned by the parties. In any event, Order 5(b) imposes obligations on both parties, not just the husband. The wife seemed greatly exercised by the fact that Unit 1 F Street remains registered in the name of both her and the husband. But as the husband pointed out, and it was undisputed, he has submitted an executed transfer to the wife, but she has not responded. Issues concerning the strata plan, including the appointment of a Compulsory Strata manager and the calling of an Owner’s Corporation meeting, are now the subject of competing applications by the parties to NCAT. The wife has not demonstrated any default. I accept these submissions.