Massalski & Riley (No 5)
[2022] FedCFamC1F 835
Federal Circuit and Family Court of Australia
(DIVISION 1)
Massalski & Riley (No 5) [2022] FedCFamC1F 835
File number(s): SYC 496 of 2015 Judgment of: HARPER J Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where orders for the payment of council rates, strata registration fees and strata insurance have been made – Where the payment of rates, registration fees and insurance were to be borne equally by the parties – Where the wife has not paid her portion of the rates, fees or insurance – Where the husband seeks payment from the wife for the payments he made which were required to be made by the wife – Where charge ordered over the wife’s property to secure payment of outstanding moneys owed – Where an enforcement order was made and a receiver appointed to the property of the wife – Where husband seeks variation of the enforcement order to declare the total amount owed by the wife – Variation of enforcement order to include a declaration of the amount owing by the wife to the husband. Legislation: Family Law Act 1975 (Cth) s 102QB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 11.01, 11.04, 11.05, 11.07
Cases cited: Massalski & Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36
Massalski & Riley (No 3) [2022] FedCFamC1F 562
Division: Division 1 First Instance Number of paragraphs: 24 Date of last submission/s: 17 August 2022 Date of hearing: On the papers Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Brynes Legal ORDERS
SYC 496 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MASSALSKI
Applicant
AND: MR RILEY
Respondent
order made by:
HARPER J
DATE OF ORDER:
28 October 2022
THE COURT ORDERS THAT:
Order 3(d) made on 5 August 2022 be varied to read as follows:
A declaration that the wife owes the husband the sum of $22,157.18 on account of payments made by the husband which were required to be made by the wife pursuant to the orders of:
(i)11 March 2016;
(ii)3 June 2016; and
(iii)24 December 2019
("the orders") and the payment of interest on such amounts pursuant to s 117 of the Act.
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 pseudonym Massalski & Riley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
Introduction
This matter has had a long and confusing history in this Court. I have delivered judgment several times, most recently on 5 August 2022 in Massalski & Riley (No 3) [2022] FedCFamC1F 562 (“Massalski (No 3)”), where I made orders declaring the Applicant Wife, Ms Massalski (“the wife”), a vexatious litigant. On that occasion, I also made orders appointing a receiver to the property of the wife in order to recover payment of amounts owed to the Respondent Husband, Mr Riley (“the husband”), by reason of previous costs orders.
The relevant background of this matter is set out at [2]–[14] of Massalski & Riley (2022) 65 Fam LR 73 (“Massalski”). I incorporate those details here, and it is not necessary to repeat them. That judgment dealt with, and disposed of a number of orders sought by the husband in an Application in a Proceeding filed on 28 July 2021 (“July 2021 application”). Among other orders, I granted leave to the husband to apply for the matter to be relisted for determination of the outstanding orders he sought.
The matter was then listed on 16 March 2022 for mention, and the application was stood over to 26 May 2022 for interim hearing, limited to the questions of whether the husband’s application for the appointment of a receiver and an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) should be granted. These questions were determined and orders made in Massalski (No 3).
As part of his July 2021 application, the husband sought orders that a property at Unit 1, F Street, Suburb G be sold, with the proceeds of sales to be disbursed, in part, to pay numerous costs orders obtained by him against the wife, as well as strata registration fees, council rates, and insurance premiums associated with the property.
Although the husband’s solicitor had indicated by way of email to chambers his wish for this order to be considered, he failed to raise the issue when the matter was in open Court on both 16 March 2022 and 26 May 2022. Accordingly, the matter was left undetermined. The husband’s solicitor requested on 10 August 2022 for this order to be considered. Orders were made on that date for the filing of material. The husband filed written submissions on 17 August 2022. The wife did not file any material in support.
The husband amended his proposed order, originally sought by way of a minute of orders submitted during a mention on 19 August 2021, which became Exhibit 1. The order sought now is as follows:
4. A declaration that the Applicant owes to the Respondent the amount of $23,308.34 for payment of the Applicant's share of:
a.Costs associated with the registration of the Strata Plan […]55- $3,508.00
b. Council rates for [F Street, Suburb G]-$12,659.84
c. Strata insurance for Strata Plan […]55-$733.00
d. Legal costs associated with registration of Strata Plan […]55- $6,407.34
Order 3(d) made on 5 August 2022 is in the following terms:
3.Pursuant to Div 11.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), Mr AG of Accounting firm AH be appointed as receiver (“the Receiver”) of the income and property of the wife so as to give effect to the following orders:
(a) …
(b) …
(c) …
(d)Such further orders as have or may be made by the Federal Circuit and Family Court of Australia for payment of moneys by the wife either to the husband, or in respect of which the husband has made payment which was required to be made by the wife including, but not limited to, the orders made on the following dates:
(i) 11 March 2016;
(ii) 3 June 2016; and
(iii) 24 December 2019
(“the orders”) and the payment of interest on such amounts pursuant to s 117 of the Act.
As can be seen, Order 3(d) did not specify a precise amount. The husband then proposed, in his written submissions filed on 17 August 2022, that Order 3 made on 5 August 2022 should be amended by the inclusion of the following paragraph:
3. (d) Order of to-day's date declaring that the wife owes the husband the sum of $23,308.34 on account of payments made by the husband which were required to be made by the wife pursuant to the orders of:
(i) 11 March, 2016
(ii) 3 June, 2016
(iii) 24 December, 2019
("the orders") and the payment of interest on such amounts pursuant to s 117 of the Act.
Prior orders
On 11 March 2016, McClelland J (as he then was) made the following relevant orders:
10. The parties are to each pay one half of the costs and fees payable in respect to the preparation of the registration of the Strata Plan and associated documents, except for, any fees payable to the Commonwealth Bank of Australia which shall be the sole responsibility of the respondent.
…
17. The applicant is responsible for the following payments in respect to [Unit 1 of the F Street property]:
a. all rates, outgoings and strata levies payable in respect to [Unit 1 of the F Street property];
b. maintenance in respect to [Unit 1 of the F Street property] as agreed and upon the production of tax invoices and receipts; and
c. all building insurance and public liability insurance premiums for [Unit 1 of the F Street property].
18. The respondent be responsible for the following payments in respect to [Unit 2 of the F Street property]:
a. all rates, outgoings and strata levies payable in respect to [Unit 2 of the F Street property];
b. maintenance in respect to [Unit 2 of the F Street property] as agreed and upon the production of tax invoices and receipts; and
c. all building insurance and public liability insurance premiums for [Unit 2 of the F Street property].
It should be noted that final property orders were made in this matter by McClelland DCJ on 24 December 2019. As outlined in Massalski at [16]:
… Orders 5 and 7–10 of the final property orders were designed to finalise the registration of the strata plan over the [Suburb G] property to create two lots, to give the wife clear title to [Unit 1] and for the husband to have title to [Unit 2], subject to a mortgage due to the Commonwealth Bank which was to be discharged. A strata plan (…25) has been registered. [Unit 1] of the [Suburb G] property became […], while Unit 2 became […].
Then, on 3 June 2016, McClelland J (as he then was) made a further order:
3. Pending the property being subdivided, the parties are to pay all council rates equally on or before the due dates for payment of each instalment.
The husband gave evidence that the property was subdivided upon the registration of the strata plan on 16 April 2021.
Finally, on 24 December 2019, McClelland DCJ ordered that:
6. The parties are to each pay one half of the costs and fees payable in respect to the preparation of the registration of the Strata Plan and associated documents, except for, any fees payable to the Commonwealth Bank of Australia which shall be the sole responsibility of the Respondent.
The husband’s evidence was that despite all the above orders, the wife has failed to comply with any of the orders requiring her to pay her portion of the fees associated with:
(a)The registration of the strata plan at Unit 1 and Unit 2 F Street, Suburb G NSW;
(b)Strata insurance; and
(c)Council rates.
Registration of strata plan
The husband gave evidence that he paid all costs and fees associated with the registration of the strata plan, despite the orders of 24 December 2019 for the parties to bear the costs equally. This amounted to a total of $7,015.80, of which he now seeks half, being $3,508, pursuant to Order 10 of 11 March 2016.
The husband also claimed half of the legal fees for his solicitor to register the strata plan. He annexed a copy of the tax invoice, which covered costs only with respect to the registration of the strata plan. The fees were said to be greater than usual owing to the need to approach the Court to sign documents on the wife’s behalf, pursuant to s 106A of the Act. I find it appropriate to include half of the legal fees incurred, being a total of $6,407.34
Insurance
Following the registration of the strata plan, the parties were to take out insurance to cover the plan. The husband’s evidence was that he paid a total sum of $1,567.94, however he now only seeks half of the sum that had originally been quoted to him on 27 May 2021, being $1,466.42. Accordingly, his claim now is for $733.
It is not clear upon which order the husband now bases his claim for insurance coverage. Orders 17 and 18 of 11 March 2016 provided for the wife to pay all building insurance and public liability insurance premiums for Unit 1 of the property at F Street, and for the husband to do the same for Unit 2. Those orders were expressed as being made “pending further order,” indicative of their interim nature. This is further supported by the fact that the property at F Street was only subdivided following the final orders of 24 December 2019.
Orders for the wife to bear the costs of insurance premiums for Unit 1, and the husband to do so for Unit 2, are not the same as an order for each party to bear half of the costs of the new strata plan. I am not satisfied that the husband has established a basis for these costs.
Council rates
Finally, as seen above, the orders of 3 June 2016 required the wife to pay half of all council rates. The wife paid a sum of $686.30 on or about late 2016, but, according to the husband’s solicitor, has not paid any other amounts due. He set out the history of payments at [75]–[92] of his affidavit filed on 27 July 2021. In summary, the wife is said to owe a total of $12,659.84, being half of the following payments:
(a)A statement obtained from H Council for the period early 2016 to late 2020, showed a total of $14,575.25 having been paid by the parties. The wife’s share is $7,378.62, less the amount she already paid of $686.30, leaving $6,701.32 outstanding;
(b)The husband paid the sum of $1,280 in late 2015, with half of that sum being $640;
(c)In early 2021, a water bill was issued in the sum of $437.04. The husband seeks half of the sum, being $218.52; and
(d)In late 2020, the H Council filed a Statement of Claim against both parties for unpaid rates. The husband entered into a payment plan with the Council to pay the whole amount, being $9,364.14. He claims half of this amount, being $4,682; and
(e)The husband submits that he incurred legal costs in negotiating the above settlement. He claims a 50 percent contribution from the wife in the sum of $418.
I am not satisfied that amount of $418, representing half of the costs of the husband’s solicitor in negotiating a settlement with H Council, is appropriate. Plainly, the orders of 3 June 2016 provide that council rates are to be divided equally, pending subdivision of the property. Such an order clearly does not cover any legal costs incurred by the husband.
Wife’s claims
During the mention on 10 August 2022, the wife made a number of statements from the bar table suggesting that her obligations to pay the sums outlined above were discharged by a consent order made on 11 December 2018. I granted leave to the wife to file any written submissions or an affidavit within 21 days of 17 August 2022. She did not file any material. Accordingly, I will not have any regard to these contentions.
Conclusion
The husband claims a total of $23,308.34. However, as outlined above at [18] and [20], I do not find it appropriate to include in this sum the wife’s share of insurance premiums following the subdivision of the property at F Street, nor half of the legal costs incurred to negotiate a payment plan with the H Council.
The prior orders were all enforceable obligations to pay money (r 11.01(1)(a) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). These obligations may be enforced by the husband as a party (r 11.04(a)). Order 3 made on 5 August 2022 appointing a receiver is an enforcement order (r 11.05(d)). The Court may vary an enforcement order pursuant to r 11.07(n) and declare the total amount owing under an obligation (r 11.07(a)).
Therefore, I propose to vary Order 3 made on 5 August 2022 to declare the wife owes $22,157.18 pursuant to the prior orders. This amount can then be recovered by the receiver.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 28 October 2022
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