Mattiuzzo v Foxman (Ruling) (Revised)
[2012] VCC 1550
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
FAMILY PROPERTY DIVISION
Case No. CI-09-02628
| LUCIANO LUIGI MATTIUZZO | Plaintiff |
| v | |
| SUSAN FOXMAN | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2012 | |
DATE OF RULING: | 24 August 2012 | |
CASE MAY BE CITED AS: | Mattiuzzo v Foxman (Ruling) (Revised) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1550 | |
RULING
---
SUBJECT: DOMESTIC PARTNERSHIP
CATCHWORDS: consent orders – default in compliance – default due to conduct of the defendant – application for orders consistent with the default provisions of the consent orders – application to have the appropriate officer of the court execute any relevant deed or instrument necessary to give effect to the orders
LEGISLATION: Relationships Act 2008, s60
RULING: orders made consistent with the default provisions of the consent orders
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J O’Sullivan (solicitor) | O'Sullivan & Ruffilli |
| For the Defendant | In person | - |
HIS HONOUR:
Introduction
1 By a Summons filed 21 May 2012, the plaintiff seeks orders that the appropriate officer of the Court execute relevant documents to give effect to orders made on 31 May 2012 in the face of the defendant's refusal to comply with those orders.
2 Mr O'Sullivan appeared for the plaintiff. The defendant was self-represented. She was assisted by Ms L Cage, who the defendant described as a her paralegal.
3 The application was supported by affidavit sworn by the plaintiff on 21 May 2012.
The Proceeding
4 It is unnecessary to rehearse the nature of the proceeding or much of its history except to observe that I listed the proceeding for trial before myself on 31 May 2011. On that occasion, the plaintiff and the defendant were represented by counsel.
5 The parties requested time to enter into negotiations. I gave the parties time. It resulted in a settlement of the proceeding. The parties provided me with a sensible formula which required, among other things, for the plaintiff to pay the defendant the sum of $30,000 and contemporaneously, the defendant was to transfer to the plaintiff her right, title and interest in two properties. In default of compliance, one property was to be sold, and after payment of relevant sale costs the plaintiff was to pay the defendant the sum of $30,000 or so much as remained unpaid, together with penalty interest, and then the balance to the plaintiff.
6 The defendant subsequently filed a Summons on 29 June 2011 applying to have the consent orders set aside. The application was supported by an affidavit sworn by the plaintiff on 29 June 2011. I heard the application. Mr O'Sullivan appeared for the plaintiff, and the defendant appeared in person. I dismissed the Summons and ordered that the defendant pay the plaintiff’s costs.
The Present Application
7 Mr O'Sullivan took me to the affidavit of the plaintiff. Essentially, the plaintiff deposed to attempting to pay the defendant the sum of $30,000, but was unable to, because he could not locate the defendant. He admitted, as a result, being in default of the orders.
8 Mr O'Sullivan submitted that because the plaintiff was in default, that I should make orders consistent with the default provisions in the orders, and because of the conduct of the defendant, that I should order that the appropriate officer of the Court execute the relevant deeds and instruments to give effect to the sale of the property and the transfer of the property to the plaintiff.
9 The defendant did not file any affidavit in opposition to the affidavit of the plaintiff. She made submissions which, in effect, invited me to set aside the orders made on 31 May 2011, and to deal with her former solicitors; the plaintiff's solicitors; and the plaintiff and his family, on the footing that her former solicitors and the plaintiff's solicitors colluded in achieving the settlement on 31 May 2011. She also submitted that the plaintiff's claim against her is fraudulent. The defendant’s submissions were far more extensive in explaining the basis upon which she made those allegations, but the summary is sufficient to demonstrate the way in which the defendant chose to answer the plaintiff's application.
10 I will not entertain the plaintiff's application to set aside the orders made on 31 May 2011. I dealt with that very same application on 7 July 2011. There was no new material produced by the defendant to prove the allegations she now makes. There is no basis upon which I can make any orders affecting what occurred on 31 May 2011 and the orders which were produced through the negotiations which occurred that day.
Disposition
11 Mr O'Sullivan submitted that I should make orders consistent with the default provisions in the orders made 31 May 2011. Those orders are:
“8That in the event that the Plaintiff defaults in making the whole of the payment by the date and the default continuing for a further 30 days then the property situated at 162 Smiths Beach Road, Smiths Beach be sold on terms and conditions to be agreed and in default of agreement on terms and conditions fixed by a selling agent appointed by Alan Giles.
9That the proceeds of sale of 162 Smiths Beach Road be applied as to:
a)To pay costs and commissions of sale.
b)To pay to the Defendant so much payment as remains outstanding together with interest pursuant to Penalties Interest Act calculated as and from the date of the default.
c)The balance to the Plaintiff.”
12 The first question that arises for consideration is whether there has been a default on the part of the plaintiff. Clearly, he has failed to pay the sum of $30,000. The orders do not contain a saving relevant to any inability on his part to pay that sum, that is because he could not find the defendant or was unable to raise the money. The orders simply provide that in default, that the default provisions come into play.
13 The defendant denied that she has not been contactable. She submitted that she has resided in a property known to the plaintiff. However, what is abundantly clear is that the application made by the plaintiff, which I dismissed on 7 July 2011, and her renewed application to set aside the orders made 31 May 2011, demonstrate that she has not had the intention, nor has the intention now, to comply with those orders. On balance, I find that she has not been contactable, and that the plaintiff had the money available to him to pay the plaintiff, but because of the effluxion of time it is no longer available to him.
14 Therefore, I propose to make the orders sought consistent with the default provisions, and for the same reasons I propose to make orders pursuant to section 60 of the Relationships Act 2008 that the appropriate officer of the Court execute any relevant deeds or instruments to give effect to the sale and the transfer of the other property to the plaintiff.
15 Based upon the findings I have made that the defendant was not contactable, I think it is fair that, because the plaintiff was ready, willing and able to pay the defendant the sum of $30,000, that the defendant should not be paid any penalty interest.
Orders
16 I will now make the following orders:
(1) That the property at 162 Smiths Beach Road, Smiths Beach, Phillip Island be sold forthwith.
(2) The plaintiff, or his nominee, conduct the sale to the exclusion of the defendant as if a mortgagee in possession.
(3) The plaintiff must appoint a real estate agent to conduct the sale either by private treaty and/or auction.
(4) Upon the sale of the property the proceeds are to be applied as follows:
(a) to pay the costs and expenses relevant to the sale of the property.
(b) to then pay to the defendant the sum of $30,000.
(c) the balance to then be paid to the plaintiff.
(5) The defendant forthwith transfer to the plaintiff all of her right, title and interest in the property at 2 California Drive, Smiths Beach, Phillip Island.
(6) Pursuant to section 60(1) of the Relationships Act 2008, I appoint the principal Registrar of the County Court, to execute any deed or instrument in the name of the defendant to give effect to these orders, and to do everything necessary to give validity and operation to such deed or instrument.
(7) The defendant pay the plaintiff’s costs of this application to be assessed by the Costs Court, in default of agreement.
---
0
0
0