Monfort & Bade
[2024] FedCFamC1F 16
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Monfort & Bade [2024] FedCFamC1F 16
File number(s): BRC 4638 of 2014 Judgment of: HOWARD J Date of judgment: 25 January 2024 Catchwords: FAMILY LAW – PROPERTY – Where final property Orders were made in 2017 – Where the wife pursued an unsuccessful Appeal against those Orders – Where the parties consented in February 2019 to the appointment of a new Trustee for Sale in respect of two properties in Queensland – Where the wife obstructed the sale of the second property – Where the wife pursued delaying tactics – Where the wife is found to be a vexatious litigant – Where the Final Orders remain capable of being carried into effect – Where the wife’s complaints about the conduct of the Trustee for Sale are without merit – Costs Orders made. Legislation: Family Law Act 1975 (Cth) ss 79, 79A, 80, 102Q, 102QB, 102QE, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.02 and r 10.14
Succession Act 1981 (Qld)
Cases cited: Gambetto & Farrelli [2023] FedCFamC1F 465
McDonald & McDonald (1976) FLC 90-047
Official Trustee in Bankruptcy v Gargan(No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Pera & Pera (2008) FLC 93-372; [2008] FamCAFC 87
Potier v Attorney-General (2015) 89 NSWLR 284
Ravasini & Ravasini (1983) FLC 91-312
Slapp & Slapp (1989) FLC 92-022; [1982] FamCA 9
Taylor v Taylor (1979) 143 CLR 1
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 178 Date of hearing: 23 November 2022, 17 January 2023, 18 January 2023, 23 January 2023 31 January 2023, 1 February 2023 and 13 March 2023 Date of last submission: 8 May 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Mr Chinyelu Counsel for the Second Respondent: S F Downes Solicitor for the Second Respondent: W Lawyers
Table of Corrections 1 March 2024 The name of the matter was amended to delete the designation “Bade & Monfort” and change it to “Monfort & Bade”. 1 March 2024 Footnote 1 was amended to delete the reference to “The husband was the applicant in the original proceedings – hence the designation “Bade & Monfort”.”. 1 March 2024 In paragraph 82, “affect” was changed to “effect”. ORDERS
BRC 4638 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MONFORT
Applicant
AND: MR BADE
First Respondent
MR FLANNAN
Second Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS ON A FINAL BASIS THAT:
1.The wife’s Amended Application in a Case filed 27 September 2021 is dismissed.
2.Pursuant to section 102QB(2)(a) of the Family Law Act 1975 (Cth) (“the Act”) all extant applications instituted by the wife (Ms Monfort) against the husband (Mr Bade) or his legal advisors both past and present in any court having jurisdiction under the Act be dismissed.
3.Pursuant to section 102QB(2)(a) of the Act, all extant applications instituted by the wife (Ms Monfort) against the trustee (Mr Flannan) or his employees or agents (both past and present) or his legal advisors (both past and present) in any court having jurisdiction under the Act be dismissed.
4.Pursuant to section 102QB(2)(b) of the Act the wife (Ms Monfort) be prohibited from instituting proceedings involving the husband (Mr Bade) or his legal advisors both past and present in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to section 102QE of the Act.
5.Pursuant to section 102QB(2)(b) of the Act the wife (Ms Monfort) be prohibited from instituting proceedings against the trustee (Mr Flannan) or his employees or agents (both past and present) or his legal advisors (both past and present) in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to section 102QE of the Act.
6.The Trustee has liberty to apply.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
7.Within fourteen (14) days from the date of this Order the Trustee shall forward to the Court and to the wife and the husband draft orders/directions as outlined in these Reasons for Judgment.
8.From the date that the Trustee forwards to the Court and to the wife and to the husband the draft orders/directions (per Order 7) the wife and the husband shall have seven (7) days to forward to the Court and to the Trustee and to the other party any comments or suggested variations to the Trustee’s draft orders/directions.
9.Once the time limits stipulated in Orders 7 and 8 have elapsed the Court will proceed to issue the balance of the final orders whether or not the wife or the husband have taken the opportunity to respond to the wording of the Trustee’s draft orders/directions.
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 Monfort & Bade has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Amended pursuant to rule 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 1 March 2024.
The applicant wife is Ms Monfort. The respondent husband is Mr Bade. The parties commenced cohabitation in late 1991 and married in late 1992. The parties separated on a final basis somewhere between 2012 and 2014. The wife filed an Application for property settlement under s 79 of the Family Law Act1975 (Cth) (“the Act”) in the Federal Circuit Court of Australia[1] in Brisbane in May 2014. The matter was transferred to the City S Registry. The matter came on before her Honour Judge Willis for final hearing on 27 October 2016. Judgment was delivered on 13 October 2017. The final orders made by her Honour on 13 October 2017[2] have not yet been fully executed.
[1] As that Court was then known.
[2] In these reasons for judgment, I have referred to these orders as the “final orders”. For completeness, it should also be noted that the 13 October 2017 final orders were amended on 1 February 2019 by the Court with the consent of the wife and the husband.
By the time that Judge Willis made the order on 13 October 2017, the parties had two properties remaining which they owned jointly – D Street, Suburb A, Queensland (“the Suburb A property”); and E Street Suburb B, Brisbane, Queensland (“Property B”). The final orders of 13 October 2017 state:
“THE COURT ORDERS THAT:
1.That the overall property division is to be divided 75% to the wife and 25% to the husband.
2.To achieve the division the following orders will apply.
3.The parties (and the Trustees referred to in the Orders) are granted liberty to apply in relation the mechanical provisions of these Orders.
Sale of [D Street Suburb A]
4.The parties are to do all acts and things to forthwith effect a sale of the property situated at [D Street, Suburb A] in the State of Queensland more properly described as Lot […] of RP […], County […], Parish of […] Title Reference […] (the [Suburb A] property) pursuant to Order 5 herein.
Trustee for Sale
5.To effect the sale of the [Suburb A] Property, the parties are to do all acts and things to forthwith appoint [F Lawyers] as Trustee for sale (“the Trustee”). The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to the [Suburb A] property.
6.The Trustee is authorised by these Orders to have the sole conduct of the sale in all respects on behalf of the parties in relation to the [Suburb A] property. This will include doing all things necessary to list [Suburb A] property for sale by private treaty and after a period determined solely by the Trustee, for sale by auction. For the purposes of sale the following shall apply:
a.The [Suburb A] property is only to be listed with such real estate agent/s and auctioneer as determined solely by the Trustee.
b.The listing price for sale by private treaty and reserve price for an auction shall be such the amount as determined solely by the Trustee in consultation with the real estate agent/s and any other enquiries the Trustee wishes to make.
c.The husband and wife are to co-operate in every way with the Trustee appointed real estate agent/s in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all reasonably requested times by the agent/s and ensuring the property is in clean, neat and good order at the time, vacating the property prior to any inspections as directed by the Trustee to enable any prospective buyers to have access to and properly inspect the [Suburb A] property in the absence of the husband or wife.
d.Follow any other directions of the Trustee in relation to the sale of the [Suburb A] property and/ or inspections or viewing of the property and do all acts and things as requested by and in co-operation with the Trustee as and when requested to do so.
7.The husband and wife are restrained from taking any action which causes interference with any prospective purchaser or sale or with the responsibilities and obligations of the Trustee in relation to the [Suburb A] property.
8.The husband and wife are restrained from communicating with any agent/s, auctioneer appointed by the Trustee (other than to follow the directions of the Trustee) or any prospective purchaser without first obtaining the prior written consent of the Trustee.
9.Neither party may confer on any agent without the prior written consent of the Trustee, any permission to sell or any sole or exclusive agency in respect of the [Suburb A] property.
10.The costs of and incidental to such appointment of the Trustee is to be borne equally by the parties.
11.That pending the sale of the [Suburb A] property, the husband shall have the sole right to use and occupy this property to the exclusion of the wife.
Division of Proceeds of [Suburb A] property
12.Upon completion of sale of the [Suburb A] Property the proceeds shall be applied and paid in the following order:
a.To pay all costs, commissions and expenses of the sale and to pay any rates, land taxes and utility charges in respect of the property;
b.To discharge the mortgage on the [Suburb A] property;
c.To pay the amount of $92,000.00 towards to the husband’s credit card debt (unless already paid pursuant to the default provisions of Order 29 herein);
d.To pay the amount of $7,000.00 towards the wife’s credit card debt (unless already paid pursuant to the default provisions of Order 29 herein);
e.To pay or quarantine the sum of $24,663.00 being the capital gains tax liability arising from the sale of the [Property C] property (unless already paid or quarantined pursuant to the default provisions of Order 29 herein;
f.The balance is to be paid to the husband, and taken into account as part of his 25% as referred to in these Orders.
Wife to pay Husband cash adjustment
13.That within 120 days of the date of these Orders (or other such date as agreed to between the parties in writing and if there is no agreement to vary this date, then within 120 days) the wife is to:
a.Pay to the husband the cash adjustment necessary to effect a 25% division to the husband pursuant to these Orders. Such sum will be arrived at after taking into account the following calculation:
i.Starting with $484,265.00 (being the equity retained by the wife in [Property B] (after deduction of the mortgage); plus
ii.the balance of the sale proceeds of the [Suburb A] property (after the deduction of the debts as referred to in Order 12 herein); plus
iii.the sum of $75,000.00 (being the value of the [Superannuation Fund 1]) plus $3,800.00 (being the value of the husband’s car). The total of these sums will be referred to as A.
iv.A is then to be multiplied by 25% representing the husband’s overall entitlement (excluding the [T Superannuation Fund Scheme Pension]).
v.From the figure arrived at in Order 13(a)(iv) above, the sum of $78,800.00 is to be deducted being the value of the assets to be retained by the husband (the [Superannuation Fund 1] and the husband’s car).
vi.The figure arrived at will be the referred to as the cash adjustment payable by the wife to the husband.
14.The wife is to pay the husband funds totalling the sum of the cash adjustment as provided for in Order 13 herein and contemporaneously with such payment, the wife is to refinance the mortgage on [Property B] pursuant to Order 15 herein so as to remove the husband from all financial responsibility to [Property B].
Wife to re-finance
15.The wife and husband is to do all things and sign all documents necessary to refinance the mortgage on [Property B] and secure the release of the husband from his personal covenants in respect of the current mortgage to the bank over [Property B] and or any guarantee by the husband in relation to that mortgage. From that that time the wife shall release and indemnify the husband in relation to all liabilities arising pursuant to the mortgage or liabilities of any other kind whatsoever arising from [Property B].
Transfer of [Property B]
16.Contemporaneously with the wife’s compliance with Orders 13, 14 and 15 herein, the husband and wife do all such acts and things and sign all documents that may be required, to transfer to the wife at the expense of the wife all of the husband’s right, title and interest in and to the property situated at [E Street, Suburb B] in the State of Queensland, more particularly described at [Property B] Lots […] on Crown Plan […] County of […], Parish of […], Title Reference […] ([Property B]).
[T Superannuation Scheme Pension]
17.Subject to procedural fairness being accorded to the Trustee of the [T Superannuation Scheme] , that in accordance with section 90MT(1)(b) of the Family Law Act 1975, (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of [Mr Bade] from his interest in the [T Superannuation Scheme] […], his former spouse [Ms Monfort] (formerly […]) who is a person specified in section 90ME of the Act is entitled to be paid (by the Trustee of [T Superannuation Scheme Pension]) 75% of the splittable payment and there shall be a corresponding reduction in the amount [Mr Bade] would be entitled to receive but for these Orders.
18.The operative time for Order 17 is four business days after the service of the final orders on the Trustee.
[Superannuation Fund 1]
19.The husband is to retain to the exclusion of the wife, 100% of the [Superannuation Fund 1] standing in his name.
Husband’s vehicle
20.The husband is to retain his vehicle.
Default Provision
21.In the event of default by the wife of any of the obligations under Orders 13, 14, 15 and 16 herein the parties are to forthwith do all acts and things to effect a sale of the property situated at [E Street, Suburb B] in the State of Queensland, more particularly described at [Property B] Lots […] and [...] on Crown Plan […] County of […], Parish of […], Title Reference […] ([Property B]) pursuant to the terms of Order 22 herein.
22.To effect the sale of the [Property B], the parties are to forthwith do all acts and things to appoint [F Lawyers] as Trustee for sale (“the Trustee) of [Property B]. The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to [Property B].
23.The Trustee is authorised by these Orders to have the sole conduct of the sale in all respects on behalf of the parties in relation [Property B]. This will include doing all things necessary to list [Property B] for sale by private treaty and after a period determined solely by the Trustee, for sale by auction. For the purposes of sale the following shall apply:
a.[Property B] is only to be listed for sale with such real estate agent/s and auctioneer as determined solely by the Trustee;
b.The listing and reserve price for an auction shall be such amount as determined by the Trustee in consultation with the real estate agent/s and by any other enquiries the Trustee wishes to make;
c.The husband and wife are to co-operate in every way with the directions of the Trustee appointed real estate agent/s in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all reasonably requested times by the agent/s and ensuring the property is in clean, neat and good order at the time, vacating the property prior to any inspections as directed by the Trustee to enable any prospective buyers to have access to and properly inspect [Property B] in the absence of the husband or wife.
d.Follow any other directions of the Trustee in relation to the sale of the property and/ or inspections or viewing of the property and do all acts and things as requested by and in co-operation with all requests of the Trustee as and when requested to do so.
24.The husband and wife are restrained from taking any action which causes interference with any prospective sale or with the responsibilities and obligations of the Trustee for Sale in relation to the [Property B].
25.The husband and wife are restrained from communicating with any agent/s, auctioneer appointed by the Trustee (other than to follow the directions of the Trustee) or any prospective purchaser without the prior written consent of the Trustee.
26.The costs of and incidental of the Trustee is to be borne equally by the parties.
27.Neither party may confer on any agent without the prior written consent of the Trustee, any permission to sell or any sole or exclusive agency in respect of the [Property B].
28.That pending the sale of the property, the wife shall have the sole right to use and occupy [Property B] to the exclusion of the husband.
29.The proceeds of sale are to be divided as follows:
a.To pay all costs, commissions and expenses of the sale and to pay any rates, land taxes and utility charges in respect of the property;
b.To discharge the mortgage on the [Property B];
c.In the event that the [Suburb A] property remains unsold, at the time of the sale of [Property B] the credit card debts referred to at Orders 12(c) and (d) are to be paid and the CGT if not already paid referred to at 12(e) herein is to be paid or quarantined.
d.The balance is to be distributed so as to achieve an overall division of assets of 75% to the wife and 25% to the husband (after taking into account the assets retained by the husband and wife (excluding the [T Superannuation Scheme Pension]).
Other Orders
30.Unless specifically provided for in these orders, the parties are solely entitled to the exclusion of the other to all other property and chattels in the possession of each of the parties as at the date of the making of these orders.
31.That unless otherwise provided for in these Orders, the husband and wife each remain solely liable for an indemnify the other for any and all credit card debt or liability held in their own respective names.
32.That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of these Orders. In the event that either party refuses or neglects to sign (within seven 7 days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.
Spousal Maintenance
33.The wife’s application for spousal maintenance is dismissed.
34.The wife’s applications for contraventions of any interim and or previous spousal maintenance orders, enforcement for arrears and warrants for seizure of property arising from any previous spousal maintenance orders are dismissed.
Outstanding Applications
35.The Application in a Case filed on 16 May 2016 and 4 August 2016 are dismissed.
36.All outstanding applications are dismissed are removed from the pending cases list.”
The firm of lawyers known as F Lawyers refused to act as Trustee. That situation eventually led to the parties consenting to the Order of 1 February 2019. That Order was made by her Honour Judge Willis and that Order states:
“BY CONSENT IT IS ORDERED:
1.Order 5 of the Final Orders be varied to become:
“(5)To effect the sale of the [Suburb A] property, [Mr Flannan] Solicitor is appointed, forthwith, pursuant to section 80(1)(e) of the Family Law Act 1975 as Trustee for sale (“the Trustee”). The husband and wife do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title of the [Suburb A] property.”
2.Order 22 of the Final Orders be varied to become:
“(22)To effect the sale of the [Property B], [Mr Flannan] Solicitor is appointed, forthwith, pursuant to section 80(1)(e) of the Family Law Act 1975 as Trustee for sale (“the Trustee”). The husband and wife do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to [Property B].”
3.Orders 12(a) and 29(a) of the Final Orders be varied to insert the words:
“ …, including the Trustee’s fees, costs and outlays.”
4.Orders 10 and 26 of the Final Orders be varied to insert an extra paragraph to read:
“(b)If either party fails to follow a direction of the Trustee then any additional costs of the Trustee arising from or incidental to the failure shall be borne by that party.”
5.There be no order as to the costs.”
At the time of the making of the 1 February 2019 Order, the wife was represented by Mr G, solicitor and Mr Chinyelu appeared as the solicitor for the husband. The transcript of the hearing before Judge Willis on 1 February 2019 reveals that her Honour was very careful to ensure that the wife was consenting to the appointment of Mr Flannan as the Trustee for Sale of the Suburb A property and Property B. The transcript of that hearing is in evidence. It is annexed to the affidavit of Mr Flannan filed 21 November 2022.[3] Furthermore, the transcript of that day makes it clear that the wife’s solicitor informed the Court that the Trustee was being appointed as the Trustee for Sale of both properties.[4]
[3] Affidavit of Mr Flannan filed 21 November 2022. Annexure MF-1 - especially at the following pages of the transcript: Page 2, line 5 and line 40; Page 4, lines 5 – 25; Page 5, lines 40-45.
[4] Affidavit of Mr Flannan filed 21 November 2022, - Annexure MF-1 - Transcript Page 3 lines 5-10.
The wife never sought to appeal the order of 1 February 2019. The wife now asserts that the 1 February 2019 Order was made “in jurisdictional error”. There is no merit in this argument.
By the 1 February 2019 Order, Mr Flannan was appointed "forthwith" as Trustee for Sale to effect the sale of the Suburb A property and to affect the sale of Property B. The Orders also provided for the payment of the Trustee’s fees, costs and outlays. This is to be expected. The parties also consented to the inclusion of the Order contained in paragraph 4 of the 1 February 2019 Order that:
“If either party fails to follow a direction of the Trustee then any additional costs of the Trustee arising from or incidental to the failure shall be borne by that party.”
It should be noted that, after the final Order was made on 13 October 2017, the wife appealed those orders of Judge Willis. On 24 August 2018, the Full Court of the Family Court of Australia[5] dismissed the wife’s appeal.
[5] As this Court was then known.
The wife maintains that it has never actually been possible to carry the final orders into effect because F Lawyers declined to act as Trustee for Sale of the Suburb A property, the 120 day period from the date of the order elapsed and the wife was not able to calculate the amount of the cash adjustment and make the payment to the husband in accordance with paragraph 13 of the final Orders. I will return to this submission.
The Suburb A property was sold by Mr Flannan as Trustee for Sale and the settlement of that sale occurred in late 2019. On the same day the Trustee filed an Application in a Case in the Federal Circuit Court of Australia seeking directions.
In early 2020 the Trustee requested the wife allow access to Property B by a professional photographer so that photographs could be taken for marketing and advertising purposes. The real estate agent in Brisbane (Ms H) advised the Trustee that there was no point listing Property B for sale until the wife would agree to allow access to the property for inspection by buyers and by the real estate agent. This evidence is contained in the chronology prepared by the Trustee and annexed to his affidavit filed 21 November 2022. In February 2020 the matter was mentioned in the City S Registry of the Federal Circuit Court of Australia and all parties (including the Trustee) agreed, by consent, to an order for a stay against the Trustee in relation to the sale of Property B.
The Trustee’s Application in a Case, which had been filed on 14 November 2019, was listed in the Federal Circuit Court of Australia for hearing on 23 February 2021. On that date her Honour Judge Willis heard the Trustee’s submissions but adjourned the matter pending the wife’s proposed application under s 79A of the Act. It was noted by the Court that the wife was to file a s 79A application within 14 days. The wife did not file a s 79A application within 14 days.
On 9 August 2021 the wife filed a "Notice of a Constitutional Matter" and served it on the Australian Attorney-General. On 27 September 2021, the wife filed an Amended Application (to her application filed 7 November 2019). That application was not made pursuant to s 79A of the Act. An application pursuant to s 79A of the Act was eventually filed by the wife on 21 October 2022 – one year and eight months after the wife had informed the Court that she would be filing such an application. The wife eventually abandoned the application under s 79A.
On 3 March 2022 an Order was made transferring the matter from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).[6]
[6] As this Court is now known.
In March 2022, the wife filed an application in the High Court of Australia seeking leave to challenge the appointment of the Trustee – such appointment having been made pursuant to s 80(1)(e) of the Act.
I conducted a Case Management Hearing on 6 April 2022.
In July 2022, the High Court of Australia refused the wife’s application for leave to appeal.
On 3 August 2022, the wife filed an Application for Contempt and the named respondents in respect of that application were as follows:
(a)Mr Flannan (the Trustee) as First Respondent;
(b)Mr J, a former employee of Mr Flannan’s firm – named as the Second Respondent;
(c)Mr Mr Chinyelu (the husband’s solicitor) named as the Third Respondent; and
(d)The husband (Mr Bade) as the Fourth Respondent.
On 1 September 2022, the wife failed to appear before a Judicial Registrar on the first return date of the Contempt Application. On 20 September 2022, the wife again failed to appear at a further return date of the Contempt Application before the Judicial Registrar. The Judicial Registrar then listed the Contempt Application for mention before me on 23 November 2022. In October and November 2022, the wife took the following steps (page 19 of the Trustee’s Affidavit of 21 November 2022):
“18.10.2022Wife provides parties with an Initiating Application pursuant to s79A.
2.11.2022Wife files submissions for hearing on 23 November 2022.
9.11.2022Wife’s Application for Final Orders.
18.10.2022Wife serves Initiating Application and supporting documents on Husband and Trustee.
15.11.2022Wife files Affidavit in relation to her Application – Contempt.
15.11.2022Wife’s Application in a Proceeding filed.”
When the matter came before the Court on 23 November 2022, the hearing of certain applications was commenced by the Court – however it became apparent to the Court that the matter could not be finalised in the time allotted and the matter was adjourned to 17 January 2023 (for two days). By the Order dated 23 November 2022, the Court set down for hearing the outstanding applications – to continue or to be heard from 17 January 2023. The Court noted that the following applications were listed for hearing on the adjourned date of 17 January 2023:
“a)Application in a Case filed by [Mr Flannan] on 14 November 2019;
b)Application in a Case filed by [Ms Monfort] on 7 November 2019 and amended 27 September 2021;
c) Application for Contempt filed by [Ms Monfort] on 3 August 2022;
d)Initiating Application filed by [Ms Monfort] on 21 October 2022 (Application made pursuant to s 79A Family Law Act 1975 (Cth) – “the s 79A Application”);
e)Application in a Proceeding filed by [Ms Monfort] on 15 November 2022; and
f)Application for a declaration/order that [Ms Monfort] is a vexatious litigant (pursuant to s 102QB of the Family Law Act 1975 (Cth)).”
In relation to (a) and (b) above, it was noted that those applications were commenced on 23 November 2022 and had in fact been adjourned for further hearing on 17 January 2023.
On 17 January 2023, Mr X of counsel appeared, instructed by U Lawyers on behalf of the wife. Mr V of King’s Counsel with Ms Downes of counsel appeared on behalf of Mr Flannan (the Trustee). Mr V’s appearance was in respect of the contempt application. Mr Mr Chinyelu appeared on his own behalf in respect of the contempt application and appeared for Mr Bade in relation to all matters then outstanding.
Mr J did not appear on 17 January 2023 because Ms Monfort’s contempt application against Mr J was dismissed by the Court with the consent of the applicant wife and Mr J. That Order was made by the Court in chambers at the request of those parties on 16 January 2023.
On 17 January 2023, Ms Monfort (through her counsel) sought the leave of the Court to file a Notice of Discontinuance in respect of the Application for Contempt which had been filed by the applicant wife on 3 August 2022. The remaining respondents, Mr Flannan, Mr Chinyelu and Mr Bade resisted the application for leave. Leave was required – if the wife wanted to file a Notice of Discontinuance - by reason of the operation of r 10.02(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
The three remaining respondents resisted the application for leave and sought an order that the Application for Contempt be dismissed for want of prosecution on the basis that the wife no longer wish to proceed with the contempt application. The Court heard argument on that day, including submissions by Mr V on behalf of the Trustee, Mr Flannan. Leave to file a Notice of Discontinuance was refused. The wife’s Application for Contempt filed on 3 August 2022 was therefore dismissed by Order of the Court dated 17 January 2023. Reasons for that decision were provided ex tempore at that time.
It is also noted that on 17 January 2023, the Court ordered, with the consent of the applicant wife and Mr Flannan, the following:
“2.That the wife pay the costs of the First Respondent, [Mr Flannan], in relation to the wife’s application for contempt brought against [Mr Flannan] fixed in the sum of $33,550, which is to be paid in the first instance from the funds held in the Trustee’s trust account and ultimately to form part of the wife’s distribution of 75% of the overall division of assets.”
Once the Contempt Application had been dismissed by the Court, Mr V withdrew as senior counsel for Mr Flannan. The remaining parties (after the dismissal of the contempt application) were Ms Monfort (“the wife”); Mr Bade (“the husband”); and Mr Flannan (“the Trustee”). Ms Downes of counsel remained – appearing on behalf of Mr Flannan. The parties attempted to negotiate a settlement of all outstanding applications on 17 January 2023. The parties returned to the Court on 18 January 2023 and continued to negotiate. On 18 January 2023, the lawyers for the parties informed the Court that all remaining issues between the parties had been settled. Ms Downes of counsel read into the record on 18 January 2023 the terms of the proposed consent order. The Court granted to the parties leave (by way of a direction) to forward to the Court the final terms of the proposed consent order by 4.00pm on Monday, 23 January 2023.
It is to be noted that, on 18 January 2023 Mr X of counsel, appearing on behalf of the wife, informed the Court that he held instructions on behalf of the wife to agree to the terms of the settlement – as outlined by Ms Downes of counsel to the Court on that same day.
At a point in time after 18 January 2023, the applicant wife sacked her lawyers (Mr X of counsel and U Lawyers) and made it known to the other parties (and to the Court) that she no longer consented to the terms of settlement that had been agreed.
On 23 January 2023, the Court listed the matter for further hearing to commence at 10.00am on 31 January 2023.
On 31 January 2023, the Court noted that Mr X of counsel appeared to assist the Court (on a pro bono basis) – as did his instructing solicitor from U Lawyers. The Court granted those lawyers leave to withdraw shortly after the commencement of the matter on 31 January 2023.
It became apparent that the matter would need to proceed. Ms Monfort, the wife, remained as a self-represented litigant. Ms Downes of counsel appeared for Mr Flannan, the Trustee. Mr Chinyelu appeared on behalf of the husband.
Because of the withdrawal by the wife of her consent to the settlement and the fact that the wife had become a self-represented litigant – the Court directed on 31 January 2023 that the wife, the husband and the Trustee tell the Court precisely what applications and affidavits they would be reading and relying upon. The Court directed that the parties inform my associate precisely what applications and affidavits each party would be reading and relying upon. By issuing this direction, the Court required the parties to identify what applications each party would be pursuing. Each of the parties communicated with my associate. My associate drafted a document. A copy of that document was handed to each of the parties. That document then became Exhibit 4. Exhibit 4 contains a list of the applications that were being pursued by each of the parties. Exhibit 4 also contains (as part of the same list) the affidavits being relied upon by each party. Exhibit 4 states as follows:
“(Material Relied upon by Ms Downes for the Trustee)
1. Affidavit of 17 January 2023 (filed with leave of the Court)
2. Affidavit of 31 January 2023 (filed with leave of the Court)
3.Affidavit of [Mr K] filed on 16 January 2023[7]
4. Application in a Case filed 14 November 2019
5. Affidavit filed 21 November 2022
6. Application filed 27 January 2023 (check date)
(Material Relied upon by Mr Chinyelu for the Husband)
1.Application in a proceeding filed 10 January 2023 (application for a declaration that the wife is a vexatious litigant)
2.Affidavit filed 10 January 2023 (application for a declaration that the wife is a vexatious litigant)
[7] A review of the transcript indicates that leave to rely upon this Affidavit was granted on 31 January 2023.
(Material Relied upon by [Ms Monfort])
1.Response filed 10 January 2023
2.Affidavit filed 10 January 2023
3.Application filed 27 September 2021[8]
4.Affidavit filed 7 November 2019
5.Affidavit filed 28 June 2021
6.Affidavit filed 23 Sep 2021
7.Summary of Argument by [Mr R] KC filed 23 March 2021”
[8] This application is in fact an amended application in a case filed 27 September 2021
The matter then proceeded on 31 January 2023 in respect of the above-mentioned applications. The parties were relying upon the affidavit material referred to in Exhibit 4. No other applications were sought to be read by the parties. In respect of any other outstanding applications, therefore, those applications are dismissed for want of prosecution. The parties had the chance to inform the Court – via Exhibit 4 – precisely what applications each of the parties was pursuing. The parties are bound by Exhibit 4. Parties are not permitted to chop and change at will. Procedural fairness demands that each party is aware, prior to a hearing, precisely what applications are being pursued. Whatever may have been the case before 31 January 2023 – from that date onwards – the only applications being pursued by the parties are those contained in Exhibit 4. I am completely satisfied that the self-represented wife was aware of this. Indeed, a reference to the transcript[9] indicates that on 31 January 2023 – once I had asked the parties to review the draft document (which became Exhibit 4) – the wife requested that a summary of argument prepared by Mr R KC and filed on 23 March 2021 would also be sought to be relied upon by the wife. I specifically then asked the wife whether that summary of argument related to her s 79A application. She informed the Court that it did not. Page 11 of the Court Transcript of 31 January 2023 (lines 21 and 22) makes it clear beyond any shadow of a doubt that the wife abandoned her application under s 79A of the Act.
[9] Transcript of 31 January 2023, pages 41, 42 and 43.
Leave was also granted by the Court in respect of the following affidavits:
(a)Affidavit of Ms Downes sworn 31 January 2023 – leave granted on 31 January 2023; and
(b)Affidavit of Mr Flannan sworn 30 January 2023 – leave granted on 31 January 2023 and it was filed on 1 February 2023.
I specifically note that there was no leave granted in respect of the following documents:
(a)Affidavit of Mr Bade filed 15 February 2023;
(b)Affidavit of Ms Monfort filed 16 February 2023; and
(c)Affidavit of Mr Chinyelu filed 9 may 2023.
On 14 November 2019 the Trustee filed the aforementioned Application in a Case seeking directions from the Court. The Trustee’s ability to give effect to the final orders of 13 October 2017 was being frustrated by the actions of the wife. At paragraphs 29-38 of his affidavit filed by leave on 17 January 2023 the Trustee states:
“29. On 8 April 2019, l caused my office to write to the wife's solicitors. In part, I communicated my intention to take [Property B] to auction, at which the wife could bid. A copy of that email is annexed hereto and marked [MF]-19 (page 224).
30. Annexed hereto and marked [MF]-20 (page 227) is a copy of the wife's solicitors response to this email on 10 April 2019.
3 1. At the time, my literal interpretation of the Final Orders, as amended, required me to market the prope1ties for sale and list them for auction. Notice of this interpretation was initially raised with the parties in mid-April 2019. See annexure [MF]- 21 (page 229).
32. I have since sought directions from the court in this respect, which have yet to have been provided.
33. On 24 April 20 19, the wife's solicitors enquired whether a sales agent had been appointed for [Property B]. See annexure [MF]-22 (page 238).
34. On 29 April 20 19, and only after I had stated that I was not going to sell [Property B] to her privately, I received an email and long letter from the wife challenging my authority to act as trustee for sale of [Property B]. A copy of that email and letter is annexed and marked [MF]-23 (page 239).
35. I received a further letter form the wife dated 6 May 2019 which is annexed hereto and marked [MF]-24 (page 261 ).
36. Annexed hereto and marked with the letters [MF]-25 (page 267) is a copy email from Mr Chinyelu dated 14 May 20 19 advising that:
(a) the wife had requested the Registry to transfer [Property B] to her;
(b) the Orders did not make the refinance of [Property B] contingent on the sale of [Property A]; and
(c) the Final Orders contemplate the possibility of the [Suburb A] prope1ty being sold before [Property B].
37. I received a further letter from the wife on 30 May 20 19 detailing why she believed she wasn't in default of the Final Orders, which is annexed hereto and marked with the letters [MF]-26 (page 304).
38. Since receiving those letters l have sought directions from the Court in relation to selling [Property B].”
I accept this evidence of the Trustee. I found Mr Flannan to be clear, direct and truthful in the giving of his evidence.
The wife has asserted (inter alia) – that the Trustee was not validly appointed; that the Trustee was not entitled to register himself on the title of Property B;[10] that the Trustee is not entitled to be reimbursed for the costs he has incurred in performing his duties as Trustee; that the Trustee has not acted in accordance with his obligations as a Trustee; that the Trustee has caused or frustrated the wife’s ability to refinance Property B; that the Trustee has acted in his own interests and that he should be removed as Trustee. There is no merit whatsoever in any of these arguments. The terms of the Final Order are clear. Order 13 of the final Order provided to the wife 120 days within which to make a payment to the husband – by way of a cash adjustment. The wife had unsuccessfully appealed those final orders – but no stay of those orders was ever made. Under the final Orders, the wife had until 10 February 2018 to make the payment.
[10] and presumably the Suburb A property.
The plain reading of the Order leads to the conclusion that the calculation set out in Order 13(a) was as follows:
“$484,265 + $0 (there were no sale proceeds for the [Suburb A] property at that time)
plus $75,000 + $3800 = $563,065
x 25% = $140,766.25
- $78,800 = $61,966.25.”
Order 13 of the final Orders commences with the following words:
13.That within 120 days of the date of these Orders (or other such date as agreed to between the parties in writing and if there is no agreement to vary this date, then within 120 days) the wife is to:
a.Pay to the husband the cash adjustment necessary to effect a 25% division to the husband pursuant to these Orders...
The fact that the Suburb A property had not been sold within the 120 days (i.e. prior to early 2018) did not mean that the wife was therefore relieved of her obligation to pay the cash adjustment to the husband in accordance with Order 13. I accept the submissions of the Trustee and the submissions of the husband in relation to the construction of Order 13. It was still possible for the wife to calculate the cash adjustment – even though there were no sale proceeds for the Suburb A property at the time that the cash adjustment payment fell due. Judge Willis had contemplated that the Suburb A property might remain unsold for some considerable period of time – note Order 29(c) of the final Orders. On the date when the cash adjustment fell due – there was no trustee in place. F Lawyers had refused to act as the Trustee. I accept the evidence of the husband that this occurred because of the meddling, the interference and the obstruction deliberately carried out by the wife. Irrespective of whether or not there was a Trustee in place to effect the sale of Property A – as at the date of early 2018 the wife remained obligated to pay to the husband the cash adjustment to be calculated in accordance with Order 13(a). The balance of the sale proceeds of the Suburb A property as at early 2018 was $0. That is the sum that should have been factored into the equation in calculating the cash adjustment to be paid by the wife to the husband. Given the wife’s recent actions in January 2023 in sending the amount of $61,966.25 to the husband’s lawyer – it appears to the Court that the wife now accepts that that sum of money is the correct amount of the cash adjustment. Why didn't the wife make this payment prior to early 2018? There is no adequate explanation from the wife.
By Orders 14 and 15 of the final Orders – the wife was obligated to refinance the mortgage on Property B and was also required to remove the husband from all financial responsibility in respect of Property B. The wife’s obligations pursuant to Orders 14 and 15 should have been complied with by the wife before early 2018. Further, contemporaneously with the wife’s compliance with Orders 13, 14 and 15 – the wife and the husband were then required to do all acts and things necessary to transfer the husband's interest in the Property B to the wife.
The wife’s obligation to comply with Orders 13, 14 and 15 within the specified timeframe (before early 2018) were not conditional upon the sale of Suburb A within that timeframe. Nor were those obligations conditional upon the appointment of the Trustee. Those obligations were not conditional on anything.
The parties’ obligations pursuant to Order 16 were to be carried out by the parties (contemporaneously with the wife’s compliance with Orders 13, 14 and 15). Thus, the transfer of the husband's interest in the Property B to the wife was to occur at the same time that the wife complied with Orders 13, 14 and 15. The wife did not comply with Orders 13, 14 and 15 and hence the obligation (particularly of the husband, but also of the wife) to comply with Order 16 never actually eventuated.
Exhibits 6, 7 and 8 contain several offers to the wife in respect of the refinancing of the Property B. I agree with the submission made on behalf the Trustee that the fact that the offers of refinance contained terms that the wife was not able to meet – does not mean that the wife was “prevented” from being able to refinance the property. The wife tried to refinance. The wife was not able to meet the terms that were offered to her by the financiers. No person – certainly neither the husband nor the Trustee – can be said to have “prevented” the wife from being able to refinance the mortgage on Property B.
Even though some submissions were made on 23 November 2022 – and even though the Court record indicates that the hearing commenced on 23 November 2022 – the reality of the situation is that it is really only those submissions that were made after the creation of Exhibit 4 which are relevant. Once the parties committed themselves to the applications listed in Exhibit 4 (on 31 January 2023) – it is only from that point onwards that the submissions made to the Court become relevant.
On 31 January 2023, the Court informed the self-represented wife that she would be entitled to cross-examine any of the witnesses. The applicant told the Court that she would give some thought as to whether she wished to cross-examine any of the witnesses. Her inclination at the time was to ask some questions of the Trustee Mr Flannan.
None of the other parties wished to cross-examine any witnesses.
The Court then heard oral submissions from the applicant wife. The Court then heard part of the oral submissions by Ms Downes on behalf of the Trustee. The Court then adjourned for the day on 31 January 2023 at approximately 3:45pm. The attendance of the parties and their lawyers was required at Court on 1 February 2023 to conclude the hearing.
On 1 February 2023, the applicant wife failed to appear at Court at 10.00am. The matter was called on at 10.30am on that morning and the wife attended by telephone. The Court had directed that the applicant wife attend by telephone because of a failure to attend at the courtroom. The other parties were represented in court. The wife sought an adjournment on the basis of illness. At that time the applicant wife had provided no medical evidence in relation to illness. The Court issued certain directions in relation to the provision of evidence by the wife and the matter was adjourned until 16 and 17 February 2023. The Court issued certain other directions on 1 February 2023 in relation to the further hearing of the matter.
The Trustee has provided to the Court an amended version of the orders or directions that he seeks in relation to the matter. The draft orders were provided on 31 January 2023 and are contained in Exhibit 5.
1.Pursuant to s 102QB(2)(a) of the Family Law Act 1975 (Cth) (“the Act”), all extant applications instituted by [Ms Monfort] (“the wife”) in the Federal Circuit and Family Court of Australia be dismissed.
2.Pursuant to s 102QB(2)(b) of the Act, the wife be prohibited from instituting proceedings in any court having jurisdiction under the Act in relation to [Mr Bade] (“the husband”) or [Mr Flannan] (“the Trustee”), without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
3.That within seven (7) days of the date of these Orders, the wife pay to the Husband’s solicitors’ Trust Account the sum of $10,000 in relation to the costs incurred by the Husband and/or his solicitor for the Wife’s Contempt Application.
4.Pursuant to s80(1)(k) of the Act, the wife is declared from 1 February 2019 to be in default of Orders 13, 14 and 15 of the Orders dated 13 October 2017.
5.That the net proceeds of sale from the [Suburb A] property in the amount of $98,896.71 are accounted for to pay the Trustee’s costs and outlays in the amount of:
a) $33,550 in accordance with the Orders of 17 January 2023;
b) $31,189.99 (including GST) for the Trustee’s disbursements and outlays as identified in the costs assessment of 7/11/2022 (comprising $12,952.5 and $18,237.49);
c) $4,488.00 (including GST) for [Mr K’s] 7/11/2022 costs assessment invoice;
d) $968 (including GST) for [Mr K’s] 9/1/2023 costs assessment invoice, and
e) $770 (including GST) for [L Valuers] valuation fees of [Property B] as per orders of 23 November 2022;
f) $2,270.59 insurance for [Property B] 2022/2023 (with any cancellation of insurance credit after settlement to fall into the balance referred to in Order g) herein);
g) $464.50 (including GST) for the standard work as shown in the costs assessment dated 9/1/2023;
h) $11,110 for the Trustee’s disbursements for Counsel’s fees for 31 January and 1 February 2023, and
i) The balance thereof, in the amount of $19,035.63 for the Trustee’s costs (i.e., towards the payment of the $52,189.50 (including GST) for the standard work as shown in the costs assessment dated 7/11/2022).
Sale of [Property B]
Vacant Possession
6.That pursuant to s80(1)(i) of the Act, by 3.00pm on Monday 13 February 2023, the Wife deliver up to the Trustee vacant possession of the property situated at [E Street, Suburb B], Queensland more particularly described as Lots […] and [...] on Crown Plan […] County of […], Parish of […], Title Reference […] (“[Property B]”) including all fixtures and fittings currently upon that property in good order and repair and to deliver up to the Trustee and/or make available for collection by the Trustee all keys, remote control units, and other security devices for [Property B] in good order and repair upon such date and at such time as the said Trustee shall advise her in writing.
7.That pursuant to Rule 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), a warrant for possession of the whole of the property described as [E Street, Suburb B], Queensland more particularly described as Lots […] and [...] on Crown Plan […] County of […], Parish of […], Title Reference […] (“[Property B]”) be issued in favour of the Trustee, [Mr Flannan], authorising [Mr Flannan] to enter and take possession of [Property B] but that such Warrant lie in the Registry.
8.In the event the Wife does not provide vacant possession to [Mr Flannan] by 13 February 2023, the Registrar of the Federal Circuit and Family Court of Australia will, on or around 14 February 2023 forthwith issue the Warrant for Possession on receipt of an Affidavit by [Mr Flannan] of the Wife’s failure to comply with Order 6 of these Orders.
Removal of Caveat
9.That the caveat lodged by the Wife on 14 May 2019 against the Title of [Property B] bearing Registered Number: […] be removed from the Title and that this Order is sufficient authority to the Registrar of Titles to remove the said Caveat.
Sale
10.The Trustee is to sell [Property B] and is authorised by these Orders to have the sole conduct of the sale in all respects on behalf of the parties in relation [Property B]. This will include doing all things necessary to list [Property B] for sale by private treaty and if not already sold after a period determined solely by the Trustee, for sale by auction. For the purposes of sale the following shall apply:
a) [Property B] is to be listed for sale with such real estate agent/s and auctioneer as determined solely by the Trustee;
b) The listing and reserve price for an auction shall be such amount as determined by the Trustee in consultation with the real estate agent/s and by any other enquiries the Trustee wishes to make;
c) The husband and wife are to co-operate in every way with the directions of the Trustee and his appointed real estate agent/s in relation to the marketing and sale of the property.
d) The husband and wife may make genuine bids at an auction of the property.
11.The husband and wife are restrained:
a) from taking any action which causes interference with any prospective sale or with the responsibilities and obligations of the Trustee for Sale in relation to [Property B];
b) from communicating with any agent/s, auctioneer appointed by the Trustee to sell [Property B] (other than to follow the directions of the Trustee) or any prospective purchaser without the prior written consent of the Trustee, and
c) from conferring on any agent without the prior written consent of the Trustee, any permission to sell or any sole or exclusive agency in respect of [Property B].
12.The proceeds of sale of [Property B] are to be applied as follows:
a) To pay all costs, commissions and expenses of the sale, and to pay any unpaid rates, land taxes and utility charges in respect of the property;
b) To discharge the mortgage on [Property B];
c) To pay the Trustee’s costs and outlays for his work relating to his role as Trustee for sale, (less any sum that has already been paid towards this in accordance with Orders 5 herein), which were not incurred solely in relation to the wife’s or the husband’s conduct in accordance with Orders 10 and 26 of the Orders dated 13 October 2017 as amended by Order 4 of the Orders dated 1 February 2019, as assessed by [Mr K] calculated on the Supreme Court Scale of Fees on an indemnity basis up to the date of sale.
d) The amount of $92,000 to the Husband to pay his credit card debt in accordance with Order 12(c) of the Orders of 13 October 2017;
e) The amount of $7,000 to the Wife to pay her credit card debt in accordance with Orders 12(d) of the Orders of 13 October 2017;
f) the amount of $24,663 to the Husband for the Capital Gains Tax in relation to the sale of the [Suburb C] Property in accordance with Order 12(e) of the Orders of 13 October 2017; and
g) The balance is to be distributed to achieve an overall division of assets of 75% to the wife and 25% to the husband (after taking into account the assets retained by the husband and wife (excluding the [T Superannuation Scheme Pension])) as follows:
i.An amount to the wife referrable for her 75% less:
A. The Trustee’s Application for Contempt Costs in the amount of $33,550 ordered to be paid by the wife as per the Orders dated 17 January 2023; and
B. An amount to be paid to the Trustee for the Trustee’s costs and outlays incurred solely in relation to the wife’s conduct in accordance with Orders 10 and 26 of the Orders dated 13 October 2017 as amended by Order 4 of the Orders dated 1 February 2019, as assessed by [Mr K] on the Supreme Court Scale of Fees on an indemnity basis.
ii.An amount to the Husband referrable to his 25% less:
A.An amount to be paid to the Trustee for the Trustee’s costs and outlays incurred solely in relation to the Husband’s conduct (if any) in accordance with Orders 10 and 26 of the Orders dated 13 October 2017 as amended by Order 4 of the Orders dated 1 February 2019, as assessed by [Mr K] on the Supreme Court Scale of Fees on an indemnity basis.
13.That in the event of a failure by either the husband or the wife to sign all documents and carry out all acts necessary to give full force and effect to these Orders within fourteen (14) days of a written request to do so, or if the Registrar of Titles refuses to remove a document from the Title of [Property B], a Registrar of the Federal Circuit and Family Court of Australia is hereby appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute any necessary documents and carry out any necessary acts to give force and effect to these orders at the expense of the defaulting party upon lodgement of such document and the filing of an affidavit of the Trustee or a solicitor on behalf of the requesting party as to the said failure or refusal.
14. That the Trustee is discharged from his role upon settlement of the sale of [Property B] and payment of the amounts set out in Order 12 herein and the Husband and Wife indemnify the Trustee for work he has done pursuant to his Appointment as Trustee for the [Suburb A] and [Property B] properties.
NOTATION
A. Orders 10, 11, 12 and 13 of these Orders are Orders that were made in the Final Orders dated 13 October 2017, but for ease of giving effect to the sale process of the [Property B] property, they have been replicated here.
B.It is noted that the amount set out in Order 3 has already been paid by the Wife into the Husband’s Solicitor’s Trust Account.
The applicant wife seeks the following orders in accordance with the application she relies upon. Pursuant to the Amended Application in a Case filed 27 September 2021, the wife seeks that:
“1.Pursuant to Paragraph [3] of the Final Order dated 13 October 2017 (as amended), the mechanical provisions of the Paragraph 13 of the Final Order made 13 October 2017 granting:
“That within 120 days of the date of these Orders (or other such date as agreed to between the parties in writing and if there is no agreement to vary this date, then within 120 days) the wife is to:”
Be varied to become:
“That within 120 days of the date that:
a. The payments pursuant to the Paragraphs 12 (a) (b) (c) (d) (e) and (f) are completed to enable the "cash adjustment" referred to in the Paragraphs [13] and [14] to be ascertained; and
b. The instrument no. […] registering [Mr Flannan] on title to property known as [Property B] is cancelled to enable the husband’s interest in the property to be capable of transfer to the wife pursuant to the Paragraph [16].
2.Pursuant to s 106B of the Act, [Mr Flannan] is to forthwith do all things and sign all documents as may be necessary to cancel at his own cost and to cause the Old Land Titles Registry to cancel the instrument no. […] which registers “[Mr Flannan] Trustee for Sale” on title to the property known as [Property B], more particularly described as [Property B] Lots […] and [...] on Crown Plan […] Count of […], Parish of […], Title Reference […] ("[Property B]" ).
3.But for the requirement of the said [Mr Flannan] to attend to the cancellation of the instrument no. […], the Paragraph (1) of the Order made 4 February 2020 restraining [Mr Flannan] remain in force.
4.That the Applicant be given leave to withdraw from filing the proposed application as per the Notation 'A' to the Order made on 23 March 2021 without prejudice and with no order as to costs.”
The orders sought by the wife have been included above – by reference to the Amended Application filed by the wife on 27 September 2021. The wife filed a Further Amended Initiating Application on 23 January 2023. This was filed at 8.42am on that date. By that document the wife sought orders which are similar – but not identical – to the application filed 27 September 2021. The Court’s direction of 31 January 2023 and Exhibit 4 together make it clear precisely what the wife relied upon and the wording of the orders sought. It is therefore Exhibit 4, and the applications and the affidavits listed there (under the heading relating to the wife) which comprise the relevant material so far as the wife is concerned. The Court will not be taking account, therefore, of any other applications or affidavits referred to by the wife in her submissions. The Court will not be referring to the wife’s further Amended Initiating Application filed 23 January 2023. If the wife had wanted the Court to rely upon that document – then the wife should have ensured that it was included in Exhibit 4. It is only those documents (applications and affidavits) that were read and relied upon as part of this hearing (Exhibit 4) and other documents about which the Court granted express leave – that are relevant to the matters currently before the Court.
For the reasons outlined in this judgment – the orders sought by the wife and contained in her Amended Application filed 27 September 2021 will not be made. That application will be dismissed. Even if the Court was inclined to take into account the wife’s Further Amended Initiating Application filed on 23 January 2023 (which it is not) – that application would have been dismissed in any event - for the identical reasons that the Amended Application filed by the wife on 27 September 2021 is being dismissed.
Pursuant to an Application in a Proceeding filed on 10 January 2023 the husband seeks an order for a declaration that the wife is a vexatious litigant. The terms of the orders sought are as follows:
“1.An order declaring [Ms Monfort] a vexatious litigant under 102QB of Family Law Act 1975.
2.An order restraining [Ms Monfort] from filing any further applications to the Federal Circuit and Family Court of Australia in our family law matter without leave of the Court.
3.An order that states [Ms Monfort] is restrained from filing any further applications in our family law matter in any Court without leave of the Federal Circuit and Family Court of Australia.
4.Any other order the Court deems appropriate.
5.Costs, with costs to be assessed.”
The Application in a Case filed by the Trustee on 14 November 2019 sought directions from the Court. Exhibit 5 contains the precise directions sought by the Trustee and those orders have been outlined above. In addition, paragraph 6 of the written submissions of the Trustee (filed 2 May 2023) states that the Trustee seeks three further orders. Each of those additional orders had been outlined by the Trustee to the other parties in Court on 13 March 2023. The three additional orders are as follows:
“a) To account for the payment of costs incurred by the Trustee after 31 January 2023;
b) To deal with the removal of a further caveat lodged by the Wife on 30 January 2023, (which came to the attention of the Trustee on 6 February 2023), to remove any further caveats she may have filed subsequently and to restrain the Wife from filing further caveats without the prior consent of this Court until [Property B] is sold;
c) To provide the Trustee with an authority to discuss and be provided with details of the mortgage registered against [Property B] with the National Australia Bank, where it is currently refusing to do so.”
The Trustee's Application for Directions filed in November 2019 was just that - an application for directions. By its nature it is different to a substantive claim – such as those claims pursued by the wife and the husband. Even if I'm wrong in this assessment of the nature of the Trustee’s directions application – it will make no difference to the outcome. I'm satisfied that, via Exhibit 5 and via the additional orders contained above in – as outlined by the Trustee to the parties and to the Court on 30 March 2023 – the other parties had sufficient notice of precisely the terms of orders sought by the Trustee – by way of directions. To the extent that the Trustee needs leave to ask for any additional orders – leave is granted. The wife has filed so many different applications and pursued so many different courses of action that she has managed to obfuscate what is, essentially, a straightforward interpretation of the final Orders made by Judge Willis on 13 October 2017.
The wife has known for at least six years that it would not be likely that she would be able to retain Property B. This has been the wife’s belief for at least six years. I note paragraph 78 of an affidavit sworn by the wife in proceedings in the District Court of Queensland. That affidavit was filed in late 2017 and was filed in proceedings where the wife was pursuing a family provision application pursuant to the Succession Act 1981 (Qld).[11]
[11] Note Exhibit 10, page 15.
At paragraph 78 of her affidavit sworn for the District Court proceedings, the wife stated:
“78. It is not likely that I will retain [E Street], [Suburb B] because it is unlikely that I will be able to refinance the mortgage on my own and, even if I am able to do so, I do not believe I will be able to meet the mortgage repayments from my income.”
The wife was undoubtedly telling the truth in paragraph 78 of her affidavit in the District Court proceedings. Subsequent events have proved her prediction to be correct. The wife has not at any time been able to refinance the mortgage on the Property B. The wife has not been able to refinance Property B and yet she has consistently, over a long period of time, taken every conceivable step to prevent the operation of the final Orders and to prevent the sale of Property B. If the wife was aware in December 2017 that it was unlikely she would be able to refinance Property B – then the wife should have agreed at that point in time to the appointment of a Trustee who was willing to act, and then the wife should have allowed the Trustee to sell the Property B in accordance with the orders. At various times over the course of the last six years, the wife has appeared to be on the verge of taking a sensible approach to the execution of the orders. Unfortunately, on each occasion, the wife has resiled from taking a sensible approach. The consent Order, agreed to by the wife, and made by her Honour Judge Willis on 1 February 2019, made it clear (amongst other things) that Mr Flannan was being appointed as Trustee to effect the sale of the Property B. By that point in time the wife was well and truly in default of her obligations under Orders 13, 14, 15 and 16. Property B should have been sold by the Trustee soon after the making of the consent Order on 1 February 2019. But at every turn the wife resisted. The wife would not take a reasonable approach in relation to the marketing of Property B for sale. The wife would not permit access to the property in a timely way by the real estate agent (Ms H).
The Trustee, acting completely appropriately, sought directions from the Court. That application (as noted earlier) was filed in November 2019. Further confirmation of the correctness of my view in this regard can be found in another affidavit filed by the wife in the District Court proceedings. This affidavit was filed by leave before his Honour Judge McGill in late 2018. In paragraphs 3 and 10 – the wife informed the District Court (essentially) that she was waiting for the sale of Property B.[12]
[12] Note pages 66 and 67, Exhibit 10.
On 18 February 2019, 17 days after his appointment, the Trustee emailed the solicitors for the parties and informed those solicitors of the Trustee’s intention to lodge a request with the Land Titles Office Queensland to register Mr Flannan as Trustee for both the Suburb A property and Property B. Neither the wife nor the husband objected to the course of action proposed by Mr Flannan to have himself registered as Trustee for both properties with the Land Titles Office.[13]
[13] Note generally the affidavit of Mr Flannan filed by leave on 17 January 2023. Note that more than one affidavit of Mr Flannan was filed by leave on 17 January 2023 but the large comprehensive affidavit is the affidavit in question and it is the affidavit relied upon by the Trustee. Note especially from paragraph 18 of that affidavit onwards.
The wife’s solicitor at that time was Mr N. Correspondence between the Trustee and Mr N is annexed to Mr Flannan’s affidavit filed 17 January 2023. It is clear that the wife was attempting to buy Property B. Correspondence annexed to the affidavit of Mr Flannan[14] also makes it clear that the wife was aware that Mr Flannan had become registered on the title of Property B and the wife was aware that Property B was to be sold by the Trustee. The wife was trying to purchase the property. Consistent with some of her other conduct in the course of this litigation – the wife took a rather unusual approach in her attempt to purchase Property B in 2019. Mr Flannan provides evidence[15] that on 5 April 2019 the wife made a written offer to purchase Property B in the amount of $680,000. At paragraph 28 of his affidavit, Mr Flannan states that the offer of $680,000 – “...was $160,000 less than the wife's first offer”.[16]
[14] The 17 January 2023 affidavit.
[15] Paragraph 27 of the affidavit of Mr Flannan filed 17 January 2023.
[16] Paragraph 28 of the affidavit of Mr Flannan filed 17 January 2023 and note also page 151 of the annexures to that affidavit – which details an offer to purchase Property B by the wife and states a purchase price of $840,000.
Prudently, on 8 April 2019, the Trustee sent a letter to the solicitors for the wife communicating the Trustee’s intention to take the Property B to auction and noting that the wife could bid at the proposed auction.
As noted earlier, on 4 February 2020, Judge Willis made an Order (by consent) that the Trustee take no further steps to sell the Property B pending the hearing of the Trustee’s application for directions – noting that such application had been filed in November 2019.
On 23 March 2021, Judge Willis adjourned the Trustee’s application – after hearing the Trustee’s submissions – because, at that point in time (as noted earlier) the wife indicated she would be filing a s 79A application. As I've earlier noted, the wife did not do so until late 2022 and then in January 2023 the wife abandoned her s 79A application.
THE WIFE'S AMENDED APPLICATION IN A CASE FILED 27 SEPTEMBER 2021
The wife seems (although it is not clear) to be asking the Court to vary the final Order of 13 October 2017 and to note that the sale of the Suburb A property has been completed and to permit the wife a further 120 days to pay the cash adjustment as required by Order 13 and to permit the wife to also comply with Order 14.
There is absolutely no merit in this argument by the wife. I note the decision of the Full Court of this Court in Pera & Pera (2008) FLC 93-372 (“Pera & Pera”) where the Full Court stated:
“In Slapp & Slapp (1989) FLC 92-022 the Full Court discussed the limitations on the power of the Court to vary an order made under s 79 and said at 77,360:
It is not open to a court to make a substantive variation to orders previously made under sec. 79. That proposition can today no longer be doubted. It is based upon the principle, endorsed by the High Court in the case of Taylor v. Taylor (1979) FLC 90-674; 5 Fam. L.R. 289, that an order under sec. 79 is a once and for all proposition.
Such an order can only be varied on appeal or, where the circumstances warrant the same, pursuant to sec. 79A. As counsel for the husband pointed out, the first extension of time can be seen as either an extension by agreement between the parties made by the very authority of the order itself, or alternatively as an exercise of the court's power to vary an order by the consent of the parties pursuant to sec. 79A(1A).
However, the orders made by his Honour on 7 October 1988 were not made by consent and the question therefore arises as to whether those orders affected the substance of the orders or were merely dealing with the machinery aspect of implementing those orders.”
It is not open to a Court to make a substantive variation to orders previously made under s 79 of the Act: Pera & Pera; Slapp & Slapp (1989) FLC 92-022 (“Slapp & Slapp”); Taylor v Taylor (1979) FLC 90-674 (“Taylor”). As the Full Court made clear in Slapp & Slapp – and, as was previously stated by the High Court in Taylor – an order under s 79 of the Act is a once and for all proposition. Such an order can only be varied on appeal or pursuant to s 79A of the Act.
In McDonald & McDonald (1976) FLC 90-047 the Full Court came to the conclusion that there is power to modify the machinery provisions of a property order – but only if this does not affect the substantive property rights or cause undue hardship to either party.
In Ravasini & Ravasini (1983) FLC 91-312 at 78126 - 78127 (“Ravasini”)– the Full Court discussed the distinction between a machinery order (also called a consequential Order) and a substantive order. The Full Court relevantly stated:
“Counsel for the appellant referred to McDonald and McDonald (1976) FLC 90-047, Kaljo and Kaljo (1978) FLC 90-445 and Molier and Van Wyk (1980) FLC 90-911 as authority for the power of the Court to make what is termed a machinery order. There is no question of the power of the Court to make what we would with respect suggest is more properly called a consequential order. The real questions are what is the proper definition of a consequential or machinery order and where is the dividing line between a consequential order which may be varied or modified and a substantive order which the Act gives no power to the Court to modify or vary. Counsel for the appellant was unable to refer the Court to any authority on this point but argued the submission rather by comparison with the facts of the cases referred to.
...
It is appropriate then to look at what a consequential order is. The Shorter Oxford Dictionary defines “consequential” as meaning “Following esp. as an effect, immediate or eventual, or as a logical inference”.
The Universal English Dictionary defines the word as “Following as a consequence, on what has gone before, resultant: consequential alteration in wording of a document, those made necessary by others already made.” The same dictionary defines “consequence” as “Event which follows upon something else which is, or appears to be, the cause; a result, outcome of what has gone before.”
A consequential order then, in a property matter, would include an order following logically or of necessity from a prior substantive order.
What a consequential order is not is an order the effect of which is to vary the prior order for property settlement. It is not possible to suggest that even the slightest variation of the original order is a consequence of it. What is being submitted in this appeal is that the original order should be amended not as a consequence of that order itself, not as a necessary follow up of that original order but rather as a consequence of events which have happened in the market place since that order was made rendering the facts on which it was based no longer accurate.”
What is being sought by the wife in the matter currently before the Court is not a machinery order or a consequential order of the kind described in Ravasini. As in Ravasini, what is being submitted by the wife in this case, is that the original order (the final Orders of 13 October 2017) should be amended – not as a consequence of that final order itself and not as a “necessary follow-up of that original order, but rather as a consequence of events which have happened in the market place since that order was made…”.
I note that, specifically, her Honour Judge Willis included in the Order of 13 October 2017 Order Three to the following effect – “3. The parties (and the trustee referred to in these orders) are granted liberty to apply in relation to the mechanical provisions of these orders”.
I have already made my decision clear in this regard. The Orders of 13 October 2017 remain capable of being carried into full effect. The fact that it has taken a long time for this to occur has been because the wife resolutely has refused to accept that the orders can be carried into effect. As I've made it clear – the wife is not seeking any mechanical or consequential orders – as those terms are used in the stated case law. The orders sought by the wife referred to above would have had the effect of varying the earlier final property Order. That is impermissible. It would visit upon the husband a grave injustice. The husband has been waiting no less than six years for these orders to be carried into effect. If the Court were to grant to the wife a further indulgence and vary the order as she asks this matter would undoubtably drag on and on for years into the future.
Even if I am wrong in my interpretation of the kind of orders sought by the wife as outlined in paragraph one of her Amended Application in a Case filed 27 September 2021 – I would not, in any event, be inclined to grant the relief the wife seeks. Through the conduct of the wife, the execution of the final Orders of 13 October 2017 have been delayed for many years. Even if the Court considered that it did have the jurisdiction to vary the 13 October 2017 Order (noting that the Court does not consider it has that jurisdiction in this case for the reasons just stated) it would not make the order because, not only has the wife unnecessarily delayed the execution of the orders – there is simply no reason to make the order. The Orders of 13 October 2017 (as previously amended by consent) are capable of being carried into effect without the variations sought by the wife in her Amended Application in a Case filed 27 September 2017. The plain reading of the orders (as I stated earlier in these reasons) made it abundantly clear that the wife could have made the payment to the husband pursuant to Order 13 of the final Orders within the time frame stipulated by those final Orders. The wife failed to do so. The wife failed to fulfil her other obligations under the orders – namely those contained in Orders 14, 15 and 16. Even if it could have been said that what the wife was seeking was a machinery or a consequential order – there is no need to make such order.
As to the other orders sought by the wife – in particular – relating to the removal of Mr Flannan as the Trustee and the removal of Mr Flannan’s name from the title to Property B – there is no merit in those arguments. I have had a chance to review the relevant evidence in this case. In particular, I have had close regard to the lengthy affidavit provided by Mr Flannan where his actions as the Trustee have been recounted for the benefit of the Court – and the parties. Mr Flannan’s conduct has been exemplary. I cannot fault Mr Flannan’s prudence and caution. Not to mention his patience.
Having come to these conclusions – I also find that there is no merit in the wife’s argument that Mr Flannan ought not be paid his costs, fees and outlays incurred while acting as Trustee. Mr Flannan’s fees have been assessed on the Queensland Supreme Court scale. This is appropriate. Mr Flannan was appointed by the Court as Trustee for Sale. This appointment was made with the consent of the wife and the husband. Mr Flannan has not conducted work in relation to this matter – as a solicitor on behalf of one of the parties. Mr Flannan’s costs are ultimately determined by the Court and payable from the gross proceeds of sale.[17] It is also appropriate that the costs of counsel engaged by Mr Flannan also must be paid by the parties. These are disbursements that have to be made by Mr Flannan, and Mr Flannan, as Trustee, is properly entitled to receive payment for the fees of counsel he has engaged.
[17] Note Khalif & Khalif (No 3) [2022] FedCFamC1F 900 at [20] – [25]; Cull & Lenz (No. 4) [2021] FamCA 142 at [6].
I reject the wife’s contention that the Trustee was liable to the parties for any so-called “commercial failure” in respect of the sale of Suburb A. I have had regard to the evidence of Mr Flannan in this regard (especially at paragraphs 39 – 51 of his affidavit filed 17 June 2023). Mr Flannan’s conduct in relation to the sale of Suburb A was completely appropriate. Mr Flannan acted prudently in the circumstances. It will be noted that I had the opportunity to observe Mr Flannan give evidence in the witness box during the course of this hearing and, as I have indicated earlier in these reasons, I was impressed with the evidence given by Mr Flannan. He is a very reliable witness.
I agree with the submission made on behalf of the Trustee that a review of the costs as assessed by the costs assessor[18] shows that the Trustee has acted at all times in the interests of the parties. It is also apparent not only from a review of the costs assessed by the costs assessor but from the evidence generally, that the Trustee has been thwarted in his attempts to give effect to the final Orders. The Trustee has been thwarted in his attempts by the actions and the conduct of the wife.
[18] Note affidavit of Mr K, filed 10 February 2023. Leave to rely on this affidavit was granted on 13 March 2023.
THE WIFE’S SUBMISSIONS
I am well aware that some of the authorities cited reference different legislation and different wording of rules relating to vexatious proceedings orders. But the fundamental principles remain the same. Importantly, the Full Court of the Family Court in Pencious & Searle was considering that appeal in the context of the current wording of the legislation in the Act – when it (the Full Court) cited the principles from Gargan with approval.
The original proceedings were filed on 27 May 2014 by the wife. By that application the wife sought final Orders and interim Orders.
Between the date of the commencement of the proceedings and the delivery of judgment by Judge Willis on 13 October 2017 – the wife filed no fewer than 12 Applications in a Case.[21] For instance, Applications in a Case were filed by the wife on 3 August 2015; 9 September 2015; 29 October 2015; 5 November 2015; 23 November 2015; 8 December 2015.
[21] And several were amended.
The Application in a Case filed by the wife on 8 December 2015 was dismissed by Order of Judge Willis on 21 December 2015. In addition, on that day, her Honour ordered that the wife be restrained from taking any action of any kind whatsoever to hinder, impede or prevent the settlement of the contract of sale of the property situated at P Street, Property C. The Court was required to urgently sit and hear that Application on 21 December 2015 – just four days prior to Christmas. Her Honour included the following notation in the Order made on 21 December 2015:
“NOTATION
Reasons for the above mentioned Orders will be given tomorrow on 22 December 2015 NOTING that settlement of the sale under discussion is at 4:30pm today and these Orders are being pronounced at 4:15pm.”
On 24 December 2015 the applicant wife filed a Notice of Discontinuance in relation to the Application in a Case filed on 23 November 2015.
The wife filed an Application in a Case on 1 March 2016.
The wife filed an Application in a Case on 16 May 2016.
The wife filed a Further Amended Initiating Application on 30 June 2016.
The wife, on 1 July 2016, filed an Amended Application in a Case whereby she sought leave to withdraw applications that had been filed on 5 November 2015 and 1 March 2016.
The wife filed an Application in a Case on 4 August 2016.
On 29 September 2016 the wife filed a document called a Further Amended Application in a Case – which appears to amend (further) the Application in a Case that had been filed on 16 May 2016.
On 27 April 2017 the wife filed an Application in a Case.
On 22 June 2017 the wife filed an Application in a Case.
On 9 November 2017 the wife filed an Amended Application in a Case. On the face of that document it is not clear which Application in a Case she was amending. This particular Application in a Case was, it will be noted, filed less than one month after the date of the final Orders made by Judge Willis. The Amended Application in a Case filed 9 November 2017 sought a stay of the final Orders pending an appeal by the wife against those final Orders.
The Application in a Case filed 9 November 2017 was supported by an affidavit of the wife dated 6 November 2017. Later that same day (9 November 2017) the wife filed an Amended Application in a Case (amending the application for a stay of the final Orders) and the second set of proceedings filed by the wife on 9 November 2017 is said to have been supported by an affidavit made by the wife on 7 November 2017. In relation to the wife’s Amended Application in a Case filed 9 November 2017 – the wife filed a Notice of Discontinuance in relation to same on 26 March 2018.
Throughout much of the calendar year of 2018 (at least, I should say, for two-thirds of that year) the wife does not appear to have filed any further applications. No doubt the parties were awaiting the outcome of the wife’s appeal against the final Orders made by Judge Willis. Mr Q of counsel appeared for the wife at the hearing of the appeal. The other party (the husband) was also represented. On 24 August 2018 – the Full Court of the Family Court of Australia dismissed the wife’s appeal. The appeal was only in respect of limited matters. There is no necessity for the Court to recount the Reasons for the appeal here. Suffice to say that the wife’s appeal was dismissed by the Full Court.
Following the delivery of the Full Court’s decision there was a further flurry of litigious activity by the wife.
On 4 September 2018 the wife filed an Application in a Case seeking that the original Trustee appointed by the final Orders (13 October 2017) be replaced. Those original Trustees were, of course, F Lawyers. It will be recalled (from these reasons for judgment) that F Lawyers declined to act as Trustee. The wife’s Application in a Case filed 4 September 2018 sought the appointment of Mr N of O Lawyers. The wife wanted Mr N to act as the Trustee to replace F Lawyers.
Less than one week later, the wife, on 10 September 2018 filed an Initiating Application seeking interim and final Orders.
On 20 September 2018 the wife filed an Application in a Case.
On 10 October 2018 the wife filed an Application in a Case.
On 19 November 2018 the wife filed an Amended Application in a Case
On 7 December 2018 the wife filed a Further Amended Application in a Case.
On 23 January 2019 the wife filed an Amended Initiating Application. In that Amended Initiating Application, the wife invoked s 79A of the Act. I will return to s 79A again in these reasons.
It will be recalled that on 1 February 2019 the wife and the husband consented to a variation of Order 5 and Order 22 of the final Orders. The parties also consented to the making of some other orders. Reference has already been made to the terms of those Orders. By the Order of 1 February 2019, Mr Flannan was appointed as the Trustee for Sale in respect of the Suburb A property and he was also appointed as the Trustee for Sale of the Property B.
A review of the principles outlined in the decision of Gargan makes it clear that when a Court is considering whether or not to make a vexatious proceedings order – that the notion of a proceeding is said to be a broad notion. Not only does the term “proceeding” include the substantive proceedings – but also collateral applications within a proceeding and it extends to applications outside the proceedings themselves. It embraces appeals. The conduct of a party during the course of the litigation is also a matter to be considered. In this regard I note s 102QB (6)(c) of the Act.
It is at this point relevant to draw attention to some of the wife’s conduct during 2019 – after the appointment of Mr Flannan. It will be apparent from these Reasons for Judgment that I accept the evidence of Mr Flannan – including in any situation where his evidence is contradicted by the evidence of the wife. On 18 February 2019 the Trustee emailed the solicitors for the parties and, as noted earlier in these reasons, he conveyed his intention to lodge a request with the Land Titles Office Queensland to register himself, Mr Flannan, as the Trustee for both the Suburb A property and the Property B. Neither the wife nor the husband objected to that course of action. Subsequently, the wife has complained long and loud that Mr Flannan ought not to have been registered on the title of Property B as Trustee. This sort of conduct by Ms Monfort is completely unreasonable. It is apparent from the reasons I have provided earlier herein – that the wife, at about this time, was attempting to purchase the Property B. Her solicitor at the time was Mr N. The wife made an offer to purchase the Property B in the amount of $840,000. Subsequently, the wife made a further offer which was $160,000 lower than the wife’s first offer.
Further, in the first half of 2019, the wife repeatedly obstructed the Trustee’s attempts to sell Property B. The wife refused to allow reasonable access to the cottage by a real estate agent. This prevented the proper marketing of the property for sale.
The wife continued to take every step that she could to prevent the sale of Property B. This has to be looked at in a particular light. As has been noted earlier in these Reasons for Judgment – the wife has known for at least six years that it would not be likely that she would be able to retain the Property B. The wife swore to this fact in her affidavit filed in late 2017 in family provision proceedings in the District Court of Queensland. Notwithstanding what she swore as the truth in the District Court proceedings – the wife has continued – with every fibre of her being – to maintain in this Court that the exact opposite is true. The view that I have formed is that the wife’s actions have been nothing more than delaying tactics. The wife has wanted to delay the inevitable – namely the sale of the Property B.
On 4 February 2020 the wife had obtained an Order from the Court that the Trustee was to take no further steps pending the provision by the Trustee of certain disclosure relating to his WIP ledger. I do note that that Order was made with the consent of the parties. The view that I have formed is that it really came about as the manifestation of an attempt by the wife to delay the matter further. The wife has, for a considerable period of time, complained about the costs and fees incurred by the Trustee. This, in itself, is worthy of comment because the increased costs and fees incurred by the Trustee have only come about because of the wife’s conduct.
On 23 March 2021 an Order was made by Judge Willis adjourning the Trustee’s Application in a Case – pending an application that was to be made by the wife under s 79A of the Act. Mr R appeared for the wife. No doubt on the wife’s instructions – Mr R informed the Court that a s 79A application was to be filed. Mr R told the Court that the s 79A application was to be filed within 14 days. It was not filed until late 2022. In January 2023 the wife abandoned her s 79A application.
On 27 September 2021 the wife filed her Amended Application in a Case - which has now been determined in these Reasons for Judgment.
The rules and terminology had changed by the time the wife filed her next application. On 21 June 2022 the wife filed an Application in a Proceeding.
Then, in what could only be described as a very ill-advised move – the wife filed an Application for Contempt naming as respondents three solicitors – Mr Flannan (the Trustee); Mr J (a former employee of Mr Flannan) and Mr Chinyelu (the husband's solicitor). For good measure the wife included the husband, Mr Bade as the fourth respondent to the Contempt Application.
On 1 September 2022 the wife failed to appear before a Judicial Registrar on the first return date of the Contempt Application. On 20 September 2022 the wife again failed to appear at a further mention before the Judicial Registrar. This has been recounted earlier in these Reasons for Judgment.
When the matter came before the Court in January 2023 the wife consented to an Order relating to Mr J. That reflected an agreement reached separately by Mr J and the wife whereby the wife’s contempt application was dismissed by the Court and each party was to bear their own costs. That Order was made on 16 January 2023 by the Court in chambers.
On 17 January 2023 the wife (via her counsel, Mr X) sought the leave of the Court to file a Notice of Discontinuance in respect of the application for contempt against the remaining respondents - Mr Flannan, Mr Chinyelu and Mr Bade. As noted earlier herein, that application was resisted. Those three remaining respondents sought and obtained from the Court an Order dismissing the wife’s Application for Contempt – for want of prosecution. It is a very serious matter to file contempt proceedings. It is a matter of the gravest concern that the wife filed contempt proceedings – not only against the husband – but against three solicitors. Applications for contempt are quasi-criminal in nature. As I said in the ex-tempore Reasons for Judgment delivered on 17 January 2023 – one of the most important duties owed by a legal practitioner is the duty owed to the Court. An allegation that a lawyer has acted in contempt of the Court is an allegation of the most serious nature. It is an allegation which ought never be pursued lightly. Pursuing such a serious application – when there was no reasonable prospect of success – was a significant error of judgment.
The vast majority of the applications filed by the wife seek variations to orders that had earlier been made by the Court. Her primary aim appears to have been to bring about a situation whereby she could retain the Property B for as long as possible. Two months after the making of the final Orders in October 2017 – the wife filed her District Court affidavit in the family provision proceedings. Looked at objectively – the wife knew from the time that she filed the affidavit in the District Court proceedings (back in late 2017) that any desire on her part to retain the Property B was bound to fail. In paragraph 78 of her District Court affidavit, the wife swore that “It is not likely that I will retain [E Street, Suburb B], because it is unlikely that I will be able to refinance the mortgage…”.
The use of the words “likely” and “unlikely” may have left open the possibility that there was a glimmer of hope – in the wife’s own mind – concerning her retention of Property B. However, the balance of the relevant sentence in paragraph 78 of the District Court proceedings indicates that even in the wife’s own mind she had eliminated the possibility that she will be able to retain Property B. That is because she herself used the words – that even if she had been able to refinance the property – she did not believe that she would be able to meet the mortgage repayments from her own income. If the wife knew that she was not going to be able to make the mortgage repayments – that is absolutely the end of the matter. Having an earnest desire to achieve a particular outcome is not a sufficient justification for a person to pursue litigation – in circumstances where the outcome is beyond the person’s reach, and the person knows that it is beyond their reach. The wife never had the financial wherewithal to hold Property B and she knew it from December 2017 and yet she filed one application after another. Looked at properly – every step taken by the wife in this jurisdiction – after the District Court affidavit – amounts to vexation. I want to make it abundantly clear that it is not merely this conclusion upon which this judgment rests. Even in the absence of the District Court affidavit and even in the absence of the conclusion that I have drawn (having regard to the District Court affidavit) there is an overwhelming amount of other evidence to satisfy the requirements of s 102QB(1) of the Act. The wife has frequently instituted and conducted vexatious proceedings in both the Federal Circuit and Family Court of Australia (Division 1)[22] and the Federal Circuit and Family Court of Australia (Division 2).[23]
[22] Formerly known as the Family Court of Australia.
[23] Formerly known as the Federal Circuit Court of Australia.
A consideration of the definition of "vexatious proceedings" as that term is defined in s 102Q(1) of the Act reveals that the wife’s conduct falls within each subsection of the definition. I will use just some examples to illustrate.
Section 102Q(1)(a) of the definition states:
(a) proceedings that are an abuse of the process of a court or tribunal;
Pursuing an Application for Contempt against three lawyers and the husband in circumstances where there were no proper grounds for so proceeding and then capitulating on the day of the hearing, amounts, in my view, to an abuse of the process of the Court. It is nothing short of scandalous. Not only that, having consented (for instance) to an order that she would pay the Trustee’s costs in the sum of approximately $33,000 the wife – even now (in her written submissions) seeks to argue that she ought not be responsible for the payment of those costs. The wife consented to the Order. The wife did not appeal the Order. That is where the matter ends.
Also under this heading - I would include the fact that the wife knew that her attempts to retain Property B were bound to fail (because she was never going to be able to meet the mortgage repayments) – but nonetheless pursued litigation in relation to this point for six more years. In my view, this does amount to an abuse of the process of the Court.
This conduct by the wife also comes within the definition contained in s 102Q(1)(c) – namely proceedings instituted or pursued in a court or tribunal without reasonable ground.
There is no doubt in the Court's mind that the wife’s conduct in instituting so many applications; in pursuing the litigation when she knew that she could never actually achieve her desired goal – were tactics employed by the wife to cause delay (note s 102Q(1)(b) and s 102Q(1)(d) of the Act).
Finally, the institution of the contempt proceedings and the conduct of the contempt proceedings (including the capitulation) amounts, I find, to both instituting and conducting litigation in a way designed to harass or annoy and also to cause detriment. This is especially so in relation to the lawyers against whom the wife instituted those contempt proceedings.
It will be apparent from these Reasons for Judgment that I am satisfied that the wife has both instituted and conducted vexatious proceedings frequently.[24] As Perram J stated in Gargan (at [9]) – the various considerations are to be gauged objectively. As his Honour said – “9. ...the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.”
[24] Note [119] of the decision of Potier v Attorney-General.
I am far from convinced that the wife was “genuinely” persuaded as to the correctness of her conduct. My view in this regard is confirmed by the wife herself when she stated that she did not believe that she will be able to meet the mortgage repayments – even if she had been able to refinance the Property B.
This litigant (the wife) has displayed no insight into her previous litigious history. There is a significant risk to the Courts (and hence the public) and a significant risk to the Trustee, Mr J, Mr Chinyelu and the husband that, in the absence of the making of a vexatious proceedings order – the wife is highly likely to commence further vexatious proceedings in the future. The order serves a protective purpose. The wife’s conduct has significantly increased the amount of costs and outlays that had to be expended by the Trustee. The wife’s conduct has also delayed the conclusion of the matter, to the point where the wife’s conduct has to be identified for what it is – it is reprehensible. At the very latest this litigation should have been concluded in early 2019 – soon after the appointment of Mr Flannan. Orders will be made pursuant to s 102 QB(2)(b) designating the wife as a vexatious litigant. The Orders will specifically name the persons against whom the wife shall be prohibited from instituting proceedings.
There is one further matter that I will mention at this part of the judgment because it too is related to the wife’s vexatious conduct. On the sixth day of the hearing, 31 January 2023, the wife raised with the Court (for the first time) the fact that one of her previous solicitors had contacted the chambers of Ms Downes (counsel for the trustee) about the possibility of appearing for the wife in an appeal. This occurred many years prior to the matter commencing before me in November 2022. The Court was told that the wife raised the matter inside the Court room on 23 November 2022 with Ms Downes and in the presence of the Trustee and Mr Chinyelu. This occurred in my absence. Ms Downes checked her records in November 2022 and read four emails to the wife and to Mr Flannan and Mr Chinyelu in the Court room – again in my absence. Ms Downes was not briefed upon behalf of the wife. On 31 January 2023 – after the matter was raised with me I directed that Ms Downes prepare an affidavit confirming what she told the Court on 31 January 2023. The affidavit of Ms Downes was filed by leave on 31 January 2023. A copy was given to the other parties and the wife was given time to read the affidavit. After giving the matter some further consideration I decided that the wife ought not be granted leave to bring an oral application seeking to have Ms Downes disqualified (for that is essentially what the wife was seeking to do) because it was way too late in the day. It was the sixth day of the hearing. The wife had all but finished her oral submissions. I gave brief reasons on the day and I went on to state that – even if the wife’s oral application had been heard – it was inevitable that it would have been dismissed because the barrister (Ms Downes) had not ever been briefed on behalf of the wife. Her chambers had been contacted and her availability and her daily rates were checked with her chambers. That was the extent of it. Ms Downes heard nothing further from the wife’s former lawyers. I have referred to this issue again in these Reasons because it is apparent to me that what occurred on 31 January 2023 was just one more delaying tactic sought to be employed by the wife. Waiting until day six to raise such an issue amounts to vexation in itself. My view in this regard is reinforced having had the opportunity to carefully consider the long history of the wife’s conduct – including her propensity to file Court applications and her obstructive behaviour generally in relation to these Court proceedings.
THE TRUSTEE’S FEES, COSTS AND OUTLAYS
Order 26 of the final Orders made on 13 October 2017 stated:
“(26) The costs of and incidental of the trustee is to be borne equally by the parties.”
When Mr Flannan was appointed as Trustee for Sale in respect of the Suburb A property and Property B – the final Orders were also varied in relation to the original Order 12(a) and 29(a) so that those paragraphs now read:-
“(12) Upon completion of sale of the [Suburb A] property the proceeds shall be applied and paid it in the following order:
a.to pay all costs, commissions and expenses of the sale including the Trustee’s fees, costs and outlays and to pay any rates, land taxes and utility charges in respect of the property…[25]
[25] The underlined words were added to Order 12(a) by consent of the parties on 1 February 2019.
(29) The proceeds of sale are to be divided as follows:
(a) To pay all costs, commissions and expenses of the sale including the Trustee’s fees, costs and outlays and to pay any rates, land taxes and utility charges in respect of the property...”[26].
[26] The underlined words were added to Order 29(a) by consent of the parties on 1 February 2019. Order 29 relates to the proceeds of sale of the Property B.
By Order 4 of the consent Order of 1 February 2019, a variation was made to Orders 10 and 26 of the final orders. Order 10 now reads:
“(10)(a) The costs of and incidental to such appointment of the Trustee is to be borne equally by the parties.
(b) If either party fails to follow a direction of the Trustee then any additional costs of the Trustee arising from or incidental to the failure shall be borne by that party.”[27]
[27] The underlined words were added to Order 10 by consent of the parties on 1 February 2019.
The new Order 26 of the final orders now reads:
“(26)(a) The costs of and incidental of the Trustee is to be borne equally by the parties.
(b) If either party fails to follow a direction of the Trustee then any additional costs of the Trustee arising from or incidental to the failure shall be borne by that party.”[28]
[28] The underlined words were added to Order 26 by consent of the parties on 1 February 2019.
On 8 April 2019 the Trustee wrote to the wife’s then solicitor (Mr N) and informed the wife that the Trustee intended to give effect to the final Orders by selling Property B at auction. I note the affidavit of Mr Flannan filed 17 January 2023 at paragraph 29 and page 224 of the annexures.
There can be no doubt that the wife did not follow the direction of the Trustee in relation to the Trustee’s intention to sell Property B at a public auction. The wife did not permit an agent to inspect the property in a timely manner. The wife did not therefore facilitate proper marketing of the property. The view taken by the Trustee is that the wife should pay the Trustee’s costs (and presumably other fees and outlays) that have been incurred as a result of the conduct of the wife. Such conduct would include the wife continuously bringing applications and filing material that required the Trustee to respond, to appear in Court and to defend himself and to otherwise incur ongoing costs and to spend time on the file that would not have needed to be spent if the Trustee had simply been able to give effect to the final Orders.
The wife alleged that the Trustee was liable to the parties for a so-called commercial failure in respect of the sale of Suburb A. I have rejected that argument earlier in these Reasons.
I have had close regard to the evidence of Mr K, the finance professional. Mr K’s curriculum vitae reveals that he is a very experienced finance professional. I have no reason whatsoever to doubt Mr K’s objectivity. In addition to the evidence contained in Exhibit 4, the Trustee also sought and obtained leave to read and rely upon a further affidavit of Mr K that had been filed on 10 February 2023. The calculations contained in Mr K's affidavit filed by leave on 31 January 2023 and the affidavit filed on 10 February 2023 – are similar calculations. The total assessed costs and disbursements (rounded and including GST) totals $143,520.
Because of the proposed orders to be made by the Court, the Trustee will undoubtedly incur further costs in the future.
Notwithstanding the making of the Orders relating to costs etc. as outlined (the Orders contained in the final Orders, and then the variation by Order of 1 February 2019) the Court, undoubtedly, retains a discretion in relation to the question of costs and in particular – the amount of the costs and who should be responsible to pay the costs and what proportion. In my view there are certain principles which must be kept in mind. Firstly, the Trustee was appointed by the Court. The Trustee must answer to the Court. The Trustee owes duties and obligations to the parties, by all means, but the Trustee at the end of the day must answer to the Court. The Trustee must be entitled to his costs and outlays on an indemnity basis. There can be no doubt about this. My view is that s 117 of the Act does not apply to the question of the Trustee’s costs. That section states a general rule that each party shall bear his or her own costs. The Trustee is a Trustee for Sale appointed by the Court – with the consent of the parties. The so-called ‘usual’ rule in relation to costs cannot possibly apply in the case of a Trustee.[29] Even if I'm wrong in that regard – it should be noted that I have considered the various matters raised in s 117(2A). I will not comment on each of those subsections except to note that the conduct of the wife has significantly delayed the involvement of the Trustee and the work of the Trustee and the conduct of the wife has significantly increased the amount of fees, costs and outlays incurred by the Trustee in carrying out his duties in accordance with his obligations to the Court. The wife’s actions in relation to blocking the real estate agent and the proper marketing of Property B in 2019 are only one small part of the wife’s conduct which would be relevant to a consideration as to whether she should pay all of the Trustee's costs. I have already provided extensive reasons herein to explain my conclusion that the wife must be the subject of vexatious proceedings orders.
[29] Noting in this case the additional factor that an Order was made by consent relating to the Trustee’s costs.
The Trustee was appointed on 1 February 2019. Approximately one year later on 4 February 2020 the parties (and the Trustee) appear to have consented to an Order that the Trustee at that stage would take no further steps – unless those steps were necessary to protect the property identified as Property B. The Trustee at that stage was required to make a disclosure in relation to his so-called "raw WIP ledger". This is obviously his work in progress at that time.
The view that I have reached is that after 4 February 2020 – in the event that the wife either wrote to the Trustee or filed an application relating to the matter – there can be no doubt that the Trustee had to respond – whether it was a response to correspondence or whether it was a response to an application. And I do consider that any responses by the Trustee (whether by way of correspondence or in respect of applications made) would come within the broad terms of Order 1 of 4 February 2020 – namely, the obligation placed upon the Trustee to “protect” the property identified as Property B. One of the Trustee’s undoubted obligations was to protect and preserve that property – for the benefit of both the wife and the husband. My view is that any steps taken by the Trustee after the date of 4 February 2020, noting the extremely difficult conduct of the wife that he was required to respond to, was all permissible work having regard to Order 1 of 4 February 2020.
The calculations prepared by Mr K indicate that the Trustee's costs (excluding the work relating to the wife’s conduct or complaints) total $47,445. In addition, Mr K has meticulously delineated the Trustee’s costs in respect of work solely done relating to the wife’s conduct or complaints. The total of those professional fees is $54,674, so that the total scale costs assessed on 19 July 2022 total $102,119. GST needed to be added to that figure to obtain a total of $112,330.
In addition, Mr K has assessed disbursements in the total of $31,190, giving the total assessed costs and disbursements – as indicated earlier – as $143,520.
I note this is the total scale costs assessed on 19 July 2022. The contempt application was not filed until after that date. There is an Order made by consent (i.e. consent of the wife and Mr Flannan) that the wife would pay Mr Flannan’s costs in relation to the wife’s application for contempt brought against Mr Flannan fixed in the sum of $33,550. Hence it is apparent from the evidence that none of the costs assessed by Mr K relate to those separate costs payable by the wife to Mr Flannan as ordered by the Court on 17 January 2023.
As noted, there will be further costs and outlays incurred by the Trustee, Mr Flannan, in relation to the sale of the Property B and in relation generally to finalising his obligations as the Trustee. It is not possible to be precise with the figure in relation to those future costs and outlays to be incurred by Mr Flannan. The most appropriate way to proceed is for the Court to make an order that Mr Flannan’s future costs and outlays shall be assessed by Mr K on the same basis and in accordance with the same scale previously used by Mr K. The future costs and outlays incurred by Mr Flannan as trustee will be paid by the wife and the husband equally.
It seems to me that as at July 2022, the total professional scale costs of Mr Flannan (excluding the work solely done having regard to the wife’s conduct or complaints) was $47,445. My view is that the husband and the wife should equally share that total – so that the husband would be required to pay $23,722.50 and the wife would be required to pay a similar amount. Then, it seems to me there should be a further Order that the wife ought to pay the entirety of the sum of $54,674 representing the work done by the Trustee – solely relating to the wife’s conduct or complaints. In my view, these costs should not be visited upon the husband. All the husband has wanted is the finalisation of the matter. The conclusion I have reached – as will be apparent from these reasons – is that the matter could have been finalised – at the latest in 2019. The wife therefore will be solely responsible for the Trustee's fees set out in the sum of $54,674. If GST needs to be added, the Trustee should do so.
The disbursements that appear on pages 5 and 6 of Mr K's letter (contained at pages 10 and 11 of the affidavit filed 10 February 2023)[30] say the disbursements total $18,237.49. Mr K has indicated that those disbursements would be attributable to the regular trustee work of Mr Flannan. Both the husband and the wife should share the payment of that amount equally.
[30] Noting the page numbers in the middle of the page at the bottom.
There are, however, other disbursements in relation to counsel which have been incurred by the Trustee solely because the Trustee needed to act protectively in relation to the role that he plays. I accept the evidence of Mr K that these disbursements were necessitated by the wife’s applications to the Court and the need for submissions and/or oral arguments and advice regarding the Trustee’s role. Up until 17 May 2022 fees for counsel totalled $12,952.50. I accept that this figure is likely to have increased, and I will give the Trustee a chance to provide an updated figure to the Court. In my view, the wife should pay for these counsel's fees solely. Those fees ought not be visited upon the husband.
My reasoning in relation to these questions of costs also draws upon and relies upon the reasons concerning the Court’s decision to make a vexatious proceedings order against the wife.
Noting that the evidence of fees, costs and outlays incurred by the Trustee appear to be up to mid-2022 – there will also need to be an order that ensures that the Trustee’s fees, costs and outlays between mid-2022 and the date of the delivery of judgment are covered in accordance with these Reasons for Judgment. I have already made reference to the future fees, costs and outlays to be incurred by the Trustee.
THE COSTS OF THE HUSBAND IN RELATION TO THE CONTEMPT APPLICATION
I have considered all the necessary subsections of s 117 of the Act – in particular, s 117(2A). It will be apparent that I have come to the view that the wife’s conduct in pursuing a contempt application against the husband – and then withdrawing her application and having it dismissed by the Court – was conduct which was reprehensible. Section 117(2A)(c) is at the forefront of my mind. I have also had regard to the other subsections, including the subsection relating to the financial circumstances of the parties. I can see no reason why, in the circumstances, the wife should not pay the husband's costs in respect of that contempt application. Those costs should be paid in the amount sought by the husband which, appeared to me, to be reasonable.
THE HUSBAND’S COSTS GENERALLY (APART FROM THE CONTEMPT APPLICATION)
There is a notation made by her Honour Judge Willis in the Order of 3 March 2022, when her Honour transferred this matter to Division 1 of the Federal Circuit and Family Court of Australia. That notation reads:
“A. This property matter is now entering its 8th year of litigation. This is despite more than 12 applications in a case by the applicant, a Final trial providing for the division of assets, an unsuccessful application for a Stay and an unsuccessful appeal by the applicant. The applicant has been provided with significant pro bono assistance by the Bar Association on several occasions and over years. The applicant has also been represented by multiple solicitors of her own choice. The issue of the wife obtaining finance to retain the property she wishes to, has occupied a disproportionate amount of Court and Judicial time in this Court. It is deemed appropriate for transfer to a Justice of Division 1 of this Court.”
It will be apparent that I have come to the conclusion that the litigation pursued by the wife after late 2017 amounts to vexation. The wife swore in the District Court of Queensland that she would not be able to make mortgage repayments for the Property B cottage – even if she could get a loan to secure the property. I have considered all of the submissions of the parties and the relevant provisions of s 117 of the Act. The wife’s poor conduct that I have outlined is the key factor in leading the Court to conclude that the wife should pay the husband’s costs in respect of the period of time after 30 August 2019. This is because of the conclusion which I have reached that, but for the wife’s conduct, the final Orders made on 13 August 2017[31] could have been finalised (ie. carried into effect) in 2019 I have fixed upon the date of 30 August 2019 for the payment by the wife of the husband’s costs because this is six months after the appointment of Mr Flannan and he would have needed time to effect the sale of Property B and perform his other duties as Trustee. The husband’s costs in relation to this period of time (i.e. after 30 August 2019) will need to be assessed on a standard basis.
[31] As amended.
THE FINAL ORDERS
The Court will make orders effective immediately upon the delivery of judgment on 25 January 2024 dismissing the wife’s Amended Application in a Case filed 27 September 2021. The Court will also on 25 January 2024 make the necessary vexatious litigant Orders in relation to the wife. The vexatious litigant Orders have to be in the terms stated in the attached Order having regard to the history of this litigation involving the wife and taking into account the decision of the Full Court in Pencious & Searle (in particular Order 5 made by the Full Court in that appeal). The Orders are framed in the way they are because the Court cannot be sure whether or not the wife has filed or attempted to file a further application in a court having jurisdiction under the Act before the delivery of the judgment in these proceedings. The Trustee shall be given liberty to apply. This will also be operative from the date of the delivery of the judgment. Neither the wife nor the husband are given liberty to apply.
In addition to the Orders that the Court will make on 25 January 2024 the Court will be directing that the Trustee draft current directions (and orders) including in relation to his fees, costs and outlays. It is essential that the Trustee undertakes this task because he is in the best position to address some of the issues raised by the Court in relation to his fees, costs and outlays. Further, the Trustee is directed to include draft orders/directions appropriate at this point in time to effect the sale of Property B and to enable the Trustee to complete his obligations pursuant to the relevant Orders of this Court. The wife is to be given 45 days (from the date that the proposed orders/directions are finalised by this Court in the form of formal orders) to vacate the Property B. In addition, the Trustee should include in the draft orders/directions any other orders or directions that are appropriate – having regard to these Reasons for Judgment.
Obviously there will be no need for the Trustee to address those matters referred to in paragraph 175 of these Reasons.
The Trustee will be required to send a copy of the proposed orders/directions to the Court and to the wife and the husband within 14 days of the delivery of judgment. The wife and the husband will then be given 7 days to provide to the Court any written suggested variations to the Trustee’s proposed orders/directions. Once the time limit has elapsed in relation to suggested variations by the wife and the husband – the Court will proceed to issue the balance of the final orders/directions irrespective of whether or not the wife or the husband have taken the opportunity to respond to the wording of the Trustee’s proposed orders/directions.
I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 25 January 2024
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