Monfort & Bade (No 2)
[2024] FedCFamC1F 109
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Monfort & Bade (No 2) [2024] FedCFamC1F 109
File number(s): BRC 4638 of 2014 Judgment of: HOWARD J Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – PROPERTY – Where Reasons for Judgment were delivered and certain Final Orders were made on 25 January 2024 – Where the Trustee for Sale was directed to submit a draft Order reflecting the Reasons for Judgment and the wife and the husband were given an opportunity to make a submission concerning the wording – Where the matter was listed for Mention on 1 March 2024 because clarification was required in respect of some aspects of the wording of the proposed Final Orders – The making of further Final Orders and a Declaration. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 15 Date of last submission: 1 March 2024 Date of hearing: 1 March 2024 Place: Brisbane Counsel for the Applicant: Litigant in person Solicitor for the First Respondent: National Legal Counsel for the Second Respondent: Ms Downes Solicitor for the Second Respondent: W Lawyers 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:
1 MARCH 2024
ON A FINAL BASIS THE COURT DECLARES THAT:
1.As at 1 February 2019 (the date of the Trustee’s appointment) the wife was in default of Orders 13, 14 and 15 of the Orders made by Judge Willis on 13 October 2017.
THE COURT ORDERS ON A FINAL BASIS THAT:
2.The wife pay the husband's costs relating to the wife’s Contempt Application fixed in the sum of $10,000, and that the sum of $10,000 be deducted from the wife’s 75 per cent overall share of assets referred to in Order 17(g).
3.The wife pay the husband’s costs of and incidental to this matter (other than costs associated with the wife’s Contempt Application) in respect of the period after 30 August 2019 to the date of this Order, with such costs to be assessed on a standard basis and with such costs to be deducted from the wife’s 75 per cent overall share of assets referred to in Order 17(g) herein.
4.The husband repay to Ms Y the amount paid to the husband in the sum of $61,966.25 (such payment having been made by Ms Y on behalf of the wife) within 30 days of the date of this Order.
5.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 as follows:
(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 November 2022 (comprising $12,952.5 and $18,237.49);
(c)$4,488.00 (including GST) for Mr K’s 7 November 2022 costs assessment invoice;
(d)$968 (including GST) for Mr K’s 9 January 2023 costs assessment invoice, and
(e)$1,061.50 (including GST) for Mr K’s 8 February 2023 costs assessment invoice.
(f)$770 (including GST) for L Valuers valuation fees of Property B as per orders of 23 November 2022;
(g)$2,270.59 insurance for Property B 2022/2023;
(h)$464.50 (including GST) for the standard work as shown in the costs assessment dated 9 January 2023;
(i)$8,176.66 for the Trustee’s disbursements for Counsel’s fees as identified in Mr K’s assessment dated 9 January 2023;
(j)$14,850.00 for the Trustee’s disbursements for Counsel’s fees for hearings for 16 and 17 January 2023 as identified in Mr K’s assessment dated 8 February 2023, and
(k)The balance thereof, in the amount of $1,107.47 for the Trustee’s costs.
6.The stay ordered by Judge Willis on 4 February 2020 which restricted the Trustee from taking further steps is forthwith discharged.
SALE OF PROPERTY B
7.Pursuant to s 80(1)(i) of the Act, within 45 days from the date of this Order, the Wife shall deliver up to the Trustee vacant possession of the property situated at [E Street, Suburb B], Queensland more particularly described as Lots […] 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 free of chattels and rubbish 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.
8.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 […] 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.
9.In the event the Wife does not provide vacant possession to the Trustee (Mr Flannan) within 45 days from the date of these Orders, the Registrar of the Federal Circuit and Family Court of Australia (Division 1) will, on or around the 46th day from the date of these Orders forthwith issue the Warrant for Possession on receipt of an Affidavit by Mr Flannan of the Wife’s failure to comply with Order 7 of these Orders.
10.If Property B is not, as determined by the Trustee, delivered up to the Trustee in good order and repair free of chattels and rubbish, the costs of bringing Property B into good order and repair along with removing and where necessary disposing of any chattels and rubbish be paid from the wife’s 75 per cent share of the overall division of assets.
REMOVAL OF CAVEAT
11.The caveats lodged by the Wife against the Title of Property B in mid-2019 bearing dealing number: … and in early 2023 bearing dealing number: … and any further caveats that the Wife may lodge prior to any sale of Property B, be removed from the Title and that this Order is sufficient authority to the Registrar of Titles to remove the said Caveats.
12.The Wife is restrained by injunction from lodging or attempting to lodge any further dealings against the Title of Property B without the prior consent of this Court.
AUTHORITY TO NATIONAL AUSTRALIA BANK LIMITED
13.The Trustee is authorised, by this Order, to communicate with the National Australia Bank Limited in relation to the registered mortgage on the title of Property B identified as bearing dealing number: … and obtain information directly from National Australia Bank Limited including but not limited to, obtaining a mortgage payout figure on any given date, any fees that may be payable for the discharge and removal of the mortgage from the Title.
14.The Husband and Wife are restrained from taking any steps to limit the Trustee’s ability to communicate with National Australia Bank Limited in relation to the registered Mortgage and Property B in general.
SALE
15.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; and
(d)The husband and wife may make genuine bids at an auction of the property.
16.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.
17.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 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 Order 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 the final distribution of the proceeds of sale;
(c)To discharge the mortgage on Property B;
(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 Property C 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 per cent to the wife and 25 per cent to the husband (after taking into account the assets retained by the husband and wife (excluding the T Superannuation Fund Scheme Pension)) as follows:
(i)An amount to the wife referrable for her 75 per cent 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;
B.The Trustee’s costs and outlays referred to in Order 10 herein, if any; and
C.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 up to the date of the final distribution of the net proceeds of sale including:
D.The Trustee’s costs as assessed by Mr K to 19 July 2022 in the amount of $60,141.40 inclusive of GST (i.e. $54,674 + $5,467.40)
E.The Trustee’s outlays for counsel fees to 19 July 2022 identified in the Reasons for Judgment on 25 January 2024 in the amount of $12,952.50.
F.The Trustee’s costs and outlays (including all Counsel fees) for the period between 19 July 2022 to the date of the delivery of the judgment on 25 January 2024.
G.The sum of $418 costs awarded to the Husband pursuant to Order 1 of the judgment made on 9 April 2018 in this matter with the Trustee to pay the sum to the Husband at the Husband’s direction.
H.The sum determined by the Costs Order made in favour of the Husband against the Wife pursuant to paragraph 174 of the Reasons for Judgment dated 25 January 2024 and Order 3 herein, with the Trustee to pay the sum of any such Order to the Husband at the Husband’s direction.
(ii)An amount to the Husband referrable to his 25 per cent 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 up to the date of final distribution of the net proceeds of sale; and
B.If the Husband has not repaid the cash adjustment required by Order 4 herein by the time the Trustee is ready to account to the Husband for his 25 per cent share, the cash adjustment amount (or such part of the cash adjustment which has not been repaid to the Wife, whichever is the lesser) with the Trustee to pay the sum to the Wife at the Wife’s direction.
18.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 (Division 1) is hereby appointed pursuant to s 106A 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 (with such sum to be deducted from any proceeds the Husband and/or the Wife may be entitled to receive pursuant to Order 17(g) herein) 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.
19.The Trustee is discharged from his role upon completion of the settlement of the sale of Property B and payment of the amounts set out in Order 17 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.
IT IS NOTED THAT:
A.The declaration contained at the beginning of these Orders is made pursuant to s 80(1)(k) of the Family Law Act 1975 (Cth).
B.Orders 15, 16, 17 and 18 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 in this Order.
C.On 25 January 2024 the Court made the following Orders on a final basis and those Orders are included here in this Notation for ease of reference. Those Orders are:
“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.”
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
Reasons for Judgment were delivered on 25 January 2024 and on that date certain Final Orders were made.
In addition, the following Orders were made:
“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.”
The Trustee forwarded a draft order to the Court and both the wife and the husband forwarded to the Court comments and suggested variations to the Trustee’s proposed orders.
Before turning to the additional Final Orders that will be made – I should point out that, through an inadvertent slip, the name which appeared at the front of the judgment delivered 25 January 2024 was stated as "Mr Bade & Ms Monfort". It ought to have been "Ms Monfort & Mr Bade". That heading has been amended on the front page of the judgment. In addition, footnote 1 has been deleted from the original judgment. It related to the same matter.
Further, there was an inadvertent slip in paragraph 82 and that has also been attended to under the slip rule.
As to the additional Final Orders that will be made – the Court required clarification in relation to the wording proposed by the Trustee, the wife and the husband and the matter was listed for Mention on 1 March 2024. In my view, when situations arise such as the present there is no need for the Court to provide any further Reasons for Judgment. The Reasons for Judgment were delivered on 25 January 2024 and those Reasons are sufficient to explain the Final Orders that are to be made. However, in the circumstances of this case, I consider it prudent to provide some further brief Reasons in respect of the wording of the Final Orders.
I note from point three made by the husband in the comments delivered to the Court by his solicitor that Mr Chinyelu’s firm (Mr Chinyelu is the husband's lawyer) still holds an amount of $61,966.25 in trust that was paid to that firm on behalf of the wife. The submission states that those funds presently sit in a Trust Dispute Ledger. I agree with the submission made on behalf of the husband that an order should be made that the funds be returned to the person who paid those funds on behalf of the wife – Ms Y. The husband’s submissions became Exhibit 3 in the Mention that took place on 1 March 2024. The wife’s written submissions became Exhibit 2. In Exhibit 2 the wife sought an Order that the sum of $61,996.25 be repaid to Ms Y. At the Mention on 1 March 2024 the wife appeared to make a different submission. In my view, the Order proposed by the husband in that regard is appropriate.
Exhibit 1 (the Trustee’s draft Order) will be amended accordingly to reflect what I have had to say in the preceding paragraph.
There is no need for the inclusion of draft Order 3 from the Trustee’s draft (Exhibit 1). The husband already had on foot an Application for Costs. The husband applied for costs in his written submission provided to the Court after the conclusion of the trial.
The declaration proposed by the Trustee (in proposed Order 5 of Exhibit 1) is appropriate. The Trustee has long sought this declaration. The declaration will be included at the commencement of the document that encompasses the Final Orders.
At the Mention on 1 March 2024 the Trustee confirmed that the sum of $14,850 contained in the Trustee’s draft Order[1] 6(j) is an amount in addition to the $33,550 referred to in draft Order 6(a).
[1] Exhibit 1.
Proposed Order 7 from Exhibit 1 seeking a discharge of the Stay Order made by Judge Willis on 4 February 2020 is appropriate.
As to proposed Order 8 (of Exhibit 1) relating to vacant possession of Property B – with some minor amendments that Order is appropriate and reflects the Reasons for Judgment. The Reasons for Judgment actually made reference to 45 days. I did take into account the applicant's submission in relation to this proposed Order. The applicant will have 45 days from the date of this Order and there has already been more than 30 days elapsed since the Reasons for Judgment were delivered. This will mean that the applicant will have had at least 75 days to vacate Property B – from the date the Reasons were delivered on 25 January 2024.
I do not consider it necessary to make any further reference in these Reasons to any of the suggestions, submissions or comments that were made by the wife, the husband or the Trustee. It is sufficient for the Court to say that, unless I have specifically made a reference in these Reasons – the proposed Orders prepared by the Trustee (Exhibit 1) do reflect the Reasons for Judgment delivered on 25 January 2024. It will be apparent that the Court has determined that the Final Orders made today (included at the beginning of these Reasons) reflect the Reasons for Judgment delivered on 25 January 2024.
I would point out, once again, that in the Final Orders that were made on 25 January 2024 – the Trustee (and only the Trustee) has Liberty to Apply. I would expect the Trustee to apply to have the matter relisted in the event there is some further discrepancy that may arise in respect of the wording of the Final Orders or in the event that some further order or direction is needed in order to properly give effect to the Reasons for Judgment delivered on 25 January 2024 or the Orders made on 25 January 2024 or the balance of the Final Orders (and the Declaration) made today, 1 March 2024.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 1 March 2024
0
1