Moretti and Moretti & Anor - [2020] FamCA 1104

FAMILY COURT OF AUSTRALIA

MORETTI & MORETTI AND ANOR

[2020] FamCA 1104

FAMILY LAW – PROPERTY – Accrued jurisdiction – Enforcement of VCAT orders – longstanding breach by the applicant and respondent of permit issued under the Planning and Environment Act1987 (Vic) – Application by the intervenor for the sale of properties to pay for the required clean up – Application granted

Family Law Act 1975 (Cth)
Planning and Environment Act 1987 (Vic)

APPLICANT:

Ms Moretti

RESPONDENT:

Mr Moretti

INTERVENOR:

B Organisation

FILE NUMBER:

MLC

3989

2020

DATE DELIVERED:

14 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

14 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rothschild

SOLICITOR FOR THE APPLICANT:

Brendan Rothschild Legal Group

COUNSEL FOR THE RESPONDENT:

Mr Barber

SOLICITOR FOR THE RESPONDENT:

Barber Lawyers

COUNSEL FOR THE INTERVENOR:

Dr Ingleby

SOLICITOR FOR THE INTERVENOR:

Hunt & Hunt Lawyers

Orders

The Intervener, B Organisation, be authorised to do all acts and things as are required forthwith to sell the properties situate at and known as —
(a)       C Street, Suburb D, New South Wales;
(b)       E Street, Suburb D, New South Wales; and
(c)       F Street, Suburb R, New South Wales,
and the net proceeds of each sale (after costs and commissions and secured creditors) be held in the trust account of the Intervener’s solicitors to be applied pursuant to paragraph 2 below.
The Intervener be at liberty to apply the monies realised by paragraph 1 above to one or more of—
(a) removal of combustible material (the Works);
(b)maintenance reasonably required to reduce risk of combustible material; and
(c)provision by the Husband and the Wife of a security deposit or bank guarantee in relation to the obligations of the Husband, the Wife and G Pty Ltd under orders made in Victorian Civil and Administrative Tribunal (VCAT) proceeding …/2019 to effect —
(i)removal of combustible material; and
(ii)maintenance reasonably required to reduce risk of combustible material.
Notwithstanding any steps taken by the Intervener under paragraph 2, the Husband and the Wife undertake the Works in order of public-risk priority, as follows, by the date specified for each category:
(a)       Stockpile 1 – by 31 January 2021;
(b)       Stockpile 2– by 31 January 2021; and
(c)       Stockpile 3, in successively decreasing order of proportion of combustible materials, and any remaining matters the subject of VCAT orders of … 2019 – by 28 February 2021,
(*) as at 9 October 2020, as identified in the report prepared by Intervener officer Mr H dated 12 October 2020.
The Wife’s application in a case filed 30 October 2020 be dismissed.
The Husband’s response seeking interim orders filed 27 October 2020 be dismissed.
The Intervener’s costs of today be reserved.
The matter be listed for compliance mention before the Honourable Justice McEvoy on 29 March 2021 at 4.15 pm.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Moretti and Moretti & Anor [2020] FamCA 1104
Case: [2020] FamCA 1104
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of *Moretti & Moretti*, considered an application by the B Organisation (the intervener) seeking orders to sell properties to address longstanding breaches of a planning permit and subsequent Victorian Civil and Administrative Tribunal (VCAT) orders. The dispute involved Ms Moretti (the applicant) and Mr Moretti (the respondent), who had failed to comply with VCAT orders requiring the removal of combustible material from their properties. The intervener sought to enforce these VCAT orders through the sale of three specified properties.

The primary legal issues before the court were whether it had the accrued jurisdiction to make the orders sought by the intervener, and if so, whether those orders were appropriate to remedy the parties' non-compliance with the VCAT orders. The court also considered applications made by the wife and the husband, which sought to manage the clean-up process and the sale of properties in ways that differed from the intervener's proposed orders. The wife sought the sale of a property to pay a debt to the intervener and for the court to respect agreements between other companies, while the husband sought to manage the clean-up himself and control the sale of a property.

Justice McEvoy found that both the husband and wife, along with a company controlled by them, had made only cursory attempts to comply with the VCAT orders over an extended period. The court accepted the intervener's submission that the proposed orders were the only reasonably practicable option to remedy the breaches. The court determined it had accrued jurisdiction to make the orders, as had been conceded by the parties. Consequently, the court dismissed the wife's application and the husband's response seeking interim orders.

The court ordered that the intervener be authorised to sell the properties located at C Street, Suburb D, New South Wales; E Street, Suburb D, New South Wales; and F Street, Suburb R, New South Wales. The net proceeds of these sales were to be held by the intervener's solicitors and applied towards the removal of combustible material, necessary maintenance, or the provision of a security deposit or bank guarantee in relation to the VCAT obligations. The husband and wife were also ordered to undertake the clean-up works by specified dates, notwithstanding the intervener's actions.

Orders