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 of 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

1. 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.

2. 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.

3. 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.

4. The Wife’s application in a case filed 30 October 2020 be dismissed.

5. The Husband’s response seeking interim orders filed 27 October 2020 be dismissed.

6. The Intervener’s costs of today be reserved.

7. 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 judgment by this Court under the pseudonym Moretti & Moretti has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3989 of 2020

Ms Moretti

Applicant

And

Mr Moretti

Respondent

And

B Organisation

Intervenor

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application made by the B Organisation for orders in accordance with paragraphs 1 to 3 of their application in a case as intervener filed 26 October 2020. Those orders, to which certain minor date changes were made by counsel for the intervener during argument, which  are in the following terms:

   1.That the intervener, the B Organisation be authorised to do all acts and things as are required forthwith to sell the property situated at and known as –

   (a)C Street, Suburb D, New South Wales;

   (b)M 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. 

   2.That the intervener be at liberty to apply the moneys realised by paragraph 1 to one or more of –

   (a)     the removal of combustible material, which is to say the works;

   (b)maintenance reasonably required to reduce the 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 J Proprietary Limited under orders made in the Victorian Civil and Administrative Tribunal, that is VCAT proceeding …/2019 to effect –

   (i)    the removal of combustible material;

   (ii)     maintenance reasonably required to reduce the risk of combustible material;

   3.That, 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 dates specified in 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 proportionate combustible materials and any remaining matters the subject of the VCAT orders of … 2019 by 28 February 2021. 

   *References to stockpile 1, stockpile 2 and stockpile 3 are as referred to and identified as at 9 October 2020 in the report prepared by an officer of the intervener, Mr H dated 12 October 2020. 

2. In support of these orders, the intervener relies on an affidavit of Mr S sworn on 18 September 2020, an affidavit of Mr T, sworn on 26 October 2020 and a further affidavit of Mr H sworn on 11 December 2020. The intervener seeks, in effect, to enforce orders made by VCAT in its favour on … 2019 in VCAT proceeding …/2019. 

3. A copy of those orders made by VCAT is exhibited to the affidavit of Mr J sworn on 18 September 2020. In substance, the VCAT orders require the husband, the wife and G Pty Ltd, a company controlled by the parties which is the owner of the freehold of the property at K Street, Suburb R in Victoria, to remedy their non-compliance with conditions in planning permit … issued by the intervener. It is said on behalf of the intervener that the application which is made for the orders in the intervener’s application in a case is made having regard to the court’s accrued jurisdiction and that, to date, it has been conceded by both the husband and the wife, and was so conceded before Wilson J, that the Court had jurisdiction to make the orders sought by the intervener. 

4. There is some absence of clarity in relation to the relief which is sought by the wife.  The wife has filed an application in a case dated 30 October 2020. However, in argument before me today, the wife’s solicitor, Mr Rothschild, has informed the Court that, in fact, the relief sought by the wife is set out in the wife’s outline which was provided on 11 December 2020. In that outline, the wife seeks an order for the sale of M Street, Suburb D, New South Wales, in order to facilitate the payment of the debt which Mr Rothschild clarified in submission was to be regarded as the obligation owed to the intervener. 

5. The second order sought by the wife is that the Court “respect the in-principle agreement between N Company and P Company”.

6. The third order sought by the wife is that the Court make an order that P Company continue to comply with the VCAT orders. The substance of the wife’s submission is that she is in the process of cleaning up the premises and she opposes the orders sought by the intervener on the basis that the work is in the process of being done. For his part, the husband complains that he has not been able to comply with the orders of VCAT because he has been prevented by the wife from doing so. 

7. In a response to final orders dated 27 October 2020, in annexure B, the husband seeks a series of orders the substance of which is to restrain the wife from continuing whatever attempts are being made by her to remedy the site, to restrain her dealing with funds in the company’s bank account, and for him to assume responsibility for the management and operation of the company. He also seeks to have the wife sign documents to do all that is necessary to cause the sale of the property at C Street, Suburb D, New South Wales (Property 1), that his solicitors be appointed to act in that sale, and that the proceeds from the sale of property 1 be distributed as set out in his proposed orders. 

8. The husband also seeks an order that Q Pty Ltd be appointed to act in conjunction with and assist the respondent to comply with the VCAT orders, that the respondent’s solicitors be authorised to disburse from the balance of the proceeds of sale of property 1 all of the costs of cleaning the site within seven days after receipt of a bill or tax invoice from any contractor appointed by the respondent to assist in the clean-up process.  In the event that the proceeds of sale of property 1 do not adequately cover the costs of the clean-up then the husband seeks an order that he and the respondent proceed with the sale of the property at M Street, Suburb D (Property 2) and that the respondent’s solicitors are authorised to prepare all necessary documents to facilitate the sale of the property at M Street, Suburb D, New South Wales with all proceeds of the sale of property 2 to be applied to give effect to paragraphs 8, 9 and 10 of those orders.

9. The husband also seeks a dollar for dollar order, although he did not make submissions in support of that order and I have taken that application to be abandoned. The husband also seeks an order that, in the event that either the applicant or the respondent fail to do all that is necessary to give effect to the above orders, then all funds kept in the respondent’s solicitor’s trust account are transferred to the intervener at the request of the intervener to carry out the necessary work which is not completed by either the company, the respondent or the applicant.

10. The husband’s position in substance is that he has been trying to comply with the VCAT orders but the wife will not let him.  He says that he should be given the opportunity to comply with the VCAT orders, that he is capable and willing to  comply with them, and, indeed, that he will start tomorrow if he is given the opportunity to do so. 

11. Insofar as the affidavits filed by the parties are concerned I should mention specifically that the wife relies on her affidavit which was filed on 11 December 2020 and an earlier affidavit that was filed on 29 October 2020, together with a further affidavit that was filed on 23 September 2020. The husband relies on an affidavit that appears to have been filed on 11 December 2020. Having regard to the affidavits filed by the council and the parties, I am satisfied that there have been but cursory attempts made by the husband and the wife and J Proprietary Limited to comply with the VCAT orders. 

12. I accept the submissions of Dr Ingleby on behalf of the intervener that the orders sought by the intervener are the only reasonably practicable option to remedy longstanding breaches of the permit issued by the intervener under the Planning and Environment Act (1987) (Vic) and the VCAT orders which were made in 2019.  Put simply, the wife and the husband have now had in excess of 12 months to comply with those orders and they have not done so.  They have now had almost two months to comply with the orders made by Wilson J on 24 September 2020 that on or before 4 pm on 23 October 2020 they remove the prohibited material as defined in the VCAT orders and which require that access be granted as between the applicant and the respondent to enable these orders to be performed. 

13. In my assessment, the husband and the wife have had sufficient latitude afforded to them. Accordingly orders in the terms sought by the intervener and outlined by me at the commencement of these reasons should be made. Insofar as there is also before the Court the wife’s application in a case dated 30 October 2020, I would dismiss that application, and insofar as there is also the husband’s response in relation to interim orders application of 27 October 2020 before the Court, I would also dismiss that application, having regard to the orders in favour of the interveners that I have made.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 14 December 2020.

Associate: 

Date:              21 December 2020