Najeeb & Najeeb (No 2)
[2024] FedCFamC2F 1188
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Najeeb & Najeeb (No 2) [2024] FedCFamC2F 1188
File number(s): PAC 4592 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 30 August 2024 Catchwords: FAMILY LAW – PROPERTY – Enforcement – Orders made. Legislation: Family Law Act 1975 (Cth) s 79A Cases cited: In the Marriage of Liu (1984) 9 Fam LR 1060
Public Trustee v Gilbert (1991) 14 FamLR 573
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 7 August 2024 Place: Parramatta Counsel for the Applicant: Ms Conte-Mills Solicitor for the Applicant: Safi Legal Counsel for the Respondent: Mr Smith Solicitor for the Respondent: Unified Lawyers ORDERS
PAC 4592 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAJEEB
Applicant
AND: MS NAJEEB
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.The Amended Application – Enforcement filed 27 May 2024 by the husband is dismissed.
2.The Application in a Proceeding filed 19 June 2024 by the husband is dismissed.
3.That the property situate at and known as B Street, Suburb C (the property) be forthwith listed for sale in accordance with Orders 7 and 8 of the Court’s Orders of 23 February 2023.
4.By no later than settlement of the sale of the property, the wife shall cause the caveats existing over the title to the property to be removed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is the determination of the husband’s application seeking to enforce certain property adjustment orders made by the Court on 23 February 2023. In particular, he seeks certain enforcement related orders having the effect of requiring the wife to transfer her interest in the former matrimonial home at B Street, Suburb C, NSW, (“the property”) to the husband. The wife opposes the husband’s proposed enforcement orders. For her part, she seeks enforcement related orders having the effect of requiring the parties to sell the property.
The husband’s proposed enforcement orders are set out in his (Amended) Minute of Orders sought as set out in his Case Outline.
The wife’s proposed orders are set out in her Response to Application in a Proceeding filed 26 July 2024.
The husband relied upon:
(a)(Amended) Application – Enforcement filed 27 May 2024
(b)His affidavits filed 17 June 2024 and 31 July 2024;
(c)Case Outline filed 31 July 2024;
(d)Financial Statement filed 31 July 2024;
(e)Orders of 23 February 2023;
(f)Written submissions filed 19 August 2023.
The wife relied upon:
(a)Response to Application in a Proceeding filed 26 July 2024;
(b)Her affidavit filed 26 July 2024;
(c)Her affidavit filed 15 August 223, in particular paragraph 13 and Annexure I to that affidavit;
(d)The husband’s affidavit filed 25 July 2023;
(e)Case Outline filed 5 August 2024;
(f)Written submissions filed 22 August 2023.
In relation to the Court’s final property adjustment orders made 23 February 2023, it was common ground that:
(a)The wife had been unable to comply with Order 2 relating to the wife providing to the husband’s solicitors evidence of a bank mortgage loan approval enabling the wife to “refinance the existing mortgage loan debt relating to the property and obtain a new mortgage loan for the property in her own name.”
(b)Pursuant to Order 4 of those Orders, in the event that the wife failed to comply with Order 2, then the husband, if he wished to retain the property, was required to provide “to the wife evidence of a bank mortgage loan approval enabling the husband to refinance the existing mortgage loan debt relating to the property and obtain a new mortgage loan for the property in his own name” by 15 June 2023.
At the enforcement hearing, it was common ground that a significant factual determination to be made by the Court was whether or not the wife had obstructed the husband’s compliance with Order 4 of the Court’s final property adjustment Orders of 23 February 2023 by having failed to allow a valuer from the ANZ bank to enter the property to inspect the property with a view to providing the bank with a valuation.
The husband’s affidavit evidence, paragraph 4 of his affidavit filed 17 June 2024, stated:
4.In accordance with the Court Orders, I was to provide a formal loan approval to the other side by 15 June 2023. They had not occurred by that date. This delay was not due my lack of compliance with the Court Orders, but the Respondent’s unwillingness to let a valuer from the Bank to enter the property to inspect the property and report the value to the bank who will then give me a formal loan approval.
The wife’s affidavit evidence, filed 26 July 2024, attaches various correspondence passing between the parties’ respective solicitors, including:
(a)Email of 17 May 2023 from the husband’s solicitors to the wife’s solicitors stating, inter alia, “Our client is currently in contact with the Bank to see if he is able to keep [B Street]? If not, the property will be sold. We will respond to you by 20 June 2023.”
(b)Email of 5 June 2023 from the husband’s solicitors to the wife’s solicitors stating, inter alia, “Our client is awaiting his bank’s-pre-approval letter. Regardless of whether he is able to buy the property or the house is to go to auction – your client needs to vacate on the above-mentioned date.” (The Court interpolates that the above-mentioned date was stated to be 9 June 2023).
(c)Email of 5 June 2023 from the wife’s solicitors to the husband’s solicitors stating, inter alia:
…On a re-reading of the property orders, I note that your client has to provide evidence of his loan approval by 15 June 2023. Thereafter, pursuant to order 7, the property must be listed for sale. Has your client progressed his loan application? Does he expect to have evidence of loan approval by the time required by the orders? If not, then the parties are required to list the property for sale after the expiration of 10 days from today’s date.
(d)Email of 16 June 2023 from the wife’s solicitors to the husband’s solicitors stating, inter alia, “As your client has not complied with Order 4, we are instructed to confirm that pursuant to order 7, the parties are required to sell the property.”
(e)Email of 16 June 2023 from the husband’s solicitors to the wife’s solicitors, in reply to the above email, stating:
Fortunately, our client has complied with Order 4, we have had written correspondence with the Bank regarding his ability to have a loan approval. There has been a delay by the Bank to send through the pre-approval letter. Will be chasing this up today.
(f)Email of 16 June 2023 from the husband’s solicitors to the wife’s solicitors stating:
We have had communications with the ANZ bank manager who is currently helping [the husband]. We have been advised that they are waiting for the assessor to come back. Further, the bank has escalated the case to their senior credit coach and aim for an outcome next Monday…
(g)Email of 19 June 2023 from the wife’s solicitors to the husband’s solicitors stating, inter alia, “Clearly, there is no compliance with order 4 by your client. Pursuant to order 7, the parties are required to sell the property.”
The husband states that on about 16 June 2023 he caused his lawyers to contact ANZ bank who advised they were awaiting a response from the credit assessment team. He attaches (Annexure D) an email from his solicitors to the ANZ bank of 19 June 2023 stating, “We are non-compliant with Orders and the other side is pushing for a sale of property.This is serious and we cannot afford to sit on this any longer. What is the status for the pre-approval letter.” An email from the ANZ bank dated 21 June 2023 to the husband’s solicitors is also set out in Annexure D and which states, inter alia, “As per our discussion the loan has been approved subject to valuation for [the property]. The valuation has been booked for 22 June 2023, 10:00am AEST.”
The affidavit of the wife filed 24 August 2023, paragraph 13 states as follows:
13.On Friday, 23 June 2023 my solicitor received an email from the Applicant’s solicitor for the regarding the valuation of the property. Annexed hereto and marked I is a copy of the email received by my solicitor. The attempt at the valuation was after 15 June 2023. Pursuant to the orders the property is required to be sold.
Annexure I (being the email from the husband’s solicitors to the wife’s solicitors dated 23 June 2023) stated, inter alia:
We note, according to the email circulated by ANZ bank-the valuer was to attend the property for valuation. The valuer attended [B Street] (where your client and the children live) today and was not allowed to carry out a valuation by your client. This disruptive behaviour needs to stop. Our client is well within his rights to acquire the property. The delay in having the loan approved is subject to delays by the bank and not our client…
(Emphasis added)
The affidavit of the wife filed 26 July 2024, paragraphs 37 to 39 states as follows:
37.On 23 June 2023, my former solicitors sent me email correspondence from Safi Legal, asserting that a valuer from ANZ Bank had attended the property for a valuation and that he had not been permitted to conduct the valuation. The email correspondence stated that [Mr Najeeb] should retain the [B Street] property, despite the Orders for sale.
38. I accept that the valuers did attend the [B Street] property on this date, prior to my lawyers receiving [Mr Najeeb]'s solicitors' email regarding the valuation. However, I had just returned from dropping off the children at school when they arrived and I was not given any notice from [Mr Najeeb], [Mr Najeeb]'s lawyers or my lawyers regarding their attendance at the house. I requested that the valuers attend at a later date with notice.
39.To the best of my knowledge, the valuers only attended upon the [B Street] property once. I did not receive any further contact from the valuers.
On the balance of probabilities, the Court is not satisfied that the wife prevented a valuer from the bank entering the property to inspect it by 15 June 2023. Accordingly, the Court is not satisfied that the wife was the effective cause of the husband failing to comply with Order 4 of the Court’s Orders of 23 February 2023. In this regard, the Court observes, in particular:
(a)The husband did not adduce evidence of the source of his alleged knowledge that the wife was unwilling to let a valuer from the bank entering the property to inspect it by 15 June 2023. For example, he adduced no evidence as to any telephone conversations with the bank or its valuer, and no file notes or other evidence from the bank or its valuer clearly referring to an attempt by the bank’s valuer to inspect the property by 15 June 2023;
(b)The email from the husband’s solicitors to the wife’s solicitors of 16 June 2023 does not refer to the wife having prevented a valuer from entering the property but refers to the bank’s delay in sending through the pre-approval letter:
Fortunately, our client has complied with Order 4, we have had written correspondence with the Bank regarding his ability to have a loan approval. There has been a delay by the Bank to send through the pre-approval letter. Will be chasing this up today.”
(Emphasis added)
A further email of the same date from the husband’s solicitors to the wife’s solicitors merely refers to their advice that the bank is waiting “for the assessor to come back”;
(c)The husband’s affidavit filed 25 July 2023, in Annexure D, sets out an email from his solicitors to the ANZ bank of 19 June 2023 stating, “We are non-compliant with Orders and the other side is pushing for a sale of property. This is serious and we cannot afford to sit on this any longer. What is the status for the pre-approval letter.” The Court observes that the husband’s solicitors in this email do not assert that the wife has failed to allow the bank’s valuer entering the property;
(d)An email from the ANZ bank dated 21 June 2023 to the husband’s solicitors is also set out in Annexure D and which states, inter alia, “As per our discussion the loan has been approved subject to valuation for [the property]. The valuation has been booked for 22 June 2023, 10 AM AEST.”
(e)The affidavit of the wife filed 24 August 2023, paragraph 13, stated:
13.On Friday, 23 June 2023 my solicitor received an email from the Applicant’s solicitor for the regarding the valuation of the property. Annexed hereto and marked I is a copy of the email received by my solicitor. The attempt at the valuation was after 15 June 2023. Pursuant to the orders the property is required to be sold.”
(Emphasis added)
(f)Annexure I, being an email from the husband’s solicitors to the wife’s solicitors dated 23 June 2023, stated, inter alia:
We note, according to the email circulated by ANZ bank-the valuer was to attend the property for valuation. The valuer attended [B Street] (where your client and the children live) today and was not allowed to carry out a valuation by your client. This disruptive behaviour needs to stop. Our client is well within his rights to acquire the property. The delay in having the loan approved is subject to delays by the bank and not our client…
(g)In the wife’s affidavit filed 26 July 2024, paragraphs 37 to 39, the wife states that she accepts that the bank’s valuers did attend the property “on this date” being a reference to the date of 23 June 2023 referred to in paragraph 37. Moreover, in paragraph 39 of that affidavit, the wife states that to the best of her knowledge the valuers only attended the property once which the Court would infer is a reference by the wife to the valuers having attended the property on 23 June 2023 and not before.
Accordingly, on the balance of probabilities, the Court finds that the husband failed to comply with Order 4 of the Court’s Orders of 23 February 2023. That is, he failed to “provide to the wife evidence of a bank mortgage loan approval enabling the husband to refinance the existing mortgage loan debt relating to the property and obtain a new mortgage loan for the property in his own name” by 15 June 2023.
There is force to the submissions of the wife that for the Court to now effectively vary the husband’s compliance deadline of 15 June 2023, as sought by the husband, would be to alter the substantive rights of the parties under the Court’s Orders of 23 February 2023. In particular, Order 7 of those Orders provided that in the event that the husband had not complied with Order 4, the property should be sold.
The Court should briefly address some submissions that were made by the husband’s counsel, inter alia, as to the relevance of certain previous orders and notations of Judicial Registrars, as follows:
(a)At the outset, it should be observed that the husband’s (Amended) Application – Enforcement filed 27 May 2024 does not seek enforcement of any specific orders of Judicial Registrars; specifically, it does not seek enforcement of the SJR’s Order 1 of 14 November 2023 relating to the wife facilitating a bank’s valuer to attend the property, nor does it seek enforcement of his Orders 1 and 2 made on 5 March 2024.
Rather, it seeks, in particular, enforcement of Orders 5(a), (b) and (d) of this Court’s Orders of 23 February 2023, as well as an order that the wife vacate the property (despite the SJR’s conditional order to that effect on 5 March 2024). Accordingly, this Court has been required to determine the legal question (see its determination previously in these Reasons) of whether the husband is now able to exercise in his favour Order 4 and 5 of the Court’s Orders of 23 February 2023.
(b)The notations of a Judicial Registrar on 19 September 2023 are not evidence.
(c)It is not clear on what basis Order 1 of the SJR’s Orders of 14 November 2023 was made. It is not stated that that order was made by consent. Order 1 effectively provided for the wife within 7 days to facilitate the husband’s valuer, on behalf of the bank, to carry out a valuation of the property, “in aid of the enforcement of Order 4 of the Orders of 23 February 2023 to ascertain if the husband can obtain formal loan approval required under those orders”. On that occasion the wife appeared in person. The Court on that occasion had adjourned the matter to 5 March 2024 for Enforcement Hearing before the same judicial officer. It is not apparent that the Court, on 14 November 2023, had determined the contentious issue of whether or not the wife had been the effective cause of the husband’s failure to comply with Order 4 of the Court’s Orders of 23 February 2023, noting that the wife’s historical position had consistently been that the husband had failed to so comply.
(d)It is not clear on what basis the above Judicial Registrar made Orders 1, 2, and 3, on 5 March 2024, when again the wife appeared in person.
(e)The Court on 5 March 2024 had made orders effectively in aid of enforcement of Orders 4 and 5 of the Orders of 23 February 2023. However, it is not apparent that the Court, on 5 March 2024, had determined the contentious issue of whether or not the wife had been the effective cause of the husband’s failure to comply with Order 4 of the Court’s Orders of 23 February 2023, noting that the wife’s historical position had consistently been that the husband had failed to so comply. Further, by reference to Order 2 of the Orders of 5 March 2024, Order 5 of the Court’s Orders of 23 February 2023 had not been complied with within 8 weeks of the Orders of 5 March 2024.
Accordingly, the Court is not persuaded that the previous Orders of Judicial Registrars have any relevance to the Court’s determinations made in these Reasons. Again, in this context, the Court observes, importantly, that the husband’s (Amended) Application – Enforcement filed 27 May 2024 does not seek enforcement of any specific orders of Judicial Registrars; rather, it seeks, in particular, enforcement of Orders 4 and 5(a), (b) and (d) of the Court’s Orders of 23 February 2023.
Accordingly, pursuant to Orders 7 and 8 of the Orders of 23 February 2023, the property should now be sold. There are presently caveats over the title to the property lodged by lawyers who previously acted for the wife in these property proceedings, and it will be appropriate and in the interests of justice that the wife cause those caveats to be removed from the title to the property by no later than settlement of the sale of the property.
The husband had contended that because he had made various mortgage loan repayments amounting to some $40,467 since the Court’s orders of 23 February 2023 he should be effectively reimbursed that amount by the wife.
The husband, in his amended Minute of Orders proposed, had sought orders (see Orders 1(b) and 2) having the effect of reimbursing him his various mortgage loan repayments of $40,467 made by him between about May 2023 and July 2024. Such orders were sought by the husband in the context of his proposed enforcement of Orders 4 and 5 of the Court’s Orders of 23 February 2023 and also in the event that the Court ordered that the property be sold (which the Court has determined in these Reasons should in fact occur).
The source of the Court’s power to make such an order was not elucidated by the husband’s side when expressly asked by the Court at the interim hearing to identify the power. The Court had itself mentioned the possible application of s 79A of the Family Law Act 1975 (Cth) however no submissions were made by the husband’s side in relation to s 79A at the interim hearing. Accordingly, the Court requested written submissions from the parties after the interim hearing and the parties provided such submissions.
In particular, the Court requested written submissions from the parties, in the event that the Court was to determine that the property should now be sold, pursuant to Orders 7 and 8 of the court’s Orders of 23 February 2023, as to whether the Court should make orders (for example varying Orders 7 and 8 of the Court’s Orders of 23 February 2023) to effectively reimburse the husband his asserted mortgage repayments made between May 2023 and July 2024 in the sum of $40,467.
Section 79A of the Act provides that:
Setting aside of orders altering property interests:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The Court now turns to the possible application of s 79A(1)(a) in respect to the husband’s contention that he should be reimbursed his mortgage repayments of $40,467.
The wife submits that the Court cannot vary the orders pursuant to s 79A(1)(a) because this section does not apply to circumstances after the making of an order and the present issue concerns mortgage repayments that were made by the husband after the Orders of 23 February 2024 (Public Trustee v Gilbert (1991) 14 FamLR 573 at 578). There is force to this submission. In the Marriage of Liu (1984) 9 Fam LR 1060, Nygh J stated that this explains the insertion of paragraphs (b), (c) and (d) in s 79A(1) which refer to circumstances arising since the order was made. In any event, the Court would not find any miscarriage of justice has occurred in circumstances where the husband’s failure to cause the property to be sold, together with the wife, pursuant to Order 7 of the Courts Orders of 23 February 2023, has led to him making the claimed mortgage repayments.
The Court now turns to the possible application of s 79A(1)(c) in respect to the husband’s contention that he should be reimbursed his mortgage repayments of $40,467.
The Court has determined, above, that the husband failed to comply with Order 4 of the Court’s Orders of 23 February 2023, in that he failed to “provide to the wife evidence of a bank mortgage loan approval enabling the husband to refinance the existing mortgage loan debt relating to the property and obtain a new mortgage loan for the property in his own name” by 15 June 2023.
Accordingly, a question of construction of s 79A(1)(c) that arises is whether the husband’s mortgage repayments totalling $40,467 paid between about May 2023 and July 2024 amount to “circumstances that have arisen as a result of that default”.
The husband’s mortgage repayments totalling $40,467 were paid by him substantially for the reasons stated in paragraph 7 of his Affidavit filed 31 July 2024 as follows:
7.Since 23 February 2023, I have made payments to upkeep the mortgage payments for various reasons but not limited to avoiding bad credit, having the Bank takeover to sell the property, and more importantly so as to not lose the opportunity of taking over the mortgage and the property.
The wife, for her part, acknowledges that she had made inconsistent repayments towards the mortgage since May 2023 to July 2024 largely due to her solely meeting various significant expenses for the children, including school fees and uniforms, and other living expenses for herself and the children.
On the evidence before the court, the Court finds that by reason of the husband’s above default in complying with Order 4, the wife, acting reasonably in a legal sense, took the position (and has maintained that position to date) that the property should be sold pursuant to Order 7 of the Court’s Orders of 23 February 2023.
However, the husband did not agree with this position taken by the wife, and, without legal justification (because the husband had failed to comply with Order 4), he effectively insisted that the wife do all things required on her part, pursuant to Orders 4 and 5 of the Court’s Orders of 23 February 2023, to facilitate the property being wholly retained by the husband. Without legal justification, in a bid to retain the property, he failed to cause the property to be sold and chose to make mortgage payments from May 2023 to July 2024 in circumstances where the wife was herself unable to make such payments.
Accordingly, it can be seen that the “circumstances that have arisen as a result of [the husband’s] default [of Order 4]” did not include the husband’s payments of the mortgage loan from May 2023 to July 2024; those payments were primarily made by him because, despite his legal obligations under Order 7 to join with the wife in selling the property, without legal justification he insisted that the wife take necessary steps to cause title to the property to pass to him and prosecuted related enforcement proceedings, albeit in circumstances where the wife was financially unable to make all such repayments herself.
Rather, the “circumstances that have arisen as a result of [the husband’s] default [of Order 4]” were essentially the wife’s legal entitlement to insist that the property be sold pursuant to Order 7. Had the husband joined in the sale of the property and it was duly sold in a timely manner then it is likely that the extent of the mortgage repayments would not have been made by him.
In any event, even if it could be said that the husband’s mortgage repayments arose out of his default in complying with Order 4, as a matter of discretion, the Court would not vary the Court’s Orders of 23 February 2023 so as to effectively reimburse the husband his mortgage repayments or any part of them. In this regard, the Court takes into account the above discussed matters, including, in particular, the fact that the husband, without legal justification, failed to join with the wife in selling the property after 15 June 2023. The Court also takes into account the fact that the wife herself made mortgage repayments totalling $33,040 between 3 March 2023 and 7 February 2024, whilst acknowledging that this occurred in circumstances where she was in occupation of the property.
Both parties’ written submissions dealt with the issue of existing caveats over the property which were apparently put in place to secure payment of legal fees by the wife’s former solicitors. It will be in the interests of justice to make an order that no later than settlement of the sale of the property, the wife shall cause the caveats existing over the title to the property to be removed.
The husband had also sought an order, by way of variation, in his written submissions, that would now require the wife to make the mortgage repayments on the property prior to the settlement of the sale of the property. The Court acknowledges that in its orders of 23 February 2023 there are no specific orders relating to payment of the mortgage loan after 23 February 2023. However, in the view of the Court, there is no source of power to make such an order by way of variation in the circumstances and having regard to the Court’s discussions above in particular in relation to s 79A. Other orders sought by the husband similarly cannot be made as there is no relevant source of power.
The Court makes orders in accordance with its determinations in these Reasons.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 30 August 2024
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