Nest and Nest (No 2)

[2015] FamCA 202

FAMILY COURT OF AUSTRALIA

NEST & NEST (NO 2) [2015] FamCA 202

FAMILY LAW – PROPERTY – ENFORCEMENT – Where final property orders were made in July 2014 – Where the husband did not voluntarily vacate a property the subject of the substantive property orders such that he was forcibly removed by a writ of possession – Where there remained a substantial quantity of the husband’s possessions at this property – Where the wife seeks reimbursement for costs associated with the removal of the husband’s possessions – Orders made providing for the reimbursement of the wife’s costs – Further orders made dealing with the husband’s collection of his property from a storage unit.   

Family Law Rules 2004 (Cth) – Ch 20

APPLICANT: Ms Nest

RESPONDENT: Mr Nest

FILE NUMBER: ADC 1821 of 2008

DATE DELIVERED: 27 March 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That within seven (7) days of the date of this order the wife shall cause the property and belongings of the husband remaining at the premises situate at P Street, Suburb S to be delivered to and stored at the Suburb GL Self Storage facility in storage units rented in the wife’s name PROVIDED THAT thereafter the wife shall arrange for the husband to have unfettered access to the said storage facility.

2. That forthwith and upon presentation to I Conveyancers of a copy of this order they be authorised and directed to pay to the wife from monies held in their trust account for and on behalf of the parties the sum of SIX THOUSAND NINE HUNDRED AND EIGHTY SIX DOLLARS ($6,986).

3. That the wife do continue the rental of the storage units in either her name or the husband’s name for a period of six (6) weeks as and from 29 March 2015.

4. If at the expiration of a five (5) week period as and from 29 March 2015, the husband has not removed the entirety of his property and belongings stored in the said storage facility THEN at the election of the wife she shall be entitled to the following provisions:-

   (a)To approach a Registrar of this Court in order that the Registrar sign all documents as may be necessary to transfer the rental obligation in respect of the Suburb GL Self Storage facility from the wife to the husband and/or;

   (b)To arrange for the removal of the balance of the husband’s property and belongings from the said storage unit and upon giving 48 hours written notice cause the property and belongings to be delivered to the husband at C Street, Suburb K either inside the property if the husband indicates his preparedness to provide access to the Suburb K property, or in the absence of access being given, THEN to be delivered as close as is practicable to the front door of the Suburb K property.

5. That the husband indemnify the wife in respect of any costs or charges incurred by the wife in respect of the Suburb GL Self Storage facility.

6. At her expense the wife to cause the vintage motor vehicle and trailer to be delivered to the Suburb GL Self Storage facility for collection by the husband.

7. Save as to the amount of ONE THOUSAND ONE HUNDRED DOLLARS ($1,100), any amount remaining in the Trust Account of Is Conveyancer is to be forwarded to the husband by electronic transfer to his nominated account or by bank cheque forwarded by prepaid post to the Suburb K property.

8. Should the husband remove his personal property from the Suburb GL Self Storage facility within the time as specified THEN the remaining sum of ONE THOUSAND ONE HUNDRED DOLLARS ($1,100) shall be forwarded to the husband as provided for in paragraph 7.

9. The Application in a Case is dismissed and all matters removed from the Pending List of Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nest & Nest (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1821  of 2008

Ms Nest

Applicant

And

Mr Nest

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Amended Initiating Application filed 10 October 2013, Ms Nest (“the wife”) sought orders for property settlement following a period of cohabitation with Mr Nest (“the husband”) which spanned a period of 19 years.

2. The proceedings have had a long and complex history and for the purpose of the current application crystalized with a judgment delivered 16 July 2014 which determined to finality the property dispute between the parties.

3. The terms of the judgment can be summarised as follows:-

   (1)That within 90 days of the order the husband pay to the wife a settlement sum of $709,000.

   (2)That upon payment of the settlement sum the wife do all things necessary to transfer her interest in a property situate at C Street, Suburb K to the husband.

   (3)That in default of payment by the husband of the settlement sum the husband do transfer his interest in the property at 28 P Street, Suburb S, the wife to pay the husband the settlement sum of $89,990.

   (4)That subject to any other order made, the parties are entitled to be the sole legal and beneficial owners of all items of property including money, accounts in financial institutions, motor vehicles, insurances, equities, superannuation, employee entitlements and personal effects currently in the possession or control of each of the parties respectively.

4. It is not controversial that the husband did not pay the settlement sum and accordingly the wife elected to receive the transfer of the husband’s interest in the Suburb S property.

5. Further consideration of the matter was given on 10 November 2014 when an order was made that the balance of the settlement sum of $89,990 was to remain in the Trust Account of I Conveyancing for and on behalf of the husband subject to certain disbursements as set out in paragraph 9 of my judgment delivered 19 March 2015 upon the wife’s application for costs.

6. The husband was recalcitrant in respect of his compliance with the orders but in particular that he both transfer his interest in the Suburb S property in compliance with the order, but also by implication that he give vacant possession of the Suburb S property to the wife.

7. The husband did not leave the premises and did not give vacant possession.  Accordingly and upon further application an order was made that he vacate the Suburb S property by 4pm on 24 November 2014.  The orders were clear and the husband understood that should he fail to comply with the order for vacant possession, then authorised functionaries of the Court and/or the Police may well take whatever steps were necessary to give effect of the order namely, the delivery up of the Suburb S property to the wife following the transfer of the husband’s interest in the said property.

8. The husband did not voluntarily vacate the property and an order was made on 25 November 2014 which caused a Writ of Possession to issue which had the regrettable and unfortunate consequence of the husband being forcibly removed from the Suburb S property.

9. On 14 December 2014 the husband attended the Suburb S property to collect some essential items.  The husband’s contact at the time of his eviction with the Sheriff and SA Police on 11 December 2014 was such that he was charged with hinder the Sheriff, a Deputy or Sheriff’s Officer/commit assault causing harm/aggravated-weapon used/aggravated other than by the use of offensive weapon and resist arrest.

10. The husband, in the presence of the police, collected certain of his belongings namely a computer, printer, laptop, radio, various mobile phones, keys, clothing, toiletries, mattress, a broken video camera, documents/paper work, medication and a motor vehicle registration number ….

11. Notwithstanding the items of personal property removed by the husband under police escort, there remained in the house a substantial quantity of the husband’s belongings.

12. It is in respect of the removal of those belongings, the delivery of them to the husband and the costs of enforcement of the orders (as distinct from the wife’s legal costs) to which this application relates.

APPLICATION

1. The wife filed an Application in a Case on 29 January 2015 seeking the orders which were conceded should be reduced to the following:-

   (1)That the wife be at liberty to remove the husband’s personal property forthwith from P Street, Suburb S.

   (2)Reimbursement to the wife of the costs of conveyancer fee for settlement of C Street, Suburb K of $1,382.

   (3)The payment due and payable to Revenue SA for C Street, Suburb K being the sum of $970 for land tax and $298.10 for emergency services levy.

   (4)Reimbursement to the wife for cleaning and packaging costs to date from funds in I Conveyancing Trust Account totalling $5,700.

   (5)That the wife be at liberty to sell the vintage vehicle at P Street, Suburb S to reimburse the wife her costs.

2. The application is supported by an affidavit of the wife filed on the same date.

3. The application first came before the Court on 5 February 2015 and the orders made that day confirm that the application was listed for hearing on 19 March 2015.

4. There was however detailed consideration on that occasion of the importance of the application in terms of the long hearing occasioned by the wife’s application for costs.

5. On 19 March 2015 the husband and wife both appeared unrepresented.  The husband had not filed any answering documents and sought to have the matter adjourned.  He was not prepared to give any proper response as to the basis for the adjournment and there was no  indication by him that if an adjournment was granted he would either obtain separate or independent legal advice, be represented at the following hearing or that he would file any answering documents.

6. The matters the subject of this application represent the effective conclusion of proceedings that have been in this Court since 2008.

7. The substance of the application represents a relatively modest sum by way of reimbursement for enforcement costs but overarchingly deal with what should be a simple and straightforward matter namely, the delivery up to the husband of his remaining belongings in the Suburb S property.

8. I am satisfied that the wife has done all that is reasonable possible to seek a simple and straightforward resolution to the final aspect of the orders namely, the return to the husband of his remaining property.

9. The wife’s affidavit sets out the correspondence forwarded to the husband and it would have been a straightforward exercise for the husband to simply nominate a date, a time and if necessary an address (if different to the Suburb K warehouse property) for the delivery up of his remaining items.  The husband has refused to do so and I am satisfied that his refusal has no merit.  Unfortunately the husband’s attitude is one of belligerence and malice. It is open for me to find that the husband does not wish to receive the return of his personal property in the most straightforward and efficacious fashion because he views it as part of some strategy to support or maintain the litigation against his wife.  The husband in open Court threatened the wife with ongoing litigation.

10. The wife annexes to her affidavit photographs depicting the poor state of the house when the husband was removed.  The quantity of the husband’s personal effects could only be described as overwhelming for the wife to deal with.

11. It was not appropriate for the wife to invite the husband to re-enter the property in order to sort out his affairs.  Whilst it was not required of the wife in any event, the terms and conditions of the husband’s bail and what is purported by the wife to be a breach of the bail conditions when she caught the husband trespassing on the Suburb S property on 30 December 2014, is such that it would not be possible or appropriate for the husband to attend the property and collect his own belongings.

12. The husband has refused to nominate an agent to undertake the task and ultimately the wife has been left with few options but to incur both the personal actual cost of packing up the husband’s belongings and transferring them to a storage unit.

13. The wife would wish to see an end to the matter in that she have the possession of the Suburb S property free of the property of the husband, but also that he receives in a timely fashion the balance of property left at Suburb S.

14. Following the correspondence inviting the husband to put forward any proposal for the removal of his property, she arranged for a removal company  to remove the husband’s property between Christmas and New Year and deliver it to him.  I accept the wife’s evidence that the husband would not cooperate.  The wife then made various attempts to rebook the arrangements.  However, on 6 January 2014 and in circumstances where the husband appeared in the Adelaide Magistrates Criminal Court to vary his bail conditions, the sitting Magistrate made the following order:-

    To make appropriate arrangements with a removalist of my choice for the collection and delivery of my furniture and personal effects from the property at [28 P Street, Suburb S] and [W Street, Suburb S] as soon as practicable.  For that purpose I will instruct the removalist to contact my ex-wife [Ms Nest]…to make appropriate arrangements for the collection of the said property as soon as reasonably practicable.

15. By paragraph 21 of the wife’s affidavit, she asserts that the husband made no attempt to organise a removalist and now three months have passed since the settlement date and a further two months since the Magistrates Court Order.

16. The wife is not bound by the order of the Magistrate.  She was not in attendance and was not heard.  The orders have more to do with to the husband’s bail rather than a considered hearing focussed on a dispute involving the husband’ s ability to have delivered up to him (or to collect) his property.

17. As indicated, the cleaning, sorting and packing of the husband’s belongings has been a herculean task. 

18. At paragraph 24 the wife says:-

    I had to spend every spare moment before, after work and days off, cleaning and packing which has affected me physically and financially.  There is so much property in every room of both dwellings.  I have had to deal with mouldy bathrooms, vermin, cockroaches, plastic boxes so weathered they fall apart and the contents spilling everywhere, filthy used tissues in the bathrooms, bathrooms even the roll top desk, toxic chemicals and sprays.  I have foregone hours of overtime available at work due to hours necessary to clean and clear the access to property.

19. The wife submitted that she has packed up about 170 boxes and had them delivered to a storage unit at Suburb GL Self Storage.  She estimates that there is a further 100 boxes that she has either packed, or is in the process of packing which will then enable the balance of the husband’s property to be removed either to him (if he was prepared to consent) or to the storage unit.  There is in addition a vintage motor vehicle and a trailer which the wife also seeks to be removed.

20. The husband shows no interest in cooperating with the predicament that the wife finds herself in.  It would be a simple matter for the husband to have nominated a time and a place for the delivery of his property to his premises.  It is not in dispute that his premises comprise warehouse facilities which would have substantial holding capacity to which the husband’s property could be delivered enabling the husband to unpack and sort out his belongings.

21. The husband shows no inclination to assist the wife notwithstanding that there could be a straightforward and simple resolution.

STORAGE UNIT COST

1. The cost of the storage unit to date is $160 per week.  To 29 March 2015 the wife has incurred $1,055 in rental fees.  That unit is not large enough to store the balance of the husband’s property.  A second and smaller unit will need to be hired at a cost of $110 per week in addition to the cost of the larger unit of $160 per week.

2. Accordingly, I propose to allow the wife the sum of $1,055 and then a further sum to be retained at the rate of $270 per week for a period of six weeks, with the husband having access to the storage unit giving him the option of removing his possessions in his own time.

3. At the conclusion of that six week period if there is still property remaining in the storage facility, then at the election of the wife she can make application to the Registrar to sign any document as may be required transferring the rental of the storage facilities from her name into the name of the husband.  Alternatively, I will order at her election that she is able to cause the balance of property remaining to be delivered to the husband’s premises at C Street, Suburb K at his expense.

4. The wife submits (and provides invoices comprising Exhibit 1) that the current removal costs incurred by her are in the sum of $881 and it is likely that the balance of the boxes to be transferred to the storage unit will be a further $220.  Using that as a benchmark, I propose to allow the wife a further $1,100 to be either refunded to the husband if he removes his property, or alternatively to be used for the costs of his property being delivered to his Suburb K premises.

COSTS OF CONVEYANCING FEE

1. As part of the substantive order for property settlement, the wife was to transfer her interest in the Suburb K property to the husband.  For reasons that are not explained and not readily obvious, the husband resisted the transfer of the property.  Ultimately that process had to be enforced and I made separate orders following delivery of reasons to cause the property to be transferred to him.

2. A consequence of the husband’s refusal to comply with the orders in relation to the transfer of the wife’s interests in the Suburb K property to him was that whilst it remained in joint names, the wife was responsible (as she had been for a number of years) for the utilities, rates and taxes assessed on the property notwithstanding that unlike the husband she had never resided in it and derived no benefit from it.  The order for property settlement required the wife to be indemnified by the husband in respect of matters relating to the Suburb K property and I am satisfied that the sum of $970 for land tax and $298 for emergency services levy should be repaid to the wife pursuant to that indemnity.

3. Accordingly, I propose to enable reimbursement to the wife of $1,382 being the cost of conveyancing fee for the transfer of the Suburb K property and the two amounts by way of land tax and emergency services levy.

CAR AND TRAILER

1. The husband has left a vintage motor vehicle and trailer at the Suburb S property.  The wife submits that the motor vehicle is not able to be driven but clearly, she does not wish it to remain.  Again for reasons best known to the husband, he puts forward no sensible or efficient proposal for the removal of the motor vehicle.  The wife wants the vehicle removed and it is her application that at a cost of $220 the vehicle and trailer can be delivered either directly to the husband’s premises if he is prepared to receive it or alternatively, to the Suburb GL Self Storage Unit.  It would seem clear that the husband is not prepared to acquiesce in respect of the wife’s proposal and accordingly,  I propose to allow the wife the further costs of enforcement in the total sum of $240 which will see the car and trailer delivered with the balance of the husband’s property.

THE LAW

1. I do not consider that the orders sought by the wife represent in any way a substantive change to the orders for property settlement made on 16 July 2014.  It may be the case that they are mechanical in the sense that it is necessary to give effect to the substantive orders.  A second component however is the reimbursement that the wife seeks in respect of monies expended in attempting to comply with the orders and the anticipated costs in bringing the matter to conclusion.

1. I consider that I am able to make orders that the wife seeks by reference to Chapter 20 of the Family Law Rules. Monies sought by the wife are able to be justified as reasonable costs of enforcement.

CONCLUSION

1. Accordingly, I propose to make orders which will have the following effect:-

   (1)That the wife be reimbursed for the following amounts:-

   ·Conveyancing fees in respect of the Suburb K property  $1,382;

   ·Reimbursement of land tax levied $970;

   ·Reimbursement of emergency services levy $298;

   ·Cost of packing materials $101;

   ·Rubbish removal $280;

   ·Costs of the removalist together with further anticipated removal costs $1,100;

   ·Reimbursement of rental for Suburb GL Self Storage calculated to 29 March 2015 and for a further six weeks totalling at $260 per week totalling $2,615;

   ·Car and trailer removal $240;

   being a total of $6,986.

   ·Anticipated costs of removal from storage unit to Suburb K property $1,100

   (2)Following the final transfer of the husband’s property from the Suburb S property to the storage unit to occur within seven days of the date of judgment, the wife will give access and authority to the husband to have free and unfettered access to his personal property held in storage.

   (3)If the husband fails to remove all or any of his personal property from the storage facility, the wife will have at her election the option of seeking a Registrar to sign all documents as may be necessary to transfer the contract the rental contract for the storage unit to the name of the husband, or the further delivery of the husband’s remaining property to the Suburb K premises.

   (4)Thereafter the balance of any sum remaining in the Trust Account of Is Conveyancing will be transferred to the husband in the form and manner as he may nominate.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 March 2015.

Associate: 

Date:  24 March 2015