Nestor and Ripley & Anor

[2020] FamCA 694

FAMILY COURT OF AUSTRALIA

NESTOR & RIPLEY AND ANOR [2020] FamCA 694

FAMILY LAW – PROPERTY – ENFORCEMENT – where previous orders provided for the sale of the property and that the parties do all things to facilitate sale – where the husband says the wife has sought to frustrate the sale – where the husband makes an application pursuant to rule 20.54 of the Family Law Rules 2004 (Cth) that a warrant of possession issue requiring the respondent wife to vacate the real property and give vacant possession of the land to the husband’s agents – order that the warrant issue – order that the warrant be stayed until 14 days following the lifting of stage-4 COVID-19 restrictions in Victoria.

FAMILY LAW – COSTS – indemnity costs awarded in favour of the applicant and second respondent.

Family Law Act 1975 (Cth) s 105, s 117
Family Law Rules 2004 (Cth) r 19.34, r 20.54

Baum & Lokare (No. 2) [2019] FamCA 292
Collins & Olsthoorn (2005) FLC 93-216
Danks & McCabe (2017) FLC 93-767
Colgate-Palmolive & Anor & Cussons Proprietary Limited (1993) 46 FCR 225
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Anor (2005) 33 Fam LR 123
Fountain Selected Meats (Sales) Proprietary Limited & International Produce Merchants Proprietary Limited (1988) 81 ALR 397
In the marriage of Kerr (1983) 8 Fam LR 1023
In the marriage of Ramsey (1983) FLC 91-301
Penfold & Penfold (1980) 144 CLR 311
Wrenstead & Eades (2016) FLC 93-697
Yunghanns & Yunghanns (2000) FLC 93-029

APPLICANT: Mr Nestor

RESPONDENT: Ms Ripley

SECOND RESPONDENT: Ms F

FILE NUMBER: MLC 7837 of 2017

DATE DELIVERED: 10 August 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 10 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Accord Family Law

COUNSEL FOR THE RESPONDENT: Mr Gardiner

SOLICITOR FOR THE RESPONDENT: David Gibbs & Associates

SOLICITOR FOR THE SECOND RESPONDENT: Farrar Gesini Dunn

Orders

IT IS ORDERED THAT:

1. Order 6.1 of the orders made on 29 October 2019 which provide for the wife to have sole use and occupation of the property situated at D Street, E Town, in the State of Victoria, the whole of the land and certificate of title volume … folio …, (“the E Town property”), be and are hereby discharged.

2. Within 14 days of the date of the current stage-4 restrictions in Victoria lifting, the wife do all acts and things to vacate and remove all of her chattels and possessions from the E Town property and deliver up vacant possession to the husband or his nominated agent (“vacation”) by 9 am on the 14^th day after the lifting of the stage-4 restrictions, and thereafter the husband be entitled to sole possession of the property for the purposes of conducting the sale of the property pursuant to these and previous orders of this Court.

3. For the purposes of the vacation, the wife cause to be delivered to G Real Estate the following:

   (a)the gate locks and remote controls;

   (b)the keys and access passes for every part of the modern house;

   (c)the keys and access passes for the old house;

   (d)the passwords and codes for the wife’s Airbnb accounts relating to the E Town property including the modern house, the old house and/or both of them;

   (e)notify in writing all customers booked to inhabit the modern house and/or the old house that their bookings have been cancelled.

4. Pursuant to the Family Law Rules 2004 (Cth), rule 20.54, a warrant of possession issue in the form of the document annexed to this order, but that execution thereof be stayed until the 15^th day from the lifting of stage-4 restrictions in Victoria.

5. Upon the wife vacating the E Town property pursuant to order 2 of these orders, the wife be and is hereby restrained by injunction from entering upon the E Town property and from causing any other person acting on her behalf or upon her instruction, including as a result of any Airbnb or other accommodation booking, to enter the property for any purpose unless further ordered by the Court.

6. The wife be restrained by injunction from doing any act or thing which has the effect of devaluing the E Town property, or causing damage or destruction to the property, or any part of it or surrounds, or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property.

7. The husband do all acts and things, and sign all documents necessary to cause the E Town property to be sold in accordance with the terms and conditions of the orders of this Honourable Court made on 29 October 2019 and 6 May 2020, (“the previous orders”).

8. The husband in his capacity as trustee for the wife and the husband in respect of the sale of the E Town property is entitled to do any or all of the following for the purpose of effecting the sale of the property on his own behalf as trustee for the wife pursuant to these orders or, noting his residence in Country B, instruct an agent in writing on his behalf to do the following:

   (a)instruct H Lawyers to undertake the conveyancing of the E Town property, including signing any costs agreement and authorising any necessary disbursements for the preparation of a contract of sale;

   (b)instruct G Real Estate to conduct a sales and marketing campaign for the property and provide authority for any reasonable disbursement for the sales and marketing campaign, agree upon selling price with the real-estate agent, negotiate with any prospective purchaser, and authorise acceptance of a sale price and authorise such other action as may be required to effect the sale of the E Town property in accordance with the previous orders of 29 October 2019 and 6 May 2020;

   (c)sign any contract for the sale of the E Town property;

   (d)sign any memorandum of transfer for the E Town property in favour of the purchaser;

   (e)sign any other document required of the parties in order to give effect to the sale of the E Town property;

   (f)authorise the payment of funds in satisfaction of any mortgage debt secured over the title of the E Town property, and any rates and charges with respect to the property upon the settlement of the sale;

   (g)authorise the payment of fees and disbursements to the real-estate agent and lawyers engaged with respect to the sale of the E Town property;

   (h)authorise the drawing of cheques for the disbursement of proceeds of sale of the E Town property pursuant to these orders;

   (i)do any other act or thing necessary in order to effect the sale of the E Town property or cause the distribution of the proceeds of sale in accordance with the orders of 29 October 2019 and 6 May 2020 respectively.

9. Upon the husband taking vacant possession of the E Town property he is authorised to:

   (a)permit any other person to occupy the property for the purposes of effecting inspections, maintenance, and repairs and to ensure that the property is secure, clean, and maintained and otherwise in an appropriate condition to effect a favourable sale;

   (b)undertake reasonable maintenance and rectification to the property for the purposes of the sale of the property including, but not limited to:

   (i)removing any rubbish or abandoned items;

   (ii)removing any motor vehicles and motor-vehicle parts and causing same to be stored and valued;

   (iii)removing any equipment and tools left by the wife at the property;

   (c)undertake any necessary repairs to the property for the maintenance, rectification and repair of the property;

   (d)do any other act or thing reasonably necessary to prepare the property for sale and to maintain it pending settlement of the sale.

10. The husband be at liberty to apply upon short notice to have the matter relisted in respect of the sale or implementation of these orders and previous orders in respect of the sale, the matter, if practicable, to be listed before the Honourable Justice McEvoy.

11. The wife pay:

    (a)the husband’s costs of this application on an indemnity basis; and

    (b)the second respondent’s costs relating to this application on an indemnity basis

    with all such costs to be met from the respondent wife’s entitlement to proceeds of sale of the E Town property created by paragraph 9.4 of the final orders made 29 Oct 2019 contemporaneously with settlement of the sale of the E Town property.

12. The husband’s application in a case filed 24 July 2020 otherwise be dismissed.

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 Nestor & Ripley 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 7837 of 2017

MR NESTOR

Applicant

And

MS RIPLEY

Respondent

And

MS F

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application in a case dated 24 July 2020 which has been amended by the husband this morning in terms of a proposed new set of orders, the effect of which I will come to in a moment.  The essence of the husband’s application is to provide for a regime to facilitate the sale of the E Town property which was the subject of consent orders made by the Chief Justice providing for its sale in October of 2019.  Since that time, for a variety of reasons, it has not been possible to effect a sale of the property. These reasons have included, in particular, consistent attempts which the wife has made to stymie the sale. 

2. By his application of 24 July 2020 the husband seeks, amongst other things, that pursuant to rule 20.54 of the Family Law Rules 2004, a warrant of possession issue in the form of the document annexed to this order, but that the execution thereof be stayed until the sixth day from the lifting of stage 4 restrictions in Victoria. In support of this application the husband relies on his affidavit of 24 July 2020, the affidavit of Mr J, a sole expert, dated 9 June 2020, and the affidavit of Mr K, a real-estate agent, which appears to have been made on 24 July 2020.

3. The wife opposes relief in the terms sought by the husband and seeks orders in the terms of a response to the husband’s application in a case which was filed on 6 August 2020.  The wife has also filed a supporting affidavit which was made on 6 August 2020.  No material has been filed on behalf of the adult child of the relationship, who is the second respondent. 

4. The significance of the husband’s amended application, which was circulated amongst the parties today, is that it seeks to make an accommodation in favour of the wife to provide her with a period of time to stay in the property during the pendency of the COVID-19 stage-4 restrictions in Victoria which at the moment are expected to continue at least until the middle of September this year. The amended application is put on the basis that within five days of the date of the current stage-4 restrictions being lifted, the wife would then vacate the property.

5. In argument before me today, the husband, through his solicitor, Mr van der Heyden, has indicated that he would be prepared to extend that five-day provision for a further nine days and make it, in effect, a period of 14 days.  In other words, to provide for a regime whereby the wife could remain in the property until the conclusion of the stage-4 restrictions, and then once the stage‑4 restrictions have concluded she be permitted to have a further 14 days in occupation of the property for the purposes of organising her effects, and moving out and finding another property into which to move. The wife, for her part, has emphasised the difficulty of vacating the property and finding alternative accommodation during the stage-4 restrictions. 

6. The husband’s solicitor has deposed, relevantly, in an affidavit of 24 July 2020, to the difficulties which have been encountered in relation to the sale of the property since the orders that I made on 6 May 2020. I note that the wife has not made submissions substantively opposing the suggestion made by Mr van der Heyden in his affidavit that the sale has been stymied, emphasising her desire to use the property by way of security for a reverse mortgage. For present purposes I accept that the wife has effectively stymied the sale of the property in this period, and that there is a basis for the husband to seek a warrant for possession pursuant to rule 20.54. A warrant for possession in the terms sought by the husband would authorise an enforcement officer to enter the property and give possession to the agents of the husband, noting that the husband is resident in Country B.

7. As noted, the position adopted by the wife is that she should have the opportunity to enter into a reverse mortgage secured by the property, and she advances her desire in that respect as a basis for an alternate regime of orders.  Suffice to say there is no proper basis for the wife to assert that such an arrangement should be made, or in any way to require the husband to enter into such an arrangement, having regard to the orders that were made on 6 May 2020. 

8. In any event, returning to the issue of a warrant for possession of real property, the power to issue such a warrant forms part of Part XIII of the Act and provides for a process of enforcement of obligations other than obligation to pay money.  Section 105 of the Act provides:

   (1)Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.

9. Rule 20.54 of the Rules provides:

   (1)  An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days’ notice of the order to be enforced before the warrant is issued.

   (2)  A court may issue a warrant for possession authorising an enforcement officer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.

   (3)  If a person other than the respondent occupies land under a lease or written tenancy agreement, a warrant for possession may be issued only if the court gives permission.

10. There is no doubt in this case that the wife has had sufficient notice of the relevant order. 

11. The authorities make it clear that the power of a court to enforce orders is discretionary rather than absolute, and the Court has the discretion to refuse to enforce one of its orders.  I refer in this regard to In the marriage of Ramsey (1983) FLC 91-301, Collins & Olsthoorn (2005) FLC 93-216, and In the marriage of Kerr (1983) 8 Fam LR 1023 (Kerr). 

12. In Kerr, Nygh J drew attention to the use of word “may” in section 105(1) of the Act as indicative of the discretion of the Court to enforce orders.  His Honour observed that the authorities suggested that the Court would only refuse the enforcement of orders if the circumstances prevailing at the time would make it inequitable to do so.

13. There has been, in my assessment, a recognition by the husband that having regard to the declaration of a state of emergency in the State of Victoria and the State having moved to stage-4 restrictions by reason of the COVID-19 pandemic, it would be inequitable for a warrant of possession to issue at the present time such as to require the wife to vacate the property within the next weeks or so. It may be observed in this respect that, to some extent, the wife’s ability to search for and obtain alternative accommodation is circumscribed at the present time, although it remains the case that the wife can conduct online inspections of properties during the stage-4 restriction period.

14. In any event, I consider that in all the circumstances, having regard particularly to Mr van der Heyden’s affidavit of 24 July 2020, that it would be appropriate for a warrant for possession to issue in the present circumstances save that, as the husband now accepts, the wife should be permitted to continue to reside in the property for the duration of the present stage-4 restriction period, but that the order should operate in such a way that she should be required to vacate the property within 14 days of the conclusion of that period.

15. Turing now to the issue of costs, as is well-known, the general rule under the Act is that parties to proceedings shall each bear their own costs unless there are circumstances which justify the Court departing from the position at section 117(1) of the Act.  Section 117(2) of the Act provides that:

    If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

16. Accordingly, a party seeking that the Court make a costs order must establish that the justice of the case requires an order for costs by reference to the non-exhaustive list of statutory considerations set out in section 117(2A) before such an order is made.  In this respect, I refer to Baum & Lokare (No. 2) [2019] FamCA 292 at 10. Any one or any combination of these matters can be matters on the basis of which the Court could make a costs order. Whilst the considerations must be taken into account there is “nothing to prevent any factor being the sole foundation for an order for costs” being made. That is Baum at 11 citing Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Anor (2005) 33 Fam LR 123 at 130.

17. An applicant for costs must establish the circumstances in which a costs order would be justified.  However, as the Deputy Chief Justice observed in Baum, citing Penfold & Penfold (1980) 144 CLR 311 at 315, it is not the case that a costs order can only be made in, what has been described as, “a clear case”. In Wrenstead & Eades (2016) FLC 93-697 at [15] the Full Court reiterated this position, noting that as long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the applicant needs to establish in order to obtain an order for costs.

18. The applicant and the second respondent rely in particular on section 117(2A)(a), (c), (d) and (e) in support of their application for costs.  In relation to an order of indemnity costs, whilst the Court does have the power to order costs on an indemnity basis, the general approach is that it will not depart lightly from the ordinary rules relating to costs between party and party.  Any circumstances justifying an award of indemnity costs should be of an exceptional kind.  In this regard see Yunghanns & Yunghanns (2000) FLC 93-029 at [30]. The principles according to which costs ordered on an indemnity basis will be allowed are set out in rule 19.34(2) of the Family Law Rules 2004.

19. Insofar as an award of indemnity costs is concerned, it is well-established that there are certain circumstances which might properly attract such an order.  Some of these circumstances are essayed by Sheppard J in Colgate-Palmolive & Anor & Cussons Proprietary Limited (1993) 46 FCR 225 at 23. The approach adopted by his Honour in this case has been accepted and applied in many cases in this Court – see, for example, Danks & McCabe (2017) FLC 93-767 at [8].

20. In the circumstances of this case and having regard to the matters in section 117(2A) of the Act, and in particular subsections (a), (c), (d) and (e), I consider that it would be appropriate for the husband to have an award of costs in his favour. It is unarguably the position that the wife’s conduct has brought the proceedings here today, that she has failed to comply with previous orders of the Court, and that she has been wholly unsuccessful in the proceedings.  It is clear, also, that if costs orders are made in the terms sought by the applicant husband and the second respondent – that is to say for the costs to come from the proceeds of sale of the property – that the wife will have adequate financial circumstances to cover those costs. 

1. Turning to the issue of indemnity costs, I accept that by the wife’s defiance of orders of the Court previously made, in particular the orders that I made on 6 May 2020, she has effectively engaged in conduct which is to be regarded as in wilful disregard of known facts or clearly established law in the manner suggested by Woodward J in Fountain Selected Meats (Sales) Proprietary Limited & International Produce Merchants Proprietary Limited (1988) 81 ALR 397. On this basis I am persuaded that it would be appropriate that there be an award of indemnity costs to the husband for the costs of this application and to the second respondent for her costs of this application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 10 August 2020.

Associate:     

Date:              25 August 2020