PALMERE & WALBANK

Case [2020] FCCA 765


FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMERE & WALBANK [2020] FCCA 765
Catchwords:
FAMILY LAW – Enforcement application – where parties compromise property proceedings – where terms of settlement embodied in consent order – where order made by a Registrar – where respondent allowed sixty days to pay settlement sum – where respondent then brings Contravention Application – where summary judgement given against respondent with costs – where applicant suffers hardship – where respondent raises multiple issues against the enforcement – relief granted – order for payment – order for seizure and sale suspended for two months.

Legislation:

Family Court Rules 2004 (Cth), Rule.17.03
Family Law Act 1975 (Cth), ss.90ST, 105, 117, 117B
Federal Circuit Court Act 1999 (Cth), ss.67-68, 102, 105 – 109B
Federal Circuit Court Rules 2001 (Cth), rr.13.10, 20.00A, 24B.14, 25B.06, 25B.12, 25B.13, 25B.14, 25B.16, 25, 25B.17, 25B.18, 25B.19, 25B.20, 25B.65, 25B.68
Sale of Land Act1962 (Vic), s.32

Cases cited:

Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149
Blackwell & Scott [2017] FamCAFC 77

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Harris v Caladine (1991) 172 CLR 84

Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll LR 359

In the Marriage of Kelly (No.2) (1981) FLC 91-108

Meehan v Jones (1981) 149 CLR 571

Monticone & Monticone (1990) FLC 92-114
Noetel & Quealey (2005) FLC 93-230
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Scott & Scott (No.3) [2019] FamCA 936
Stanford & Stanford (2012) 247 CLR 108
Thorne v Kennedy (2017) 263 CLR 85
Trask & Westlake [2015] FamCAFC 160

Applicant: MS PALMERE
Respondent: MR WALBANK
File Number: MLC 6501 of 2019
Judgment of: Judge A Kelly
Hearing date: 24 March 2020
Date of Last Submission: 24 March 2020
Delivered at: Melbourne
Delivered on: 3 April 2020

REPRESENTATION

Counsel for the Applicant: Mr D. McLeod
Solicitors for the Applicant: J S Law
The Respondent: In Person

ORDERS

  1. By consent, pursuant to ss.67-68 of the Federal Circuit Court of Australia Act1999 (Cth), the Court directs that the parties be allowed to appear and to make submissions before the Court by audio link.

  2. Pursuant to rule.25B.14(1)(a) of the Federal Circuit Court Rules2001 (Cth) (Rules), declare that the kind of enforcement orders being made are declarations and orders made pursuant to rules.25B13(a), (b), (c), (d), (f), (g) and (m) of the Rules, being a declaration of the total amount owing under obligations embodied in the parties’ consent order made on 9 October 2019 (Order), an order for payment of the total amount owing in full and when it must be paid, orders in aid of enforcement, an order for enforcement, an order for costs and interest and an order suspending the enforcement of certain obligations on the terms set…

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Details
AGLC
PALMERE & WALBANK [2020] FCCA 765
Case
[2020] FCCA 765
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge A Kelly considered an enforcement application brought by Ms Palmere against Mr Walbank. The dispute arose from a property settlement embodied in a consent order made on 9 October 2019, which required Mr Walbank to pay Ms Palmere a settlement sum within sixty days. Mr Walbank subsequently filed a Contravention Application, but the court granted summary judgment against him with costs, finding that he had suffered hardship. Mr Walbank raised multiple issues against the enforcement of the consent order.

The court was required to determine the total amount owing by Mr Walbank to Ms Palmere under the consent order, including accrued interest, and to make orders for the payment of this sum. The court also needed to consider the appropriate enforcement orders in light of Mr Walbank's contravention and the circumstances of the case, including the potential for hardship. Furthermore, the court was asked to address the costs of the enforcement application.

The court reasoned that the total amount owing by Mr Walbank was $27,558, comprising the principal sum, interest calculated to a specific date, a further sum ordered on 9 December 2019, and the costs of the enforcement application. The court ordered Mr Walbank to pay this total sum, plus daily interest, by 4:00 pm on 29 May 2020. In default of this payment, an enforcement order was made for the seizure and sale of Mr Walbank's property, with Ms Palmere appointed as the Enforcement Officer to conduct the sale. The proceeds of the sale were to be distributed first to cover sale costs, then to discharge any mortgage, then to Ms Palmere for the outstanding debt and her costs of the sale, with any balance to Mr Walbank.

Crucially, the order for seizure and sale of the property was suspended until 29 May 2020, providing Mr Walbank a final opportunity to comply with the payment order. Liberty was reserved to the parties to apply on short notice regarding the sale of the property.

Orders

Orders of the court

1.

By consent, pursuant to ss.67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), the Court directs that the parties be allowed to appear and to make submissions before the Court by audio link.

2.

Pursuant to rule.25B.14(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules), declare that the kind of enforcement orders being made are declarations and orders made pursuant to rules.25B13(a), (b), (c), (d), (f), (g) and (m) of the Rules, being a declaration of the total amount owing under obligations embodied in the parties’ consent order made on 9 October 2019 (Order), an order for payment of the total amount owing in full and when it must be paid, orders in aid of enforcement, an order for enforcement, an order for costs and interest and an order suspending the enforcement of certain obligations on the terms set out in this order.

3.

Pursuant to rule.25B.14(1)(b) of the Rules, the address of the payee, Ms Palmere, is c/ JS Law, 72 Queen Street, Bendigo, in the State of Victoria.

4.

Pursuant to rule.25B.14(1)(c) of the Rules, the address of the payer, Mr Walbank, is A Street, Suburb B, in the State of Victoria.

5.

Pursuant to rule.25B.13(f) of the Rules, order that the respondent pay the applicant’s costs of and incidental to this enforcement application fixed in the sum of $8,000.

6.

Pursuant to rule.25B.14(1)(d) and 25B.14(2) of the Rules, declare the total amount owing by the respondent to the applicant is $27,558 being the sum of the amounts owing pursuant to:

(a) paragraph (1) of the Order; namely, $17,000;

(b) paragraph 3(c) of the Order in respect of interest for the period 10 December 2019 to 3 April 2020; namely, $358;

(c) paragraph (2) of the order made on 9 December 2019; namely, $2,200;

(d) paragraph (5) of this Order; namely, the sum of $8,000;

together with $3.14 per day being a daily amount of interest for the period from and including 4 April 2020 until payment.

7.

Pursuant to rule.25B.13(d) of the Rules, order that by 4:00pm on Friday, 29 May 2020, the respondent must pay the applicant in full the said sum of $27,558 together with the daily amount of interest of $3.14 per day from 4 April 2020 until payment.

8.

Order that the respondent must pay the applicant in full the sum stipulated in paragraph (7) of this Order by paying the same to the applicant’s solicitor, JS Law, 72 Queen Street, Bendigo, Victoria.

9.

In default of compliance with paragraphs (6) to (8) hereof, pursuant to s.105 of the Family Law Act 1975 (Cth) and rules.25B.13(c), (d) and (g) of the Rules, an enforcement order is made by way of seizure and sale of the property situate at and known as A Street, Suburb B, in the State of Victoria, being the land more particularly described in Certificate of Title, Volume … Folio … (the property) be sold forthwith (the sale) with such sale to be conducted as follows:

(a) pursuant to rule.25B.06(1)(b) of the Rules, the Applicant is appointed Enforcement Officer under the Rules with full authority to have the carriage of the sale, and she shall be at liberty in her sole discretion to:

(i) determine the agent, the means of sale, the price of sale and settlement period for the sale of the property;

(ii) execute on behalf, and in the name, of the respondent all such document and instruments as may be necessary to effect to the sale including, without limitation: an auction authority; a statement given pursuant to s.32 of the Sale of Land Act 1962 (Vic); a contract of sale; a statement of adjustments; and, a settlement statement;

(b) the proceeds from such sale be distributed as follows:

(i) first, to pay the costs and commissions of the sale;

(ii) secondly, to discharge the mortgage registered over the property, namely ANZ Mortgage no. …;

(iii) thirdly, in payment of the following to the applicant:

A. the said sum of $27,558;

B. the daily sum of $3.14 by way of interest from 4 April 2020 until payment; and

C. the applicant’s costs of and incidental to the sale of the property;

(iv) fourthly, the balance then remaining (if any,) to the respondent.

10.

Pursuant to rule.25B.13(m) of the Rules, paragraph (9) of this Order, being an order for enforcement by way of seizure and sale of the property, be suspended until Friday, 29 May 2020.

11.

Liberty be reserved to the parties to apply on short notice in respect of the sale of the property.

12.

Certify for advocacy.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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