PENCIOUS & SEARLE

[2016] FamCA 501

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE [2016] FamCA 501

FAMILY LAW – INJUNCTIONS – Application by the wife for the husband to remove a caveat lodged against the former matrimonial home and to be restrained from lodging further caveats – no appearance by the husband – where final property orders were made for the wife to retain the former matrimonial home – where the husband lodged the caveat after the final property orders were made – no basis for the husband’s claimed interest in the former matrimonial home – orders made as sought by the wife

FAMILY LAW – COSTS – Application by the wife for the costs of the hearing – failure of the husband to appear considered – where the wife has been wholly successful in her application – where the actions of the husband necessitating the wife’s application were without merit –orders that the husband pay the wife’s costs in a fixed sum 

Family Law Act 1975 (Cth)

APPLICANT: Mr Pencious

RESPONDENT: Ms Searle

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 3 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 3 May 2016

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr R. Smith

SOLICITOR FOR THE RESPONDENT: Tasiopoulos Lambros & Co

Orders

1. That the husband’s Application in a Case filed 24 March 2015 be dismissed.

2. That the husband forthwith sign all documents and do all things necessary to withdraw Caveat number          … registered on the title of the property situate at and known as O Street, Suburb L (“the property”).

3. That pursuant to s 106A of the Family Law Act 1975 in the event that the husband has not complied with order 2 hereof within 7 days, the Registrar be authorised to sign all documents and do all things necessary to execute a Withdrawal of Caveat in respect of the caveat lodged by the husband over the title to the property.

4. That until further order, the husband by himself, his servants or agents be restrained from lodging a caveat on Certificate of Title volume … Folio ...

5. That any monies held in trust after disbursement for payment of costs in MLC 11069 of 2008 previously assessed, be retained in trust as security for costs ordered in this proceeding or awarded in proceeding SOA 24 of 2012 save that such monies be applied forthwith to pay to the wife the following costs orders against the husband:

   (a)The costs of $2,760 to be paid by the husband pursuant to the order of Registrar Riddiford made on 19 February 2014;

   (b)The costs of $3,950 to be paid by the husband pursuant to the order of Registrar Riddiford made on 21 March 2014; and

   (c)The costs of $13,975.93 to be paid by the husband pursuant to the order of Registrar Riddiford made on 25 March 2015.

6. That the husband pay the wife’s costs of this day fixed in the sum of $3,500. 

7. That the wife’s Application in a Case filed 24 April 2015 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle 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 MELBOURNE

FILE NUMBER: MLC 11069 of 2008

Mr Pencious

Applicant

And

Ms Searle

Respondent

REASONS FOR JUDGMENT

1. The matter of Searle and Pencious comes before today in a Judicial Duty List pursuant to orders made on 7 March 2016 by Macmillan J.  Paragraph 2 of the orders of Macmillan J provides as follows:-

   That paragraphs 1, 2, 3, 4, 5, 7 and 8 of the husband’s Application in a Case filed 24 March 2015 and paragraphs 2, 3, 4, 5, 7, 8 and 9 of the wife’s Application in a Case filed 24 April 2015 be adjourned for further hearing in a Judicial Duty List on 3 May 2016. 

2. It is those applications that are listed before me today in a Judicial Duty List. 

3. Those orders were served on the parties by the Court at their current addresses for service.  In particular, I note that Mr Pencious’ address for service is RK Street, Suburb DH.  The lawyer for the wife confirmed that that is the address he has on file also as to being Mr Pencious’ current address.  The Court file confirms that the orders of Macmillan J were served on the husband at that address.

4. At the commencement of the hearing before me at 10.00 am, the husband was called.  There was no response to the call.  The matter was stood down whilst I dealt with a callover of the listed cases before me.  The matter was called on at 10.15 am this morning.  The husband was again called.  He failed to answer the call. 

5. I heard the submissions made on behalf of the wife between approximately 10.15 am and 10.45 am.  The matter was stood down whilst I dealt with other matters in the list.  Upon a resumption of the hearing at approximately 11.45 am, the husband was called for a third time.  Again, he failed to answer the call. 

6. In the circumstances, I propose to deal with the applications listed before me in his absence.  I am satisfied that the husband has had every opportunity today to appear before me and to provide any submissions he sought to make in support of his application listed before me this day. 

7. The background to the proceedings is as follows.

8. The parties married in 1988.  They separated in August of 2008.  The parties divorced in 2010 and there have been ongoing property proceedings since about 2008. 

9. Those proceedings culminated in final orders being made by Benjamin J on 28 May 2013.  The husband filed a Notice of Appeal with respect to the final property orders made by Benjamin J.  That appeal was dismissed by the Full Court on 10 September 2014. 

10. On 8 October 2014, the husband sought special leave from the High Court in relation to the decision of the Full Court made in September 2014.  On 5 March 2015, that application was dismissed by the High Court of Australia. 

11. In addition to the proceedings with respect to the final property orders, there have been a raft of other applications made with respect to matters such as the continuing involvement of the wife’s lawyers, the husband filing application seeking to restrain those lawyers from continuing to act.  There have been issues around various costs orders made and most recently, on 7 March 2016, an order was made by Macmillan J that the husband be declared a vexatious litigant.

12. The applications listed before me today are the husband’s Application in a Case filed 24 March 2015, which is supported by his Affidavit filed the same date, and the Application in a Case of the wife filed 24 April 2015, supported by her Affidavit filed the same date. 

13. Turning first to the orders sought in the husband’s application, they fall into two categories.  Paragraph 1 sought by the husband is an order that the orders of Cronin J made 5 April 2012 be stayed.  There is no current appeal with respect to those orders.  On 27 January 2015, the husband filed an application seeking to extend time to appeal against the orders of 5 April 2012.  On 26 February 2016 that application for an extension of time was refused.  I am told that there is a special leave application before the High Court with respect to the refusal of the application for extension of time.  That is the only matter remaining with respect to the orders of 5 April 2012.  In circumstances where the husband does not appear today to press his application for a stay and in circumstances where it is my view on a consideration of the material filed that there is little merit to that application, I am satisfied that that part of the husband’s application should be dismissed.

14. The balance of the husband’s application, which is set out in paragraphs 2, 3, 4, 5, 7 of his Application in a Case filed 24 March 2015 relates to the costs assessment process that has been undertaken in this registry pursuant to costs orders made.  In particular, the husband seeks orders that Registrar Riddiford, who is the registrar who has been assigned with the task of undertaking the costs assessment, be disqualified from further hearing of the costs assessment pursuant to the orders of 5 April 2012.  Further, the husband seeks a discharge of orders made by Registrar Riddiford, being the orders made 25 November 2013, 10 December 2013, 19 February 2014 and 21 March 2014.  The husband also seeks orders that any orders made or proposed to be made by Registrar Riddiford arising from his costs assessment hearings on 11 March 2015 and 12 March 2015 be discharged.  The husband also seeks an order that the wife effectively reimburse him for any amounts paid to her pursuant to the costs orders made following the assessments of Registar Riddiford. 

15. The difficulty with the husband’s application is that he is not here to press his claim.  These proceedings have been on foot since 2008.  The orders the subject of complaint by the husband were made in 2012.  The assessments complained of were made in 2013 and 2014 and in the early part of 2015.  I have considered the affidavit material filed on behalf of the husband.  Again, it is my view that there is little merit to the application made by the husband.  However, in any event, the husband does not appear before me today to make submissions in support of his application.  He has been called on three separate occasions this morning.  He has had notice of the hearing listed this day since 7 March 2016 when Macmillan J made orders listing the matter for today.  Having regard to that background, I am satisfied that it is appropriate that the husband’s application as set out in paragraphs 2, 3, 4, 5, 7, 8 and 9 of his Application in a Case filed 24 March 2015 be dismissed.

16. Turning then to the Application in a Case of the wife filed 24 April 2015, the first part of that application deals with an application by her that the husband do all things necessary to withdraw a caveat lodged by the husband in respect of the property at O Street, Suburb L. 

17. Pursuant to the final property orders made by Benjamin J on 28 May 2013, the wife is to retain the property at Suburb L. The husband had lodged a caveat on the title to that property in about 2008.  That caveat was withdrawn on or about 28 August 2013.  However, some two weeks later, on 10 September 2013, the husband lodged another caveat against the title to the Suburb L property.  That caveat asserted the following grounds in respect to the husband’s claim: 

    The registered proprietor [Ms Pencious] [as the wife then was] holds the property on trust for herself and the Caveator pursuant to an implied, resulting or constructed trust. 

18. The wife deposes in her Affidavit filed 24 April 2015 that the husband refuses to withdraw that caveat. 

19. As I have already noted in these ex tempore reasons for judgment, the husband filed a Notice of Appeal in respect to the orders of Benjamin J.  That appeal was dismissed.  Accordingly, there can be no basis for the husband’s assertion that he holds an interest in the property at Suburb L.  The wife is entitled to retain the property without encumbrance.  Accordingly, I am satisfied that it is appropriate that orders be made requiring the husband to withdraw the caveat. 

20. The wife further seeks an order pursuant to s 106A of the Family Law Act1975 (Cth) (“the Act”) that in the event that the husband does not comply with an order to withdraw the caveat within seven days, a registrar of this Court be authorised to sign all documents and do all things necessary to have the said caveat removed.

21. Having regard to the husband’s conduct in lodging a new caveat within weeks of tendering a withdrawal of caveat purportedly in settlement of the property matters, I am satisfied that it is appropriate that such order be made. The husband has failed to appear today to respond to the application. I have no confidence that he will cooperate with the processes required to enable the withdrawal of that caveat. Accordingly, I am satisfied that it is appropriate that there be an order pursuant to s 106A of the Act.

22. The wife further seeks an order that the husband be restrained from lodging further caveats in respect of the title to the Suburb L property.  Again, given the history of the husband lodging a fresh caveat in the aftermath of a purported settlement pursuant to the orders of Benjamin J, I am satisfied that an injunction in those terms is appropriate in the circumstances of this case.  The husband has already taken matters into his own hands in lodging that caveat.  The circumstances of the case warrant the injunction as sought by the wife. 

23. The balance of the wife’s application relates to cost orders made in these proceedings.  The wife seeks payment of costs from moneys held upon trust for the parties in accordance with orders made by Registrar Riddiford on 19 February 2014, 21 March 2014 and 25 March 2015.  The husband has not appeared to respond to that application.  He has filed no material in response to that application. 

24. The wife has obtained, properly, orders of this court entitling her to costs.  Those costs have been quantified.  The orders of February and March 2014 are now more than two years old.  I am satisfied that in the circumstances of the case, and in circumstances where the husband has not appeared to oppose the orders, that it is appropriate that the wife have orders providing her the fruits of the litigation.  She has conducted the proceedings.  She has filed material.  She has appeared before the Court today.  She has an order for costs.  That order stands.  She is entitled to payment from the funds held on trust for the parties.  Accordingly, I will make an order in the terms of paragraph 8(a), (b) and (c) of her application. 

25. The wife also seeks an order for the costs of the applications listed before me today. She seeks an order that the costs be fixed in the sum of $3,500. An order for costs can be made if there are circumstances that justify such order. In determining the question of costs, a consideration needs to be given to the factors set out in s 117(2A) of the Act.

26. Turning to the relevant parts of that section, it is submitted on behalf of the wife that she has been entirely successful in both applications before the Court today.  Firstly, I have determined that it is appropriate that the husband’s application be dismissed.  Second, the wife has been successful in seeking orders with respect to the withdrawal of caveat and also with respect to payment of costs pursuant to previous Court orders. 

27. She also points to the conduct of the husband in these proceedings.  She relies upon the fact that there have been a significant number of applications made to which she has had to respond.  It is submitted on her behalf that the manner in which the husband had conducted the proceedings is an abuse of process.  She also relies upon the fact that having brought an application, and having had that application listed before me today, the husband’s failure to appear is yet another example of him abusing the Court process. 

28. She also points to the refusal of the husband to withdraw a caveat in circumstances where there was no reasonable basis for that caveat to continue to be maintained.  The husband has no caveatable interest in the property and the question as to his interest in that property was disposed of with the conclusion of the appeal process in respect of the orders of Benjamin J.  That the husband has persisted in maintaining that caveat is another matter that should be taken into account in assessing the conduct of the husband.  I accept that submission. 

29. The wife is not in receipt of Legal Aid.  There is no doubt that the proceedings have placed a significant financial burden upon her.  Having regard to those circumstances, I am satisfied that it is appropriate that there be an order for costs of today’s proceedings.  I am satisfied that the amount sought in the circumstances of the case is appropriate.  It makes an appropriate allowance for counsel’s fees, which, I am told, are $1,800 for this day, and also an allowance for a solicitor to prepare the material necessary to respond to the husband’s application and to make application with respect to the caveat and the costs issue and to file affidavits in support of those matters. 

30. It would not be appropriate in the circumstances of this case to put the wife to the further expense of costs assessment.  The costs associated with such assessment would likely outweigh the quantum sought by her in respect of today’s proceedings.  In the circumstances, I am satisfied that it is appropriate that an order be made fixing costs. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 May 2016.

Associate: 

Date:  3 May 2016