Petridis & Petridis (No. 3)
[2021] FamCA 336
•20 May 2021
FAMILY COURT OF AUSTRALIA
Petridis & Petridis (No. 3) [2021] FamCA 336
File number(s): HBC 133 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 20 May 2021 Catchwords: FAMILY LAW – PROPERTY – Discrete issue in respect to costs incurred by the Trustee in facilitating the sale of the property – Where the parties were able to come to a consent position in respect to ancillary orders relating to the sale of the property – Where the remaining issue concerns costs incurred by the Trustee in engaging security services and insurance for the properties the subject of the proceedings – Whether the Court is able to make findings in respect to factual contentions in interim proceedings – Order made reserving issue for final hearing. Cases: Acton & Burton [2015] FamCA 469
Iphostrou & Iphostrou [2011] FamCA 20Number of paragraphs: 17 Date of hearing: 20 May 2021 Place: Hobart Solicitor for the Applicant: Mr McKenna of Ogilvie Jennings Counsel for the First Respondent: In person Solicitor for the Fourth Respondent: Ms O’Farrell of Dobson Mitchell Allport Counsel for the Fifth Respondent: Mr Golding of Murdoch Clarke Counsel for the Sixth Respondent: In person by telephone ORDERS
HBC 133 of 2018 BETWEEN: MS PETRIDIS
Applicant
AND: MR PETRIDIS
First Respondent
L PTY LTD (A.C.N. …)
Second Respondent
M PTY LTD (A.C.N. …) (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
20 MAY 2021
BY CONSENT BETWEEN THE APPLICANT, SECOND, THIRD, FOURTH, FIFTH AND SIXTH RESPONDENTS, THE COURT ORDERS THAT:
1.Paragraph 3(b) of the 3 December 2020 orders is discharged, and in substitution the following applies:
At settlement of the sale, the Vendor Parties agree to do all things necessary to pay rates, taxes or amounts owing in respect of the Property secured by a statutory charge or lien AND the wife is permitted in her capacity as Director of L Pty Ltd to pay from the proceeds of the sale of C Street (a property registered in the name of L Pty Ltd) to pay the State Revenue office the sum of $130,780.70.
2.Paragraph 3(c) of the 3 December 2020 orders is discharged, and in substitution the following applies:
At settlement of the sale, the Vendor Parties agree to do all things necessary to pay such other amounts which the Fifth Respondent (City D Council) are entitled to in respect of the Properties and the properties at 2 H Street, Suburb E and N Street, Suburb E in accordance with the Local Government Act 1993 (Tas) including penalties, interest and costs NOTING the parties may seek a determination of what these entitlements are.
3.The characterisation of the payments made in accordance with paragraphs 1 and 2 of this order be determined by the trial judge.
BY CONSENT BETWEEN THE APPLICANT, SECOND, THIRD, FOURTH AND SIXTH RESPONDENTS, THE COURT ORDERS THAT:
4.Paragraph 10 of the orders made by the Court on 3 December 2020 are varied such that it will read as follows:
Without admission as to need or necessity, on and from 1 April 2021, the Mr Tamson is appointed as sole Trustee for the Sale (Trustee) of the property C Street, Suburb E and H Street, Suburb E in the State of Tasmania (Property) and chattels (Chattels), being those identified in the contract for the sale of the Property and the Chattels annexed to this order and marked “A”, in accordance with section 80(1)(e) of the Family Law Act 1975 (Cth).
5.For the purposes of the previous paragraph, the Trustee is granted powers to complete the sale, including:
(a)Providing certified copies of this Order to the purchaser under the Contract, the Land Titles Office and any other relevant person necessary to complete the sale of the Property.
(b)Instructing O Lawyers who act for the vendors under the Contract in the sale of the Property.
(c)Executing on behalf of Ms Petridis (Ms Petridis) or L Pty Ltd any transfer of land document and any other deed, instrument, or document necessary to complete the sale of the Property.
(d)Executing on behalf of Ms Petridis or M Pty Ltd any documents necessary to transfer, convey or dispose of the Chattels.
(e)Doing all things necessary to secure the discharge of all registered encumbrances and securities over the Chattels, including the payment of a reasonable sum from the proceeds of sale of the Property to secure such discharge.
6.The Applicant wife’s legal representatives to confer with the Fourth Respondent Trustee’s legal representatives to arrange a date and time for the wife to meet with the Trustee or his nominee at the property to remove stock, and papers/records relating to the wife and/or L Pty Ltd and/or M Pty Ltd. THE COURT NOTES that there is no intention to remove Chattels
7.Following settlement, the trustee will allocated an amount equal to what he asserts to be his reasonable and properly incurred remuneration, costs, disbursements and expenses to a controlled monies account held by O Lawyers, pending the consent of the parties or further order of this Court. THE COURT NOTES that the parties will give consideration as to the viability for the monies held in the controlled monies account being placed in the alternative in an interest bearing account.
8.The Trustee is authorised to produce this order to third parties to demonstrate his power to do all such things to complete the sale of the Property and the Chattels (including those things listed in Order 5, above) in accordance with the orders made 3 December 2020 and these orders.
9.The costs of these proceedings are reserved to the final hearing.
THE COURT ORDERS THAT:
10.The issue in respect to the Fourth Respondent Trustee’s contentions of costs incurred in relation to insurance and security services is adjourned to the final hearing of this matter.
BY CONSENT BETWEEN THE APPLICANT, SECOND, THIRD, FOURTH AND SIXTH RESPONDENTS, THE COURT FURTHER ORDERS THAT:
11.Pursuant to s 13C(1)(b) of the Family Law Act 1975, the parties and their legal representatives (if any) shall attend a confidential Family Dispute Resolution Conference between 9.00am and 4.00pm on 30 June 2021 with a Registrar (Family Dispute Resolution Practitioner) of the Family Court of Australia.
12.The parties and their legal representatives (if any) shall attend Part 1 of the confidential Family Dispute Resolution Conference with a Registrar (Family Dispute Resolution Practitioner) or Family Counsellor on 24 June 2021 at the following times:
(a)the Applicant wife at 10.30am;
(b)the Fourth Respondent Trustee at 11am;
(c)the Fifth Respondent at 11.30am; and
(d)the Sixth Respondent at 12pm.
13.Part 1 of the confidential Family Dispute Resolution Conference shall proceed by telephone each party must, within seven (7) days of today’s date, notify the court of their best contact telephone number by email to [email protected].
14.The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the relevant organisation, at least seven (7) days before the Conference, copies of:
(a)an outline of case document setting out:
(i)a joint balance sheet – including details of any valuations in dispute;
(ii)a summary of contributions and the future needs of each party;
(b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(d)written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
15.Not later than 4.00 pm on 20 June 2021 the lawyer for each party must give the party for whom they act a written notice of:
(a)The party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and
(b)The estimated future costs of the party up to and including each future court event, including trial; and
(c)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
16.The parties shall otherwise comply with any other order or direction made by the Registrar necessary to facilitate the Family Dispute Resolution Conference.
17.In the event of non-attendance by either party at Part 1 of the Conference (on 24 June 2021 pursuant to Order 2 herein), the Registrar may vacate the Family Dispute Resolution Conference on 30 June 2021.
18.The final hearing set down over three (3) days commencing on 19 July 2021 at 10am is confirmed.
19.The parties are granted liberty to approach my Chambers directly in the event that they are able to finalise a Minute of Order in relation to trial directions for the upcoming final hearing.
IT IS NOTED:
A.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 and ss 10J and 10H of the Family Law Act 1975 and to the Court’s Family Dispute Resolution Fact Sheet.
B.Part 1 of the Family Dispute Resolution Conference referred to in Orders 2(a) and 2(b) above is the first part of the Conference and is confidential. The other party will not be in attendance.
C.The Family Dispute Resolution Conference is an opportunity for the parties to make a genuine effort to resolve their property dispute in a confidential, setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
D.These orders have been amended pursuant to rule 17.02 of the Family Court Rules 2004.
[Annexure A omitted]
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Petridis & Petridis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
McClelland DCJ:
These proceedings concern an Application in a Case filed 11 May 2021 by Ms Petridis (“the wife”) and a competing Application by Mr Tamson (“the Trustee”) for orders in respect to the mechanics of effecting the sale of the properties at C Street, Suburb E and H Street, Suburb E in the State of Tasmania (“the properties”) and further orders in respect to the distribution of the net proceeds of the sale, including, most relevantly, the disbursement of monies by the Trustee in engaging the services of a security agency.
Commendably, the parties were able to come to an agreement on all issues, which are the subject of these interim proceedings, save for the issue in respect to the Trustee incurring costs in relation to insurance and security services and the application by the Trustee for those funds to be paid from the net proceeds of the sale of the properties.
SHORT BACKGROUND
The substantive proceedings concern an Application for final property orders between:
(a)the wife;
(b)L Pty Ltd (“the Second Respondent company”);
(c)M Pty Ltd (“the Third Respondent company”);
(d)the Trustee;
(e)City D Council (“the Fifth Respondent Council”); and
(f)Mr F Petridis (“the Sixth Respondent”), the adult child of Mr Petridis (“the husband”) and wife.
On 3 December 2020, I made orders, by consent, to affect the sale of the properties.
On 1 April 2021, those orders were varied by further orders.
The substantive background of this matter has previously been set out in decisions that I have made including [2019] FamCA 484, [2021] FamCA 154 and [2021] FamCA 204.
APPLICATIONS
The Trustee seeks that orders be made in accordance with the proposed form of order dated 19 May 2021, as follows:
The Trustee’s costs of:
(a) insuring the Property and the Chattels from 1 April 2021 in the amount of $3,096.16 [+644SBR amount];
(b) engaging P Company to supply security services in the amount of [$insert]; and
(c) engaging Q Company to supply security and locksmith services in the amount of [$insert],
are costs which were reasonably and properly incurred by the Trustee.
The wife opposes the Application for the above order being made.
CONSIDERATION
The parties were able to reach agreement in respect to all issues save for one outstanding issue and that is in respect to an Application by the Trustee for an order enabling the Trustee to withdraw from the net proceeds of sale of the properties to pay the costs of insurance of the properties and security services, of which he has personally borne the cost.
The account of the P Pty Ltd totals the amount of $8,600.73, as at 12 May 2021, the date of the invoice tendered into evidence (see ‘Exhibit A’). The circumstances in which the P Company employees were engaged are set out in the Affidavit of the Trustee filed on 19 May 2021, at paragraphs 11 through to 22, as follows:
11. In relation to the proposed additional order 3, I wish to update the Court about a series of events that have occurred in the preceding fortnight and the actions which I took.
12. On 26 April 2021, I arranged for a process server to serve on the Bankrupt a notice to vacate the Property by 5pm on 11 May 2021. The exhibit marked “T-1” is a true copy of the notice to vacate (less exhibits).
13. On 7 May 2021, I attended the Properties to serve on the Bankrupt a notice under section 139U of the Bankruptcy Act. While I was at the Properties, I observed the Bankrupt, Mr R Petridis and another person who has since identified himself to me as Ms S removing light fittings from the ceiling. I also observed that some shelves at H Street were missing. I became concerned that the Bankrupt and other persons on his behalf were removing fixtures and chattels from the Properties which were subject to the Contract.
14. Accordingly, I instructed my solicitor to send a letter to [the solicitor for the wife]. I am informed by my solicitor, Jennifer O’Farrell, that she sent a letter to [the solicitor for the wife] on 7 May 2021 which amongst other things, requested that:
a. [M Pty Ltd] MPL ensures that it does not permit or authorise the removal of any of the Chattels from the Properties;
b. If MPL has any evidence of the Bankrupt removing Chattels from the Property that it notify [the solicitor for the Trustee] immediately, as that information may be the basis of an application for an injunction preventing the removal and dissipation of the chattels.
A true copy of [the solicitor for the Trustee’s] letter to [the solicitor for the wife] of 7 May 2021 is exhibited and marked “T-2”.
15. On 10 May 2021, I received a telephone call from [the solicitor for the Trustee], in which she informed me that she had received a telephone call from Mr U of V Lawyers. Mr U acts for the purchaser under the Contract. [The solicitor for the Trustee] informed me that Mr U had expressed concerns that some Chattels had been removed from the Properties.
16. I subsequently attended the Properties to inspect them for myself. It was apparent to me that most of the fruit and vegetable display units had been removed and many light fittings had been removed. I saw the Bankrupt at the Properties. He told me that he had “burned” some of the display units and that he had thrown the light fittings “on the tip”. He also verbally abused me many times, calling me a “f***ng c**t” and a “money hungry bastard”. I also saw the Bankrupt removing paper records and other items from the Properties and loading them into a van.
17. While I was at the Properties, [the wife] also attended the Properties. I saw her observe a number of items being removed by the Bankrupt from the Properties. Ms Petridis took no steps to stop him.
18. It has since come to light (following inspections, described below) that the following items specifically listed in the Contract have also been removed from the Properties: coffee machine, coffee grinder, wood cladding from display units, two dough mixers, a gas stove, two mincers, a Cryovac machine and a ham slicer (Missing Items).
19. Given the evidence that assets were being dissipated, I determined to engage the services of P Company (P Company) to: (a) deploy a security guard to mind the Properties and to ensure no Chattels were removed from the Properties; and (b) change the locks at the Properties after 5pm on 11 May 2021, save for the lock on the Bankrupt’s residential premises at C Street, which was only to be changed once it had been confirmed that he had vacated the residence.
20. After a security guard had been deployed to the Properties during the afternoon of 10 May 2021:
a. [The wife] attended the Properties. She approached my parked car (parked outside the property adjoining H Street) and opened the passenger door. She informed me that I had no right to be at the Properties and that the presence of security was unwarranted;
b. I am informed by [the solicitor for the Trustee] and I believe that she received a number of emails from [the Sixth Respondent] who objected to me engaging a security guard to monitor the Properties. Exhibits and marked “T-3” are true copies of those emails.
c. the Bankrupt and Mr R Petridis verbally and physically threatened me. Exhibited and marked “T-4” is a true copy of P Company’s incident report dated 11 May 2021 (Incident Report);
d. the Bankrupt informed a security guard that when I attended the Properties the next day, he was going to take the computer at the premises and if I did not let him, then he was going to smash the computer with a sledgehammer and then smash my head in with the sledgehammer too. This is documented in the Incident Report. Given this threat, and others I had received, on 11 May 2021, I obtained an interim restraint order against the Bankrupt in the Magistrates Court of Tasmania, which is exhibited and marked “T-5”.
21. I arranged for Mr W from Q Company to attend the Properties at 5pm on 11 May 2021 to change the locks. I have been informed by P Company and I believe that at the time of Mr W’s attendance, the Bankrupt, [the wife], Mr R Petridis and two other persons had entered the Properties and were refusing to leave unless Q Company left without changing the locks. Accordingly, Mr W left the Properties.
22. Later that evening and after all persons had left the Properties, I instructed P Company to change the locks to the Properties (save for the Bankrupt’s residential premises). Given the expense of having 24-hour security on site, I also determined to install a monitored sensor alarm system at the Properties, after which I would cease employing the services of a security guard. The monitored alarm system was installed by P Company on Thursday, 13 May 2021.
(As per original)
It is well known that, in interim proceedings, the Court is unable to make findings of fact where those facts are in dispute and they are not otherwise reasonably verifiable.
In that respect, in Iphostrou & Iphostrou [2011] FamCA 20, Cronin J said at [44]:
In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction.
Similarly, in Acton & Burton [2015] FamCA 469, Hogan J said at [26], “The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them”.
The difficulty I have in making the orders sought by the Trustee at this point in time is that the evidence of the Trustee is disputed and, in particular, some of the factual assertions are the subject to dispute. Further, the reasonableness of the Trustee’s decision to engage the services of a security agency, in the circumstances of this case, is also an issue in dispute.
In this matter, the cost rendered by the P Pty Ltd are objectively verified. The other factual assertions, and the reasonableness of any conclusions arising from those factual considerations, is, however, a matter that is in dispute. In circumstances where I am dealing with interim proceedings, I am unable to resolve that factual contest.
Those issues are factual issues that will need to be determined at final hearing, where the evidence presented by the Trustee can be the subject of testing through cross examination by the other parties to the proceedings. Accordingly, at this point in time, I consider it inappropriate for the Court to determine that issue, but consider it appropriate to defer the issue for consideration at the final hearing, which is now just several months away, in July 2021.
In doing so, I note that Order 7 of the orders made by consent in today’s proceedings preserve adequate funds to protect the interests of the Trustee in respect to both professional fees rendered by the Trustee as well as disbursements incurred by the Trustee. In that respect, lest there be any doubt, it is in my view entirely reasonable for those funds, which are so set aside in the controlled monies account, to include the totality of disbursements sought by the Trustee, including the disbursement relating to the costs rendered by P Company, together with, should the Trustee consider it reasonable and necessary, additional security services.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 24 May 2021
SCHEDULE OF PARTIES
HBC 133 of 2018 Respondents
Fourth Respondent:
MR TAMSON
Fifth Respondent:
CITY D COUNCIL
Sixth Respondent:
MR F PETRIDIS
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