Philkin & Philkin
[2021] FedCFamC1F 22
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Philkin & Philkin [2021] FedCFamC1F 22
File number(s): DGC 2894 of 2018 Judgment of: HARTNETT J Date of judgment: 16 September 2021 Catchwords: FAMILY LAW – PROPERTY– interim application for injunctions - husband’s application to rescind contract of sale – wife’s application to sell a further property – variation of earlier orders – value of properties – outstanding mortgages – dispute over Consent Order to sell – improper ex parte application –orders as to sale – vexatious litigant application.
FAMILY LAW – COSTS – where the wife seeks an Order for costs – where the husband opposes any Order for costs being made and cites his financial circumstances – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Costs Orders as sought by the wife.
Legislation: Estate Agents Act 1980 (Vic)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Sale of Land Act 1962 (Cth)
Case cited: Philkin & Philkin (No. 2) [2020] FamCAFC 264. Division: Division 1 First Instance Number of paragraphs: 101 Date of hearing: 19 August 2021 Place: Melbourne Advocate for the Applicant: Mr Thompson Solicitor for the Applicant: Jeff Thompson Solicitor Counsel for the Respondent: Ms Mansfield Solicitor for the Respondent: Ryan Carlisle Thomas ORDERS
DGC 2894 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PHILKIN
ApplicantAND: MS PHILKIN
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Applicant husband’s (“the husband”) Application in a Case filed on 19 July 2021 be dismissed.
2.The Respondent wife (“the wife”) shall be solely responsible for the conduct of the sale of the property situate at FF Street, Suburb F in the state of Victoria (“the FF Street property”) up to and including settlement of its sale.
3.The application of the wife for an Order that the husband be liable for any form of damages or penalties arising from any delay or hindrance in settlement of the FF Street property, and shall indemnify the wife as to same, is adjourned to the final hearing of the matter.
4.Within 21 days of the making of these Orders, the parties do all such acts and things and sign all such documents as may be necessary to forthwith sell the property situated at PP Street, Suburb QQ in the state of Victoria (“the PP Street property”).
5.For the purposes of effecting the sale of the PP Street property:
(a)the wife shall be solely responsible for the conduct of the sale of the PP Street property;
(b)RR Real Estate shall be the appointed selling agent and SS Solicitors shall have care of the conveyancing of the sale of the PP Street property;
(c)the mode of sale and list price shall be as determined by the wife in consultation with the selling agent. The reserve price shall be as determined and/or nominated by the President of the Real Estate Institute of Victoria (“the REIV”) or her nominee;
(d)the parties are to do all things and sign all documents required by the selling agent to progress the sale including signing any exclusive authority;
(e)the parties are to co-operate with the selling agent in relation to the marketing of the PP Street property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective purchaser;
(f)the wife shall be at liberty to accept any offer that is at least 90 per cent of the list price or reserve price as the sale price for the PP Street property; and
(g)the parties shall execute the Contract of Sale of the property and all other documents necessary to complete the sale including all transfer documentation forthwith upon such documents being made available to them by the selling agent and/or SS Solicitors and/or their own solicitors.
6.The proceeds of sale of the PP Street property shall be applied in the following manner and priority:
(a)payment of the agent commission and advertising or other expenses, if any, payable on the sale;
(b)payment of the legal and conveyancing costs and outlays relating to the sale;
(c)payment to the mortgage/s encumbering the PP Street property; and
(d)the balance to be held on trust for the parties by the solicitors for the wife pending written agreement by the parties or Court Order.
7.As from 17 September 2021:
(a)the husband by himself, his servants and/or agents be and is hereby restrained from attending upon the PP Street property; and
(b)the husband is restrained by injunction from further encumbering the property, without the prior written consent of the wife.
8.Order 3(a) to 3(i) of the Orders made on 13 July 2020 be discharged and the following shall apply with respect to the sale of the properties situated at , Suburb F in the state of Victoria (“the 2 HH Street property”) and HH Street, Suburb F in the state of Victoria (“the HH Street property”) (collectively, “these properties”):
(a)the wife shall be solely responsible for the conduct of the sale of these properties;
(b)RR Real Estate shall be the appointed selling agent and SS Solicitors shall have care of the conveyancing of the sale of these properties;
(c)the mode of sale and list price shall be determined by the wife in consultation with the selling agent. The reserve price shall be as determined and/or nominated by the President of the REIV or her nominee;
(d)the parties are to do all things and sign all documents required by the selling agent to progress the sales including signing any exclusive authorities;
(e)the parties are to co-operate with the selling agent in relation to the marketing of the properties for sale including making the key readily available, allowing inspection of the properties at all times reasonably requested by the agent and ensuring that each of the properties are clean, neat and in good order at the time of inspection by any prospective purchaser;
(f)the wife shall be liberty to accept any offer that is at least 90 per cent of the list price or reserve price as the sale price for these properties; and
(g)the parties shall execute the Contract of Sale and all other documents necessary to complete the sale of these properties including all transfer documentation forthwith upon such documents submission to them by the selling agent and/or SS Solicitors and/or their own solicitors.
9.Orders 8 and 9 of the Orders made on 13 July 2020 be discharged.
10.Pending settlement of the sale of the HH Street property:
(a)subject to any existing tenancy agreement the wife have sole occupation and use of the property, as from 18 September 2021;
(b)as from 18 September 2021, the husband be and is hereby restrained by himself, his servants and/or agents from attending upon the property; and
(c)the husband be restrained by injunction from further encumbering the property, without the prior written consent of the wife.
11.Pending settlement of the sale of the 2 HH Street property:
(a)as from 18 September 2021, the husband be and is hereby restrained from attending upon the property; and
(b)the husband be restrained by injunction from further encumbering the property, without the prior written consent of the wife.
12.The husband on or before 4pm on Monday 20 September 2021, provide copies to the wife of all and/or any current lease and/or tenancy agreement (whether formal or informal) with respect to:
(a)the 2 HH Street property;
(b)the PP Street property; and
(c)the HH Street property.
13.The wife is permitted to provide a copy of these Orders to Westpac Banking Corporation and their solicitors, VV Solicitors, and is hereby authorised by these Orders to obtain from Westpac Banking Corporation and/or VV Solicitors, all information necessary to arrange the discharge of the mortgage/s over:
(a)the FF Street property;
(b)the HH Street property;
(c)the 2 HH Street property; and
(d)the PP Street property;
including any information required under section 27 of the Sale of Land Act 1962 (Cth) and the husband do all things necessary to facilitate same but failing same, this Order shall be sufficient authority to the wife to obtain this information from Westpac Banking Corporation and/or VV Solicitors.
14.In the event that the husband refuses or neglects to execute a deed and/or instrument in compliance with the provisions of these Orders, a registrar of the Melbourne Registry, is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”) to execute all deeds and/or instruments in the name the husband and do all acts and things to give validity and operation to the deeds and/or instruments.
15.The wife is at liberty to seek an urgent mention of this matter with respect to occupancy of the properties and/or terms and conditions of and execution of the sale of the real properties the subject of these orders.
16.Within 7 days hereof the husband cause payment in the sum $7,033.62 to be made to the solicitors of the wife in consideration of outstanding Costs Orders made against him by Strickland J pursuant to two sets of Orders made on 2 November 2020 (Appeal Numbers SOA70/2020 and SOA31/2020).
17.That the husband within 60 days of the date of this Order pay to the solicitors for the wife in respect of the wife’s costs of and incidental to the hearing on 19 August 2021, the total sum of $7,399.62, being counsel’s fees of $5,150 and solicitors fees of $2,249.62.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the Order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Philkin & Philkin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
PRELIMINARY
This proceeding first commenced in the Dandenong Registry of the then Federal Circuit Court of Australia on 5 November 2018. Over time, the proceeding has involved each of the parties seeking both final parenting and property Orders. These reasons are directed to the latest piece of litigation commenced by the husband and responded to by the wife.
The husband’s interim application filed on 19 July 2021 sought the following Orders:-
1.That the matter be heard ex parte.
2.That an injunction be issued to stop all dealings relating to the contract for sale of the FF Street Property until the matter is heard and dealt with by the Family Court.
3.That an injunction be issued to stop all dealings relating to the properties listed in paragraph 22 of the Fathers Affidavit sworn on 16.07.21.
The properties being:
a) 2 HH Street, Suburb F.
b) HH Street to 2 HH Street.
c) PP Street Suburb QQ.
4.Costs be reserved.
In respect of Order 2, as sought above, the husband’s evidence and submissions went to the obtaining of an Order for a rescission of the contract of sale of the property situate at and known as FF Street, Suburb F in the state of Victoria (“the FF Street property”), being a contract entered into with an arm’s length third-party purchaser who had not been notified of the husband’s application and who not sought to be joined to the proceeding.
The legal basis for the husband’s application to rescind the contract of sale was absent in the material he placed before the Court and in the procedures that he adopted. Order 3, as sought by him above, sought an injunction. What in fact was sought by the husband was a discharge of earlier Orders of the Court made by consent.
The husband’s Application in a Case was returnable on 19 July 2021. The husband sought to proceed, without service of his application upon the wife, in circumstances where the wife was represented by solicitors and had been so represented since the commencement of the proceeding. The husband’s Interim Orders as sought required response from the wife, and for the wife to be afforded procedural fairness in respect of the husband’s application. It was entirely inappropriate to seek that the matter proceed ex parte.
On 19 July 2021, the parties agreed on the bifurcation of the proceeding, such that the final property Orders as sought by each of them would be the subject of judicial determination prior to the hearing of the final parenting Orders applications of each of the parties. The parties submitted on 19 July 2021, that each may abandon the ongoing parenting proceeding. That has not occurred. The husband filed (by reference to the Commonwealth Courts Portal) on 8 August 2021, a further Application in a Case in respect of parenting Orders.
On 19 July 2021, the Court ordered as follows:
1.That forthwith the husband serve upon the other parties his application in a case and affidavit filed the 16th of July 2021.
2.That the wife file and serve a response to application in a case and affidavit within 21 days hereof.
3.That otherwise all extant property applications be listed for an interim defended hearing before her Honour Justice Hartnett on the 19th August 2021 at 10.00am.
AND THE COURT NOTES:
A.That the Independent Children’s Lawyer is excused from attendance at the next Court date.
The matter proceeded as an interim defended hearing on 19 August 2021.
The husband relied upon the following material:
a)Application in a Case filed on 19 July 2021;
b)Affidavit of the husband filed 19 July 2021;
c)Initiating Application filed 7 December 2020;
d)Affidavit of the husband filed 7 December 2020;
e)Affidavit of the husband filed 12 March 2021; and
f)Affidavit of the husband filed 18 August 2021 at 7.41pm.
Counsel for the wife objected to the husband relying on the Affidavit set out paragraph in 5(f) above. The Court granted the husband leave to rely upon the Affidavit of 18 August 2021 and gave the wife an opportunity to seek an adjournment if she had been prejudiced in her ability to respond. Counsel for the wife indicated to the Court that the wife was in financially difficult circumstances, and could not afford an adjournment of the proceeding. She sought to proceed.
The wife relied upon the following material:
a)Response to an Application in a Case filed on 9 August 2021;
b)Affidavit of the wife filed 9 August 2021;
c)Orders and documents previously filed in the proceeding by or on the wife’s behalf being:
i.Application in Case filed 2 October 2020;
ii.Affidavit of the wife filed 2 October 2020;
iii.Affidavit of Ms TT filed 29 October 2020;
iv.Affidavit of the wife filed 12 April 2021;
v.(Amended) Initiating Application of the wife filed 6 July 2021;
vi.Trial Affidavit of the wife filed 6 July 2021;
vii.Orders made 13 July 2020;
viii.Orders made 16 October 2020; and
ix.Orders and judgment of Hartnett J delivered on 1 May 2020.
BACKGROUND
There have been many appearances by the parties throughout the course of this proceeding, and there have been many consequential Orders of the Court. Relevantly, for the purposes of delivering reasons and making Orders in respect of this discrete application of the husband, and of the application as contained in the response filed by the wife, which included an application for the husband to be declared as a vexatious litigant, the following history is detailed.
Section 102QB of the Family Law Act 1975 (Cth) (“the Act”) is as follows:
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following Orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c)the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal); including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
On 8 April 2020, the Court ordered, amongst other Orders, that all extant applications be adjourned for final hearing on 13 July 2020 at 10.00am. The Court added, as a notation to those Orders, that the hearing would be required to be conducted with the litigants in person. The notation was as follows:-
A.This hearing will be required to be conducted with the litigants and lawyers in person, in the courtroom. The Respondent is a litigant in person and the matter is not one suitable to be conducted via Microsoft Teams.
On 21 April 2020, further Orders were made by the Court. Those Orders included the following Order:-
(1)The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) shall apply forthwith and, as such, the Respondent shall not be permitted to personally cross-examine the Applicant.
AND THE COURT NOTES THAT:
(2)These Orders are made because section 102NA(1)(c)(ii) of the Family Law Act 1975 (Cth) applies in these proceedings.
On 1 May 2020, the Court ordered that the husband’s then various Applications in a Case being those filed 19 February 2020, 26 February 2020 and 6 April 2020 be dismissed. The Court delivered reasons for judgment.
Some part of the applications of the husband as referred to above, included a removal of the Independent Children’s Lawyer from the proceeding. As set out in paragraph 67 of the reasons for judgment of 1 May 2020, the husband had sent to the Independent Children’s Lawyer in excess of 250 emails at that time, many of them containing numerous attachments. It was the husband’s evidence, as to that harassing behaviour by him, that he had, “given the ICL 250 chances and he has blown every one. I placed an embargo on him. He is a slow learner. He must go.”[1]
[1] Affidavit of Mr Philkin filed 7 April 2020 at paragraph 16.
Paragraph 33 of the reasons for judgment of 1 May 2020, is as follows:
33.The Application in a Case filed by the father on 26 February 2020 was equally objectionable, in part nonsensical, and sought Orders beyond jurisdiction. The Orders as sought in the Application in a Case of 19 February 2020 and 26 February 2020 suggest that the father is vexatious. The Court indicated to the father that the bringing of such applications before the Court with voluminous material could result in an application being made to the Court for him to be declared vexatious, or for the Court to, of its own motion, make such an Order.
On 13 July 2020, and upon hearing Ms Mansfield of counsel appearing by video link on behalf of the wife and Mr Harper solicitor, appearing by video link on behalf of the husband, the Court made interim Orders by consent, relevantly, as follows:
…
(2)Within 21 days of the making of these Orders, the parties do all such acts and things and sign all such documents to commence the selling the following properties (“the sales”):-
(a)FF Street, Suburb F in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the FF Street property”);
(b)HH Street, Suburb F in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the 3 HH Street property”); and
(c)2 HH Street, Suburb F in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“2 HH Street property”).
(3) For the purposes of effecting the above property sales:-
(a)the sales be conducted by a real estate agent (“the agent”) to be selected by the Applicant Wife nominating 3 agents within 14 days, the Respondent Husband selecting one of those agents within 7 days and if the Respondent Husband fails to nominate an agent, the Applicant Wife be at liberty to do so or she select an agent appointed by the President of the REIV or his/her nominee;
(b)the parties are to do all things and sign all documents required of the selling agent including to progress the sales including signing any exclusive authority;
(c)the FF Street property, the 3 HH Street property and 2 HH Street property shall be listed for sale by auction, or private sale as advised by the selling agent at a date to be determined by the selling agent;
(d)the list price shall be as agreed between the parties and the selling agent and failing agreement:-
(i) the list price of the FF Street Property shall be $800,000.00;
(ii)the list price of the 3 HH Street Property shall be $650,000.00; and
(iii) the list price of 2 HH Street Property shall be $450,000.00.
(e)the sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property at the conclusion of the auction and/or private sale that is at least 90% of the list price shall be accepted by the parties as the sale price;
(f)the parties are to co-operate in every way with the selling agent in relation to the marketing of the properties for sale including making the key readily available, allowing inspection of the properties at all times reasonably requested by the agent and ensuring that each of the properties are clean, neat and in good order at the time of inspection by any prospective buyer;
(g)the parties be at liberty to offer to individually purchase a property. In the event that a property is purchased by a party to the proceeding each party is jointly liable for the agent and selling costs (including conveyancing fees);
(h)a Solicitor or Conveyancer shall be appointed by the selling agent to have the care of the Conveyancing of the sale of the property;
(i)upon agreement being reached for sale of a property the parties shall execute the contract of sale and all other documents necessary to complete the sale of a property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(j)from the settlement the proceeds of sale of the FF Street property, the 3 HH Street property and 2 HH Street property (“the properties”) shall be paid in the following manner and priority:-
(i)payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(ii) payment to the mortgage encumbering the properties;
(iii) payment of the legal costs and outlays relating to the sale;
(iv)to the Applicant Wife the sum of $100,000.00 with that sum to be characterised at trial as part property;
(v)to pay all capital gains tax arising from the sale of the FF Street property, the 3 HH Street property and 2 HH Street property; and
(vi)the balance sum, if any, to be held on trust by the solicitors of the Applicant Wife pending a written agreement by the parties or Court Order.
(4)Liberty be reserved to the parties to apply to the Court with respect to the terms and conditions of and execution of the sale of the properties.
(5)Within 7 days the Respondent Husband and/or his solicitor provide the Westpac Banking Corporation and their solicitors VV Solicitors, with a copy of these Orders and the Respondent Husband do all things necessary to seek a discharge (or stay) of proceedings with respect to the Writ issued in the County Court of Victoria (case number CI-…) pending sale of the above named properties, and provide the Applicant Wife proof of any communication had and received from Westpac and/or their solicitors with respect to the said County Court proceedings.
(6)Contemporaneous with the sales, the Applicant Wife and the Respondent Husband do all such things and sign all documents as may be required to cause the removal of any caveats, at their expense, over the properties.
(7) Pending settlement or the sale of the FF Street property:-
(a) the Wife have continued sole occupation and use of the property; and
(b)the parties be restrained by injunction from encumbering the property, without the prior written consent of the other.
(8) Pending settlement or the sale of the 3 HH Street property:-
(a)the Husband have continued sole occupation and use of the property; and
(b)the parties be restrained by injunction from encumbering the property, without the prior written consent of the other.
(9) Pending settlement or the sale of 2 HH Street property:-
(a)the Husband have continued sole occupation and use of the property; and
(b)the parties be restrained by injunction from encumbering the property, without the prior written consent of the other.
(10) Until further Order:-
(a)the Husband have continued sole occupation and use of the property at PP Street, Suburb QQ;
(b)the parties be restrained by injunction from encumbering the property, without the prior written consent of the other.
(11)In the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the provisions of these Orders, the Registrar or Deputy Registrar of the Family Court of Australia, Melbourne Registry, is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”) to execute all deeds and or instruments in the name of either of the parties and do all acts and things to give validity and operation to the deeds and or instruments.
…
Amongst the Notice of Appeal documents that have been filed by the husband during the course of the proceeding, one ground of appeal, argued before Strickland J on 29 September 2020, was that on 13 July 2020 the Court had erred by hearing the proceeding using a Microsoft Teams video link which was, the husband stated:-
In breach or [sic] (of) Orders to have hearing in person.[2]
[2] Notice of Appeal by Mr Philkin filed 24 August 2020 at page 3.
That ground related to the notation referred to in paragraph 14 above. The Full Court of the then Family Court of Australia (“the Full Court”) made findings, in respect of that ground of appeal, as set out in paragraphs 28 and 29, of the judgment of the Full Court dated 2 November 2020:
28.Of course, this is a notation, not an Order, and thus it cannot be the subject of an appeal. Further, the notation did not prevent her Honour changing her mind and conducting the hearing on 13 July 2020 by a different medium. And, finally, that notation was made in the context of the hearing being listed for seven days, but as it turned out, the final hearing could not take place, and her Honour used the listing on 13 July 2020 to adjourn the matter and make interim Orders by consent.
29. Thus, there is no merit in this appeal.
The appeals as lodged by the husband, and dealt with and dismissed by the Full Court, also included the husband’s proposed appeal against the Consent Orders made on 13 July 2020. Strickland J said as to the proposed appeal, relevantly, as follows:[3]
…
22.I note again that the father proposes to seek leave to appeal, and this time leave to appeal is required given the nature of the Orders, namely an adjournment of the proceedings, and the making of interim property settlement Orders.
23.However, the facts relied on in support of that proposed application are again completely inadequate, and do not provide a basis for leave to appeal to be granted.
24.That disposes of the matter, but I will still say something about the appeal, the Orders sought to be appealed against, and the one ground of appeal.
25.The first point to make is that all of the orders made were made by consent, and although the father suggests that that was not so, he has nowhere demonstrated that the Orders were not made by consent.
…
[3] Philkin & Philkin (No.2) [2020] FamCAFC 264 at paragraphs [22]-[25].
I note some part of the husband’s proposed appeal against the Orders was that he did not so consent.
Despite the dismissal of his appeals as described in the preceding paragraphs, these same matters were re-agitated in the evidence at the hearing before me on 19 August 2021.
Additionally, the solicitor for the husband, in his submissions to the Court on 19 August 2021, on behalf of the husband also re-agitated those matters already determined by a trial judge, and on appeal having been dismissed. This was vexatious conduct of the husband.
Historical events relating to property matters following Orders made on 13 July 2020
At the time of the making of the Interim Consent Orders on 13 July 2020 (“the orders”), Mr Harper of MMH Lawyers was the solicitor on record for the husband. The Orders did not include the sale of property owned by the husband situate at PP Street, Suburb QQ (“the PP Street property”). The sale of this property is now sought by the wife.
On 28 July 2020, the husband’s former solicitors, MMH Lawyers, filed a Notice of Ceasing to Act. On 28 July 2020, the wife (the husband having not responded to the wife’s solicitors written request of 20 July 2021, that the husband select a selling agent in accordance with Order 3(a) of the Orders) proceeded to select ‘RR Real Estate’ as the selling agent.
On 2 August 2020, the wife signed an exclusive sale authority with ‘RR Real Estate’ as the selling agent in accordance with Order 3(b) of the Orders and the selling agent then engaged ‘BG Conveyancing’ to prepare the necessary documents for the sale of the three properties: the FF Street property; the HH Street property; and the 2 HH Street property, as provided for in Order 2 of the Orders.
On 4 August 2020, the wife’s solicitors received correspondence from law firm, Anuja Baker Legal Services, advising that they acted on behalf of the husband and enclosing by way of service, a Notice of Address for Service which had been filed in the Court.
In the above correspondence, the solicitors for the husband said, relevantly, as follows:[4]
…
Orders dated 13 July 2020 (“the 13 July orders”) require both parties to commence the sale of the FF Street property, the 3 HH Street property and 2 HH Street property. Our client’s instructions are that he agreed to sell the FF Street property and 2 HH Street property, but not the 3 HH Street property where he currently resides. Further, that the 13 July Orders are not a reflection of his instructions to his solicitors on the day.
Instead of taking this matter further through the court process and further delaying the sale process, the purpose of this letter is to seek your client’s agreement to only sell the FF Street property and 2 HH Street property whilst the parties await a finalisation of their family law parenting and property matters through the court process. Our understanding is the sale of these two properties will create enough equity to allow your client to receive the sum of $100,000 in accordance with paragraph 3(j)(iv) of the Orders, thus there being no prejudice to her to our client keeping his current place of residence.
Given the protracted nature of this matter to date, we urge your client to consider this request which not only makes sense give that our client resides in the 3 HH Street property, but it will also save both parties considerable funds in capital gains tax, agents selling costs and legal fees.
We await your response and in the meanwhile ask that your client not make any arrangements for the selection of agent and sale of the 3 HH Street property.
…
[4] Affidavit of Ms Philkin affirmed 9 August 2021 at annexure “P-5”.
By correspondence of 4 August 2020, being the same date, the solicitors for the wife responded to the correspondence of the solicitors for the husband indicating that the wife did not accept the proposal of the husband. Enclosed with that correspondence were three exclusive sales authorities for the husband’s signature. The wife’s solicitors advised that:
Should your client fail to return the signed authorities to our office by close of business tomorrow, Wednesday 5 August 2020, we are instructed to obtain the Registrar’s signature in accordance with Order 11.
The exclusive sale authorities sent to the husband via his then solicitors stated the list price for each of the properties as set out in the Orders namely:
(a)$800,000 for the FF Street property;
(b)$650,000 for the HH Street property; and
(c)$450,000 for the 2 HH Street property.
On 5 August 2020, the husband’s then solicitors replied stating, relevantly, the following:
We are awaiting the return of signed exclusive sales authorities from our client in respect of the FF Street and 2 HH Street property. We are hopeful of delivering these to you by close of business today.
In respect of the 3 HH Street property, our client makes the following offer to your client:
(a) that the property be purchased for the sale price of $585,000;
(b) that a deposit of five per cent be payable by 1 December 2020;
(c) that a settlement date be scheduled for 1 June 2021.
Given the sale price is 90 per cent of the list price for the 3 HH Street property, there should be no issues from your client in respect of accepting the sale price. Further, given this offer is being made by our client prior to the engagement of an estate agent, both parties will also benefit from not having to pay selling costs for this property.
The wife did not accept the offer made by the husband. It was the wife’s evidence, as contained in paragraph 24 of her Affidavit of 9 August 2021, that in August 2020:
The prospect of waiting nine months for a sale to be completed by Mr Philkin, who is unreliable and litigious, was an unattractive proposal.
On 5 August 2020, the wife’s solicitors received an email from RR Real Estate with updated exclusive sale authorities, wherein the term of exclusive authority was amended to 150 days (from 60 days) for signing. That extension was in the context of the new stage four COVID-19 restrictions that had been imposed in the state of Victoria and the inability of real estate agents to conduct inspections for a six week period. On 6 August 2020, the wife’s solicitors forwarded the agent’s email as to the extension of the term of the exclusive authorities to the husband’s then solicitors requesting the husband sign the updated sale authorities.
On 6 August 2020, the wife was informed by BG Conveyancing that the husband was refusing to co-operate with the sale. On that same day BG Conveyancing sent an email to the wife’s solicitors stating, relevantly, that:
We have had a barrage of emails from Mr Philkin saying he won’t be using our services and will be instructing his own conveyancers.
On 1 September 2020, the wife’s solicitors received correspondence from the husband’s solicitors, Anuja Baker Legal Services, enclosing their signed Notice of Ceasing to Act for the husband.
On 3 September 2020, the wife instructed her solicitors to send a letter to the President of the Real Estate Institute of Victoria (“REIV”) requesting that she appoint a selling agent to conduct the sale of the properties pursuant to Order 3(a) of the Orders. That correspondence stated, relevantly:
To date the parties have been unable to reach an agreement as to the selection of an agent to conduct the sales, and we advise that in accordance with Order 3(a) of the abovementioned Order, a selling agent may be selected by the president of the REIV and/or his/her nominee. We request that you kindly provide us with the name and address of the selected agent at your earliest convenience. We note that the matter is returnable before her Honour Justice Hartnett on 6 October 2020, and we wish to be in a position to advise her Honour as to the compliance by, and fulfilment of, the parties’ obligations under the Orders on that occasion.
On 7 September 2020, the husband sent an email to the president of the REIV, relevantly, as follows:
The REIV president is on notice that there is a Family Court appeal on foot which prevents the REIV president (him) from being involved in appointing an agent.
This is why I have not agreed to an agent being appointed. In the alternative, if an agent is to be appointed, then it is to be me – as I am the sole owner – and legally qualified to sell the property myself. The president is safe if he appoints me. In the further alternative, the properties are held by Westpac/Bank of Melbourne who have proceedings in the County Court, and so the Family Court had no jurisdiction in the matter. Finally, the matter is being adjudicated by AFCA and out of the jurisdiction of the Family Court.
This letter will be produced in litigation against the REIV.
On 8 September 2020, the wife’s solicitors received an email from the REIV stating that they could nominate an agent, but that they could not “appoint”. The REIV stated further that as the husband was not a real estate agent as defined by the Estate Agents Act 1980 (Vic) he could not be nominated. On 11 September 2020, the wife’s solicitors sent an email to REIV clarifying that they simply sought that the REIV nominate one agent.
On 5 October 2020, the solicitors for the wife wrote to the Registrar of the Court requesting that Order 11 of the Orders be invoked. The wife sought that a Registrar or Deputy Registrar of the Court execute all deeds and/or instruments in the name of the husband and do all acts and things to give validity and operation to the deeds and/or instruments pursuant to section 106A of the Act to effect the sales of:
(a)the FF Street property;
(b)the HH Street property; and
(c)the 2 HH Street property.
The husband was copied into that correspondence, as he was to all correspondence that required him to be copied in. The wife also indicated her intention to seek to nominate RR Real Estate to be appointed as the selling agent and BG Conveyancing to be appointed to prepare the necessary documents for the sales.
On 19 October 2020, the wife’s solicitors received an email from the husband addressed to the registrar which stated, relevantly, that:
The properties have leases. They will not be sold vacant possession.
On 5 November 2020, the wife’s solicitors received a letter from the REIV nominating Ms BK of Harcourts to market and sell the properties. The response from the REIV, included an apology for: “…the length of time that it has taken to make this nomination”. This response was almost two months outstanding and had been by then overtaken by other events.
On 11 November 2020, the wife was informed by her solicitors that Registrar Sudholz had signed two of the three exclusive sale authorities for the FF Street property and HH Street property on behalf of the husband. The Registrar had indicated she could not sign the exclusive sale authority for the 2 HH Street property as the address noted on the authority did not match the address which had (incorrectly) been noted in the Orders.
On 16 November 2020, the Court confirmed that the Orders had been amended pursuant to the slip rule[5], and on 17 November 2020 the wife’s solicitors forwarded a sealed copy of the amended Orders to the Registrar together with a copy of the exclusive sale authority and title search for the 2 HH Street property. On 18 November 2020, Registrar Sudholz signed the exclusive sale authority for 2 HH Street property on behalf of the husband.
[5] The Family Law Rules 2004 (Cth) r 17.02(1)(h).
Each of the exclusive sale authorities were forwarded to RR Real Estate. On 19 November 2020, BG Conveyancing advised the parties that they were no longer willing to act as conveyancers as the husband had incessantly sent abusive emails to them. They had requested the husband cease all communication with them.
On 25 November 2020, the wife’s solicitors wrote to the husband detailing what was required from him in order to prepare the section 32 vendor statements for the FF Street property, the HH Street property and 2 HH Street property.
On 26 November 2020, and pursuant to Order 2 of Orders that had been made on 6 October 2020, the solicitors for the wife wrote to VV Solicitors, solicitors for Westpac Banking Corporation, providing them with a sealed copy of the Orders and informing them that the three properties had been listed for sale with RR Real Estate. The wife’s solicitors, requested a stay of the County Court proceeding then on foot as commenced by the bank against the husband for recovery of monies owed to them.
Mr Jeff Thompson, solicitor, commenced to act for the husband on 20 October 2020. The husband’s address for service was care of Mr Thompson’s offices at: level 3/85 Macquarie Street, Hobart in the state of Tasmania.
The Affidavit sworn by the husband on 18 August 2021, provides the husband’s address as being: 17/21 Cavenagh Street, Darwin in the Northern Territory, which is the address of his solicitors as provided in that Affidavit save the solicitor refers to “suite 17” rather than “level 17.” The husband resided at the HH Street property at the time of the Orders and thereafter, and it is not clear on the evidence before the Court whether he continues to reside at that address or in Darwin or elsewhere.
On 26 November 2020, RR Real Estate wrote to the husband and his new solicitor, Mr Thompson advising that they had instructed SS Solicitors to prepare the section 32 vendor statements for the properties. On that same day RR Real Estate received an email from the husband’s solicitors advising they were not acting for him in respect of his, “property matters.”[6]
[6] Affidavit of Ms Philkin affirmed 9 August 2021 at annexure “-24”.
Additionally, on 26 November 2020, the wife’s solicitors received an email from the husband stating that the husband had his own conveyancer. RR Real Estate also received an abusive email from the husband calling Ms WW of that real estate agency a “liar”, and referring to an earlier complaint made by him: “…about your incompetence as you couldn’t even respond to my queries some 10 years ago, if you remember.” The husband further advised that he would not be working with the selling agents, and in an email addressed to Ms WW said: “See you later. You are fired.”
By correspondence of 5 February 2021, the husband’s now solicitor, Mr Jeff Thompson, advised the wife’s solicitors, relevantly, that the husband had ceased employment and was unable to pay spousal maintenance as earlier ordered by the Court; asserted that the wife was living in the FF Street property with her son from a previous relationship and had made no contribution, and nor had her son, toward council rates, the mortgage or towards maintenance of the property; and requested that the wife make a contribution toward “…the rent of at least $750 per week.”
By correspondence of 10 February 2021, the wife’s solicitors wrote to the husband’s solicitor seeking documentation already previously requested of the husband to progress the section 32 statements and sale of the properties. On 10 February 2021, the solicitor for the husband replied to the solicitors for the wife stating, relevantly:
I am instructed that Mr Philkin did not consent to the orders made. He was not present in the room where they were made, and they were not consistent with his instructions to the party who made the agreement to consent to the orders.
My client is further unable to respond to the request as he has been excluded from the property for over two years. I am instructed your client has not made any contributions to the property by way of maintenance or financial contributions, at least since 23 April ’18 when you first wrote to my client asking him to vacate the property.
That correspondence further stated that the husband’s dispute with Westpac was:
…primarily because [the wife] continues to reside at [FF Street]…and the bank has been unable to exercise its rights over the property.
The husband acknowledged in his evidence that neither party is meeting the husband’s repayment obligations to the bank, but it is he who is seeking to avoid the sale of the property.
The husband’s refusal to co-operate, with the implementation of the orders, continued. The wife’s solicitors wrote to the Registrar of the Court attaching the Orders and the wife’s Affidavit filed 12 April 2021 requesting the Registrar sign the section 32 vendor statements for the properties; contract of sale for the FF Street property; and proposed special conditions for any contract of sale for the HH Street property and 2 HH Street
On 19 May 2021, Registrar Sudholz signed the documents referred to above on behalf of the husband. Due to the excessive delays caused by the husband’s actions, as deposed to by the wife in paragraph 62 of her Affidavit filed 9 August 2021 and as found by the Court, the exclusive sale authorities originally signed by the Registrar on 11 November 2020 and 18 November 2020 had expired.
Accordingly, on 16 June 2021, the wife solicitors again wrote to the Registrar of the Court requesting the execution of further documents (the exclusive sale authorities, again in accordance with Order 11 of the Orders). On 18 June 2021, Registrar Sudholz signed the exclusive sale authorities for the three properties as referred to in paragraph 57 above, on behalf of the husband.
SALE OF FF STREET PROPERTY
On or about 29 June 2021, the wife was informed by RR Real Estate of their intention to open the FF Street property for its first inspection on 30 June 2021. Following this inspection, the wife was advised by RR Real Estate that they had received a written offer from a prospective buyer for $810,000. The husband had, to that point in time, sought to obstruct the sale of any and all of the properties; had refused to sign the necessary documents requiring the activation of a section 106A of the Act Order; and had openly stated, both personally and through his solicitor, that he did not consent to the sale of any of the three properties.
The husband’s opposition to the sale of any of the properties continues to the present time, as is obvious from his application filed on 19 July 2021 and the Orders sought therein. In the above circumstances, the wife accepted the offer of $810,000 as a purchase price for the FF Street property. That offer was at least 90 per cent of the list price which was $800,000 and satisfied the default position as set out under order 3(b) of the orders. Settlement of the sale is now due to occur on 28 September 2021.
The contract of sale of real estate for the FF Street property was signed by the purchaser on 30 June 2021. It had been signed for and on behalf of the husband by Registrar Sudholz on 18 May 2021.
On 7 July 2021, the husband, through his solicitor, wrote to the wife’s solicitor and the Registrar of the Court indicating that he was unaware of the sale of the property and was not approached to agree on the sale price.
On 9 July 2021, the husband’s solicitors wrote to the wife’s solicitors stating, relevantly:
Our client, Mr Philkin, was never informed of the upcoming sale and was not consulted in respect of any agreement to sell the property as was required by the orders of the Family Court of 13 July 2020 made by Justice Hartnett.
We also note the property was not offered by tender or auction and was sold at what appears to be significantly below market value.
We request that the contract is immediately rescinded on the basis that the sale price was not agreed by the parties subsequent to the orders made by Justice Hartnett on 13 July 2020. We are of the view that any such sale of the property in those circumstances lies in breach of the Family Court orders.
We reserve the right to seek damages or costs arising from the sale of the property if the contract is not rescinded immediately.
On 14 July 2021, (following receipt of correspondence from the husband’s solicitors reiterating their concerns as earlier set out in their correspondence of 9 July 2021) the wife’s solicitors wrote to the husband’s solicitor stating, relevantly, as follows:[7]
[7] Affidavit of the Ms Philkin affirmed 9 August 2021, exhibit P-36: correspondence from Ryan Carlisle Thomas of 14 July 2021 to Mr Thompson.
…
Various correspondences have taken place since the Orders were made on 13 July 2020 which demonstrated our client's effort in placing the three properties on the market for sale. On the contrary, your client demonstrated his resistance towards the entire sale process. The FF Street property was sold by private sale as per Order 3(c), and a listing price of $800,000 was adopted as per Order 3(d) in the clear absence of an agreement noting also your client had refused to sign the Exclusive Sale Authorities.
1t is absolutely absurd that your client is now claiming that he was not consulted on the sale price nor notified with respect to the sale when he very blatantly demonstrated through his actions, that he had no intention of progressing the sale of the three properties and out rightly stating that he "did not consent to the Orders made".
We refer you to the following correspondence, which clearly indicates that your client was indeed consulted as to the sale price for FF Street and was initially agreeable to sell the FF Street property but shortly thereafter reneged on his agreement:
1.Letter from his previous solicitors, Anuja Baker Legal Services dated 4 August 2020, which states, "he agreed to sell the FF Street property” (copy attached);
2.Letter from his previous solicitors, Anuja Baker Legal Services dated 5 August 2020, which states, "we are awaiting the return of signed Exclusive Sales Authorities from our client in respect of the FF Street ... property” (copy attached);
3.On or about 6 August 2020, our client was contacted by the acting conveyancer at the time, BG Conveyancing, stating that your client was refusing to comply with the sale;
4.Exclusive Sale Authorities, including for FF Street were forwarded to your client on multiple occasions, including in our email to your client's previous solicitors, Anuja Baker Legal Services on 6 August 2020, requesting him yet again to sign the Exclusive Sale Authority. We note that the Exclusive Sale Authorities notes the Vendor's Sale Price as $800,000 (copy attached).
Our client is not in breach of the Orders, and as such, she will not be rescinding from the Contract for the FF Street property. As a matter of fact, your client is currently not complying with the Orders with respect to the sale of the two HH properties. Should your client instigate any futile legal action to cause an unwarranted delay on settlement for FF Street, we put your client on notice that he will be liable to pay any damages arising as a result of breach of contract.
As you may be aware, your client has had several Costs Orders made against him to date, all of which he has not complied with. Should your client persist in his refusal to agree to our client's proposed Minutes and we do not receive your signed Minutes by 2.00pm today, we will have no alternative but to immediately write to Chambers requesting for the matter to be listed for a Mention on Monday, 19 July 2021 to bring this issue to the Court's attention. Should this be necessary, we place your client on notice that this correspondence will be produced on the question of costs against your client.
On 20 July 2021, the wife’s solicitors were advised by solicitors acting on behalf of the purchasers to the contract of sale of the FF Street property that:
The registered proprietor, Mr Philkin, went to the contracted purchaser’s property last night and made comments to the effect that he had not authorised for the property to be sold and that he would be taking steps in bringing an action in Court regarding the sale.
On 20 July 2021, the wife’s solicitors wrote to XX Solicitors, who act for the purchasers of the FF Street property, notifying them of the husband’s objection to the sale of the property and the application filed by the husband due to be heard on 19 August 2021. This action of the husband has delayed the settlement of the FF Street property. The wife had placed the husband on notice that she will be seeking for him to assume liability for any penalties incurred as a result of the delayed settlement or for any loss suffered by the purchasers.
On 23 July 2021, the husband sent four emails to the wife’s solicitors stating, amongst other things:
Ms Philkin, she is not entitled to anything. This contract is torn up. Police have been notified of this FRAUD attempt to sell the property for 810K when it is worth min 1.5 mill to 1.8 mill. Like I said, “You’re fired.”
On 8 August 2021, RR Real Estate advised the wife that they had received several emails from the husband threatening to make:
…a claim against your PI insurance. I am demanding your underwriters’ details within 24 hours. If you fail to provide this, I will be referring the matter to the authorities, including police.
On that same day (the above referred to email having been sent at 12.26 am) the husband sent a further email at 8.05 pm to RR Real Estate stating, relevantly, as follows:
(1)Are you going to continue to not communicate?
(2)This email will be used in proceedings and as to costs and compensation.
(3)I am also directing a question about misleading conduct and your office location which I have attended at ZZ Street, Suburb YY, VIC, but which is an outlet and not your office!
(4)The other question is where is my S47AF?
(5)I am seeking to have CAV and BAL deregister you.
(6)Police have also been spoken to in relation to a statement and charges.
The husband’s conduct, both in attending the purchaser’s residence at night, and in the communications sent as described above to RR Real Estate, is unacceptable, intimidating, threatening and the behaviour of a person out of control.
Outstanding mortgages with Westpac Bank
The husband has not complied with his continuing disclosure obligations. He has not provided to the wife disclosure as to the current sums owing pursuant to the mortgages to the Bank of Melbourne and to the Westpac Banking Corporation.
Litigation is ongoing between Westpac Banking Corporation as plaintiff and the husband as defendant in the County Court of Victoria at Melbourne with a writ being filed by the plaintiff on 7 June 2019. Westpac holds four registered mortgages in respect of the four properties owned by the husband, being the FF Street property; the HH Street property; the PP Street property; and the 2 HH Street property. The husband at all relevant times has been, and is, the sole registered proprietor of the properties. The securities held by the bank appear to be collateral mortgages.
On 29 July 2021, the wife’s solicitors issued an updated Subpoena to Westpac Bank to obtain particulars regarding the mortgage accounts in the husband’s name. The wife had issued an earlier Subpoena to the bank on 30 April 2019 to obtain relevant details at that time. As at 30 April 2019, disclosed debts owed by the husband to the bank totalled approximately $1,232,008.
The evidence before the Court on the interim hearing on 19 August 2021, as tendered from the Subpoenaed documents required to be obtained by the wife, is that the total sum owing to the Westpac Bank by the husband as at 31 July 2021 is approximately $1,309,996.[8]
[8] Transcript dated 19 August 2021, page 2 at lines 21-26.
Implementation of Order 3(j)(iv) of the Orders
It is not clear whether the net proceeds remaining from the sale of the FF Street property, after payment of sale expenses and the discharge of outstanding collateral mortgages held with the Westpac Bank will leave any funds remaining to be paid to the wife in accordance with order 3(j) of the orders.
The wife has outstanding legal costs in the sum of approximately $110,442. The husband’s actions have caused the wife to incur a considerable part of her legal costs.
At the settlement of the sale of the FF Street property, the wife and children may be required to vacate the property and move into rental accommodation, at least on a temporary basis, and thus incur rental expenses. The wife is solely reliant on Centrelink benefits and receives no child support payments from the husband in respect of her expenses incurred for the support of the three children of the marriage whom reside with her. The wife deposed to the impact the husband’s actions have had on her mental health, including causing her severe anxiety given the uncertainty she and the children face in their living environment.
The husband was residing at, and perhaps continues to reside at, the HH Street property. The properties at 2 HH Street and PP Street are tenanted as claimed by the husband. The husband has however provided no ongoing disclosure to the wife concerning any lease agreements held between he and any tenants. Whilst those properties can be sold subject to a tenancy, the husband’s behaviour to date gives the Court no confidence as to an orderly sale of the remaining properties. The husband has not indicated, and by his silence the Court implies, that he has not provided the tenants of any of the properties owned by him, if such tenants exist, with a notice to vacate.
The wife has by way of Order a part-property payment due to her of $100,000 from the sale of the three properties as provided for in the Orders. The husband has provided no evidence to the Court that he has the financial ability to purchase any of the properties, and nor can the Court be assured by any submission made on behalf of the husband that he might comply with any Orders which permit him to retain any of the properties whilst making provision for the wife.
The wife is in a precarious financial position. She has not been paid the costs as ordered against the husband to her. Costs Orders were made in the sum of $7,033.62 by Strickland J following appeals by the husband, and those Orders were made on 2 November 2020. Orders were also made for the husband to pay the costs of the Independent Children’s Lawyer fixed in the sum of $5,128. The husband has not paid those Costs Orders. The wife seeks that he does so forthwith.
There are additionally further Orders that have reserved the wife’s costs on the following dates:
(a)31 May 2019, costs reserved in the sum of $1,300;
(b)16 October 2020, costs reserved;
(c)25 January 2021, costs reserved; and
(d)15 March 2021, costs reserved.
The husband did not address, in any meaningful way or at all, in his Affidavit sworn 18 August 2021 and other material relied upon, the wife’s application in respect of the sale of the PP Street property. To that extent her evidence was unchallenged. The Court shall accede to that application. The husband has provided no information to the wife as to proposed ongoing enforcement action by the bank in respect of any collateral and/or other loans. The wife knew nothing of the husband’s complaint to the Australian Financial Complaints Authority (“AFCA” as described hereafter) until the date of the interim hearing on 19 August 2021. The husband has provided no disclosure as to his overall financial position at the present time. The situation is critical. The parties must engage in a sale of the four properties, the subject of the litigation, in order to obtain a positive asset pool available for distribution between them. The sale of the FF Street property will not be sufficient to cover the debts owed by the husband to the Westpac Banking Corporation. The wife seeks Orders that permit Westpac Banking Corporation to share information with her as to the quantum and mode of discharge of their various mortgages. Given the husband’s failure to provide ongoing disclosure, his lack of transparency, his obstructive behaviours and his disregard for the Orders of the Court, it is important that the Court makes Orders allowing the wife to have such visibility of the mortgage liabilities.
If the husband resides in the HH Street property, he shall be required to vacate that property to provide sole use and occupation of it to the wife pending the settlement of the sale of that property. In that way, the wife and children will have secure accommodation for some limited time and the wife will be better placed to control the sale of the property given the history of the husband’s behaviours as described above. The wife seeks such Orders and they will be made subject to any tenancy rights that may now exist.
The wife also sought Orders in her application for the issuing of an Enforcement Warrant. That action is premature if the sale of the properties can be proceeded with in accordance with the Orders the Court shall make. That application is not dismissed however, and the wife is at liberty to re-agitate it on a further date. Likewise, the Orders as to the wife having sole use and occupation of those properties in relation to which she currently does not, are dependent upon further evidence being before the Court as to any existing tenancy rights, and notice being given to any third parties of Orders sought that might interfere with the rights of such third parties.
VEXATIOUS LITIGANT
The wife brought an application that the husband be declared a vexatious litigant. That application was filed by her on 7 October 2020 but she did not pursue it at the time. The wife now agitates, in her Response to an Application in a Case filed 9 August 2021 that an Order be made pursuant to section 102QB(2)(b) of the Act.
The husband has unsuccessfully issued two applications in an appeal proceeding seeking an extension of time in which to file five notices of appeal in order to challenge Orders made to date by the Court. This has necessitated the wife incurring significant ongoing and legal fees, in addition to those legal fees that she has incurred, and continues to incur, in relation to the children and property Order proceeding before the Court. Costs Orders as made against the husband have not been paid by him.
Since these proceedings were initiated, the husband has filed approximately 35 Affidavits and 12 Applications in a Case. He has had five law firms represent him. He has been recalcitrant in filing Court material, and has breached Court Orders.
The husband has engaged in significant and various pieces of litigation.
The husband’s conduct in this proceeding and his conduct otherwise toward the wife, the children and third parties, is troubling. It was submitted by counsel for the wife that the wife feels overwhelmed by the husband’s conduct in continually bringing applications before the Court and his actions of seeking to disrupt the sale of the assets of the marriage.
In the wife’s Affidavit of 9 August 2021 at paragraph 126, are examples of the husband’s behaviours during the course of the litigation. Some are as follows:
a)on 6 July 2020 Dr BC prepared a report pursuant to Court Orders. The husband has made a complaint against Dr BC to the Mental Health Complaints Commission;
b)the husband brought proceedings at VCAT against BD School for their cancellation of the parties’ daughters enrolment at the school given the husband’s repeated abuse of the staff and complaints about the school. Those proceeding[s] were later withdrawn by him;
c)the husband commenced proceedings with the Victim of Crime Assistance Tribunal complaining he was the victim of crimes perpetrated by the wife;
d)the husband sought a letter provided by a child protection officer, Ms P be removed from the Magistrates’ Court file. The husband demanded the child protection officer disqualify herself from the case and issued a Complaints Report;
e)the husband made a report to the RSPCA about the dog who lives with the children and the wife;
f)the husband sought that an Intervention Order be rescinded on the “ground of contempt”;
g)the husband threatened to hold Victoria Police accountable for “neglect of a minor”;
h)the husband has written frequent and frivolous emails complaining about the wife and others to a variety of third parties and demanding investigations (Police, solicitors, government, estate agents, organisations and departments); and
i)the husband has made a complaint to the Legal Services Board regarding Mr Harper.
The husband also tendered in evidence during the interim hearing on 19 August 2021, details of a complaint made by him against the Bank of Melbourne in case number …65. The complaint was made by the husband to AFCA. This evidence did little to advance his case.
The determination overview of 31 March 2021 in the husband’s complaint against the Bank of Melbourne, notes that the four loans are cross-collateralised across the husband’s properties. On 1 November 2018, the husband had agreed to surrender to the bank the property in which the wife and children were residing, namely, the FF Street property. This was a vindictive act on his part. The bank has not taken possession of that property because of the ongoing occupation of the wife and children.
The husband’s complaint as to the bank’s conduct was that the bank:
(a)had unreasonably discontinued his instructions to take possession of the property in which the wife and children reside;
(b)had inappropriately contacted third parties and engaged with his tenants;
(c)was required to accept Ms L’s offer to pay rent;
(d)was required to meet its obligations in relation to the husband’s request for an early-release-of-superannuation support letter; and
(e)had inappropriately recorded repayment history information (RHI).
The findings contained in the recommendation were that the bank had done none of the above, save that the bank did inappropriately communicate with one of the husband’s tenants. Otherwise, the bank:
(a)had not been unreasonable in failing to follow the husband’s instructions to take possession of the home in which the wife and children resided;
(b)did not delay in attempting to take possession of that property;
(c)had not breached the husband’s privacy when communicating with Ms L;
(d)was not obligated to accept Ms L’s offer to pay rent;
(e)met its obligations when it declined to provide the husband a letter supporting the early release of superannuation;
(f)was not required to remove the RHI it had recorded on the complainant’s credit file; and
(g)was not required to vary the loan contracts.
Accordingly, the determination of AFCA was substantially in favour of the bank. It was subject to the husband accepting the determination within 30 days, that:
(i)within 14 days of acceptance the bank must compensate the complainant $500 for his non-financial loss for inappropriately engaging with the complainant’s tenant. As the complainant’s loan accounts are in arrears this compensation amount should be applied to the complainant’s outstanding balance owed to the bank;
(ii)the bank will provide the complainant with a three-month moratorium from the date of acceptance to allow the complainant to sell one of his properties or finalise his Family Court proceedings;
(iii)at the end of the three-month period the complainant should update the bank on the status of the Family Court proceedings and provide an updated statement of financial position. If at this time he is unable to make repayments to the loans, or no properties have been sold so as to repay or reduce the loans, the bank is entitled to commence enforcement action to recover the debt.
If the complainant fails to accept this determination within 30 days, then the bank does not have to take the above action.
I note that the solicitor for the husband selectively described the outcome of this complaint made by the husband as the husband succeeding in obtaining compensation from the bank. The documents tendered however also described a pattern of complaint by the husband, almost entirely unsubstantiated and a foreshadowing of enforcement action to be taken by the bank. The determination overview recorded that the husband had failed to make repayments on any of his loans since April 2018 and that the loans were in arrears. The overview dated 16 November 2020 in respect of the same complaint noted that the bank had offered to hold enforcement action for a further three months.
An Order made pursuant to paragraph (2)(a) or (b) of section 102QB is a final Order.[9] The final hearing of extant property matters as between the parties is to be heard in February 2022. The Court has determined that this part of the application of the wife should be adjourned over to the final hearing. At that time, the wife will be in a position to specify more precisely the outcome of all proceedings as instituted by the husband in Australian courts or tribunals to support the making of a Final Order as sought by her. The husband will be on notice of the totality of those matters as raised by the wife and afforded opportunity to respond to them. The findings in these reasons for judgment will be relevant.
[9] The Act s 102QB(5).
COSTS
An application for costs falls to be determined within section 117 of the Act. Section 117(1) provides that each party to a proceedings under the Act should bear his or her own costs unless the Court is of the opinion that there are circumstances that justify making a Costs Order (section 117(2)). Section 117(2A) sets out matters to which the Court should have regard to in determining whether there are circumstances which justify an Order for costs, and if so, what, if any, Order should be made. Amongst the matters listed in section 117(2A), section 117(2A)(g), enables the Court to take into account such other matters that are relevant.
The wife’s financial circumstances are very difficult. She is a Centrelink recipient. She has no surplus funds. She has a considerable legal cost sum outstanding. The husband’s financial circumstances are largely unknown, there being a failure to disclose same. Neither party is in receipt of legal aid, albeit the husband was funded for a time. The husband’s conduct and failure to comply with previous Orders of the Court necessitated this interim hearing. The husband was wholly unsuccessful in his Application in a Case. The husband’s obstructive behaviours are the direct cause of significant legal costs being incurred by the wife.
The Court shall order that the husband pay the wife’s costs in respect of this matter. The sum as claimed by the wife the Court determines, in the exercise of its discretion, to be reasonable in all the circumstances and to sufficiently be referrable to any scale of costs schedule.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 16 September 2021