Raffles and Raffles

[2008] FamCA 1146

FAMILY COURT OF AUSTRALIA

RAFFLES & RAFFLES [2008] FamCA 1146

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT: Ms Raffles

RESPONDENT: Mr Raffles

FILE NUMBER: MLC 1364 of 2007

DATE DELIVERED: 23 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Croxford

SOLICITOR FOR THE APPLICANT: Voitin Walker Davis Lawyers

Orders

1. That the hearing in the Judicial Duty List of 13 March 2009 is vacated.

2. All matters are adjourned for mention before me at 9.00am on 3 April 2009.

3. That a registrar of this Court forthwith do all acts and things and sign all necessary documents as may be required in the name of the husband to sell the real property at Y being the land described in Certificate of Title Volume … Folio ….

4. That a copy of this order be made available to the Registrar forthwith to enable urgent execution of the contract of sale necessary to commence the sale.

5. That the husband pay the wife’s costs fixed in the sum of $1000 as a result of this application.

6. That my reasons for judgment this day be transcribed and be made available to the parties.

7. That the wife arrange service of a copy of these orders and the reasons for judgment this day upon the husband by post at PO Box ….

IT IS NOTED that publication of this judgment under the pseudonym Raffles & Raffles is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1364 of 2007

MS RAFFLES

Applicant

And

MR RAFFLES

Respondent

REASONS FOR JUDGMENT

1. This is an application that was listed urgently today, the applicant having satisfied the registrar of the importance of the matter being dealt with expeditiously.  Mr Croxford appears on behalf of the wife and the husband was called at 10.15 am and has not appeared.

2. I have before me an affidavit by a Ms M who says that she sent to the husband by email a covering letter, together with a copy of the amended application filed on 22 December 2008 and two affidavits.  The first affidavit was sworn by Mr Croxford and the second by the wife.  The second annexure to the affidavit is the computer printout from Ms M’s computer, indicating that the document had got through to the email address of the husband.  As I said, there has been no appearance by or on behalf of the husband this morning.  I am satisfied on what I have heard that this matter is of sufficient urgency to warrant proceeding in his absence.

3. The applicant relies upon an application filed on 22 December 2008 which is an amended application in a case and the only order, apart from costs sought this day, is that the registrar of the court be empowered to do all acts and things and sign all necessary documents as may be required in place of the husband to sell the property jointly in the names of the husband and wife at Y, in the state of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio ….

4. The case has what can only be described as a tragic history.  It was commenced in February 2007 and within months of it being commenced, the financial position took a radical turn for the worse or at least that would appear to be the case on the face of things.  What occurred is that a substantial portion of property evaporated with the husband putting a variety of entities into liquidation.  Ironically, the husband has opened another business and the wife has some concerns that it may have simply been a transfer of the old corpus to the new and that the husband continues to trade.

5. As a result of a variety of orders that were made during 2008, the next hearing date was to have been in the judicial duty list on 13 March 2009.  This case has had enough chances to get something sorted out in the duty list and it is time for some particular management.  I propose to vacate the hearing date of 13 March 2009 and specifically put it back before me for management.

6. The importance of today's hearing arises from an order made by Watt J on 16 June 2008 under which his Honour ordered the sale of a property at Y.  I am told that at that time, the market value was about $665,000.  An auction was organised for October, at which there was no bid.  The affidavit material shows that as a result of that, the property was placed on the private sale market and here we are, some two months later, and we have only had one offer.  The one offer is for $595,000 and it seems that the husband is reluctant to participate.

7. The difficulty is that the purchasers have offered the $595,000 subject to finance and unless they have a contract of sale signed quickly, it is obvious that the sale will not proceed and their offer to purchase the property will lapse, hence the urgency of the application today.

8. Just in case there is any concern on the part of the husband who has on my understanding had every opportunity to be heard today about that sum being less than the market value, the wife has provided in written form effectively an undertaking as to damages and I have marked that as an exhibit in the proceedings. This is clearly a case where I am being asked to preserve assets rather than to do anything else and it seems sensible in the circumstances that I exercise the jurisdiction under section 114 of the Family Law Act and make the order which in the long run can always be adjusted if there are other property considerations.  In those circumstances, I am prepared to make an order in or along the lines of the application.

9. Whilst I am prepared to make the order, the wife also seeks an order for costs. The application formally seeks costs on an indemnity basis. I do not think this is one of those cases where I could step aside of the normal rule, in the event that I was prepared to make an order for costs. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) says that each party should pay their own costs unless there are circumstances which justify the court departing from that rule.  Here, I have an order made in June for the sale of a property and the evidence is that some months later, the husband is not being proactive and hence putting the parties' equity at risk.  That, on any view of the facts, justifies the court departing from the rule that each party pays their own costs as the wife has had to come to court to get something done on an emergency basis.

10. Mr Croxford has put to me that the costs he seeks are $1000. If I make an order for costs, I am obliged to take into account the matters set out in s 117(2A) and in this case, although I do not have any more detail than what I have read and been told, it seems that the parties have limited resources and the parties may end up with virtually nothing. It seems to me that the costs, having regard to the fact that there has been an application, attendances and an appearance today, the sum of $1000 is extremely reasonable. I accordingly propose to exercise my discretion and make an order that the husband pay the sum of $1000 costs.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 December 2008