ROLANDS & DIBBS

[2015] FCCA 3544

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROLANDS & DIBBS [2015] FCCA 3544

Catchwords:
FAMILY LAW – Property – interim orders – Anton Piller order – whether applicant seeking an Anton Piller order – search order – insufficient evidence.

COSTS – Order for costs – where Respondent failed to attend court – personal costs order.

PRACTICE AND PROCEDURE – Response defective – response struck out.

Legislation:

Family Law Act 1975 (Cth), ss.79, 117

Federal Court Rules 2011, Division 7.5
Federal Circuit Court Rules 2001, r.4.04, Sch.1 Part 1

Cases cited:
Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544

Applicant: MR ROLANDS

Respondent: MS DIBBS

File Number: SYC 3868 of 2015

Judgment of: Judge Scarlett

Hearing date: 15 December 2015

Date of Last Submission: 15 December 2015

Delivered at: Sydney

Delivered on: 17 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Bateman

Solicitors for the Applicant: Thogersens Legal Pty Ltd

Counsel for the Respondent: Ms Obradovic

Solicitors for the Respondent: M Law

ORDERS

UNTIL FURTHER ORDER

1. The Applicant and the Respondent are to do all such things and sign all such documents as may be necessary to withdraw from the controlled monies account number (omitted) at the (omitted) Bank in the names of Lauren Thogersen and Michael Douehi in trust for Mr Rolands and Ms Dibbs the sum of $11,000.00 or such further sum not to exceed $12,000.00 as may be necessary to pay out the chattel mortgage held by (omitted) Finance associated with Ford Focus motor car registered number (omitted) and forthwith pay such sum to (omitted) Finance in satisfaction of the said chattel mortgage in the name of the Applicant.   

2. The Applicant and the Respondent are to do all acts and things necessary to transfer to the Respondent the Ford Focus motor car (omitted) including but not limited to transferring the registration of the said motor car from the name of the Applicant to the name of the Respondent and the Respondent is to indemnify the Applicant in respect of all liability for the said motor car.

3. The sum referred to in Order (1) above and the Ford Focus motor car referred to in Orders (1) and (2) are to be a partial property distribution to the Respondent in accordance with section 79 of the Family Law Act 1975.

4. The Application in a Case filed in Court on 15 December 2015 is dismissed.

5. Within 28 days from the date of this Order the Respondent is to pay the Applicant’s costs of the day on 16 November 2015 in the sum of $417.00.

6. The costs referred to in the immediately preceding Order are to be paid by the Respondent’s solicitor personally.

7. The Response filed on 2 December 2015 is struck out as defective.

8. By 29 January 2016 the Respondent is to file and serve an Amended Response complying with Rule 4.04 precisely and briefly stating any property orders sought.

9. The parties are to attend a Conciliation Conference with a Registrar at 2:15 pm on 23 February 2016.

10. The Application is adjourned to 9:30 am on Thursday 10 March 2016 for call-over before Judge Sexton.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3868 of 2015

MR ROLANDS

Applicant

And

MS DIBBS

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application for interim property orders. There are eight draft orders in the Application, which was filed in Court on 15^th December 2015. The Applicant’s Counsel has also tendered a Minute of Order containing an alternative order sought.

2. The Respondent has filed a Response which is clearly defective as it does not comply with the requirements of Rule 4.04 in that it does not precisely and briefly state the orders sought.

3. Counsel for the Respondent has tendered a Short Minute of Order setting out the interim Orders sought by the Respondent.

Background

1. The proceedings have not progressed promptly or efficiently. The Applicant filed an Initiating Application and supporting documents on 17^th June 2015. The Application was returnable before Judge Sexton on 23^rd October 2015.

2. However, on 25^th June 2015 the Applicant filed an Application in a Case seeking urgent ex parte orders. That application was returnable before me on 6^th July 2015.

3. On 6^th July 2015 Orders were made by consent enjoining the Respondent from selling, transferring or otherwise dealing with real property at (omitted) other than by listing the property for sale by public auction with a reserve price of $1,350,000.00. The balance of the Application in a Case was withdrawn.

4. The substantive Application was adjourned to 17^th August 2015 for further mention. Further interim orders were entered into by consent on 24^th August 2015 providing that the Respondent was to serve on the Applicant a number of financial documents by way of disclosure and was to file and serve a Response, a Financial Statement and an affidavit in support on or before 14^th September 2015.

5. An order was also made that the parties were to attend a private mediation on or before 30^th October 2015 and the costs of the private mediator were to be paid by the parties equally.

6. The parties attended a private mediation on 22^nd September 2015 but the mediation did not resolve the matters in dispute between the parties.

7. On 16^th November 2015 the matter was listed for mention before the Court. The Applicant was represented by Ms Bateman of Counsel but there was no appearance by or on behalf of the Respondent. Orders were made that:

   a)The Respondent was to serve on the solicitor for the Applicant the documents referred to in Order 1 made by consent on 24^th August 2015 by no later than 5:00pm on 30^th November 2015;

   b)The Respondent was to file and serve a Response, an affidavit and a Financial Statement no later than 30^th November 2015.

   c)The Application was adjourned to 15^th December 2015 for interim hearing;

   d)The Respondent was advised that if she did not attend Court on the next occasion orders may be made in her absence; and

   e)The Applicant’s costs of the day were reserved.

8. The Respondent filed her Response, affidavit and Financial Statement on 2^nd December 2015.

9. Both parties and their solicitors and counsel attended Court on 15^th December 2015.     

Orders sought

1. The Applicant sought these Orders in his Application in a Case filed in Court on 15^th December:

   2. That the nominated representative of the applicant be permitted entry to the dwelling and any other structure (including but not limited to a garage or shed) at (omitted) in the State of New South Wales (“the dwelling”) for a time not exceeding half an hour between the hours of 9.00 am and 5.00 pm on or before Wednesday 16 December 2015 for the purpose of searching the dwelling for the Applicant’s Upright Piano.

   3. During the search referred to in Order 2 the Applicant’s nominated representative must not disturb or remove any items in the dwelling.

   4. The Applicant’s nominated representative must not inspect the dwelling without the Respondent or the Respondent’s nominated representative present.

   5. The Respondent is to permit the Applicant’s nominated representative to enter the dwelling to carry out the search referred to in Order 2.

   6. The Respondent is to permit the Applicant’s nominated representative to photograph the Upright Piano if it is found at the dwelling.

   7. If the Upright Piano is found at the dwelling, the Respondent is enjoined from moving, destroying, tampering with, disturbing or using the Upright Piano until further Order of the Court.

2. By a Minute of Order handed up in Court on the day of the hearing the Applicant seeks this alternative order:

   7. That within 7 days, the Wife shall deposit $30,000.00 into the (omitted) Bank interest bearing account numbered (omitted) in the name of Lauren Thogersen & Michael Douehi ITF Mr Rolands & Ms Dibbs.

3. The Respondent’s Counsel, Ms Obradovic, handed up a document entitled “Wife’s Short Minute of Order 15/12/2015.” In that Minute, the Respondent seeks the following orders:

   (1)Pursuant to s 79 Family Law Act and by way of partial property distribution an amount of $50,000 be paid to each of the husband and the wife from the controlled monies account currently held in the parties’ names with (omitted) Bank bearing account number: (not published).

   (2)That the parties do all acts and things necessary to transfer to the wife the Ford Focus motor vehicle, registration number (omitted).

   (3)That the wife do all acts and things to pay out the chattel mortgage associated with Ford Focus (Reg. No. (omitted)) held by (omitted) Finance within 28 days of the date of these orders, noting that as of the date of the orders the debt is approximately $11,000.

Evidence and Submissions

1. The applicant relies on the following affidavits:

   a)His affidavit of 11^th December 2015; and

   b)The affidavit of his solicitor, Lauren Geniene Thogersen of 11^th December 2015.

2. The Respondent relies on her affidavit of 14^th December 2015.

3. In his affidavit, the Applicant deposed that the Respondent sold, with his consent, the property at Property P. The net proceeds are being held on trust for the parties in an interest bearing account in the names of his solicitor Lauren Thogersen and the Respondent’s solicitor Michael Doueihi. Annexed to his affidavit is a copy of the Investment Cash Account statement showing a balance of $832,045.81 as at 30^th November 2015.

4. The Applicant stated that the Ford Focus motor car registration number (omitted) was never intended to be a gift to the respondent. The car was left at the property at (omitted) when he moved out. He asked the Respondent to return the car so that he could sell it but she refused to do so, saying it was her car. He replied:

   “No, it’s my car. I paid for it and I am still paying for it and I want it back”.[1]

   [1] Affidavit of  Mr Rolands 11.12.2105 at paragraph [5]

5. The Applicant deposed that he continued to make repayments on the Chattel Mortgage Agreement with (omitted) leasing Pty Ltd with respect to the car. The registration renewal for the car is due on 19^th December 2015 and he sought to take possession of the car before the registration fell due so that he could dispose of it and discharge the Chattel Mortgage Agreement with (omitted).

6. The Applicant also deposed that he had left a number of items of furniture and belongings in the (omitted) property including a (omitted) Upright Piano which had been given to him by his grandmother. A piano tuner told him that the piano could be worth $50,000.00 but he had not had the piano valued.

7. He denied that the piano was held in a storage unit and asserted that the piano was still in the home where the Respondent lived.

8. Ms Thogersen deposed in her affidavit that after Ms Bateman of Counsel appeared at Court on 24^th August 2015 and tendered a copy of the minute of proposed orders. That same day she emailed the Respondent’s solicitor and advised him that the matter was to be further mentioned at 10:00 am on 16^th November 2015. The various documents referred to in the Orders of 24^th August 2015 were not received so she wrote to the Respondent’s solicitor on 7^th and 16^th September requesting urgent service of the documents. No documents were received.

9. The mediation took place on 22^nd September 2015 but the matter did not resolve.

10. On 16^th November 2015 she attended Court with Ms Bateman of Counsel to mention the matter. There was no appearance by or on behalf of the Respondent when the matter was called about 11:00 am. On her return to her office she forwarded a facsimile message to the Respondent’s solicitor, a copy of which forms Annexure “E” to her affidavit.

11. On 30^th November 2015 she received various documents from the Respondent’s solicitor by email. On 3^rd December 2015 she received service by email of copies of the Respondent’s affidavit, Response and Financial Statement.

12. On 4^th December 2015 Ms Thogersen issued a tax invoice to the Applicant for her fees for attending Court on 16^th November 2015. A copy of that invoice, in the sum of $491.70, forms Annexure “I” to her affidavit.

13. In her affidavit of 14^th December 2015, written in a very informal style and which the Respondent’s lawyers conceded was partly drafted by their client, the Respondent denies that the piano is in her possession and claims to have no knowledge of its history.

14. As to the Ford Focus motor car, the Respondent deposes:

    6. Interim order 3 relates to the Ford Focus motor vehicle which remains in my possession until the court orders otherwise. This vehicle was gifted to me by the husband. I was the only driver of this vehicle and treated as such by fuelling, paying for services and maintenance. It was referred to as my car. The husband also referred to it as my car to friends and family.

    7. That the husband is not entitled to exclusive possession of the Ford Focus motor vehicle until the court orders otherwise as I believe this vehicle belongs to me.[2]

    [2] Affidavit of Ms Dibbs 14.12.2015 at paragraphs [6]-[7]

15. For the Applicant, Ms Bateman submitted that her client was concerned about the Ford Focus because it was registered in his name and he was paying the chattel mortgage on it. He wished to dispose of the car, as it was a depreciating asset. The value of the car was estimated at $20,000.00.

16. The Applicant also sought  orders relating to the piano.

17. Ms Obradovic submitted that the piano was not in the Respondent’s possession. It had not been valued. She submitted that the Applicant was essentially seeking an Anton Piller order in respect of the piano (which the Applicant’s Counsel denied) but there was insufficient evidence to support such an order.

18. Further, the amount owing on the Chattel Mortgage in respect of the Ford Focus was approximately $11,000.00.

19. Ms Obradovic conceded that she could not argue against a costs order on a party and party basis in respect of the failure to appear by or on behalf of the Respondent on 16^th November. She went on to say that the Respondent’s solicitor agreed to pay the costs personally.

Conclusions

1. Although the Federal Circuit Rules 2001 make no specific provisions for search orders, also known as Anton Piller orders, after Anton Piller KG v Manufacturing Processes Ltd[3], Division 7.5 of the Federal Court Rules 2011 provide for such orders to be made.

   [3] [1976] Ch 55

2. Practice Note CM 11 of the Federal Court of Australia says of search orders:

   Ordinarily, a search order is made without notice and compels the respondent to permit persons specified in the order (‘search party’) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made without notice and prior to judgment.[4]

   [4] Federal Court of Australia, Practice Note CM 11, at paragraph [4]

3. In this case, the orders sought by the Applicant are similar, but not identical, to a search order. I am of the view, however, that the evidence offered, which is largely hearsay, is insufficient to justify any form of search order. The Application will be dismissed.

4. The Applicant seeks an order that the Respondent should pay the sum of $30,000.00 into the interest bearing account held by the parties’ solicitors in the names of both parties. I am not persuaded that there is any purpose to be served by paying more money into that account. The parties would be better off agreeing to pay all or part of the amount currently held to themselves by way of a partial property settlement. That, in effect, is what the Respondent seeks by way of a payment of $50,000.00 to each party out of the balance in the account. However, there does not seem to be any particular basis for the amount of $50,000.00 to each party and the sum appears to be an arbitrary choice.

5. The Ford Focus motor car is a bone of contention between the parties. It is in the Respondent’s possession and she wishes to retain it. She claims that the car is hers and she has paid the running costs. It matters little that she has another car, a Ford Falcon GT, at her disposal.

6. The Applicant wants to secure possession of the car so that he can sell it. He is paying the registration on the car, as it is registered in his name. He is also paying the payments on the chattel mortgage. The car is a financial drain on him and he wants to be free from this liability.

7. In my view, if the Respondent wants the Ford Focus, she should have it, but she must be prepared to pay for it. Even if the car is in fact worth $20,000.00, that is only a small percentage of the total asset pool. It is hardly just and equitable that the Respondent should have the use of the car which is registered in the Applicant’s name and for which he is paying the amounts due under the chattel mortgage, not to mention the cost of the registration.

8. The car should be transferred to the Respondent. She should be responsible for its registration. The chattel mortgage should be paid out so that the Applicant is no longer liable for a debt attached to a car which he does not use.

9. There are funds available in the interest bearing deposit in trust for the parties, and an amount sufficient to pay out the liability should be withdrawn from that account. It will be regarded as a partial property distribution to the Respondent.

10. The Respondent’s solicitor has conceded that he should be personally liable for the costs thrown away by the failure to appear on 16^th November 2015 on a party and party basis. The Applicant seeks the sum of $491.70, as set out in his solicitors’ tax invoice, but this is an amount of costs calculated on a solicitor/client basis, not on a party and party basis.

11. I am certainly of the view that the Applicant is entitled to an order for costs of 16^th November 2015, when the Respondent failed to appear. This is clearly an instance where the Respondent’s conduct of the case can be found wanting (Family Law Act 1975, s.117(2A)).

12. It is the usual case that where costs are awarded against a party they are awarded on a party and party basis. Costs would normally be awarded in accordance with the Court scale, which in this case is contained in Part 1 of Schedule 1 to the Rules.

13. Costs will only be awarded on an indemnity basis where there are unusual or exceptional circumstances (Colgate Palmolive Co v Cussons Pty Ltd[5]; In the Marriage of Kohan[6]; and Prantage & Prantage[7]). I am not satisfied that there are unusual or exceptional circumstances here. The Respondent’s solicitor is to be commended for his frank concession that he should bear the costs personally.

    [5] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248

    [6] (1992) 16 Fam LR 245; (1993) FLC 92-340

    [7] [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544

14. The costs provided by Part 1 of Schedule 1 amount to $417.00, and I propose to make an order for costs in that amount, payable by the Respondent’s solicitor personally. I will allow 28 days to pay.

15. The Response filed by the Respondent on 2^nd December 2015 is defective. It seeks:

    1. An order is made for adjustment of the property interests of the parties pursuant to section 79 of the Family Law Act 1975

16. In my view, that proposed order is so vague as to be meaningless. Rule 4.04 requires, at sub-rule (2):

    A response must precisely and briefly state any orders sought and (if the proceeding is a general federal proceeding) the basis on which the orders are sought.

17. The Response will be struck out and the Respondent must file and serve an Amended Response complying with Rule 4.04 by 29^th January 2016.

The Future Progress of the Matter

1. Regrettably, the parties were not able to resolve the matters between them at the private mediation held on 22^nd September. They will need to attend a Conciliation conference before a Registrar. An appointment is available at 2:15 pm on 23^rd February 2016.

2. The substantive Application was originally scheduled to go into the docket of her Honour Judge Sexton. Now that the interlocutory applications have been finalised the matter will go back into her Honour’s docket if the parties are unable to reach agreement at the Conciliation Conference.

3. The Application will be listed for call-over before Judge Sexton at 9:30 am on Thursday 10^th March 2016. However, if the matter resolves at the Conciliation Conference the Registrar will make the necessary Consent Orders and the call-over date will be vacated.                    

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 15 January 2016