Sands, Julie Anne v Cardell-Rymer and Ors (Ruling)

[2010] VCC 110

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

APPLICATIONS

Case No. CI-08-02187

JULIE ANNE SANDS	Plaintiff
v
PETER MICHAEL CARDELL-RYMER	First Defendant
and
GEOFFREY CLIFFORD SANDS	Second Defendant
and
BARBARA ANNE SANDS	Third Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2009 and 21 January 2010
DATE OF RULING:	29 January 2010
CASE MAY BE CITED AS:	Sands, Julie Anne v Cardell-Rymer & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2010] VCC 0110

RULING

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Catchwords: PROPERTY LAW – Part IX of the Property Law Act 1958 – failure by the first defendant to comply with final orders – summons for enforcement of the orders – rectification of the non-compliance by the first defendant – application for costs of the summons by the plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Walters	Mark Walters
For the Defendant	In person
HIS HONOUR:

1          The plaintiff and the defendant resolved their domestic partnership dispute. They submitted Final Orders which were made by Her Honour Judge Hogan on 12 May 2009.

2          Paragraph 10 of those Orders is in these terms:

“That in the event of the First Defendant defaulting in the refinancing the Minor Street property within the time provided for under paragraph 4 of these Orders, then the said real property is to be sold altogether out of Court and the First Defendant is to retain the sale proceeds after payment of all selling expenses, mortgage and other encumbrances affecting the aforesaid real property.”

3          The plaintiff alleged that the first defendant failed to meet his obligations which brought paragraph 10 into operation, and which resulted in her filing a Summons on 26 October 2009 which was returnable before me on 12 November 2009 in my Directions List.

4          The Summons was supported by an affidavit sworn by the plaintiff on 19 October 2009. The first defendant responded by an affidavit sworn 6 November 2009.

5          In the meantime the first defendant rectified his non-compliance with the Orders, which left the determination of the application made by Mr Walters that the first defendant pay the plaintiff's costs of the Summons.

6          Mr Walters and the first defendant were content to have me read the affidavits and to rule on the application.

7          I intended to make that ruling by the next directions hearing on 21 January 2010, however, due to the pressing nature of trials and case conferences which were listed before me in late December 2009, I was unable to meet that obligation.

8          On 21 January 2010, Mr Walters and the first defendant appeared by video link from Bendigo at a directions hearing, at which time they both made short submissions. I undertook to make this ruling by 29 January 2010.

9          After reading the affidavits, it occurs to me that there is no doubt that the first defendant was in breach of the Orders. It left the plaintiff in a position to either ignore his non-compliance or to bring a proceeding to enforce her rights. The Summons applied for a sale of Minor Street for the purpose of the plaintiff obtaining the fruits of the settlement.

10        It occurs to me that the only realistic option available to the plaintiff was to issue a Summons to bring the matter to a head.

11        Both Mr Walters and first defendant indicated that neither required extensive reasons in dealing with the application for costs.

12        I have deposed to this matter in favour of the plaintiff. Final orders are made by parties to a proceeding after due consideration is given to their capacity to comply with those orders. If they are unable to, then default provisions will inevitably be pursued, as is the case here.

13        The fact that the first defendant did not take steps to seek my intervention to have the Orders varied allowed the matter to drift along.

14        It seems to me that this is an instance where there is no fault on the part of the plaintiff. She pursued her rights with undoubted anxiety, that it was the only measure she could take to obtain the fruits of the settlement.

15        I think the first defendant should pay the plaintiff's costs. The order I make is that the first defendant pay the plaintiff's costs to be taxed on an indemnity basis, referable to the Summons, being all the costs which have been reasonably incurred by the plaintiff.

16        Should there be any uncertainty about the Order I have made, I will grant the plaintiff and the first defendant liberty to apply, but strictly limited to the Costs Order.