SHEFFIELD & GISSING
[2018] FamCA 179
•26 March 2018
FAMILY COURT OF AUSTRALIA
| SHEFFIELD & GISSING | [2018] FamCA 179 |
| FAMILY LAW – ENFORCEMENT – chattels – where orders are made by consent of the parties in December 2017 and various paragraphs are conditional, the court has little discretion to alter paragraphs if substantive rights are involved. Where the conditions are found not to have been fulfilled in respect of one paragraph relating to the respondent’s items and accordingly, he had no responsibility in respect of assisting the applicant in respect of another item or items. Where the ownership of various items is considered having regard to the nature of the orders made in 2015 after a contested hearing. Where both application and response were dismissed and there were no orders for costs. | |
| Family Law Act 1975 (Cth) | |
| Gissing & Sheffield (No 3) [2015] FamCA 1019 |
| APPLICANT: | Ms Sheffield |
| RESPONDENT: | Mr Gissing |
| FILE NUMBER: | MLC | 2548 | of | 2012 |
| DATE DELIVERED: | 26 March 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 14 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Burt |
| SOLICITOR FOR THE APPLICANT: | Griffins Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Robinson |
| SOLICITOR FOR THE RESPONDENT: | Mathews Family Law |
Orders
That the application in a case filed 20 February 2018 is dismissed.
The response filed 8 March 2018 to the application in a case is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheffield & Gissing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2548 of 2012
| Ms Sheffield |
Applicant
And
| Mr Gissing |
Respondent
REASONS FOR JUDGMENT
The orders pronounced with the delivery of these reasons indicate the dilemma for the Court and also the parties when a property dispute reaches the point that legislative powers have largely been exhausted and remedies are few.
This is a long-running dispute about chattels. The substantive dispute about real and personal property began as long ago as six years after the breakdown of a de facto relationship between Mr Gissing and Ms Sheffield. That dispute culminated in final orders being made on 20 November 2015. Compliance with orders is now the dispute.
For the purposes of these reasons, the application was filed by Ms Sheffield (to whom I shall refer as the applicant) on 20 February 2018. Mr Gissing (the respondent) filed a response to the applicant’s application on 8 March 2018.
The litigation itself has been complicated by the fact that the applicant’s interests are conducted by a case guardian. The reasons behind that are not relevant to this determination but there is no love lost between the respondent and the case guardian.
The present dilemma revolves around two specific chattels or groups of chattels.
The first chattel is what was described as a motor car but in reality, it is the various parts of that car stored in three different locations around Melbourne. It would therefore be difficult to describe the parts as one car. To add to the intrigue, some of these parts have been held by garages for a long time and work was done (or being done) by various trades. It is said, although the evidence about this was vague, some of the relevant businesses are owed money but time has dimmed memories and invoices are not readily available. How that pans out is not something this Court can do much about and it may be that other forces of the law have to take over.
The second group is best defined as a number of chattels. All of these chattels were part of businesses run by both the applicant and the respondent during their relationship. In the substantive trial in 2015, it was said that apart from what was in the retail shop where the applicant was also living, there were storage sheds full of these items.
Of the second group, in the present application, the Court was told that the respondent had made a pragmatic decision to bring all of the dispute to an end in December 2017 by identifying specific items that he wanted (and which were said to be his under the 2015 orders anyway) and to thereby abandon many other things that he saw as valuable.
With that background, one other matter needs to be recorded about the car.
It is, in my view, important in property proceedings to focus on the legislative intent which (as reflected in s 90SM of the Family Law Act 1975 (Cth) (“the Act”)) is to alter parties’ interests whether they be legal or equitable. It is not necessary for courts to have “catch all” provisions in orders that cover every eventuality but rather to decide the interests of those matters raised by the parties about which relief is sought. Thus, whilst parties may certainly provide the Court with “catch all” clauses in orders to ensure each knows what is theirs, in a contested trial, that is not the function of the Court. Indeed, these “catch all” clauses are often seen as the parties reflecting to each other what they are otherwise keeping. Unless those clauses are identified as an alteration of interests in property, and so worded, or, they are made clear as a declaration under the Act as to the title or rights of a particular party, the clauses have little, if any, efficacy let alone validity. In addition, it is always open to parties to make some agreement as between themselves covering property that each maintains thereafter belongs exclusively to them.
Relevantly here, if a party is the legal owner of property and no application is made by another party to alter that legal interest either by a claim for relief based upon an equitable interest or by a statutory entitlement, there is no reason for the court to do anything about it. The dismissal of the proceedings after the making of orders reflects the fact that all disputes between the parties have come to an end.
If there is property which the court has not addressed, and a party can show it was not affected as I have just described, it is conceivable, and arguable, that the court’s jurisdiction is not exhausted.
I consider on what occurred here, the jurisdiction to alter property was exhausted because (at least in respect of the car parts) there was no assertion of a claim by the respondent. Indeed, I said in the reasons for judgment in Gissing & Sheffield (No 3) [2015] FamCA 1019:
[94]At the end of the relationship, the Chevrolet was still in storage. The case guardian knew about the Chevrolet and was keen to pursue its whereabouts. When the case guardian asked for details, the applicant drove him to the storage facility. The applicant declined to assist in removing a cover on the Chevrolet and that led to telephone calls to police and lawyers. The case guardian seems to have concluded that the applicant was deliberately hiding the vehicle. He called the applicant a thief. I do not understand why the assertion was made but it brought the relatively cooperative relationship between the two men to an end.
[95]It is hard to understand how there could be any foundation for an assertion that the applicant was hiding the Chevrolet. Documents about its existence were available and the case guardian knew about it. There were numerous items in a variety of storage facilities around Melbourne. Nothing I heard from the applicant indicated that he was trying to gain some advantage by hiding the Chevrolet.
[96]But most importantly, in his amended initiating application filed on
27 March 2015, the applicant proposed that an order be made that the respondent retain the Chevrolet. Accordingly, I do not understand the obsession of the case guardian but it caused significant time loss in the hearing.
It is not now suggested by the respondent that the car is his property. The present dispute is about him holding on to it (or its parts) or that he does not have to co-operate with handing it over because of what happened in December 2017.
Inextricably linked to the car is the second group of chattels. Before turning to December 2017, the following orders about chattels were made in 2015:
[4]The applicant forthwith provide to the respondent through her solicitors, the jewellery contained in the safe belonging to the respondent and to the extent that he has possession or control of the following items, the applicant make available to the case guardian for collection forthwith, the respondent’s handbags, sunglasses, personal clothing and any specific items of furniture that were in her possession prior to the commencement of the relationship.
[5]The case guardian forthwith make available to the applicant all of his designated personal property:
(a) kept in Adelaide; and
(b) kept in the K Street shop,
and for that purpose, the applicant nominate the days upon which he will arrange for a person or carrier to collect the items at his expense before 19 February 2016. If the items are not collected by the agent of the applicant on the designated days, the items shall fall into the sale provisions of paragraph 6.
[6] The stock at:
(a) “GG Business” at K Street, Suburb L;
(b) the various storage locations;
(c) the property quarantined in Adelaide;
(d)the property that had been agreed to be sold in Adelaide but not recorded as sold by I Pty Ltd,
be all sold by J Pty Ltd at a time, and on conditions, to be determined by the Melbourne Manager of J Pty Ltd including any stock in Adelaide and the net proceeds be divided equally between the parties.
There was no appeal against the orders but it is apparent that the parties struggled not so much to implement them but rather to identify and collect all of the relevant items. That led to 2017.
On 6 December 2017, the parties appeared before Johns J on what was apparently an enforcement application. Most importantly, they compromised and came up with a set of orders that her Honour was content to make as being within power. Relevant to the matter now before me, the focus here is on the exact words that the parties used. The relevant orders read:
1.The respondent deliver to the applicant in undamaged condition the following items:
(a)…vanity unit;
(b)Large shaving mirror with stand;
(c)2 …floor vases;
(d)2 …vanity units;
(e)…chair with foot rest;
(f)…Wooden pedestal;
(g)[glassware];
(h)2 …chairs;
(i)Mannequin bust with base;
(j)3 …mannequins;
(k)1 …stainless steel wristwatch with box, links and papers;
(l)2 …[bathroom scales] (1 brown and 1 white); and
(m)…Watch with box.
2.The items shall be delivered to the applicant at the respondent's expense by 15th January, 2018.
3.In the event the respondent has complied with Orders 1, 2 and 6 hereof, the applicant shall forthwith make available for collection by the respondent the dismantled … motor vehicle valued by [Mr UT], to be collected by 29 January, 2018, from the various locations it is being stored at (as identified at page 11 of [Mr UT's] valuation dated 17 March 2015).
4.The cost of collecting the [car] shall be paid by the respondent.
5.In the event the respondent does not collect all pieces of the dismantled [car] from the various locations by 29 January 2018, the applicant shall be at liberty dispose of, or retain, such pieces as he sees it.
6.The applicant shall retain all monies held on trust for the parties by [J Pty Ltd] and [AB Lawyers], and the respondent shall sign all documents to facilitate same by 13 December, 2017.
7.Otherwise each party shall be entitled to retain all assets and chattels in their possession or control.
8.Both extant applications for enforcement be otherwise dismissed.
Notwithstanding the approaches taken by each party, I find that the only way the power of the Court can be used here is to look at the words used. Thus, in respect of paragraph [1] of the orders, my focus is on:
deliver to the applicant in undamaged condition.
The order does not refer to these chattels as being old and dirty or cracked and broken and therefore to be delivered in no worse condition. The only interpretation open is that they were to be delivered in an undamaged condition. The submission of the respondent now is that he did not receive them in that condition.
There is a dispute between the parties about the extent of the damage and indeed whether (for example the glassware) all were delivered but it was conceded by counsel for the applicant that when the order was made, the number of these items was not known. That is not something I can do anything about. It is clear that the respondent did not get all of the items referred to in the order in an undamaged condition.
The respondent produced both a list of the relevant items upon which the carrier had endorsed details as to condition which, it is said, is consistent with the argument of the respondent. He then produced a series of photographs of the items where it can obviously be seen that they are not “undamaged”. Looking at the photos, it defies logic to presume that things were damaged in transit. The applicant must have known of the respondent’s complaints and the carrier was not called to give evidence.
The Case Guardian said that he spent a significant period of time ensuring that all items were ready to be sent to the respondent. He took photographs of them. He said that there were 39 pieces of glassware. In relation to the watches, he could not locate the boxes but paragraph [1] required the boxes. He said that of the bathroom scales, he found a white one but not a brown one. Again reference must be made to paragraph [1]. He said that he made sure a missing drawer “pull” was packed. Immediately the items sent were received, complaints followed. There was then negotiation but that did not address the issue of the problem created by paragraph [1].
The Case Guardian noted that the carrier was chosen by the respondent. I am not convinced that assists the applicant. His photographs corroborate the evidence of the respondent. They do no more than “confirm what condition the item was in” as distinct from it being undamaged.
The Case Guardian acknowledged the mirror on a vanity was broken and one of the mannequins had a broken wrist and there were broken fingers. Thus it can be seen that paragraph [1] was not complied with regardless of the efforts to which the case guardian went. Most importantly, counsel for the respondent observed that the December 2017 orders were carefully drawn. There is no application to set them aside..
None of the evidence was the subject of cross-examination and the Court was invited to do the best it could on it. It was untested evidence and submissions were made on it. I find that the only plausible explanation for the dilemma lies in the relevant tendered photographs combined with the admission of the Case Guardian about missing items. All of this therefore shows the items were damaged.
That then leads to whether the car must be handed to the applicant. Regardless of the ownership issue which still seems clouded because of the positions taken by the parties, a reading of paragraph[3] of the December orders makes plain that the respondent does not have to do anything until compliance has occurred in respect of paragraph [1].
To be clear, counsel for the respondent did not resile from his client’s position at trial that the applicant could have the car. Counsel for the applicant acknowledged that to the extent that some of the garages were owed money or had a lien over the relevant goods, this court was not the forum for those matters to be determined. For example, if the respondent had contracted with the garage to undertake work, that is a matter for the forces of the law to sort out including issues associated with the relevant statutes of limitation.
It was initially submitted by counsel for the applicant that the Court could perhaps vary paragraph [3] by deleting the words of a conditional nature. To do so would mean that the respondent had to take action against the applicant to get his items in paragraph [1]. In addition, such an approach would give rise to questions of what power was being exercised and whether it was an alteration of substantive rights as distinct from the means by which the order could be enforced. Counsel for the applicant sensibly did not pursue the issue.
To reflect the finality of the parties’ positions in December 2017, counsel for the respondent pointed to paragraph [7] replicated above. That however could only refer to property other than that dealt with by the order because the sentence begins with the word “Otherwise”. It does not assist me in this dispute.
Counsel for the respondent also pointed to paragraph [5] of the orders and said that as the items had not been collected by 29 January 2018, he could dispose of them. Beginning with the point that he is not the owner of the car based upon the concession in the trial that the applicant could have the car, it is hard to see how he could be in a position to dispose of the items. In addition, paragraph [5] has to be read subject to paragraphs [1] and [3]. [5] becomes irrelevant if [1] has not been fulfilled.
I am not critical of the drafting nor endeavouring to be difficult but this case shows the limitations of the powers of the Court. For example, counsel for the applicant submitted that the court could use the rules of court to enforce and obligation but the relevant rule definitions are not referring to items of property like this. The recovery of personal property is specifically provided for in the rules and that application was not made.
The only order sought by the respondent was that the applicant’s application be dismissed. I agree that is the appropriate order.
Both parties had sought costs and made submissions about how that should be handled. Section 117 of the Act provides that each party to proceedings under the Act should pay their own costs unless there are circumstances which justify a departure from that principle. In my view, the parties have both contributed to this dilemma and there are no justifying circumstances here that would enable me to find that one party was being any more difficult than the other. In the case of the applicant, I consider she had not given sufficient thought to the heavy onus on the Case Guardian to focus on the condition of the goods. In respect of the respondent, he got what he bargained for save for the condition of the items and in respect of the car, he could have easily stepped back, confirmed he had no interest in the items and left the Case Guardian to sort out how the applicant got her bits and pieces.
There should be orders accordingly.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 March 2018.
Associate:
Date: 26 March 2018
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