Siebel and Siebel and Anor
[2019] FCCA 3367
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIEBEL & SIEBEL & ANOR | [2019] FCCA 3367 |
| Catchwords: FAMILY LAW – Property – application for an adjournment by the Applicant Husband – application refused – Applicant did not attend Court – application to proceed undefended – application granted – where the Second Respondent is the parties’ son – whether a property registered in the name of the Second Respondent is held on constructive, implied, or resulting trust for the Applicant and First Respondent – if so, whether the property forms part of the property pool – finding that the property is the property of the Second Respondent – property pool otherwise modest – Orders made consistent with the First Respondent’s proposal. |
| Legislation: Family Law Act 1975 (Cth), s.79 |
| Cases cited: Calverly v Green (1984) 155 CLR 242 F Firm & Ruane and Ors [2014] FamCAFC 189 Green v Walls (2019) FamCA 76 Piroshenko v Grojsman & Ors [2010] VSC 240 Vadisanis v Vadisanis (2014) 53 Fam LR 345 |
| Applicant: | MR SIEBEL |
| First Respondent: | MS SIEBEL |
| Second Respondent: | MR F SIEBEL |
| File Number: | MLC 13012 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 30 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoult |
| Solicitors for the Applicant: | Waters Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr Puckey |
| Solicitors for the First Respondent: | Berger Kordos Lawyers |
| Counsel for the Second Respondent: | Mr Nehmy |
| Solicitors for the Second Respondent | Aitken Partners |
ORDERS
The Wife retain her Motor Vehicle A, number plate ….
The Husband retain his Motor Vehicle B, number plate ….
The Husband vacate the real property known as C Street, Town D, Victoria within seven days.
The Husband do all things and sign all documents required to withdraw at his expense Caveat number … lodged against Title to the Property and in the event of his failure to do so within 14 days of the date of this order, the Registrar of Titles is directed pursuant to section 90(3) of the Transfer of Land Act 1958 to remove the Caveat.
The Authorised Persons be and are hereby authorised and directed with such assistance as they or any of them shall require, and if necessary by force, to do all such acts and things as shall be necessary to cause, enable, facilitate, enforce and ensure:
(a)the prompt and effective delivery up of vacant possession of the Property to the Second Respondent; and
(b)the prompt and effective implementation of the provisions of these orders.
The Husband within seven days do forthwith:
(a)vacate the Property; and
(b)relinquish possession of the chattels, fixtures and fittings situate at the Property.
The Husband, his servants and agents be restrained by injunction from:
(a)entering or remaining within 500 m of the Property (or any part thereof);
(b)selling, disposing of, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering or otherwise dealing or attempting to deal in any way whatsoever with the Property or the chattels, fixtures and fittings at the Property (or any part thereof);
(c)removing from the Property any and all chattels, fixtures and fittings thereon as at the date of these orders; and
(d)doing, causing, enabling, authorising or facilitating any act or thing which has or may have the effect of:
(i)demolishing, razing, dismantling, harming, breaking, defacing, polluting or damaging the Property or chattels, fixtures and fittings at the Property (or any part thereof) in any way whatsoever;
(ii)diminishing of the utility or marketability of the Property or the chattels, fixtures and fittings at the Property (or any part thereof);
(iii)diminishing the value of the Property (or any part thereof).
Unless otherwise specified, and save for the purposes of enforcement:-
(a)the Husband and Wife be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as the date of these Orders save for the chattels, fixtures and fittings at the Property which are to be deemed to be in the possession of the Wife and are to be retained by her for her sole use and benefit;
(b)the Husband and Wife be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(c)any insurance policies remain the sole property of the owner named therein.
All extant applications are otherwise dismissed and the matter removed from the list of pending cases.
NOTATION:
In these orders,
(a)“the Authorised Persons” means and includes:
(i)The second respondent Mr F Siebel, the Wife and their solicitors, servants and/or agents;
(ii)The Registrars of the Federal Circuit Court of Australia, and their servants and/or agents;
(iii)The Marshall of the Federal Circuit Court of Australia and his servants and/or agents;
(iv)All agents and officers of the Australian Federal Police;
(v)All agents and officers of the Victoria Police; and
(vi)All Sheriffs of all Courts in the State of Victoria and their servants and/or agents;
(b)the ‘Property’ means and includes all those parcels of land situate at and known as C Street, Town D situate at C Street, Town D, Victoria being the land more particularly described in Certificates of Title volume … and folio ….
IT IS NOTED that publication of this judgment under the pseudonym Siebel & Siebel & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 13012 of 2017
| MR SIEBEL |
Applicant
And
| MS SIEBEL |
First Respondent
And
| MR F SIEBEL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Husband (‘Applicant’) for a just and equitable division of property under section 79 of the Family Law Act 1975. The relief that he seeks is set out in his Amended Initiating Application filed with the Court on 21 December 2018 (‘Application’).
The central contention advanced by the Applicant is that a property situated at C Street, Town D in Victoria (the ‘Property’), that is presently registered in the name of the Second Respondent, should be transferred to the Applicant and the First Respondent and then be available for distribution between them as part of the asset pool of the marriage. Aside from the Property, the asset pool is modest.
For the reasons that follow, I decline to make orders transferring the Property to the Applicant and the First Respondent. I will make orders broadly consistent with orders sought by the First Respondent in relation to the division of property.
Background
The Applicant and the First Respondent were married on … 1972 and separated in November 2017.
The Applicant and the First Respondent have three children together. Those children are Mr F Siebel, Mr G and Mr E. Mr F Siebel is the Second Respondent in these proceedings.
The Applicant is 71 years of age. He operates a business. According to the Financial Statement he filed with the Court on 12 December 2017, the Applicant earns $800 per week. He currently resides at the Property.
The First Respondent is 70 years of age. She is unemployed. She currently lives between the homes of her sons.
Excluding the Property, the asset pool is modest. Each party has access to a motor vehicle. There are items of farm equipment, stock and household chattels. No valuations were provided for any of these items. The First Respondent’s estimate of the value of these items is approximately $245,000. An affidavit filed by the Applicant at the time he initiated these proceedings indicates that, excluding the Property and the mortgage over the Property, the net assets in the pool are worth approximately $20,000.
In 2002, Mr G purchased a property at Town H. The Applicant and the First Respondent lived in the Town H property and paid Mr G board.
In 2012, the Applicant received an inheritance of $279,136 from his mother’s estate. This represented 50% of the estate. The remaining 50% was to be divided between the parties’ children and grandchildren.
In 2013, Mr G decided to sell the property in Town H. He offered to loan the Second Respondent a sum of money from the sale proceeds of Town H to assist with the mortgage repayments over a property to be purchased. The Applicant agreed to gift the Second Respondent funds to purchase a property, which were to come from the inheritance.
In February 2014, the Second Respondent agreed to purchase the Property. The Applicant promised to the Second Respondent an amount of $241,000 towards the purchase of the Property. Whether that contribution (among others) by the Applicant is properly characterised as a gift, a loan, or gives rise to the creation of a constructive, implied, or resulting Trust in favour of the Applicant and the First Respondent, is the principal dispute between the parties in this proceeding.
In May 2014, settlement of the Property occurred. The Second Respondent was listed as the registered owner. The Applicant and the First Respondent commenced living at the Property and commenced paying board to the Second Respondent.
In July 2014, the settlement of the Town H property occurred and Mr G directed the Applicant to accept proceeds from the sale and deposited them against the Property. The Applicant subsequently deposited $328,071 into his bank account. He then subsequently deposited $260,000 into the mortgage account over the Property.
In November 2017, the Applicant and the First Respondent separated. The Applicant subsequently stopped paying board to the Second Respondent.
On 5 December 2017, the Applicant lodged a caveat against the Property asserting an ‘Implied, Resulting or Constructive Trust’. Proceedings were initiated in this Court shortly thereafter.
In April 2018, the Second Respondent redrew $250,000 from the mortgage account over the property and gave that money to Mr G as part repayment of the loan from him.
The Proceedings
This matter was originally docketed to, as her Honour then was, Judge Williams. On 10 December 2018, Williams J set the matter down for Final Hearing on 30 October 2019. Williams J also made trial directions. Those directions relevantly required the Applicant to file any further trial affidavit 21 days prior to trial, and for the Respondents to file any further affidavits 14 days prior to trial. The Orders also included that each party was only permitted to rely upon one affidavit per party and each witness during the trial. Further, no party was permitted to rely upon an affidavit not filed in accordance with the orders.
The Applicant did not file any further trial affidavit. He filed an Application in a Case on 16 October 2019 seeking an adjournment of the final hearing. The Application in a Case was listed to be heard at the Final Hearing. When the matter was called on, Counsel for the Applicant sought the adjournment of the trial. The Applicant was not present at Court but submitted through his Counsel a brief, one sentence medical certificate from a medical practitioner indicating he could not travel to the hearing. I considered the certificate and the adjournment application advanced by Counsel for the Applicant. For the reasons given during the course of the hearing, I refused the adjournment application.
The Respondents filed their trial affidavits in accordance with the orders of Williams J. An affidavit sought to be relied on by the Respondents was not accepted into evidence because it was filed outside of the time contemplated by the orders made by Williams J.
Both Counsel for the Respondents sought to proceed on an undefended basis. The matter proceeded accordingly.
At the outset of the hearing, Counsel for the First Respondent advised the Court that the First Respondent abandoned any claim for an adjustment of property interests in favour of his client as contemplated by the Amended Response filed on 16 October 2019. Counsel for the First Respondent submitted that the practical consequence of this was that, subject to a determination by the Court in relation to whether the Property formed part of the asset pool, each party would retain their vehicle and each party would retain the assets that they currently have in their possession. Counsel for the First Respondent further submitted that if the Court determined that the Property was not part of the asset pool, the Court should be satisfied that there was before it a just and equitable settlement of the property interests of the parties on the basis set out above. It was submitted that it was appropriate to arrive at that conclusion on the basis that it was a pragmatic approach to take to a situation in which the asset pool is modest, no valuations were placed before the Court, and the Respondents did not wish to incur further cost, expense and delay in pursuing proceedings for a property adjustment in circumstances where the Applicant has not engaged in the proceedings either by filing material on time, or attending the trial.
Having regard to the above, the issues before the Court are as follows. First, whether the Property forms part of the asset pool because there is an implied, constructive or resulting trust in favour of the Applicant and the First Respondent. Second, if the answer to question one is ‘yes’, what is an appropriate alteration of the property interests between the Applicant and the First Respondent. Third, if the answer to question one is ‘no’, whether the final property orders sought by the First Respondent are appropriate. It is to these matters that I now turn.
Is the Property part of the asset pool?
The Applicant’s case, as best can be ascertained from affidavits he has filed in the proceedings, is as follows. There was an arrangement between him and the Respondents that the Property would be purchased for him and the First Respondent, but be placed in the Second Respondent’s name. He deposes to his reasons for this arrangement, says that his bank manager overheard the conversation, and that it was ‘well-known’[1] that the Property in reality belonged to him and the First Respondent. The evidence he relies on in support of the claim includes a copy of the contract for the sale of the Property. That contract, relevantly, is signed by the Applicant.
[1] Paragraph 12 of the Affidavit of the Applicant sworn on 12 December 2017.
The Applicant deposes that he had $260,000 that was applied to the mortgage over the Property.
Finally, it appears from the evidence set out above that had the Applicant filed material or appeared at the hearing, he may have sought to contend that there was a constructive or resulting or implied trust in his and the First Respondent’s favour over the Property.
The Respondents contend that the Applicant gifted an amount of $241,000 to the Second Respondent. Their submission is that the Property therefore belongs to the Second Respondent and does not form part of the asset pool.
I have reviewed the evidence of the Respondents contained in their trial affidavits, as well as an affidavit of Mr G. That evidence, relevantly, is as follows:
a)The Property is registered solely in the name of the Second Respondent.
b)The Applicant contributed at least $241,000 to the purchase of the Property.
c)The circumstances relating to the above contribution are set out in the affidavits filed by the Respondents. Those affidavits disclose the following:
i)the children of the marriage have a history of assisting their parents;
ii)there was an intention by the Applicant and the First Respondent to gift money to the Second Respondent as a result of circumstances arising from the death of the Applicant’s mother and the distribution of Applicant mother’s estate;
iii)the Applicant had a discussion with the Second Respondent in which he offered to gift money to the Second Respondent to purchase a property;
iv)the Second Respondent authorised the Applicant to sign the contract of sale for the Property as a matter of convenience for him. It was simply an authority to sign the contract on the Second Respondent’s behalf, and nothing more;
v)the Second Respondent subsequently sought a mortgage to complete the purchase of the Property. The proposed lender required among other things a ‘Letter from father to state $240k will be uncontioanl (sic) gift’. [2]
vi)The Applicant subsequently prepared a handwritten document in in the presence of the Respondents in accordance with the request above in which he stated that he would give to the Second Respondent the $241,000 ‘unconditionally for his use not to be repaid’[3].
[2] Paragraph 19 of the Affidavit sworn by the Second Respondent on 15 October 2019.
[3] Paragraph 20 of the Affidavit sworn by the Second Respondent on 15 October 2019.
There are three matters to note about the conflicting evidence as between the Applicant and the Respondents. These are as follows. First, the account of the Respondents is consistent. The Applicant’s account is the one that is inconsistent with the other witnesses.
Second, the documentary evidence supports the account of the Respondents. True it is that the Applicant signed the contract of sale. This is evidence that he signed the contract, but it is not evidence of the circumstances of the loan or the ownership of the Property. The Property is registered in the Second Respondent’s name. Perhaps more significantly, however, the Respondents placed in evidence a copy of the handwritten document prepared by the Applicant in support of their claims, and also gave evidence about the request from the lender for confirmation that the $241,000 was given on an unconditional basis.
Third, the Applicant did not produce any third party evidence to support his claims. His affidavit material asserts the bank manager was aware of the circumstances relating to the loan and the Property. The bank manager was not, however, called to give evidence.
Finally, in order to accept the Applicant’s claims, I would have to reject the evidence of the First Respondent, the Second Respondent, Mr G (where relevant) and the documents to which I have been taken, and accept the Applicant’s assertions. I would be doing this in circumstances where the Applicant has not filed trial material, and was not available for cross examination. This stands in contrast to the Respondents, who filed their trial material and who were available to be cross examined.
In the above circumstances, I prefer and accept the evidence of the Respondents in relation to the payment by the Applicant of the $241,000 towards the Property. In particular, I find that the $241,000 given by the Applicant to the Second Respondent was given as an unconditional gift.
On the basis of the material before me and the findings I have made, I am unable to identify any document which supports a finding that either the Property or the money advanced by the Applicant was to be held by the Second Respondent on trust for the Applicant and the First Respondent.
There is one other matter of relevance. Counsel for the Second Respondent submitted that to the extent it might be said that a trust in favour of the Applicant and the First Respondent exists, it is subject to the presumption of advancement. The presumption and its operation have been the subject of attention by the Full Court of the Family Court of Australia in Vadisanis v Vadisanis (2014) 53 Fam LR 345. The Full Court there refer to the statement of the presumption as set out by the High Court of Australia in Calverly v Green (1984) 155 CLR 242 at [246] before noting at [42] that ‘it is well settled that the relationship between parent and child gives rise to the presumption of advancement’. Their Honours then go on to note at [45] that in order to rebut the presumption, evidence at the time the property was acquired would need to be before the Court, and the Court would need to be satisfied of it.
To the extent it is necessary to say so, I am satisfied that the presumption of advancement applies in this case, and that any resulting trust alleged by the Applicant would be subject to that presumption. I am further satisfied that there is no evidence before me which would satisfy me that the presumption of advancement ought to be rebutted in this case.
For the reasons set out above, I find that the Property is not part of the asset pool available for distribution between the Applicant and the First Respondent. The Property belongs to the Second Respondent.
Remaining matters
Application under section 90(3) of the Transfer of Land Act 1958 (Vic)
The Respondents sought orders under section 90(3) of the Transfer of Land Act 1958 (‘TLA’) to remove the caveat lodged by the Applicant over the Property.
In Green v Walls [2019] FamCA 76, the Family Court found that it was able to make an order under section 90(3) of the TLA. That matter concerned an application by the wife to finalise property proceedings and she sought removal of the husband’s caveat over the property. Cronin J found the Family Court’s power to direct removal of the caveat is a power arising under the accrued jurisdiction of the Family Court.
The question that then arises is whether this Court has jurisdiction to grant the order. The observations of Cronin J and the Full Court of the Family Court in F Firm & Ruane and Ors [2014] FamCAFC 189 were made in respect of the Family Court. The observations, however of Cronin J at paragraphs [22] – [26] of Green v Walls are apposite here. Moreover, this Court has previously exercised jurisdiction under section 90(3) of the TLA: see for example, Waters v Durrant [2015] FCCA 2419.
In the present matter, the substance of the dispute before the Court concerns the ownership of the Property. The efficacy of the orders I make as an exercise of the Commonwealth power depend upon the caveat issue being determined. The Second Respondent is entitled to enjoy the Property in light of the orders I have made. I am therefore satisfied for reasons similar to those given by Cronin J in Green v Walls that this Court has the power to issue an order under section 90(3) of the TLA.
The circumstances in which a Court may issue an order under section 90(3) of the TLA and the approach that is to be taken have been the subject of comment by the then Chief Justice of the Supreme Court of Victoria in Piroshenko v Grojsman & Ors [2010] VSC 240 at [7]- [11]. I do not set out those observations here, but have had regard to them in this matter. I am satisfied that in the present matter, there is no longer any possibility of the Applicant asserting a serious issue to be tried over his claimed interest in the Property because the subject matter of that dispute has been determined. Second, the balance of convenience in this matter does not favour the maintenance of the caveat. The Second Respondent is entitled to enjoy the Property. Accordingly, I am satisfied an order directing the Registrar of Titles to remove the caveat ought to be made.
Vacation of the Property by the Applicant
The orders sought by the Respondents seek, among other things, that the Applicant vacate the Property within seven days. Counsel for the Applicant contended that he should be given 28 days to vacate.
I have reviewed the affidavit material. In my view, paragraphs 3, 14 and 20 of the First Respondent’s affidavit support the making of an order that the Applicant vacate the property within seven days. Paragraph 20 in particular describes the Applicant delaying the process of foreclosure on a previous property, selling equipment for cash to people he knew and then declaring bankruptcy. I regard it as important to ensure the Respondents enjoy the fruits of this litigation, and that the Applicant not be given the opportunity to forestall or defeat the orders of this Court.
Orders in relation to remaining assets of the marriage
As I have noted above, the First Respondent abandoned her claim for an alteration of property interests of the parties. She instead sought orders that each party retain their motor vehicle, and that each party otherwise retain the assets or chattels in their possession. In the Application, the Applicant sought a just and equitable division of property, but did not particularise the relief he sought.
The items in the asset pool set out in the First Respondent’s trial material and outline of case are as follows:
a)A Motor Vehicle A registered in the First Respondent’s name valued at approximately $25,000;
b)Motor Vehicle B registered in the Applicant’s name valued at approximately $45,000;
c)A John Deere tractor worth approximately $20,000 owned by the Applicant;
d)Goats and other animals at the Property worth approximately $35,000, jointly owned by the Applicant and the First Respondent;
e)Hay and feed worth approximately $7,500 jointly owned by the Applicant and the First Respondent;
f)A John Deere ride-on mower worth approximately $5,000 jointly owned by the Applicant and the First Respondent;
g)A Quad Bike worth approximately $7,500 jointly owned by the Applicant and the First Respondent; and
h)Furniture and chattels worth approximately $100,000.
The husband in his affidavit material filed at the commencement of the proceeding indicated (absent the Property and the mortgage over it) that the net assets of the parties are worth $20,000 and comprise the Motor Vehicle A, the Motor Vehicle B and chattels and personal effects.
It is apparent when the material is looked at that there is a significant discrepancy in respect of not only the remaining items in the pool, but also the value of those remaining items. As noted previously, there are not any valuations in evidence before me in respect of the remaining assets in the pool.
The evidence of the First Respondent is that the marriage is at an end. It is desirable in that context to make orders finalising property matters between the Applicant and the First Respondent. In the circumstances of this case, it is appropriate to make an order in relation to the property rights of the parties. I will therefore make an order in terms sought by the First Respondent.
Finally, Mr Hoult for the Applicant contended that I should permit the Applicant leave to apply to set aside this judgment and these orders within 21 days of them being made. I do not regard that as the appropriate course in the circumstances. The matter was set down for trial ten months ago. The Applicant had ample time to participate in the matter and lead evidence about it. Given the age of the Applicant and the First Respondent, and the fact that the Second Respondent is being deprived of the enjoyment of the Property, it is appropriate that the matter be finalised.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Blake
Date: 21 November 2019
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