Sigley and De Santis (No 2)

[2016] FamCA 960

FAMILY COURT OF AUSTRALIA

SIGLEY & DE SANTIS (NO 2) [2016] FamCA 960

FAMILY LAW – UNDEFENDED HEARING – Application to proceed undefended for orders that part of a financial agreement be enforced as if it were an order of the court – where the respondent has failed to comply with court orders including orders for discovery – where the respondent has not appeared at several court events – where the respondent has not prosecuted his response – where the applicant has diligently pursued her case – orders made as sought by the applicant

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Tate & Tate [2000] FamCA 1040; (2000) FLC 93-047

APPLICANT: Ms Sigley

RESPONDENT: Mr De Santis

FILE NUMBER: MLC 9296 of 2015

DATE DELIVERED: 14 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 5 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum QC

SOLICITOR FOR THE APPLICANT: Peter Szabo Family Law

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The respondent’s Response to Initiating Application filed 5 November 2015 be struck out.

2. Pursuant to s 90UN of the Family Law Act1975 (Cth) (“the Act”) paragraph 6 of the Financial Agreement dated 24 October 2013 made between the parties pursuant to s 90UC of the Act (“the Agreement”) be enforced as if it were an order of the Court.

3. Until further order the respondent, by himself, his servants and agents (including but not limited to B Accountants) notify the solicitors for the applicant in writing within 48 hours of receipt of any creditor’s petition directed to him and enclose a photocopy of each such petition and advise as to the time and place of service of same upon him.

4. As soon as practicable the applicant cause a sealed copy of these orders and Reasons for Judgment to be served upon:

   (a)       the respondent by prepaid post addressed to H Street, Suburb I and by email at …; and

   (b)       B Accountants by prepaid post C/-.

5. On or before 4.00 pm on 28 November 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the applicant’s Initiating Application filed 1 October 2015, her Application in a Case filed 3 February 2016 and the respondent’s Response to Initiating Application filed 5 November 2015.

6. On or before 4.00 pm on 12 December 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to applicant’s Initiating Application filed 1 October 2015, her Application in a Case filed 3 February 2016 and the respondent’s Response to Initiating Application filed 5 November 2015.

7. The applicant’s Initiating Application filed 1 October 2015 and her Application in a Case filed 3 February 2016 be otherwise dismissed save and except as to any application for costs.

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 Sigley & De Santis (No 2) 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 9296  of 2015

Ms Sigley

Applicant

And

Mr De Santis

Respondent

REASONS FOR JUDGMENT

1. On 3 August 2016 Thornton J made inter alia the following order:

   1.The following applications be adjourned to the Judicial Duty List on 5 October 2016 at 10.00am:

   (a)Paragraph 2 of the interim orders sought in her Initiating Application; and

   (b)The applicant’s application that the respondent’s response filed 5 November 2015 be dismissed and that the applicant’s Initiating Application filed 1 October 2015 proceed on an undefended basis.

2. In her Initiating Application filed 1 October 2015 the applicant sought final orders as follows:

   1. That pursuant to s 90KA Family Law Act (as amended), paragraph 6 of the Financial Agreement dated 24 October 2013 made between the parties pursuant to section 90UC of the Act (“the Agreement”) be enforced as if it were an order of the Court.

   2. That the Respondent forthwith comply with paragraph 6(a), (c) and (d) of the Agreement and provide the Applicant with evidence of same.

   3.That the Respondent forthwith provide security for his future compliance with the Agreement.

   4. That the Respondent pay the Applicant’s costs of and incidental to these proceedings.

   5.Such further or other Orders as the Court deems fit.

3. Senior counsel for the applicant submitted, correctly in my view, that paragraph 1 of the final orders sought by the applicant should be an order sought pursuant to s 90UN of the Family Law Act 1975 (Cth) (“the Act”), rather than s 90KA of the Act.

4. The applicant in her Initiating Application filed 1 October 2015  sought interim orders in similar terms as well as an order requiring the respondent to forthwith make, file and serve a financial statement.

5. In her Application in a Case filed 9 February 2016 the wife sought orders that:

   ·failing compliance within seven days with paragraphs 1 & 3 of the Orders made 2 December 2015, the Response to Initiating Application filed 5 November 2015 filed by the respondent, Mr De Santis, be struck out and the applicant’s Initiating Application proceed on an undefended basis; and

   ·the respondent transfer to the applicant his shares in E Pty Ltd and the applicant be permitted to dispose of those shares forthwith. 

6. Ultimately the only order the applicant sought on an undefended basis was in accordance with paragraph 1 of her Initiating Application.

Application to Strike out Respondent’s Response and Proceed Undefended

1. The applicant’s Initiating Application was first listed for hearing on 5 November 2015. The respondent was represented at the hearing on that date and was granted leave to file a response to initiating application and an affidavit in support of that response.

2. In his Response to Initiating Application filed 5 November 2015 the respondent sought the following final orders:

   1.That the Binding Financial Agreement entered into by the parties on the 24^th October 2013 be set aside.

   2.That the Binding Financial Agreement be declared unenforceable or alternatively not binding.

   3.That all Orders including Final and Interim Orders sought by the Applicant in the Application filed on the 1^st October 2015 be dismissed.

   4.That the Applicant pay the Respondent’s costs of these proceedings.

3. On 5 November 2015 Bennett J made orders by consent that the respondent comply with r 13.4 of the Family Law Rules 2004 (Cth) (“the Rules”) and provide copies of all relevant documents to the applicant’s solicitors and particular documents identified in her Honour’s orders. The matter was otherwise adjourned for hearing in the Judicial Duty List at 10.00 am on 2 December 2015.

4. The respondent did not provide copies of the specified documents, or for that matter, any documents to the applicant’s solicitors within 14 days as he was required to do and has still not complied with Bennett J’s order.

5. On 2 December 2015 Johns J made the following orders by consent:

   1.That pending the final hearing of the Applicant’s Initiating Application filed 1 October 2015 and the Respondent’s Response thereto filed 5 November 2015, the Respondent forthwith do all such acts and things and sign all such documents as may be required to make the payments required by paragraphs 6(a), (c) and (d) of the Financial Agreement between the Applicant and him dated 24 October 2013 and, without limiting the generality thereof, make application to his superannuation trustee and the Australian Taxation Office for the early release of his superannuation entitlements by reason of permanent incapacity.

   2.That, within 7 days, the Applicant, by her solicitor, advise the Respondent, by his solicitor, in writing of such further or other documents she requires him to disclose.

   3.That, within 7 days of receipt of the written advice referred to in paragraph 2, the Respondent provide or cause to be provided to the Applicant such of the documents as are in his possession, power or control.

6. The costs of both parties were reserved and Johns J certified for counsel, including senior counsel.

7. It was the respondent’s failure to comply with the orders made by Johns J on that date upon which the applicant based her application to strike out the respondent’s Response and to proceed with her application for final orders on an undefended basis.

8. Peter Szabo the applicant’s solicitor in his Affidavit filed 5 April 2016 deposed that the letter to the respondent’s solicitor dated 25 February 2016  summarised the documents which he said the respondent had failed to produce pursuant to the order made by Johns J on 2 December 2015.

9. On 2 March 2016 Bennett J made orders by consent inter alia that:

   ·within 14 days the respondent comply with paragraphs 1 and 3 of the orders made 2 December 2015, including the production of documents requested in the letter to the [respondent’s] solicitor dated 25 February 2016;

   ·the respondent instruct B Accountants to promptly provide all documents and/or information requested by Mr C, the accountant appointed by the applicant to investigate the respondent’s financial affairs, including but not limited to his interest in E Pty Ltd, the De Santis Family Trust and associated companies and trusts; and

   ·the parties direct their respective accountants to provide prior to 5 April 2016 a joint statement as to what they agree or do not agree upon, with a list of documents still outstanding.

10. Mr Szabo deposes that the respondent, notwithstanding a number of letters to his solicitors requesting compliance, also failed to comply with the orders made by Johns J on 2 December 2015 and the orders made by Bennett J on 2 March 2016 with respect to either the provision of documents or the provision of information to Mr C.

11. On 7 June 2016, the day before the hearing of the matter before Thornton J the respondent’s solicitors P Partners filed a Notice of their Intention to Withdraw dated 1 June 2016 together with a Notice of Ceasing to Act.

12. On 7 June 2016 the respondent filed a Notice of Address for Service giving his address for service as H Street, Suburb I and his email address as ….

13. On 8 June 2016 Thornton J made orders inter alia restraining the respondent from doing or attempting to do any act or thing to place himself voluntarily into bankruptcy or to otherwise seek relief pursuant to the Bankruptcy Act 1966 (Cth) without the prior written consent in writing of the applicant. Her Honour otherwise adjourned paragraph 1 of the applicant’s Application in a Case filed 3 February 2016, struck out the respondent’s Response to Initiating Application and further made orders that the applicant have leave to proceed undefended for hearing in the Judicial Duty List on 3 August 2016, and ordered the respondent, who did not appear that day, to pay the applicant’s costs of her Application in a Case filed 11 May 2016.

14. Although the respondent did not appear and was not represented at the hearing on 8 June 2016, on that date he filed a further Notice of Address for Service giving his address for service as C/- B,  Accountants and his email address as ….

15. Mr Szabo deposes in his Affidavit filed 4 August 2016 that on 8 June 2016 immediately following the hearing he forwarded an email to the respondent at … and to Mr L at B Accountants advising them of the orders that had been made that day and that a sealed copy of those orders would be forwarded to them when issued by the Court.

16. On 10 June 2016 Mr Szabo forwarded a sealed copy of the orders to both the respondent and Mr L by email and by prepaid post.  

17. On 22 June 2016 Mr Szabo says he sent a letter to the respondent by email addressed to … and by prepaid post, addressed to the respondent at H Street, Suburb I setting out the costs his client was claiming pursuant to the order made by Thornton J on 8 June 2016.   

18. Mr Szabo deposes that on 29 July 2016 he emailed the respondent as follows:

    We refer to our email to you of 10 June 2016.

    Do you intend appearing at court on 3 August next?

19. That same day he received the following email reply from the respondent:

    What is specifically about? Please re send that correspondence you mentioned.

20. Upon receipt of the respondent’s email Mr Szabo says he again forwarded a copy of the orders made on 8 June 2016 to the respondent and brought to his attention that pursuant to paragraph 3 of the orders the matter was listed for hearing on 3 August 2016 and that the applicant would be seeking to proceed with the matter on an undefended basis. Mr Szabo asked the respondent to acknowledge receipt of his email and on 2 August 2016 received an email from the respondent in which he advised that he would not be attending the hearing on that date.

21. On 2 August 2016 Mr L forwarded an email to the Court in which he advised as follows:

    I was somewhat surprised when you called yesterday seeking information on who would be representing [the respondent] in court on Wednesday 3 August 2016.

    At that time I informed you that you were talking with a firm of Chartered Accountants not lawyers. You indicated that you were unaware of that. I am unaware of how you were given our details in relation to the matter.

    You asked whether [the respondent] would be attending Court and I briefly went through why he would not be there. You then asked if he could put it in writing. That unfortunately is not possible as he is suffering from a form of muscular dystrophy called hereditary inclusion body myopathy, which is life threatening with severe disabilities. This has left him severely disabled, he is in a wheelchair and has very limited use of his limbs which does not enable him to write.

    Following your request, and out of respect for the Court, I contacted [the respondent] and he requested that I respond on his behalf. He has been provided with a copy of this prior to it being despatched to you.

    As I stated I am a Chartered Accountant, not a lawyer. Based on your request for information from [the respondent] I have prepared the following letter on his behalf. I do not know the requisite protocols and procedures in relation to the Court proceedings and if I fail to meet any protocol or proceeding in this letter I apologise in advance.

    [The respondent] is severely disabled due to his condition. He spends all his time in a wheelchair cannot walk has limited use of his arms and requires a carer to do basic daily chores including going to the toilet.

    We are currently in the process of applying for a disability pension for [the respondent] as he has no personal resources and requires virtually 24 hour care.

    It is not a case that [the respondent] does not want to attend; it is a case that [he] can’t attend.

    He has access to a part-time carer, who is a student, and that carer is unavailable on Wednesdays due to other commitments. Without a carer it would be virtually impossible for [the respondent] to get to court and if he were he would require a carer to do basic things such as access to the toilet and assistance with basic nourishment food and water.

    He has expended all his resources to date in funding the case, however has run out of resources and his solicitors ceased to act at the beginning of June.

    He sought to go bankrupt, however he has an order of the Court preventing him to do so. He has debts in excess of $2 million so he felt there was no option but to withdraw his representation of the case and let it go on undefended.

    If the court desires, and with sufficient leeway and notice he may be in a position to organise a carer to attend a future date.

    He apologises to the court if he has caused any inconvenience, he is not versed in the law and thought he was doing the right thing.

22. Although in the chronology annexed to Mr Szabo’s Affidavit filed 22 August 2016 he referred to the fact that he had not been copied into the email from Mr L to the Court it, appears that that letter was before Thornton J on 3 August 2016 when her Honour further adjourned the hearing of the applicant’s application that the respondent’s response be dismissed and that the applicant’s Initiating Application proceed on an undefended basis to the Judicial Duty List on 5 October 2016. Her Honour also ordered that a copy of her orders together with any further affidavit to be relied upon be served personally on both the respondent and B within 10 days of that date.

23. Although it was not possible for personal service of a sealed copy of the orders to be effected within the specified 10 day period they were, together with the Affidavit of Mr Szabo filed 22 August 2016, served personally upon both the respondent at M Street, Suburb N on 29 August 2016 and upon Mr L at his offices at J Street, Suburb K on 23 August 2016.

24. On 3 October 2016 Mr L forwarded a further letter to the Court which read as follows:

    …

    As we previously advised by email to the Associate to Justice Thornton on 2 August 2016, we are a firm of Chartered Accountants not solicitors. Again, if we breach any protocols or procedures I apologise in advance, there is no intention to do so, we are just responding to your query.

    I apologise for the delay in responding to you, however, the firm’s servers were subject to a cyber-attack which resulted in the necessity of our IT consultants restoring our server from backups. This together with substantial verification took in excess of a day and a half.

    In addition, other commitments, took me out of Melbourne in an already short week due to the public holiday on Friday as a result my time to respond was limited.

    Having said that, I have managed to contact [the respondent] over the holiday weekend and he has requested that I update you accordingly.

    Since we last communicated with you in August, [the respondent’s] position has deteriorated in all respects.

    With respect to his health he is the process of finalising a disability pension and in all probability will be in full-time care in the near future.

    Secured creditors have moved on any assets that were subject to their security and at the moment they have not indicated that they will pursue his bankruptcy over the balance of the debt, however other unsecured creditors have noted their intention to do so.

    As his own Debtor’s petition is obviously out of the question with the order of the court dealing with that, it appears that an unsecured creditor will issue a creditors petition against him shortly.

    His family is not in a position to give him any assistance.

    He currently owes related parties in excess of $2 million. In addition the family has for a number of decades ran … businesses in [Region O]. At the moment, unemployment in [Region O] is in excess of 20% and it is expected to rise considerably once the [major factory] shuts down. This will see thousands of both direct and indirect jobs lost. This will also obviously have a further detrimental, if not catastrophic, effect on the businesses run by his father.

    As a consequence [the respondent] does not have the resources, nor can he obtain the resources, to pay for representation in this court matter. We understand the he has also been advised that legal aid would not be forthcoming in his circumstances.

    As a result of this, I am advised that he will not be represented at the hearing on Wednesday 5 October.

    Further due to the various logistics in getting [the respondent] to the court, as he requires that both he and his carer be conveyed to the court and picked up afterwards. The carer must remain with him at all times, as Mr [the respondent] cannot even attend to day-to-day personal hygiene, as a result he cannot attend in person.

    He is now to the point where he has no resources and in all probability will end up in public care.

    He accepts there is nothing he can do, however, if the court sees fit to rescind the order preventing him from lodging his own debtor’s petition he will do so almost immediately in order to save some face with the people he has dealt with over the years.

1. It appears that a copy of this letter which Mr L forwarded to my associate was similarly not sent to the applicant’s solicitor

2. Although reference was made to a letter having been received by the Court from Mr L, I now know that counsel for the applicant was unaware of the second letter which only came to my attention after the hearing on 5 October 2016. Nor was the letter of 2 August 2016 formally tendered in evidence during the hearing before Thornton J or the hearing before me. Having reserved judgment I took the view that those letters should for completeness be in evidence. On that basis I had my associate forward an email to the solicitor for the applicant, the respondent and Mr L advising them that I proposed to mark the two letters as exhibits subject to any submissions they might choose to make with respect to those letters forming part of the evidence or the content of those letters.  

3. The applicant requested that the matter be relisted so that they could make submissions with respect to the two letters and in anticipation of that hearing filed written submissions. The matter was listed for mention before me on 21 October 2016.

4. Although Mr Szabo deposed in his Affidavit filed 4 November 2016 that he had served a copy of the written submissions upon the respondent and the respondent had been notified of the further hearing date, there was no appearance either by or on behalf of the respondent. In circumstances where the applicant, as referred to in the written submissions filed on her behalf, was seeking a further order and in an excess of caution I made orders adjourning the matter for hearing on 8 November 2016 and requiring the applicant to serve a sealed copy of the order made on 21 October 2016 upon the respondent by prepaid post and email. It was noted in that order as follows:

   The applicant seeks an order that the respondent by himself, his servants and agents (which include [B Accountants]) notify the solicitors for the applicant in writing within 48 hours of receipt of any creditors petition directed to him and enclose a photocopy of each such petition and advise as to the time and place of service of same upon him and that in the event that the respondent does not appear at the mention on 8 November 2016 or is not represented on that date the applicant will seek leave to have the matter proceed on an undefended basis and that order made in the respondent’s absence.

5. Mr Szabo also deposed that on 3 November 2016, in circumstances where for reasons beyond his control a sealed copy of the orders made 21 October 2016 was not available, he served a true copy of those orders upon the respondent as ordered. I am satisfied that the respondent was both served with the written submissions and a true copy of the orders made on 21 October 2016 and was in those circumstances aware of the hearing before me on 8 November 2016. The respondent did not appear and was not represented on that date.  

Legal Principles

1. Rule 11.02 of the Rules provides as follows:

   Failure to comply with a legislative provision or order

   (1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

   Note:         A defaulter may apply to the court for relief from this rule (see rule 11.03).

   (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (a)  dismiss all or part of the case;

   (b)  set aside a step taken or an order made;

   (c)  determine the case as if it were undefended;

   (d)  make any of the orders mentioned in rule 11.01;

   (e)  order costs;

   (f)  prohibit the party from taking a further step in the case until the occurrence of a specified event; or

   (g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

   Note:         This list does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.

2. In the Explanatory Guide to the Rules the term “undefended basis” is described as follows:

   [T]he court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The court may make the orders set out in the application on being satisfied by evidence that the orders should be made. 

3. The Full Court in  Tate & Tate [2000] FamCA 1040; (2000) FLC 93-047 said commencing at paragraph 99 as follows:

   99.In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence.  Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” (State of Queensland v J.L. Holdings; supra).  But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence.

   …

   107.The Court, no less than those who litigate before it, is constrained by the interplay of competing principles.  In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end.  Such a goal overrides any notions of punishment for disobedience of such orders.

   108.Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found.  In this instance the remedy necessarily excluded the husband from any further participation in the proceedings.  Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.  In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.

Discussion

1. In this case the applicant seeks orders striking out the respondent’s Response to Initiating Application and that she be permitted to proceed with her application for an order that the Financial Agreement dated 24 October 2013 be enforced as an order of the Court pursuant to s 90UN(c) of the Act.

2. The Court must balance the rights of the party seeking to strike out the application or in this case the response and to proceed on an undefended basis, the rights of the party to be heard and the interests of justice generally.

3. I am mindful of the submission of counsel for the applicant that the letters received from Mr L are at best unsworn documents prepared by a lay person and on that basis should be viewed with some caution and only relied upon in so far as they constitute an admission against interest. Bearing that submission in mind have considered the matters asserted by the respondent’s accountant Mr L on his behalf that:

   ·the respondent is suffering from a form of muscular dystrophy, is severely disabled due to that condition, with limited use of his limbs which prevents him writing;

   ·the respondent requires a carer to carry out basic daily chores including going to the toilet;

   ·the respondent’s carer is not available to accompany him to Court on a Wednesday due to other commitments;

   ·although the respondent has been restrained from placing himself in voluntary bankruptcy it is likely that one of his creditors will initiate action which will result in him being declared bankrupt;

   ·the respondent’s family is not in a position to give him any assistance;

   ·the respondent is in the process of finalising his entitlement for a disability pension;

   ·the respondent does not have the resources to pay for legal representation and that he has been advised that legal aid will not be forthcoming.

4. However I also note that the first letter written by Mr L at the respondent’s request clearly raises the possibility of the respondent attending Court on a future date subject to the availability of a carer. Even if a carer were not available the Rules provide that a party may request permission to attend, make submissions, give evidence or adduce evidence from a witness by electronic means (r 5.06). One of the matters the Court may take into account when considering whether to grant such a request is any difficulty a party has in attending because of illness or disability. No such request was made.

5. Although the matter was again listed for hearing on a Wednesday when, according to Mr L, the respondent’s carer had other commitments, there was also no request for an adjournment of the matter to another day.

6. In my view the explanation provided by Mr L also does not address why, particularly when the respondent had an experienced solicitor acting on his behalf and was able to give instructions for and swear a detailed affidavit in support of his case, transfer his prestige motor vehicle to his mother, make application for a disability benefit and surrender his life insurance policy, the respondent did not comply with the orders made by the Court for the provision of documents. In all of the circumstances I am not satisfied that the respondent’s disability would have precluded his attendance at Court in person or by electronic means or prevented his compliance with the orders made by the Court for discovery.

7. The respondent in this case has both failed to comply with orders for discovery, notwithstanding that in most cases those orders were made by consent, and since his solicitors’ ceased acting on his behalf has not participated in the proceedings in any real sense either in response to the applicant’s various applications or to prosecute his own case. It would appear that in fact since filing his Response to Initiating Application on 5 November 2015 the respondent has done nothing other than to consent to orders which he has then chosen to disregard. The first of the letters sent by Mr L to the Court on the respondent’s behalf also suggests that the respondent not only understands that the matter will proceed on an undefended basis but accepted, albeit because he says he has no choice, that would be the case.

8. In all of the circumstances I am satisfied that the respondent’s Response to Initiating Application should be struck and that  the applicant should be permitted to proceed with paragraph 1 of her Initiating Application on an undefended basis.      

9. The applicant in contrast to the respondent has diligently pursued the orders she seeks and the respondent’s compliance with the orders that have been made, including, because of the respondent’s conduct, having to file an Application in a Case seeking orders restraining the respondent from taking steps to declare himself bankrupt. The applicant has had to do so in circumstances where the respondent has not made the payments he is required to make pursuant to the Financial Agreement dated 24 October 2013 since in or about August 2015, the mortgagee has issued a writ for possession of the property and where the respondent has cancelled the life insurance policy the Agreement requires him to maintain.

10. In all of the circumstances I am satisfied that I should make the order the applicant seeks that paragraph 6 of the Financial Agreement dated 24 October 2013 made between the parties be enforced as if it were an order of the Court. That order will enable the applicant to take the necessary steps to enforce the Financial Agreement. Even if the respondent is as he says impecunious and cannot comply with the terms of the Agreement he will have the opportunity to put his case in response to any proceedings taken by the applicant for enforcement and in my view that is not a reason for not making the order permitting the applicant to take whatever steps are available to her to enforce the terms of the Agreement.

11. As previously referred to the applicant also seeks an order requiring the respondent to notify her solicitors in writing within 48 hours of receipt of any creditor’s petition. Counsel for the applicant referred me to the second of the two letters sent to the Court by Mr L on behalf of the respondent in which he advised that “an unsecured creditor will issue a creditors petition against him shortly”. In those circumstances and given that the matter is unopposed, I propose to accede to the applicant’s application.   

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 November 2016.

Associate: 

Date:  14 November 2016