Sinkler & Rouhani
[2023] FedCFamC1F 55
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sinkler & Rouhani [2023] FedCFamC1F 55
File number(s): MLC 4068 of 2020 Judgment of: MCNAB J Date of judgment: 24 January 2023 Catchwords: FAMILY LAW – PROPERTY – Application for Enforcement – Where the husband requested an adjournment to file evidence relating to delay in complying with final orders – Where the husband had filed no material – Where there was unexplained delays in the husband’s attempts to comply with final orders – Where Enforcement was granted – Where costs were ordered in favour of the wife Cases cited: Fleming v Fleming (Review of Costs) [2009] FamCA 552 at [84]
Magna Alloys & Research Pty Ltd v Coffey (No 2) [1982] VR 97
Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 24 January 2023 Place: Melbourne Counsel for the Applicant: Dr Matta Solicitor for the Applicant: Coote Family Lawyers Solicitor for the Respondent: Respondent in person ORDERS
MLC 4068 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SINKLER
Applicant
AND: MR ROUHANI
Respondent
order made by:
MCNAB J
DATE OF ORDER:
24 JANUARY 2023
THE COURT ORDERS THAT:
1.The husband and the following entities shall be jointly and severally liable for the outstanding obligations arising from the Final Orders dated 19 October 2022 (“the Final Orders”):
(a)B Pty Ltd;
(b)The C Group Trust;
(c)C Group;
(d)D Pty Ltd;
(e)The C Group Investment Trust;
(f)E Pty Ltd;
(g)F Pty Ltd;
(h)H Pty Ltd;
(i)G Pty Ltd;
(j)J Pty Ltd; and
(k)K Pty Ltd;
("the Entities");
2.In the event of non-compliance by the Respondent with the Final Orders by 4.00pm on2 February 2023, the Respondent do all such acts and things and sign all necessary documents to transfer to the Applicant on trust for sale the following:
(a)The real property known as and situate at L Street, City M more particularly described in Certificate of Title Volume … Folio … (City M);
(b)The real property known as and situate at N Street, Suburb O more particularly described in Certificate of Title Volume … Folios … (Suburb O); and
(c)The real property known as and situate at P Street, Suburb Q more particularly described in Certificate of Title Volume … Folio … (P Street);
(d)The Motor Vehicle 1 registration “…” (Motor Vehicle 1), to be forthwith sold on such terms and conditions as determined by the Applicant (the Sales).
3.The proceeds of Sales distributed as follows:
(a)In payment of the costs of and incidental to the Sales;
(b)To discharge each of the registered mortgages to Westpac Bank in respect of:
(i)City M registered mortgage numbered …;
(ii)Suburb O registered mortgage numbered …;
(iii)P Street registered mortgage numbered …;
(c)To discharge the registered mortgages to Westpac Bank in respect of R Street, Suburb Q more particularly described in Certificate of Title Volume … Folio … (Suburb Q):
(i)Registered mortgage numbered …; and
(ii)Registered mortgage numbered ….
(d)To the Applicant, such sum then outstanding to the Applicant pursuant to the Orders of 19 October 2022 plus interest pursuant to the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules);
(e)To the Applicant, such sum then outstanding to the Applicant pursuant to the Orders of 8 April 2022 plus interest pursuant to the rate prescribed by the Family Law Rules;
(f)To the Applicant, the legal and associated costs of the delayed settlement of the sale of R Street, Suburb Q; and
(g)To the Applicant, the legal and associated costs of this Application for Enforcement on an indemnity basis.
4.In the event the proceeds of Sales are insufficient to meet the entirety of the Respondent’s obligations pursuant to paragraph 2, the Respondent pay to the Applicant the sum of $20,000 per calendar month on the first of each month until the obligations are met in full.
5.The Respondent pay the Applicant’s costs of this Application fixed in the sum of $12,506.
6.Within 7 days of the date of this order, the Respondent do all acts and things necessary to convert and transfer 2,000,000 Credit Card 1 points to the Applicant's S Pty Ltd (member number …27) and T Pty Ltd (member number …21) frequent flyer accounts.
7.In the event of the Respondent’s non-compliance with Order 6, a Registrar of the Federal Circuit and Family Court of Australia, Melbourne Registry is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to do all acts and things including executing documents in the name of the Respondent to effect the transfer of Credit Card 1 points pursuant to Order 6.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sinkler & Rouhani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)
McNab J:
This is an Application for Enforcement filed by the applicant wife on 1 December 2022 seeking to enforce orders made by consent on 19 October 2022. The wife relies on her affidavit filed contemporaneously with her application.
The husband has not filed any material, and has dismissed his solicitors. He sought an adjournment of this application to allow him the opportunity to engage new solicitors and file supporting material explaining the delays in complying with the orders.
The husband submitted that he also would like to pursue an application to vary final orders on the basis that the final orders were not practical.
I am not proposing to adjourn the case until 1 March 2023. The husband is a tertiary qualified person and was represented at the final hearing by Senior Counsel and very experienced solicitors. He is a person of considerable business experience and has experience in dealing with banks, financiers, and the like. There is no sufficient reason put before me which would persuade me that it is in the interests of justice to set aside or vary the orders to allow for extra time for the husband to comply with the final orders. There is no material before me which would suggest that allowing extra time is going to bear any result, and any adjournment is likely to delay matters further. In those circumstances, I will not adjourn the hearing and I will deal with the application today.
In my view, it is appropriate to make the enforcement orders. The preconditions to making the orders have been satisfied. The technical requirements under the Rules have been satisfied in terms of the filing of material and affidavits in support. The affidavit of the wife in support of her application established that there was default in the orders that were made by consent on 19 October 2022. I have given reasons earlier today as to why the case should not be adjourned until 1 March 2023.
As noted, the orders were made in circumstances where the husband was represented by Senior Counsel and experienced solicitors, and where he is a businessperson. There has been no reasonable explanation for the delays in complying with the orders and it is not a case that the performance of the obligations have been frustrated in some way by external events. There is substantial evidence of delay on the part of the husband and, in particular, I refer to [12] of the wife’s affidavit in support of this enforcement application, which discloses that the husband did not approach the Westpac Bank to give effect to the order 1 of the orders of 19 October 2022 until late 2022.
In circumstances where the husband has failed to comply with final orders and he was given notice of the intention to make an application and time to remedy the non-compliance, I will make an order for the payment of costs in favour of the wife. I allow $7,776.60 for solicitor’s costs; the figure of $1,637 as the cost of disbursements being for searches and the like, which have been necessary; and a figure of $3,092.44 as counsel’s fees. I am not allowing for preparation because, in my view, that is adequately dealt with in the scale costs for a brief to appear. A brief fee to appear includes a fee for 10 hours of reading and preparation. There was nothing particularly voluminous about the material, which would justify an extra fee for reading and preparation.[1] The costs were calculated in accordance with the party-party scale. In addition to the non-compliance with orders, I take into account the significant disparity in incomes between the husband and the wife (in favour of the husband).
[1] Magna Alloys & Research Pty Ltd v Coffey (No 2) [1982] VR 97 and Fleming v Fleming (Review of Costs) [2009] FamCA 552 at [84].
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 10 February 2023
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