SOBHAL & UGRI

[2018] FamCA 435

FAMILY COURT OF AUSTRALIA

SOBHAL & UGRI [2018] FamCA 435

FAMILY LAW – PROPERTY – Enforcement – where the husband has failed to comply with consent orders – where the husband has not attended the hearing – where the Court is satisfied that the husband has been afforded procedural fairness in respect of the current application – application proceeds in the husband’s absence – where the wife seeks to enforce the sale of a property – where there are a number of creditors who have registered interests against the property – where the husband has sent offensive and abusive communications to the wife and her solicitors – where the wife is concerned the husband will not cooperate with the sale of the property – orders made appointing the wife as trustee for the husband in respect of the sale of the property – orders made providing that the husband provide vacant possession of the property – orders made providing that the husband be restrained by injunction from attending within 100 metres of the property and restrained from interfering with the sale of the property.

FAMILY LAW – COSTS – order for costs against the husband.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

APPLICANT: Ms Sobhal

RESPONDENT: Mr Ugri

FILE NUMBER: MLC 9877 of 2017

DATE DELIVERED: 8 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: Marsh & Maher Richmond Bennison

THE RESPONDENT: No appearance 

Orders

1. That the Court being satisfied that an order was made in the County Court of Victoria on 20 November 2017 pursuant to paragraph 1 of the orders made by this Court on 8 November 2017, the wife be appointed Trustee for the husband for the sale of the property at B Street, Suburb C Victoria (“the Suburb C property”).

2. That the wife, in her capacity as Trustee for the husband in relation to the sale of the Suburb C property, be at liberty to:-

   (a)       appoint a real estate agent of her choosing;

   (b)       give instruction to the chosen real estate agent;

   (c)sign any document reasonably required to sell the Suburb C property; and

   (d)do any other reasonable act or thing to bring about the orderly sale of the Suburb C property.

3. That within 14 days of the personal service upon the husband of these orders, the husband vacate the Suburb C property and ensure that it is left in a neat and tidy condition.

4. That upon expiration of 14 days from the date of these orders the husband be restrained by injunction from:-

   (a)       Attending at or within 100 metres of the Suburb C property; and

   (b)       Interfering in any way with the sale of the Suburb C property.

5. That the respondent pay the applicant’s costs of and incidental to the Application in a Case filed 27 March 2018 fixed in the sum of $7,500.

6. That the Application in a Case filed 27 March 2018 be 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 Sobhal & Ugri 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 9877 of 2017

Ms Sobhal  

Applicant

And

Mr Ugri

Respondent

REASONS FOR JUDGMENT

1. The matter of Sobhal & Ugri comes before the court today in a Judicial Duty List upon the Application in a Case of the applicant wife filed 27 March 2018.  That application is supported by an affidavit of the wife filed the same day.  The wife also relies upon her affidavit filed 25 September 2017.

2. The application seeks to enforce orders previously made by consent in a Judicial Duty List on 8 November 2017, those orders relating to the sale of the parties’ property at B Street, Suburb C. 

3. The wife today is represented by counsel.  There is no appearance by or on behalf of the husband.  He was called at the commencement of the hearing before me at approximately 12.45pm.  He did not answer the call.  I commenced hearing submissions prior to the luncheon adjournment.  The matter resumed at approximately 2.20 pm.  The husband was again called and did not answer the call. 

4. At the time of the filing of the application, the husband was represented by solicitors, D Lawyers.  The Application in a Case and affidavit of the wife filed 27 March 2018 was served on the husband through those solicitors.  The husband’s then solicitors filed an acknowledgment of service confirming receipt of the wife’s application in a case and affidavit on 4 April 2018.  That acknowledgment of service was filed on 10 April 2018.

5. Subsequent to receipt of those documents, that firm of solicitors filed a notice of ceasing to act.  The notice of ceasing to act was filed on 24 April 2018.  That document gave notice to the respondent husband that the next time his case is listed before the court is this day at 10:00am for hearing in the Judicial Duty List.  Having regard to both the acknowledgment of service and the notice of ceasing to act, I am satisfied that the husband has had notice of the proceedings.  I am satisfied that he has been afforded procedural fairness in respect of the current application. 

6. The wife seeks that the application proceed in the husband’s absence.  Given the nature of the application, it being an enforcement application, to enforce her rights with respect to consent orders previously made, I am satisfied that the application ought proceed in the husband’s absence. 

7. The orders sought to be enforced as I have already noted are those made 8 November 2017.  Paragraph 1 of those orders requires the parties, that is, the husband and the wife, to forthwith do all things required to obtain the consent of the plaintiff in County Court proceedings to discharge a freezing order granted by Judge Cosgrave in those proceedings on 22 December 2016 in relation to the Suburb C property, and to seek a consent order for discharge of the freezing order. 

8. Exhibit A1 is a copy of the order made by Judge Marks in those County Court proceedings.  That order is dated 20 November 2017.  It is an order made by consent.  The order provides as follows:

   The freezing order made by his Honour Judge Cosgrave on 22 December 2016 (as extended) be discharged over the interest of the first defendant in relation to real property situate at and known as [B Street, Suburb C], in the State of Victoria…

9. Having regard to that document, I am satisfied that paragraph 1(a) and (b) of the consent orders made 8 November 2017 have been complied with. 

10. Paragraph 2 of those orders provides that:

    Upon the granting of an order in the County Court proceedings which discharges the freezing order in relation to the real property situate at  and known as [B Street, Suburb C], in the State of Victoria (“the [Suburb C] property”) the parties shall forthwith do all acts and things necessary to list the [Suburb C] property for sale in such manner, and on terms and conditions as the parties may agree, and failing agreement as determined by a real estate agent nominated by the President of the Real Estate Institute of Victoria… 

11. That order also continues to set out the manner in which the sale proceeds are to be applied. 

12. In her affidavit filed 27 March 2018, the wife sets out what has occurred since those orders were made.  She deposes that following the discharge of the freezing order, she sought to engage with the husband to commence the selling process in respect of the Suburb C property.  She deposes at paragraph 11 of that affidavit as to investigations conducted by her in relation to proposed selling agents.  She deposes that the husband initially rejected various proposed selling agents.  She formed the view based on the husband’s response to those initial inquiries that he was seeking to delay the appointment of a selling agent. 

13. At paragraph 12 of her affidavit the wife deposes that after investigation she had concluded that the firm of E Real Estate Suburb C should be engaged as selling agent to conduct the sale of Suburb C.  At paragraph 13 of her affidavit, she deposes that on 22 December 2017 she instructed her lawyers to write to the husband to seek his cooperation in signing an exclusive sale authority for the appointment of E Real Estate as the selling agents. 

14. At paragraph 14 of her affidavit the wife deposes as to the husband’s response to that letter, it being his response via email to her lawyers simply stating, “WHATEVER,” exclamation marks following.  There were further text messages which indicated fairly clearly the husband’s opposition to a sale of the properties.  Those messages, including a message as follows:

    I’m sorry, but if you think you are going to get your greedy hands on my home, YOU ARE VERY WRONG! Merry Xmas [sic] –

15. The wife deposes that she also received what could fairly be described as offensive text messages from the husband following his receipt of the correspondence from her lawyer.  Following the holiday period on 10 January 2018, the wife deposes that she again attempted to obtain the husband’s cooperation in relation to the sale process. 

16. A further letter was forwarded to him requesting he sign the exclusive sale authority.  He was given notice in that correspondence that in the event that he failed to cooperate, that an application would be made to the court for orders that he vacate the property and for the wife to be appointed as trustee for the sale of the property.  Again, the husband forwarded a number of abusive WhatsApp messages in response to that correspondence.  In particular, I note his response, “I will go to jail before signing that sale authority form”.

17. And then further, another message, “It’s my house so FUCK OFF. 

18. The position is that the husband has failed to comply with the orders made by consent at a hearing in which he was represented by counsel.  The parties’ position since those orders were made has worsened.  There are a number of creditors who have registered interest in the former matrimonial home.  The position is that there are warrants of seizure and sale which have been registered against the title.  A further caveat has been lodged by another creditor.  The interests of the creditors who have secured interests against the title to Suburb C are in excess of $516,000. 

19. In addition to those interests claimed, there are the interests of the first registered mortgagee, the ANZ bank.  That bank has served a notice of default on the wife by letter dated 11 April 2018.  That is Exhibit A2.  It is as a result of looming actions of both the ANZ bank as well as the other creditors that the wife seeks the opportunity to effect a sale of the Suburb C property, as was envisaged when the parties were last at Court on 8 November 2017. 

20. I am asked to make orders appointing the wife as trustee for the husband in respect of the sale of that property.  Having regard to the history of the matter and in particular the husband’s clear indications that he will not cooperate with the sale of the property, I am satisfied that it is appropriate that the wife so be appointed as trustee for the sale of the Suburb C property.  The wife also seeks an order that the husband give vacant possession of the Suburb C property. 

21. The wife has expressed through her counsel that she has concerns that the husband will not cooperate with the sale process, that he will thwart that process if left in occupation of the property.  She relies upon the form and nature of the communications both to her and to her solicitor.  I have referred to many of those communications already.  Indeed, as recently as yesterday evening, the husband saw fit to forward further abusive messages to the wife’s lawyer.  They are Exhibit A3.  In particular I note the message sent at 8.58pm on 7 May 2018 to the wife’s lawyer.  That email is as follows:

    How is your timesheets?  Rack it up, hyena!!!!!  You will get “de-partnered” on this file!!  You are a disgusting human being.  I hope your family will work out what kind of person you are one day.  You don’t even care about [the wife] you piece of work…

22. Having regard to the abusive and threatening nature of that communication, I am satisfied that it is appropriate that the husband give vacant possession of the property to ensure that orderly arrangements can be made for its sale, as was envisaged when the consent orders were made in November 2017. 

23. The wife also seeks that the husband be restrained from attending at or within 100 metres of the Suburb C property and also that he be restrained from interfering in any way with the sale of the Suburb C property.  For the reasons I have already identified as to the husband’s attitude to the sale, the manner of his communication with the wife and her lawyer, I consider that it is appropriate that such restraints be placed upon the husband.

24. In addition to the orders regarding sale of the Suburb C property, I am also asked to make an order as to costs. The wife seeks the costs of her application and identifies the sum of $7,704 as the amount sought by her, that being the amount of costs calculated in accordance with the Family Law Rules 2004 (Cth) as being appropriate for the work undertaken with respect to this application.

25. The general rule is that each party to proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) shall bear their own costs. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to the provisions of subsections (2A), (4), (4A), and (5) of the Act and the rules of the court make such order as to costs and security for costs as the court considers just. Section 117(2A) of the Act sets out that the matters that the Court should have regard to in considering whether to make an order for costs. Those circumstances are set out in subparagraphs (a) to (g) of section 117(2A) of the Act.

26. It is submitted on behalf of the wife that neither the husband nor the wife is in receipt of Legal Aid.  Their financial statements filed in the proceedings indicate that neither party is impecunious.  The wife principally relies upon the failure of the husband to comply with the orders made in November 2017 as being a justification for an order for costs in this matter.  That was an order, as I have already noted, made by consent which made provision for the action that the wife now seeks to be implemented pursuant to orders I have just made.  It is as a result of the husband’s non-compliance with those orders that this application has been necessary.  The husband has had notice of the application.  He has had an opportunity to take appropriate action to avert the necessity for these proceedings.  He has elected to not participate in these proceedings. 

27. Having regard to those matters, I am satisfied that this is a matter appropriate for an award of costs. The amount sought by the wife is calculated in accordance with the Family Law Rules 2004 (Cth). I am satisfied, having regard to the circumstances to which I have referred, that the husband should pay the wife’s costs fixed in the sum of $7,500.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 May 2018.

Associate:

Date:  8 May 2018