Sweyne and Suter

[2009] FamCA 1110

FAMILY COURT OF AUSTRALIA

SWEYNE & SUTER [2009] FamCA 1110

FAMILY LAW – PROPERTY – enforcement of order requiring transfer of land pursuant to s 106A – whether the respondent had notice of proceedings

Family Law Act 1975 (Cth) s 106A
Family Law Rules 2004 (Cth) r 7.03, r 7.05, r 20.53

APPLICANT: Mr Sweyne

RESPONDENT: Ms Suter

FILE NUMBER: MLC 354 of 2009

DATE DELIVERED: 13 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Myers

SOLICITOR FOR THE APPLICANT: Rennick & Gaynor

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1.That a Registrar of this Court at Melbourne be and is hereby appointed and authorised pursuant to section 106A of the Family Law Act 1975 to execute, on behalf of the wife, a transfer of land and any other documents reasonably required to give effect to a transfer by the wife, as transferor to the husband, of the entirety of her interest in the real property situate and known as B property, in the State of Victoria, being the property more particularly described in Certificate of Title Volume … Folio … pursuant to Orders made by this Court on 3 July 1979, a copy of which is annexed hereto.

2.That the respondent wife pay the applicant husband’s costs of and incidental to the application filed on 16 January 2009, such costs to be assessed in accordance with the Rules of Court.

3.That liberty to apply is reserved to the wife to apply within twenty one (21) days of service of this Order upon her to vary or set aside this Order.

4.That, in the event that the wife makes application to vary or set aside this Order, that application be accompanied by an affidavit in which she sets out, inter alia, an explanation as to why she failed or neglected to attend Court today.

5. That for the purpose of the preceding order service on the wife of a sealed copy of this Order shall be effected in the following manner:-

a)     By being sent to the solicitors Davies Elliot at 250 Lower Heidelberg Road, East Ivanhoe, Victoria, 3079 under cover of a letter which shows a date on which the letter will be posted;

b)     By being sent to the wife at …, Victoria.

6.That the bundle of correspondence marked Exhibit “W1” be copied and when copied be placed on the Court file and remain in the same place as a document would if it had been filed in these proceedings.  The original documents be handed back to Mr Myers, solicitor for the applicant.

7.That the husband’s application filed 16 January 2009 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sweyne & Suter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 354 of 2009

Mr Sweyne

Applicant

And

Ms Suter

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list. It is an application of the husband filed on 16 January 2009 in which he essentially seeks enforcement of part of an order made on 3 July 1979. He seeks that pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”), the Registrar of the Family Court execute a transfer of land transferring the interest of the respondent wife Ms Suter, formerly Sweyne. The transfer is to be pursuant to the orders made on 3 July 1979, the thirtieth anniversary of which will shortly be upon us.

2. The respondent was called at the door of the court at approximately 10.45 am and there was no response to the call.

3. The applicant has filed an affidavit of service in which it is deposed that on 20 January 2009 the application in a case – and a sealed copy of the affidavit of the applicant husband sworn 22 December 2008 – was sent to the wife at …, Victoria.  No acknowledgment of service has been received.

4. I note that rule 7.03 of the Family Law Rules 2004 (Cth) provide that an application in a case seeking an enforcement hearing must be served by special service, and special service is defined in rule 7.05 as personal service. However, rule 20.53 provides that enforcement proceedings instituted by an application in a case and an affidavit, such as these proceedings are instituted, can be made ex parte, in particular an application for an order requiring a person to sign documents under section 106A of the Act.

5. Rule 20.53 reads:-

   A person may apply, without notice to the respondent, for any of the following orders by filing an Application in a Case and an affidavit:

   (a) an order requiring a person to sign documents under section 106A of the Act;

   (b)         an order to enforce possession of real property;

         (c)         an order for the transfer or delivery of property.

6. I accept that the Family Law Rules 2004 (Cth) countenance that applications of this nature be made ex parte. However, as thirty years have elapsed since the relevant order was made, I am not inclined to proceed ex parte. I therefore asked the solicitor who appears on behalf of the applicant for any evidence that would otherwise satisfy me that the respondent has actual notice of today's hearing, not merely deemed notice by having documents sent to her.

7. Mr Myers has tendered a number of letters passing between his office and a firm of solicitors, Davies Elliott of 250 Lower Heidelberg Road, East Ivanhoe.  Those documents are Exhibit “H1” and I have directed that after this hearing is concluded, the original documents be given back to Mr Myers and photocopy documents remain on the file marked as “H1”.  The reason for this is that one piece of correspondence, namely, a letter dated 6 February 2009 from the husband's solicitors to Davies Elliott solicitors, contains as the penultimate paragraph a without prejudice communication.  For the purpose of the hearing today that has been covered up.  If only a photocopy was handed back to Mr Myers at the end of this hearing, he would not have the without prejudice material. The photocopy will not include the without prejudice and otherwise inadmissible material.

8. Save as I otherwise indicate, all correspondence to which I refer is contained in Exhibit “H1”.

9. Returning to whether I can be satisfied that the wife has actual notice of today's proceedings, the relevant application was filed on 16 January 2009.  The application sought:-

   1.That a Registrar of this Court at Melbourne be and is hereby appointed and authorised pursuant to section 106A of the Family Law Act 1975 to execute, on behalf of the Respondent Wife [Ms Suter] (formerly [Sweyne]), in these proceedings the Transfer of Land and any other documents reasonably required to give effect to a transfer by the Wife, as Transferor to the Husband, of the entirety of her interest in the real property situated at and known as [B property], in the State of Victoria, being the property more particularly described in Certificate of Title Volume … Folio … pursuant to Orders made by this Court on 3 July 1979 pursuant to the Order of this Court made 3 July 1979.

   2.That the Respondent Wife pay the Applicant Husband’s costs of and incidental to this Application on an indemnity basis.

   3.Such further Order or direction as this Honourable Court deems appropriate.

10. There is a letter of 3 February 2009 from Davies Elliott to the husband's solicitors which discusses the Orders that were made by Emery J on 3 July 1979 and compliance with those Orders thereafter. In the penultimate paragraph to that letter, it is apparent that Davies Elliott acts for the respondent because they write:-

    Please advise why our client should act on your client's request having regard to his conduct in relation to observance of his obligations pursuant to the orders and the fact that our client has complied with her obligations thereunder. 

11. The letter goes on to say:-

    Any claim for costs against our client will be rigorously defended.  We will require all costs incurred in considering your client's request to be paid on an indemnity basis.

12. On 6 February 2009 the husband's solicitors wrote back to Davis Elliott, the second paragraph of which points out:-

    We note that because you are not on the court [record] and have not confirmed that you hold instructions to accept service of court documents we are under no obligation to reply to your letter.  However, for the sake of completeness we respond …

13. The response to that letter came from Davis Elliott in correspondence dated 9 February 2009.  Part of that letter reads as follows:-

    Your obligation to respond to our correspondence arises from a general professional obligation to do so.

14. There is further discussion concerning the transfer of land and the circumstances in which this application is made nearly 30 years after the order was made which is sought to be enforced.

15. On 11 February 2009 another letter was sent by the husband's solicitors which reiterates earlier matters, and it was in response to that letter that Davies Elliott wrote on 12 February 2009 to the husband's solicitors.  That correspondence is headed "Without Prejudice".  However, it is tendered in the proceedings and from my perusal, it does not contain anything which constitutes without prejudice communications.  It is not a communication designed or intended to settle or to compromise the matter.  Omitting formal and irrelevant parts, the letter from Davies Elliott dated 12 February 2009, reads as follows:-

    On the basis of agreed fact it is plain that:

    ·Our client provided your client a registrable Transfer of Land being that document dated 20^th February 1980;

    ·Your client was unable to register that Transfer at that time because of his failure to provide our client with a Deed of Indemnity in relation to liability to the then existing registered mortgage as required pursuant to the Orders;

    ·Our client properly refused to execute documents required by the then registered mortgage as she had not been provided with the Deed of Indemnity;

    ·If your client has properly complied with the Order the Transfer provided by our client was registrable;

    ·That your client has now discharged the mortgage makes the Transfer provided by our client registrable;

    ·Your client is unable to register the Transfer because he has lost it;

    ·Your client now seeks to obtain from our client a second Transfer;

    We have previously requested your specific advice as to the basis upon which your client makes this request and the legal obligation of our client to comply.

    As advised previously your client seeks our client’s cooperation. In our view he is not well advised to cloak that need for cooperation as to an obligation of our client to observe the terms of the Orders made in 1979.

    We shall advise shortly in relation to our client’s attendance at the Hearing listed for tomorrow.

16. The reference in the last paragraph of the letter to Davies Elliott, advising shortly in relation to the wife's attendance at the hearing, satisfies me that the wife has notice of the proceedings today. 

17. As indicated, the wife was called at the door of the court, both under the name Suter and under the name on the application which is Sweyne. There was no response to the call.

18. I have read the material relied upon by the applicant.  I am prepared to make the orders sought by the husband subject to allowing the wife a window of opportunity, of 21 days, in which to approach the court by application properly drawn, filed and served to vary or set aside this Order.  There may well be costs implications if she does so. The husband did not seek to persuade me against extending this indulgence to the wife.

19. The husband also seeks that the wife pay the husband’s costs of the application.

20. I am satisfied that an order for costs in favour of the husband is justified given that the proceedings are brought as a result of the wife’s failure to comply with an order of the court and that the husband has been wholly successful in his application.

21. Unfortunately, Mr Myers was unable to specify the costs that his client seeks. It would have been my preference to fix the costs.  However, in the absence of being able to specify how costs are calculated on a party-party basis, I have no alternative but to order that there be an assessment process.

22. The orders that I make will require service of a sealed copy of the orders upon the wife by a copy being sent to Davies Elliott under cover of a letter which requests them to draw the orders to the attention of the wife as well as being sent to the wife at …, Victoria.  I incorporate the latter address as I am informed by the solicitor for the husband, and accept, that it was to the … address that they wrote to the wife, immediately before being contacted by Davies Elliott.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  23 July 2009