Tarelli & Langley (No 3) - [2024] FedCFamC1F 399

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarelli & Langley (No 3) [2024] FedCFamC1F 399

File number(s): PAC 4311 of 2014

Judgment of: BERMAN J

Date of judgment: 14 June 2024

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside an order – Application to vary a default order – Final orders made in May 2023 – Where the applicant seeks to list the property for sale in accordance with the default provisions – Where the applicant now seeks that he be solely able to organise the sale – Where there is a genuine concern that the respondent will take steps to frustrate the default provision and the sale – Orders made to vary the final default provision orders.

FAMILY LAW – COSTS – Circumstances justifying an order – Where the respondent has been wholly unsuccessful in multiple Applications in a Proceeding – Where the Court finds that the applicant is entitled to his costs – Consideration of party/party costs – Consideration of the applicant’s itemised costs schedule – Order for costs.

Legislation:
Family Law Act 1975 (Cth) ss 106A, 117.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Real Property Act 1900 (NSW) s 74J

Cases cited:
Langley & Tarelli (No 6) [2024] FedCFamC1A 17

Tarelli & Langley [2023] FedCFamC1F 386

Tarelli & Langley (No 2) [2024] FedCFamC1F 163

Division: Division 1 First Instance

Number of paragraphs: 74

Date of hearing: 31 May 2024

Place: Adelaide via MS Teams

Counsel for the Applicant: Mr Shaw

Solicitor for the Applicant: F W Ewart & Ewart

Counsel for the Respondent: Litigant in person
ORDERS

PAC 4311 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR TARELLI

Applicant

AND:
MS LANGLEY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 JUNE 2024

THE COURT ORDERS THAT:
1.Order 1(a) of the Orders made 18 May 2023 (as amended on 18 March 2024) be discharged and in lieu thereof the following shall apply:
(a)In addition to the forgoing the [respondent] shall pay or discharge any outstanding council and water rates in relation to the Suburb C property.

2.Order 3 of the Orders made on 18 May 2023 be varied to read as follows:
(3)In the event that the respondent is unable to refinance the Suburb C property and pay out the amount a provided for in Order 2(d)(iv) herein, and the default shall not be remedied within twenty-one (21) days of the date of this order, the parties shall do all things and sign all necessary documents to effect the sale of the Suburb C property as follows:
(a)The Suburb C property shall be listed for sale with a real estate agent appointed by the applicant.
(b)The list price shall be such amount as is proposed by the applicant on advice from the real estate agent appointed by him.
(c)The parties shall cooperate with the real estate agent appointed by the applicant in relation to the marketing of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tarelli & Langley (No 3)

Details

AGLC: Tarelli & Langley (No 3) [2024] FedCFamC1F 399
Case: [2024] FedCFamC1F 399
Decision Date: 14 June 2024

CaseChat Overview and Summary

This case involved an application by the applicant, Mr. Tarelli, to vary and set aside certain orders made in previous proceedings between the parties. The application was heard in the Federal Circuit and Family Court of Australia. The primary issue before the Court was whether to vary the default orders that had been made in the parties' property settlement. Specifically, the applicant sought to list the property for sale in accordance with the default provisions, while also requesting that he be solely able to organise the sale due to genuine concerns that the respondent might take steps to frustrate the default provisions and the sale.

The Court carefully considered the arguments presented by both parties. The applicant argued that the respondent had a history of non-compliance with court orders and that the sale of the property was in the best interest of both parties. The respondent, on the other hand, opposed the application, citing concerns about the sale process and the potential financial impact on her. The Court acknowledged the respondent's concerns but ultimately found that the applicant's concerns about the potential for the respondent to frustrate the sale were valid. As a result, the Court decided to vary the default orders to allow the applicant to list the property for sale and to appoint a real estate agent as per the applicant's instructions. The Court also found that the applicant was entitled to his costs due to the respondent's unsuccessful applications.

The Court made several orders to address the application. Firstly, it discharged Order 1(a) of the Orders made on 18 May 2023 and varied Order 3 to allow the applicant to list the property for sale. The Court also directed the respondent to take all necessary steps to withdraw a caveat on the property. Additionally, the Court appointed a Registrar to execute any necessary documents related to the withdrawal of the caveat. Finally, the Court ordered the respondent to pay the applicant's costs, amounting to $8,711.85.

Orders

Orders of the court

PAC 4311 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TARELLI

Applicant

AND:

MS LANGLEY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 JUNE 2024

THE COURT ORDERS THAT:

1. Order 1(a) of the Orders made 18 May 2023 (as amended on 18 March 2024) be discharged and in lieu thereof the following shall apply:

(a) In addition to the forgoing the [respondent] shall pay or discharge any outstanding council and water rates in relation to the Suburb C property.

2. Order 3 of the Orders made on 18 May 2023 be varied to read as follows:

(3) In the event that the respondent is unable to refinance the Suburb C property and pay out the amount a provided for in Order 2(d)(iv) herein, and the default shall not be remedied within twenty-one (21) days of the date of this order, the parties shall do all things and sign all necessary documents to effect the sale of the Suburb C property as follows:

(a) The Suburb C property shall be listed for sale with a real estate agent appointed by the applicant.

(b) The list price shall be such amount as is proposed by the applicant on advice from the real estate agent appointed by him.

(c) The parties shall cooperate with the real estate agent appointed by the applicant in relation to the marketing of the Suburb C property for sale including, giving access to and making the property readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective purchaser.

i. To avoid doubt, in the event that the respondent fails to cooperate with the applicant in relation to the marketing of the Suburb C property in the respects identified in subparagraph (c) above, the applicant shall within seven (7) days of such failure to cooperate on the part of the respondent, be appointed by self-executing order as the sole trustee of the sale of the Suburb C property.

(d) The proceeds of sale of the Suburb C property shall be paid in the following manner and priority:

i. To discharge the mortgage to the Commonwealth Bank of Australia;

ii. In payment of the agent’s commission and advertising or other expenses, if any, payable in relation to the sale;

iii. In payment of legal costs relating to the sale;

iv. In payment to trust account of F W Ewart on behalf of the applicant of the settlement sum ($51,308.00) together with the further sum of $13,167.29 making a total of $64,475.29 (“the new settlement sum”) pursuant to the order of the court dated 28 February 2024;

a. Costs awarded to the father in the sum of $8,711.85.

v. The balance then remaining to be paid to the respondent or as she may direct.

3. The respondent take all steps and execute all documents necessary to withdraw caveat …43 entered on the Title to the property situate at B Street, Suburb C, NSW, this being one of the caveats to be removed from the Title to enable orders made by this Honourable Court on 18 May 2023 to be given effect.

4. Pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar of this Court be appointed to execute any document and/or instrument necessary in relation to the withdrawal of the caveat …43 entered on the title of property situate at B Street, Suburb C, NSW.

5. That all interim or interlocutory proceedings are dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Rule 10.13(1)(a) enables the Court to vary or set aside an order if it was made in the absence of a party.BACKGROUND The applicant’s Application in a Proceeding sealed 30 January 2024 was served on the respondent with an affidavit of his solicitor on 9 February 2024 which set out service. In reasons given in support of the orders made on 27 February 2024, I indicated that I was satisfied that the respondent had been appropriately served with the Application in a Proceeding. The Application was first listed on 14 February 2024. On the same day the respondent filed a Response seeking orders that the Application be dismissed. The Application in a Proceeding was listed for hearing on 14 February 2024. At that hearing, the respondent appeared as a self-represented litigant and opposed the orders sought. She made an oral application that the matter be adjourned on the basis that she did not agree that the orders could be made pursuant to the slip rule and she was in the process of taking legal advice. I acceded to the respondent’s oral application and adjourned the proceedings to 27 February 2024 for an interim hearing noting that I would be sitting in the Sydney Registry of this Court. In reasons delivered on 27 February 2024, I made it clear that I was satisfied that the respondent was aware of the proceedings and that the Court was likely to hear and determine the matter on the next occasion. On 26 February 2024 at 12.10 pm the respondent forwarded to chambers a medical certificate under cover of an email. The email indicated that the respondent was not able to attend the hearing on 27 February. Further, the respondent filed an Application in a Proceeding dated 26 February 2024 seeking to adjourn the proceedings “due to illness”. The supporting affidavit annexed the medical certificate that had been emailed to chambers. At the hearing on 27 February 2024, there was no appearance by or on behalf of the respondent. I referred to the medical certificate attached to the respondent’s affidavit and considered that her period of ill-health, by reference to the medical certificate, concluded on 27 February 2024. I also made it clear that there would be no opposition to the respondent appearing remotely if she had a physical impediment to attend court. As matters transpired, the proceedings were adjourned until the following morning to enable the respondent to attend. I brought to account the Court needing to appropriately manage its matters but in particular, this litigation given that it has been before the Court for now ten years, tempered by the proper administration of justice. On 27 February 2024 at 6.22 pm the respondent sent correspondence via email to chambers attaching an Application in a Proceeding and a supporting affidavit. She again sought for the matter to be adjourned “due to illness” and attached a further medical certificate. Upon close inspection, the certificate no longer contained a reference to the respondent having one medical condition but confirmed that she had another medical condition and so could not attend court from 28 February to 1 March.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 4311 of 2014
Judgment of:	BERMAN J
Date of judgment:	14 June 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside an order – Application to vary a default order – Final orders made in May 2023 – Where the applicant seeks to list the property for sale in accordance with the default provisions – Where the applicant now seeks that he be solely able to organise the sale – Where there is a genuine concern that the respondent will take steps to frustrate the default provision and the sale – Orders made to vary the final default provision orders. FAMILY LAW – COSTS – Circumstances justifying an order – Where the respondent has been wholly unsuccessful in multiple Applications in a Proceeding – Where the Court finds that the applicant is entitled to his costs – Consideration of party/party costs – Consideration of the applicant’s itemised costs schedule – Order for costs.
Legislation:	Family Law Act 1975 (Cth) ss 106A, 117. Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 Real Property Act 1900 (NSW) s 74J
Cases cited:	Langley & Tarelli (No 6) [2024] FedCFamC1A 17 Tarelli & Langley [2023] FedCFamC1F 386 Tarelli & Langley (No 2) [2024] FedCFamC1F 163
Division:	Division 1 First Instance
Number of paragraphs:	74
Date of hearing:	31 May 2024
Place:	Adelaide via MS Teams
Counsel for the Applicant:	Mr Shaw
Solicitor for the Applicant:	F W Ewart & Ewart
Counsel for the Respondent:	Litigant in person

PAC 4311 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR TARELLI Applicant
AND:	MS LANGLEY Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	14 JUNE 2024