TIERNAN & TIERNAN
[2017] FamCA 23
•20 January 2017
FAMILY COURT OF AUSTRALIA
| TIERNAN & TIERNAN | [2017] FamCA 23 |
| FAMILY LAW – PROPERTY – Enforcement – whether orders for transfer of a farm included rights (otherwise jointly owned) to access water for farm purposes – wife argued judge did not include water rights – no clear reasons in judgment – order made to comply – FAMILY LAW – COSTS and COSTS ENFORCEMENT |
| Family Law Act 1975 (Cth) Water Act (1989) (Vic) |
| Australia and New Zealand Banking Group v Karam [2005] NSWCA 344; [2005] 64 NSWLR 149 Crescendo Management Pty Ltd v Westpac Banking Corporation [1988] 19 NSWLR 40 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] 133 ALR 206 Trask and Westlake [2015] FamCAFC 160 Yilmaz and Yilmaz [2014] FamCA 663 |
| APPLICANT: | Mr L Tiernan |
| RESPONDENT: | Ms Tiernan |
| FILE NUMBER: | MLF | 2364 | of | 2006 |
| DATE DELIVERED: | 20 January 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin |
| HEARING DATE: | 11 January 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Devine |
| SOLICITOR FOR THE APPLICANT: | Berry Family Law |
| THE RESPONDENT: | In Person |
Orders
That by 4.00pm on 27 January 2017 the wife sign all documents and if necessary, do all other things required to transfer to the husband, at the expense of the husband, the forms required to transfer to the husband all her right title and interest in … and …, being the water rights attached to the property situate at and known as F Street, E Town currently held in joint names (and/or as tenants in common).
That pursuant to s 106A of the Family Law Act 1975 (Cth) the Registrar of the Family Court of Australia at Melbourne be appointed to do all acts and things and sign all documents in the name of the wife as may be necessary to give effect to paragraph (1) of these orders and the Registrar shall be satisfied that it is necessary to sign such documents upon receipt of an affidavit from the solicitor for the husband to that effect.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That save as to issues of costs arising out of the application, the amended application in a case filed on 15 September 2016 is dismissed.
That the response to the application in a case filed by the wife on 7 October 2016 is dismissed.
That should either party desire to seek costs arising out of these proceedings, they do so by written submissions served on the other party by no later than 4.00pm on 27 January 2017 and any reply to such submission be filed and served on the other party by no later than 4.00pm on 15 February 2017 and the matter of that costs application (if any) be otherwise determined in chambers without further formal court hearing).
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 Tiernan & Tiernan 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: MLF 2364 of 2006
| Mr L Tiernan |
Applicant
And
| Ms Tiernan |
Respondent
REASONS FOR JUDGMENT
Despite the court making final orders on 10 December 2010 after an eight day hearing in that year, Mr L Tiernan (“the husband”) and Ms Tiernan (“the wife”) remain in dispute about the extent and meaning of them.
For the purposes of these reasons, I have referred to the parties as the husband and the wife notwithstanding their relationship came to an end a long time ago. The reference is for my convenience.
Putting it as simply as I can, the husband’s position is that he has fulfilled all of his obligations under the orders of 2010 yet the wife refuses to transfer what was colloquially called “the water rights” relating to a property at E Town. Secondly, he asserts, and it is not denied by the wife, orders relating to costs made by the court on 12 April 2011 for $15,000 have not been paid and now, almost six years later, he seeks the payment of that sum plus interest.
From the wife’s perspective, there is no obligation under the orders of 2010 to fulfil. She observes that no reference was made by the learned trial judge to the transferring of any “water rights” nor should there be any need to do so as, in her view, whilst there is no dispute as to the existence of those rights as “property”, they are still in the joint names of the husband and the wife as tenants in common and were not part of the parties’ assets and liabilities. In addition, she now seeks to recover her portion of that property. In respect of the costs issue, the wife’s position is that for a number of years since the husband has had possession of the farm at E Town, he has had access to (and indeed still paid for) the water used arising from the “water rights” and benefited from her share and has been well compensated such that enforcement of the costs order should not follow. Although she did not expressly say so, her fall-back position seemed to be that even if she was wrong about the latter point, and obliged to pay the costs, she has no property and is living on a pension and therefore unable to pay.
The husband’s position about the “water rights” is that there is no misunderstanding, mistake or confusion and that to the extent it is necessary to clarify the problem at all, it could be done under the “slip rule”. Having regard to the wife’s position as articulated generally above, the husband does not accept that the wife would comply with any orders anyway and accordingly, has sought that the court order pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) a registrar to execute the necessary documents to implement the formal transfer of the “water rights” to him.
Arising out of this determination, there will be further applications for costs by the husband and accordingly, as I was unable to make any determination about that issue, it is not appropriate after all of this time for the parties to come back to court, any application for costs will have to be undertaken by written submission within a relatively short timeframe. Neither party objected to that course.
At the outset it must be made clear that, in the discrete application to which I am about to turn, the wife represented herself and the husband was represented by counsel. Legal representation in this particular case has bedevilled the litigation from 2010. The reasons of the court delivered in 2010 show that the wife was represented on some days by counsel, no doubt briefed by solicitors, but not on others. There was little doubt before me that there was veiled criticism by the wife of her former practitioners in the way that the proceedings were then conducted. One example was that a sworn valuation was obtained which she thought was “laughable” but her then solicitors did nothing about it. There is some justification for the wife’s cynicism about her representation because in the reasons for judgment of Mushin J published 10 December 2010 two observations stand out. First, at [10] Mushin J said:
The legal costs which had been expended on the trial and its preparation had been out of all proportion to the issues.
At [84]:
As with most aspects of this matter, formulating the relevant assets and their values is far from straightforward. That largely arises from the unsatisfactory way in which the case was prepared and presented. The lack of disclosure by all parties including my continuing suspicions with regard to the financial circumstances of all parties at various stages of their relationship is at the heart of my concerns.
Least it be thought that the wife was the only one with cause for concern about her representation, I note that in 2016, some five years after the orders were made in 2010, the husband’s then lawyers (not those now acting for him) filed an application to resolve the impasse but on the return date, failed to appear, giving rise to an order that the proceedings be struck out.
By his amended application in a case filed 15 September 2016, the husband sought orders:
(a)that within 72 hours of any order, the wife sign the necessary transfer forms relating to the transfer of the “water rights” to which I have referred;
(b)that pursuant to s 106A of the Act, the registrar be appointed “to give effect to” the orders of 2010 (as distinct from executing any document in the name of the relevant party); and
(c)that the wife pay the costs referred to earlier of $15,000 plus interest now said to be $7305.57.
By her response to the husband’s application, the wife sought the following orders:
(a)the application of the husband filed in February 2016 (to which I have earlier referred as having been struck out) not be reinstated;
(b)the husband within 72 hours sign the necessary transfer forms of the “water rights” “currently held in joint names as tenants in common and attached to the property known as …[E Town]”;
(c)that the debt owing to the husband be set at $15,000 and interest be waived because of the husband’s use of “the valuable water resource” from the time of the transfer of the land in March 2011.
In addition to those matters, the wife also sought that the husband not be at liberty to rely on a variety of affidavits but as that issue was not raised again and indeed to the extent necessary, the husband did rely on a variety of other affidavits, it is difficult to see how any objection could legitimately be made. In any event, there was no injustice or prejudice to the wife. It was not necessary that the court give the husband leave to reinstate his application because he filed a new one.
The respective applications were heard in a very busy Duty List and as such, the process was truncated. It was not suggested by the wife that she wanted to cross-examine any of the witnesses whose affidavit material the husband relied upon. One of those witnesses was her adult son. She did raise (during discussion) that she disputed what the son said but that related to a specific telephone conversation which I am convinced is irrelevant.
The affidavit material relied upon by both of the parties can be accepted as read and to the extent necessary, I shall make findings below based on the balance of probabilities.
The background to the discrete applications is modestly straightforward.
On 10 December 2010, Mushin J pronounced the orders earlier mentioned. The relevant paragraphs of that order need to be set out in some detail. They are:
1.Within 90 days or such other time as may be agreed between the parties in writing, the husband pay to the wife the sum of $150,000.
2.Contemporaneously with the payment in accordance with paragraph 1 hereof, the wife transfer to the husband all of her right, title and interest in the property known as …[E Town]…at the husband’s expense.
3.Contemporaneously with the transfer…the husband indemnify the wife in relation to outgoings…rates, taxes and like expenses.
4.Save as provided in these orders, all items of property forthwith vest in the party presently having possession thereof.
5.…
6.Liberty be reserved to either party to apply for any order consequent upon these orders.
What can readily be seen from those orders is that upon the husband paying to the wife $150,000, she was to transfer whatever entitlement she had in the E Town property. It seems to me that paragraph 4 of those orders also may have some relevance although it was not argued, because there could be no dispute that as at December 2010, the husband was in possession of the E Town property and depending upon one’s interpretation, the “water rights”, which are in reality some form of licence to draw water from infrastructure adjacent to the property, were clearly in the possession of the husband regardless of who may have been seen as the legal owner. For reasons which follow, I do not consider I have to determine the matter on the basis of that order.
The judgment of Mushin J is littered with criticisms of both parties particularly in relation to their respective truthfulness and credibility. Significantly, before me, the wife conceded that she had not appealed those orders. She endeavoured to explain that she had no money and did not think she could appeal outside of the relevant period under the Family Law Rules 2004 but in a humorous way, said having regard to how unjust the orders were and how wrong everything had been, perhaps she should do so now. I do not propose to jump at shadows.
An examination of the reasons for judgment reveals the following reasoning of Mushin J:
[85]I will consider the asset pool in two fundamental categories being those on which the parties agree and those on which they disagree…
[86]The asset pool must consist of those assets and liabilities in existence at the date of the trial at their values as at that date…
Agreed assets
[87]The following table sets out those assets on which the husband and the wife agree or on which no contrary submission was made:
Jointly owned farm property (including water rights)
$404,000
Husband's interest in bull
$500
Husband’s Hi-Ace van
$1,000
Husband's leasehold interest in property in [Asia]
$100,000
Balance of husband's superannuation fund
$80,000
Wife’s business
$10,120
Debt owed to husband by [TS]
$10,000
Debt owed to husband by [KE]
$10,000
TOTAL
$615,620
I need go no further at this point than to observe from the table just mentioned, the reference to the “water rights”.
Similarly, the reference to $404,000 is important. It was not disputed by the wife that Mushin J was provided with a sworn valuation of the E Town farm. Albeit that the wife strenuously disputes the valuation, but did not do so in 2010, she cannot dispute the statement referred to in [87] above, that this was an asset about which the parties agreed or upon which no contrary submission was made. An examination of that valuation clearly shows that the $404,000 included the land, its improvements and the “water rights”.
Mushin J went on then to deal with disputed assets which, for the purposes of this exercise, are no longer relevant.
At [106] Mushin J then set out the “net assets” and described the “joint asset” as:
Farm including water rights - $404,000
In a standard approach to the division of assets of the parties under s 79 of the Act, his Honour then determined that the divisible assets were the joint assets of the parties, their respective assets and arrived at a total of just over $1.4 million. His Honour then approached the matter on the basis of the various legal issues to which attention had to be drawn and about which no appeal has been raised. Ultimately, his Honour divided the parties’ property equally between them and after making adjustments for what property he found to be in the hands of the wife, his Honour decided that it was necessary to achieve a just and equitable outcome of 50 per cent of those assets, for the husband to pay the wife $150,000.
Albeit that the wife now argues that that valuation of the property was wrong and for that purpose, she points to a series of shire valuations, her argument has no merit. Unless there was consensus about those values, the court was entitled, if not obliged, to rely upon the expert evidence. More so in this case, the court was entitled to do so because the parties either told his Honour that that was the evidence or did not dispute that it was the evidence. In my view, the wife cannot endeavour to argue to the contrary now. This trial took eight days albeit that some of those days included periods where she was without legal representation but it is also noticeable that there was a significant gap between the first and final part of the hearing. It would seem from what I have read that there was no suggestion of any change in direction in relation to or about the assets. To the extent that the wife intended otherwise, it is not evident from the judgment of Mushin J and the orders were not appealed.
If indeed, the wife somehow wanted to argue that the “water rights” were not included as assets to be divided, it is self-evident that she would have been overpaid when she received the sum of $150,000.
The wife also vociferously argues that no reference was made in the orders to any specific obligation for her to transfer the “water rights”. In my view, it was unnecessary to so order but as a precaution, I shall approach the matter from a number of different directions.
There was considerable debate in discussion as to whether the “water rights” are “attached” to the farm land. That is the sort of language that the parties were using and indeed it would appear, it is common in the farming community. An examination of the Water Act (1989) (Vic) and, for example s 64AS, when the transfer of the farm occurs, the water use licence associated with the land is deemed transferred. But, s 33(5) also makes reference to water “shares” but they seem to arise not so much from being associated with particular land but with a determination of the relevant Minister. None of that is relevant here even if either of those situations applies because of the way the litigation was conducted in 2010. Logically, what everyone was talking about was a licence to draw water and that licence remains albeit that portions of the volume of water so described as “rights” can be sold and transferred. It was not a matter of submission, but it makes sense, that the licence should be in the same names as the registered proprietors of the land. In this case, as is evident from paragraph 106 of the judgment of Mushin J, the land was in joint names. It is inconceivable therefore that Mushin J in determining what property was to be divided, should include the “water rights” in the value of the total assets and divide that equity yet not expect that the wife, who upon receipt of her $150,000, had to relinquish any legal or equitable interest in whatever constituted that equity whether it was the farm, the licence or “water rights”. It does not make sense otherwise.
Another approach is to look at what actually happened after the orders. As the wife described it, her financial position at the time was desperate. On 11 March 2011, it is not disputed that she declined to transfer the “water rights”. In her own affidavit filed 7 October 2016, she described it thus:
I attended [the solicitor’s office] for settlement as arranged on 11 March 2011 and he gave me papers to sign for the transfer of the water share which I refused to sign as this was not in the orders handed down by Justice Mushin. [The solicitor] asked me to wait and gave me a letter he wrote stating that I had refused to sign and the reasons I had given.
It is therefore obvious that the wife took the view that the drafting of the orders by his Honour did not adequately (from her perspective) require a transfer of her legal interest (if that was the case) in the licence to the water. Immediately after the refusal just mentioned, it would appear that the solicitors for the husband contacted the court and asked for a hearing to be reconvened before Mushin J presumably for enforcement or clarification purposes.
On 16 March 2011, the wife, (in her words) feeling extremely upset and pressured, returned to the solicitor and:
Only under duress signed the papers for the application to transfer the water. The transfer was approved but lapsed because no action was taken to transfer the water within the time required under the Act.
There is some confusion as to what happened thereafter. On the wife’s version, the statutory time lapse meant that when the husband ultimately produced the documents to the water authority, they were rejected. From the husband’s perspective, based on the submission put to me, the documents were rejected by Goulburn Murray because they were incorrect or incorrectly signed. In my view it matters little but it certainly reinforces the point I earlier made about the diligence of the practitioners involved. Bizarre as it may seem, five years went by before anything was done. No explanation was given for why that was so.
Insofar as the wife asserted that she acted under “duress”, there is no evidence put before me that would in any way satisfy any of the tests as the law would understand them based on that allegation (see Crescendo Management Pty Ltd v Westpac Banking Corporation [1988] 19 NSWLR 40, Australia and New Zealand Banking Group v Karam [2005] NSWCA 344; [2005] 64 NSWLR 149).
In submissions, the wife went further and said she was “blackmailed” to sign the documents because otherwise she would not have got her $150,000. Again that misses the point. She could not have got her $150,000 were it not for the fact that the “water rights” were included in the valuation that she (or her legal practitioners) then accepted as the value of the E Town property.
Taking all of those matters into account, there can be no doubt that Mushin J intended that, whatever property lies in the licence attached to the E Town farm, once the $150,000 was paid, both farm and “water right” were to belong to the husband. The reference by the wife to the absence of a transfer is irrelevant. It was never suggested to Mushin J that the licence or “water rights” were separate property. Had that been the case, his Honour would have dealt with that as property of the parties in the various schedules set out in the judgment.
To the extent that the wife could point to something indicating that this was property that did not fall within the s 79 orders made in December 2010, it must be self-evident that the power in s 79 in that circumstance would not be exhausted. If that was the case, the court could not make the orders sought by the wife earlier mentioned. That particular property would have to go back for division as property outside of the 2010 orders. In my view that argument is unnecessary to consider further because I am satisfied that Mushin J intended the licence or “water rights” to be a part of the property which has been referred to in a schedule mentioned in the reasons.
Because there is a complication here in the sense that there is an authority who may not accept the transfer under the orders, I consider there is merit in the argument that any problem can be cured by reference to the “slip rule”. In my view, it is doubtful that it is necessary to make such an order because Order 2 makes reference to a transfer by the wife of “all her right, title and interest in the E Town property” and it would seem to me that the licence is attached to that property. Here again, the submissions of the wife are confusing and conflictual. She maintained that the “water right” was not attached to the farm yet as I have observed above, her very application for orders makes reference to those rights “attached to the property” at E Town. It seems to me that the wife is being opportunistic because of the bureaucratic requirements of the relevant water authority. That then gives rise to the question of whether or not the “slip rule” can be used by the husband.
Reference to the “slip rule” can be found in rule 17.02 of the Family Law Rules 2004. That specific rule permits the court at any time to vary or set aside an order if it does not reflect the intention of the court or there is an error arising in the order from an accidental slip or omission. It also permits the court to alter an order if there is a clerical mistake in the order. That particular rule has had previous iterations but it seems to me unnecessary to rely upon the rule.
In Trask and Westlake [2015] FamCAFC 160, the Full Court considered various authorities but particular reference may be made to Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] 133 ALR 206 at 209 per Lockhart J where it was made clear that this court has an inherent jurisdiction to amend orders which do not correctly state what was actually decided. Two observations need to be made here. The first is that the s 79 power is exhausted and as such, any change to final orders cannot alter existing rights of parties provided by the orders. The second point is that this capacity to use the provision in the rules along with the inherent power to which I have just referred, is surprisingly wide (see Trask (supra)) but it does not extend to mistakes that are a consequence of a deliberate decision. The absence of specific reference to the transfer of the “water rights” was clearly not a deliberate decision because it is clear from reading the reasons of Mushin J, his Honour thought it was unnecessary to use precise language in circumstances where the reference to the $404,000 included the water rights. It may be a matter of controversy for the wife but otherwise, it is clear to me what his Honour’s intention was.
Having examined all of those matters, there is no merit to the argument of the wife. The intentions of the court from 2010 should be carried out and to the extent necessary, orders should be made of a procedural nature to give effect to the intention.
Because of the extraordinary delay in finalising this and the obvious position adopted by the wife, a very short time should be given to her to execute whatever documents are required to give effect to the original intention and the orders I now propose. The fall-back position of the husband is to seek an order under s 106A of the Act. Section 106A provides that if a court has directed a person to execute a deed or instrument and that person has refused or neglected to comply, if the court considers it necessary to exercise the powers in s 106A:
The court may appoint an officer of the court…to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
Section 106A is extremely wide. Having regard to the language that the wife used such as “blackmail” and “duress”, I consider it doubtful that she will cooperate with the implementation of the orders as I have described. In the exercise of my discretion therefore I consider it is necessary to exercise the power and make an order under s 106A of the Act in the event that the wife refuses to sign the relevant documents.
For the record, I also observe that it is a significant submission of the wife that she was treated unjustly but a careful reading of the judgment of Mushin J leaves me convinced that there can be no criticism of the decision or of the way in which the hearing was conducted by his Honour. I have little doubt that the wife’s impecuniosity now may have been a consequential flow on from what then occurred but that cannot affect the rights arising from the order.
The second of the two issues relates to the costs and the interest that flows. As I have observed, the wife does not dispute the costs issue nor could she because she did not appeal against the 2011 order. Her point is that the husband has been well compensated by having the use of her water entitlement as a joint proprietor. For the reasons I have outlined above, there is no merit in that argument. The husband (as conceded by the wife) has paid for the water and no doubt had the benefit of the fruits of the farm. Mushin J ordered that the costs be paid and they were not.
Section 117B of the Act provides as follows:
(1) Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:
(a) the date on which the order is made; or
(b) the date on which the order takes effect;
whichever is later, on so much of the money as is from time to time unpaid.
(2) A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first‑mentioned order or may order:
(a)that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or
(b)that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).
No order was made by Mushin J resembling the provisions of s 117B(2).
Interest therefore is payable at the rate prescribed by the applicable rules of court and the calculation undertaken by counsel for the husband seems to me to be correct.
The fact that the interest runs (absent a court order) means that I have to do little more than confirm the calculation but I have treated the submission of the wife as an application that the court not enforce its orders. That is because of her professed impecuniosity notwithstanding that she received the sum of $150,000.
The power of the court to enforce orders made pursuant to the Family Law Act is contained in s 105 of the Act, which sets out the following:
105 Enforcement generally
(1)Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
Note:For example, the Federal Magistrates Court can enforce decrees made by the Family Court of Australia.
The Family Law Rules 2004 (Cth) (“Family Law Rules”) further set out, inter alia, the following.
20.07 General enforcement powers of court
The court may make an order:
(a) declaring the total amount owing under an obligation;
(b)that the total amount owing must be paid in full or by instalments and when the amount must be paid;
(c) for enforcement (see rule 20.05);
(d) in aid of the enforcement of an obligation;
(e) to prevent the dissipation or wasting of property;
(f) for costs;
(g)staying the enforcement of an obligation (including an enforcement order);
(h) requiring the payer to attend an enforcement hearing;
(i)requiring a party to give further information or evidence;
(j) that a payer must file a Financial Statement;
(k)that a payer must produce documents for inspection by the court;
(l)dismissing an application; or
(m) varying, suspending or discharging an enforcement order.
Note: For the collection of child support, the court has general powers set out in section 111B of the Registration Act.
Rule 20.09 provides for:
Discharging, suspending or varying an enforcement order in this way:
(1)A party to an enforcement order may apply to the court at any time to discharge, suspend or vary the order.
Note: An application under subrule (1) must be in an Application in a Case (see rule 5.01).
(2)An application under subrule (1) does not stay the operation of the enforcement order.
In Yilmaz and Yilmaz [2014] FamCA 663, Le Poer Trench J made the following observation:
[174]In relation to how the power of the Court set out in the above section is to be interpreted, the general principle, established by the Full Court (Wood, Simpson SJJ & Gibson J) in the matter of In the Marriage of Ramsey (1983) FLC ¶91-301, is that the power of the court to enforce orders is discretionary rather than absolute. Nygh J, in his judgment of In the Marriage of Ramsey (No 2) (1983) 8 Fam LR 1005 elaborated on that principle as set out as follows:
The Full Court in the appeal in this case (Ramsey & Ramsey ) held that the power of enforcement which the wife sought to exercise under sec. 105 was discretionary and not absolute and I am clearly bound by that decision. The question then arises whether circumstances have arisen in which it would be inequitable to enforce the original order.
As the English Court of Appeal stated in the passage cited with approval by their Honours in Thwaite v. Thwaite (1981) 3 W.L.R. 96 at p. 102:
Where the order is still executory, as in the present case, and one of the parties applies to the Court to enforce the order, the Court may refuse if, in the circumstances prevailing at the time of the application, it would be inequitable to do so.'
[175] His Honour concluded in that matter:
If I have no discretion to vary the original order, a refusal to enforce can only be justified on the basis that the unconditional transfer of the legal title to the wife no longer represents her entitlement in equity because, by subsequent conduct of the parties, the husband has reacquired a beneficial interest in the subject property.
[176]The principle set out in Ramsey has been more recently upheld by the court: Collins, MH and Olsthoorn, QPW (2005) FLC 93-216:
[14.]It is well settled that the Court has the discretion to refuse to enforce one of its own orders. (See Ramsey and Ramsey (1983) FLC 91-301)
Le Poer Trench J decided that enforcement was discretionary and I respectfully agree.
In this case, whilst I accept that the wife may currently be unable to meet any such payment, that may be a temporary position or it may not. A refusal by the court to exercise its discretion to enforce a money order can only be determined in the light of the then known circumstances. It may be that the wife’s future position improves remarkably. The question of whether or not enforcement should be pursued is a matter for the husband.
Having said all of that, the unusual feature here is twofold. First, the husband seeks an order that the wife pay the $15,000 costs. No other form of order was sought to seek recovery was pleaded. As the order for $15,000 was made by Mushin J, it does not need to be made again. If the husband wants the physical possession, or recovery, of his money, that proposed order will not achieve it. Secondly, he wanted his interest. He does not need the order previously mentioned because the interest is accruing. It will continue to accrue until paid. Like the enforcement issue, there is no order I can make here because apart from reiterating what has already been ordered, no specific enforcement orders were pursued. The husband will have to take appropriate other proceedings outlined by the rules.
As earlier indicated, as the issues of costs arising out of the discrete application were dependent upon my deliberation, I shall make provision for written submissions associated with costs.
I certify that the preceding Fifty Five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 January 2017.
Associate:
Date: 20 January 2017
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Remedies
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Statutory Construction
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