Timmins and Mitropoulos (deceased) and Ors

[2016] FamCA 248

FAMILY COURT OF AUSTRALIA

TIMMINS & MITROPOULOS (DECEASED) AND ORS [2016] FamCA 248

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – consideration of r 6.03 of the Family Law Rules 2004 (Cth) – where the joinder is opposed by two of the proposed respondents but no submissions or material is filed by them in support of their position – where the proposed respondents have lodged caveats over the former matrimonial home and claim debts owed by the deceased husband – interim orders made for the joinder of the respondents

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

AJO & GRO [2005] FamCA 195; (2005) FLC 93-218
Kowaliw & Kowaliw (1981) FLC 91-092Vass & Vass [2015] FamCAFC 51

APPLICANT: Ms Timmins

FIRST RESPONDENT: Geoffrey Dillon As The Legal Personal Representative Of Mr Mitropoulos (Deceased)

SECOND RESPONDENTS:

Mr B,

Mr C,

Mr D,

Mr E,

G Pty Ltd,

Mr F,

Mr H,

Mr I and

J Pty Ltd

THIRD RESPONDENT: Mr K

FOURTH RESPONDENT: Mr L

FIFTH RESPONDENT: Ms M

SIXTH RESPONDENT: Mr N

SEVENTH RESPONDENT: Mr O

FILE NUMBER: MLC 11716 of 2011

DATE DELIVERED: 20 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: In Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Shepherd

SOLICITOR FOR THE FIRST 

RESPONDENT:

Geoff Dillon & Co Commercial Lawyers

COUNSEL FOR THE SECOND 

RESPONDENTS:

Mr Strum

SOLICITOR FOR THE SECOND

RESPONDENTS:

Kliger Partners

THE THIRD RESPONDENT: In person

SOLICITOR FOR THE THIRD

RESPONDENT:

Velos & Velos Lawyers

THE FOURTH RESPONDENT: In person

THE FIFTH RESPONDENT: No material filed

THE SIXTH RESPONDENT: No material filed

THE SEVENTH RESPONDENT: In person

Orders

1. That pursuant to r 11.10 of the Family Law Rules Cth (2004) the wife have leave to rely upon her Amended Amended Initiating Application filed 13 October 2015 in so far as it seeks relief against the fourth, fifth, sixth and seventh respondents.

2. That pursuant to r 6.03 of the Family Law Rules Cth (2004) Mr L, Mr N, Ms M and Mr O be joined as parties to these proceedings.

3. That forthwith the wife cause sealed copies of the following documents to be personally served upon Ms M:-

   (a)Application in a case filed 18 December 2015;

   (b)Written submissions filed on behalf of the wife on 18 December 2015;

   (c)These orders and my reasons for judgment dated 20 April 2016.

4. That by 4.00 pm on 11 May 2016 Ms M file and serve upon all parties any application to set aside paragraph 2 of these orders in so far as it relates to her joinder as a party to these proceedings together with an affidavit setting out:

   (a)her reason for not attending the mention hearing on 6 November 2015; and

   (b)the bases upon which she seeks to set aside these orders.

5. That the Application in a Case filed 18 December 2015 and the Responses to an Application in a Case filed 22 January 2016 be otherwise dismissed.

6. That all extant applications be listed at 9.30 am on 16 May 2016 for mention before the Honourable Justice Johns for the purposes of making trial directions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Timmins & Mitropoulos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11716  of 2011

Ms Timmins

Applicant

And

Geoffrey Dillon As The Legal Personal Representative Of Mr Mitropoulos (Deceased)

First Respondent

And

Mr B, Mr C, Mr D, Mr E, G Pty Ltd, Mr F, Mr H, Mr I and J Pty Ltd
Second Respondents

And

Mr K
Third Respondent

And

Mr L
Fourth Respondent

And

Ms M
Fifth Respondent

And

Mr N
Sixth Respondent

And

Mr O
Seventh Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 18 December 2015 the wife, Ms Timmins sought orders which may be summarised as follows:-

   1.That pursuant to r 6.03 of the Family Law Rules Cth (2004) (“the Rules), the fourth, fifth, sixth and seventh respondents be added as parties to the proceedings.

   2.That pursuant to r 11.10 of the Rules the wife have leave to amend her Initiating Application in accordance with the Amended Initiating Application filed on 13 October 2015.

   3.That the orders sought at paragraphs 9 to 24 inclusive of the wife’s Amended Amended Initiating Application be determined at the final hearing of the proceedings.

   4.That the Court make directions for trial.

2. The fourth and seventh-named respondents, Mr L and Mr O both filed Responses to an Application in a Case on 22 January 2016.  Both the fourth and seventh-named respondents are self-represented litigants.  Each opposes the application that they be joined as parties to the proceedings.

3. Neither the fifth nor sixth-named respondents have filed a response to the wife’s Application in a Case. 

Background

1. The wife was born in 1965.  She is aged 51 years.

2. The husband was born in 1961 and died in 2013. 

3. The husband and the wife commenced cohabitation in 2002 and married in 2006.  Separation occurred in November 2011 and the parties divorced on 20 April 2013.

4. There are two children of the marriage, namely P (aged 13 years) and Q (aged eight years).  The wife and the children live in the former matrimonial home at R Street, Suburb S (“the former matrimonial home”).

5. At the time of the husband’s death the parties had competing property applications listed for final hearing before me.

6. The husband died intestate.  On 30 June 2015, a grant of Letters of Administration of the husband’s estate was made to Geoffrey Dillon.  On 20 July 2015 orders were made substituting Mr Dillon as the legal personal representative of the husband’s estate in these proceedings. 

7. The wife’s application for final orders seeks an order that the former matrimonial home be transferred to her. 

8. It is alleged that at the time of the husband’s death in 2013, significant debts were owed by him to third parties. 

9. The fourth to seventh-named respondents are alleged debtors of the husband who have each lodged caveats against the title to the former matrimonial home.

10. The wife deposes in her affidavit filed 13 October 2015 that her family law solicitor has written to each of the fourth to seventh respondents or their legal representatives and proposed that they remove their caveats on the basis that in circumstances where the husband’s estate is now being administered, their claims may be dealt with in the usual course of the administration of the estate pursuant to the provisions of the Administration and Probate Act 1958 (Vic).

11. The wife deposes in her affidavit that notwithstanding that request, the fourth to seventh respondents have each refused to withdraw the caveats lodged by them. 

12. On 13 October 2015 the wife filed her Amended Amended Initiating Application (“the Amended Application”).  The Amended Application seeks orders that the second to seventh respondents each withdraw the caveats lodged by them against the title to the former matrimonial home, that they be restrained from further encumbering the former matrimonial home and that they pay the wife’s costs of and incidental to the proceedings.

13. The proceedings were listed for mention before me on 6 November 2015.  The second, third, fourth and seventh respondents appeared at that hearing.  There was no appearance for the fifth and sixth respondents.  The matter was stood down for discussion.  At the conclusion of those discussions the parties agreed that I should determine the applications for joinder in chambers on the basis of material to be filed and that I should also make directions for trial.  Accordingly, I made orders in the following terms:-

    BY CONSENT IT IS ORDERED 

    1.That the applicant wife file and serve by 18 December 2015:-

    (a)An application for Joinder; and

    (b)Written submissions in support of the application for joinder and as to:-

    (i)     Witnesses; and

    (ii)    Issues for determination;

    to enable trial directions to be made in chambers.

    2.That the fourth to seventh respondents respond to the joinder application by 18 January 2016.

    BY THE COURT IT IS ORDERED

    3.That within 14 days the first respondent file and serve on all parties named in the Amended Initiating Application filed on 13 October 2015 any Amended Response to Initiating Application upon which he seeks to rely.

    4.That all extant applications be adjourned to a date to be fixed.

14. No orders were made with respect to the second or third respondents on the basis of submissions made that the issues as between the applicant and those parties were resolved.

15. In compliance with those orders the wife filed an Application in a Case and written submissions on 18 December 2015.  That application seeks to add the fourth, fifth, sixth and seventh respondents as parties to the proceedings and to seek relief against them in accordance with the Amended Application.

16. The fourth and seventh respondents have filed responses to the application; both oppose the application that they be joined as parties to the proceedings. 

17. On 15 January 2016 the wife filed an affidavit of service of Mr T.  That affidavit confirms that on 26 December 2015 the sixth-named respondent, Mr N, was personally served with:-

    ·    the Amended Application;

    ·    the wife’s affidavit filed 9 October 2015;

    ·    my orders of 6 November 2015;

    ·    the Application in a Case;

    ·    the written submissions filed 18 December 2015; and

    ·    correspondence dated 14 October 2015, 26 November 2015 and 7 December 2015. 

18. Accordingly, I am satisfied that the sixth respondent has been served with and has notice of the wife’s application that he be joined as a party to the proceedings.

19. The affidavit of service of Mr U filed 26 October 2015 confirms that on 15 October 2015 the fifth respondent, Ms M was personally served with the Amended Application and the wife’s affidavit sworn 9 October 2015.  However there is no evidence before me of service of the Application in a Case and written submissions having been effected upon the fifth-named respondent.

20. The Amended Application names the fifth respondent as a party to the proceedings and sets out the final relief sought by the wife against the fifth-named respondent.  It also clearly states that the next court date is 6 November 2015.  Having regard to those matters, I am satisfied that the fifth-respondent has notice of the orders sought by the wife and of the then next listed hearing date with respect to that application.  Notwithstanding that notice the fifth-respondent did not appear at the hearing on 6 November 2015.

21. These proceedings have been on foot since 2011.  They were listed for final hearing before me in October 2013.  As a result of the husband dying intestate, there was a significant delay in the proceedings whilst application was made for a grant of letters of administration in favour of the first respondent.  The delay has meant that there have been no less than six mention hearings before me between October 2013 and November 2015.  There can be no doubt that there has been an escalation in the costs incurred by the parties as a result of that delay.  In my view, any further delay to the proceedings should be avoided.  This is particularly so having regard to the fact that the proceedings have been on foot for almost 5 years.  The children of the husband and the wife were aged 8 and 3 when the litigation commenced; since that time they have lost their father and their mother has continued to be burdened by the uncertainty and stress of the proceedings.

22. In the circumstances and having regard to the fact that the fifth-respondent has notice of the final relief sought by the wife and to date, taken no steps to oppose that relief, I propose to deal with that part of the wife’s application relating to joinder of the fifth respondent on the basis that the fifth respondent be served with my orders and have opportunity to make application to set aside those orders.

Adding a party

1. Rule 6.02(1) of the Rules provides:-

   A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the Court to determine all issues in dispute in the case, must be included as a party to the case.

2. It is incumbent upon a party seeking an order against a person whose rights would be directly affected or whose participation is necessary to join that person as a party to the proceedings. 

3. Rule 6.03 of the Rules sets out the provisions for adding a party to the proceedings.  It provides as follows:-

   (2)A party may add another party after a case has started by amending the application or response to add the name of the party.

   (3)A party who relies on subrule (2) must:

   (a)file an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party’s relationship (if any) to the other parties; and

   (b)serve on the new party:

   (i)     a copy of the application, amended application, response or amended response; and

   (ii)    the affidavit mentioned in paragraph (a); and

   (iii)   any other relevant document filed in the case.

4. As the proceedings have already had a first day before a judge, it is necessary pursuant to r 11.10(1) of the Rules for the wife to seek leave to file her Amended Application (which names the fourth to seventh respondents and seeks relief against those parties).

5. The wife has since 18 October 2013 upon the filing of her first amended Initiating Application sought orders that she be permitted to retain the former matrimonial home. 

6. The wife deposes that the debts alleged by the fourth to seventh respondents relate to monies said to be owed to them by the husband.  It will be for each of those respondents to prove the debts.  The caveats lodged by those respondents were lodged after the husband’s death and at a time when the proceedings before this Court were on foot.

7. It will be the wife’s case at trial that if monies were advanced to the husband as alleged by the fourth to seventh respondents those monies were dissipated by the husband through his gambling.  As such the wife anticipates that the Court will be required to determine whether those matters should be taken into account in respect of any adjustment pursuant to s 79 having regard to the principles enunciated in Kowaliw & Kowaliw (1981) FLC 91-092; AJO & GRO [2005] FamCA 195; (2005) FLC 93-218 and Vass & Vass [2015] FamCAFC 51.

8. It was submitted on behalf of the wife that were the proceedings to be determined without a finalisation of the claims of the fourth to seventh respondents, the wife would be unable to secure the title to the former matrimonial home free from encumbrance.  Put simply, without a determination of the issues raised by the fourth to seventh respondents the finalisation of the Family Court proceedings would not end the litigation from the wife’s perspective; further proceedings would be necessitated to determine the claims of the fourth to seventh respondents and ultimately to determine whether or not the caveats should be removed. 

9. It was submitted that having regard to the main purpose of the Rules, that being “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case” the joinder of the fourth to the seventh respondents was necessary.  Further, it was submitted that an order for the joinder of the fourth to seventh respondents would ensure that all issues as between the parties could be determined, which accords with the main purpose of the Rules.  Reliance was placed on r 1.06 which provides that:-

   The court must apply these Rules to promote the main purpose, and actively manage each case by:

   (h)dealing with as many aspects of the case as possible on the same occasion.

10. The fourth and seventh respondents were represented at the mention hearing before me.  They were represented by the same lawyers, Berry Family Law, who continued to be the solicitors on the record until 19 January 2016, three days prior to the filing of their responses.  The Response to an Application in a Case filed by the fourth and seventh respondents are identical in form; both seek the following relief:-

    …I do not wish to be joined in these proceedings.

11. Neither the fourth nor the seventh respondent has filed any submission or affidavit in support of their response.   

12. The wife in her Amended Application seeks identical relief against each of the fourth to seventh respondents, that is an order that pursuant to s 90AE(2)(a) and s 90AF(2)(a) of the Family Law Act 1975 (Cth) those respondents do all acts and things and sign all documents as may be required to withdraw the caveats lodged by them.

13. Further orders are sought that each of the fourth to seventh respondents be restrained from further encumbering the former matrimonial home including but not limited to causing any further caveat to be lodged against that property and orders for costs of and incidental to the proceedings. 

14. The wife’s claim to have the former matrimonial home transferred to her is at the centrepiece of the property applications currently before the Court.  In his Amended Response to Initiating Application filed 20 November 2015 the first respondent opposes that application and seeks a sale of the former matrimonial home.  Each of the fourth to seventh respondents asserts rights in respect of that property through caveats lodged by them against the title. 

15. In circumstances where the fourth to seventh respondents have notice of the application for joinder and have filed no submission or evidence in opposition to that application, I am satisfied that it is appropriate that they be joined as parties to the proceedings. 

16. Orders in those terms will ensure that all issues relating to the claims of the wife and those parties can be resolved upon a determination of the issues currently before this Court.  The fourth to seventh respondents each assert that there are debts payable to them by the husband’s estate.  Those claims are challenged by the wife who seeks the transfer of the former matrimonial home free from encumbrance.  A joinder of the fourth to seventh respondents will enable a determination of their claims; if debts are found to be owed by the estate orders may be made for the payment of those debts.  Further, the joinder will enable the finalisation of the wife’s application with respect to the former matrimonial home.  The joinder of the fourth to seventh respondents will enable a timely finalisation of all claims, with the avoidance of further proceedings in other courts.  As a consequence, the legal costs incurred by all parties are likely to be reduced.

17. Given that the fifth respondent has not been served with the Application in a Case or the written submissions filed in support, I will make orders that she be personally served with those documents and these orders.  Further, I will make an order that any application by her to set aside these orders be filed within 21 days together with an affidavit setting out:-

    (a)   Her reason for not attending the mention hearing on 6 November 2015;

    (b)  The bases upon which she seeks to set aside these orders.

Other Matters

1. The first respondent’s Amended Response to Initiating Application purports to seek interim orders with respect to costs.  No evidence has been filed in support of that application.  Accordingly, I am not in a position to determine that application.

2. At the mention hearing on 6 November 2015 I indicated to the parties that I would list this matter for final hearing upon determining the wife’s Application in a Case.  To that end I invited submissions from the wife as to the trial directions sought on her behalf.  Those orders did not make provision for submissions from the first respondent or indeed the other respondents to be joined to the proceedings.  Having regard to that circumstance, I propose to list the matter for further mention to enable trial directions to be made with input from all parties to the dispute.

1. Accordingly, the orders I make are as follows:-

   1.That pursuant to r 11.10 of the Family Law Rules Cth (2004) the wife have leave to rely upon her Amended Amended Initiating Application filed 13 October 2015 in so far as it seeks relief against the fourth, fifth, sixth and seventh respondents.

   2.That pursuant to r 6.03 of the Family Law Rules Cth (2004) Mr L, Mr N, Ms M and Mr O be joined as parties to these proceedings.

   3.That forthwith the wife cause sealed copies of the following documents to be personally served upon Ms M:-

   (a)Application in a case filed 18 December 2015;

   (b)Written submissions filed on behalf of the wife on 18 December 2015;

   (c)These orders and my reasons for judgment dated 20 April 2016.

   4.That by 4.00 pm on 11 May 2016 Ms M file and serve upon all parties any application to set aside paragraph 2 of these orders in so far as it relates to her joinder as a party to these proceedings together with an affidavit setting out:

   (a)her reason for not attending the mention hearing on 6 November 2015; and

   (b)the bases upon which she seeks to set aside these orders.

   5.That the Application in a Case filed 18 December 2015 and the Responses to an Application in a Case filed 22 January 2016 be otherwise dismissed.

   6.That all extant applications be listed at 9.30 am on 16 May 2016 for mention before the Honourable Justice Johns for the purposes of making trial directions.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 April 2016.

Associate: 

Date:  20 April 2016