Timmins and Mitropoulos & Ors (No 2)

[2016] FamCA 467

FAMILY COURT OF AUSTRALIA

TIMMINS & MITROPOULOS AND ORS (NO 2) [2016] FamCA 467

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – where the joinder is consented to by the proposed respondent – interim orders made for the joinder of the respondent

FAMILY LAW – INJUNCTIONS – Application to restrain the respondents from lodging further caveats over the former matrimonial home and from assigning their interest in debts alleged to be owed by the husband – where the injunctions are consented to by three of the respondents – where there is no appearance by two of the respondents to oppose the injunction – where the injunctions will preserve the parties’ interest in the former matrimonial home pending trial – interim orders restraining the respondents

Family Law Act 1975 (Cth)

APPLICANT: Ms Timmins

FIRST RESPONDENT: Mr Desmond as the Legal Personal Representative of Mr Mitropoulos (Deceased)

SECOND RESPONDENT: Mr B, Mr C, Mr D, Mr E, G Pty Ltd, Mr F, Mr H, Mr I & J Pty Ltd

THIRD RESPONDENT: Mr K

FOURTH RESPONDENT: Mr L

FIFTH RESPONDENT: Ms M

SIXTH RESPONDENT: Mr N

SEVENTH RESPONDENT: Mr O

EIGHTH RESPONDENT: Ms V

FILE NUMBER: MLC 11716 of 2011

DATE DELIVERED: 16 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 16 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE FIRSTRESPONDENT: Mr Wraith

SOLICITOR FOR THE FIRST 

RESPONDENT:

Geoff Desmond & Co Commercial Lawyers

THE SECONDRESPONDENT: No appearance

THE THIRDRESPONDENT: No appearance

THE FOURTHRESPONDENT: No appearance

COUNSEL FOR THE FIFTH AND SEVENTH RESPONDENTS: Mr Franklin

SOLICITOR FOR THE FIFTH AND SEVENTH RESPONDENTS: DSA Lawyers

THE SIXTH RESPONDENT: No appearance

COUNSEL FOR THE EIGHTH

RESPONDENT:

Mr Hargreaves

SOLICITOR FOR THE EIGHT 

RESPONDENT:

Tony Hargreaves & Partners

Orders

IT IS ORDERED

1. That upon leave having been granted this day, by 4.00pm on 23 May 2016 the wife file a further Amended Amended Initiating Application in accordance with paragraph 3 of her Application in a Case filed 5 May 2016.

BY CONSENT

1. That the fifth and seventh and eighth respondents by themselves, their servants and/or agents be and are hereby restrained from further encumbering the Suburb S Property, including but not limited to:-

   (a)       Causing any further caveat to be lodged against the Suburb S property; and/or

   (b)       Assigning or purporting to assign any part of the alleged debt pursuant to which the fourth to eighth respondents claim an interest in the Suburb S property;

   and the fifth respondent Ms M be otherwise removed as a party.

BY THE COURT

1. That the fourth and sixth respondents by themselves, their servants and/or agents be and are hereby restrained from further encumbering the Suburb S property including but not limited to:-

   (a)       Causing any further caveat to be lodged against the Suburb S property; and/or

   (b)       Assigning or purporting to assign any part of the alleged debt pursuant to which the fourth to eight respondents claim an interest in the Suburb S property.

2. That all questions of costs be reserved to the final hearing set down for 2 November 2016.

3. That the wife’s Application in a Case filed 5 May 2016 be otherwise dismissed.

4. That the fourth respondent file and serve his trial affidavit by no later than 6 June 2016 setting out with precision the basis of any claim made by him with respect to the assets of the wife and the husband’s estate or any alleged debt said by him to be owed to him by the wife or the husband’s estate.

5. That the sixth, seventh and eighth respondents file and serve their trial affidavits by no later than 20 June 2016 setting out with precision the basis of any claim made by them with respect to the assets of the wife and the husband’s estate or any alleged debt said by them to be owed to them by the wife or the husband’s estate.

6. That all applications for final orders be adjourned for hearing before Justice Johns on 2 November 2016 at 10.00am as a two-day matter and that the evidence in chief of all witnesses be given by affidavit.

7. That by 4.00pm on 2 August 2016 the applicant file and serve upon all parties:

   (a)       An amended application setting out with precision the orders to be sought;

   (b)       The affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and

   (c)       A financial statement that complies with Chapter 13 of the Family Law Rules.

8. That the applicant pay all setting down and trial fees by 4.00pm on 3 October 2016.

9. That by 4.00pm on 16 August 2016 the respondent file and serve upon all other parties:-

   (a)       An amended response setting out with precision the orders to be sought;

   (b)       The affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and

   (c)       A financial statement that complies with chapter 13 of the Family Law Rules.

10. That by 4.00pm on 30 August 2016 the applicant, fourth, sixth, seventh and eighth respondents each file and serve any affidavit in reply to that of the affidavits of the respondent.

11. That no party file any further material other than as provided by these orders without leave of the Court.

12. That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

13. That all parties have leave to issue subpoenae for the production of documents by arrangement with the Registrar docketed with the management of the file.

14. That all parties have liberty to approach the Registrar responsible for the management of the Court file to vary the obligations under these orders to ensure readiness for trial.

15. Should any party fail to comply with these orders or the ensuing amending direction of the docketed Registrar:

    (a)       The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)       The party who has complied may immediately thereafter file an Application in a Case supported by an affidavit seeking for the matter to proceed on an undefended basis.

16. That by 4.00pm on 12 October 2016 the applicant file and serve electronically to … the following:

    (a)       A concise set of orders to be sought if different from those already filed;

    (b)       A list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)       A list of assets and liabilities;

    (d)       A list of objections to evidence upon which rulings are required; and

    (e)       A bullet-point summary of argument in relation to the issues in dispute.

17. That by 4.00pm on 12 October 2016 the applicant file and serve electronically to … the following:

    (a)       A concise set of orders to be sought if different from those already filed;

    (b)       A list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)       A list of assets and liabilities;

    (d)       A list of objections to evidence upon which rulings are required; and

    (e)       A bullet-point summary of argument in relation to the issues in dispute.

18. That by 4.00pm on 19 October 2016 the first respondent file and serve electronically to … the following:

    (a)       A concise set of orders to be sought if different from those already filed;

    (b)       A list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)       A list of assets and liabilities;

    (d)       A list of objections to evidence upon which rulings are required; and

    (e)       A bullet-point summary of argument in relation to the issues in dispute.

19. That by 4.00pm on 26 October 2016 the fourth to eighth respondents file and serve electronically to … the following:

    (a)       A concise set of orders to be sought if different from those already filed;

    (b)       A list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)       A list of assets and liabilities;

    (d)       A list of objections to evidence upon which rulings are required; and

    (e)       A bullet-point summary of argument in relation to the issues in dispute.

20. That each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Timmins & Mitropoulos and Ors 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

Mr Desmond 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 & J Pty Ltd

Second Respondent

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

And

Ms V

Eighth Respondent

REASONS FOR JUDGMENT

1. The matter of Timmins & Mitropoulos and Ors comes before me today pursuant to orders made by me on 20 April 2016.  Those orders provided that Mr L, Mr N, Ms M and Mr O be joined as parties to the proceedings. 

2. The intention of listing the matter to today was to enable directions to be made for the listing of this case for final hearing. 

3. On 5 May 2016, the applicant wife caused an Application in a Case together with an Affidavit to be filed in this Court.  That application is also listed before me today.

4. That application sought orders for the joinder of a further party, Ms V, who is to be, and I will make orders that she be, joined as the eighth respondent to the proceedings.  Orders were also sought seeking to restrain the fourth to eighth respondents inclusive from further encumbering the property at Suburb S, which is currently occupied by the wife and the children of the marriage and which forms a significant component of the assets the subject of these proceedings. 

5. The injunctions sought included an injunction restraining the named parties from causing further caveats to be lodged against the title to the Suburb S property and further restraints from assigning or purporting to assign any party the alleged debt pursuant to which the fourth to eighth respondents claim an interest in the Suburb S property. 

6. The matter was listed today for a mention hearing at 9.30 am.  At the commencement of the hearing, I caused the respondents Mr L and Mr N to be called.  There was no appearance by them in answer to the call. 

7. The matter was otherwise stood down at that time to enable inquiries to be made of Mr Hargreaves, who is the solicitor representing the eighth respondent.  Ultimately, the proceedings were stood down until 3.00 pm this afternoon to enable Mr Hargreaves to obtain instructions from his client with respect to her position as to the application that she be joined as a party to the proceedings and with respect to the issue of the injunctions.  Upon obtaining instructions, Mr Hargreaves confirmed to the Court that, first, his client did not oppose the joinder, and, further, that she would consent to the injunction sought on behalf of the applicant. 

8. Mr Franklin, who appears today for the fifth named and seventh named respondent, also confirmed his clients’ consent to injunctions as sought with respect to the Suburb S property.  Accordingly, I will make orders by consent with respect to those injunctions in accordance with the minute that has been prepared insofar as those injunctions relate to the fifth, seventh and eighth named respondents. 

9. The applicant seeks to press her application today for orders that the fourth and sixth respondents also be restrained from dealing with the Suburb S property in the terms set out in paragraph 4 of the application. 

10. The basis for the application is set out at paragraphs 6 to 22 inclusive of the Affidavit of the applicant filed 5 May 2016.  That Affidavit sets out the history insofar as dealings with the Suburb S property are concerned.  The chronology and events insofar as it relates to that property records that the applicant filed her Further Amended Initiating Application on 13 October 2015.  At that time, she named six parties who had lodged caveats over the Suburb S property.  After the filing of that application, a further caveat was lodged on 25 November 2015 by the eighth named respondent, Ms V. Ms V claims an interest pursuant to a loan agreement said to have been made on 12 November 2012 between the fourth named respondent and the husband, and the subsequent assignment of that debt to Ms V. 

11. The applicant further deposes in her Affidavit filed 5 May 2016 that she did not become aware that the caveat had been lodged on Ms V’s behalf until about April of this year when her solicitors received an email from the solicitors acting on behalf of the estate, that is, the husband’s estate.  The issues are further complicated insofar as it would appear that at the time that the agreement is said to have been entered into between the fourth named respondent and the husband, the fourth named respondent was, in fact, bankrupt.

12. It is submitted that in light of the conduct of the fourth named respondent, the course of action he has entered into in assigning parts of the alleged debt to third parties who have then lodged caveats in order to protect interests said to have been assigned to them, that it is appropriate that there be injunctions to restrain further dealings in relation to the Suburb S property.  The fourth respondent and the sixth respondent do not appear today to oppose that application.  I am satisfied on the basis of the material contained in the applicant’s Affidavit that it is appropriate that there be orders in terms of her application so as to protect the parties’ interests in the Suburb S property pending the Court’s ability to finally determine the parties’ respective interests in that property. 

13. Accordingly, I will make orders as sought by the applicant with respect to injunctions against the fourth and sixth named respondents.  I will otherwise make orders in the terms of the minute prepared setting out injunctions by consent, those injunctions relating to the fifth, seventh and eighth respondents, and I will make the orders as set out in the minute with respect to the timetable fixing this matter for trial.  The orders will be prepared by the Court, noting that the trial date for these proceedings is 2 November 2016.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 May 2016

Associate: 

Date:  16 May 2016