Truang and Ping

[2019] FamCA 778

FAMILY COURT OF AUSTRALIA

TRUANG & PING [2019] FamCA 778

FAMILY LAW – ENFORCEMENT OF ORDERS – Undefended hearing – Where orders made for the sale of 4WD vehicle with the proceeds of sale to be held in escrow by the husband’s solicitor pending judgment as to costs – Where judgment delivered and order for the wife’s costs to be paid within one month from the date of judgment – Where husband lives overseas – Where wife filed application for variation and/or enforcement of orders – Where wife has possession of the car – Where order made for substituted service on the husband – Where husband failed to attend before registrar – Where matter listed for undefended hearing – Where oral application made as to enforcement of orders – Where order made that the wife be appointed trustee for sale of the 4WD vehicle – Where proceeds to be distributed as to payment of wife’s costs and payment of excess to the husband

Family Law Act 1975 (Cth)

APPLICANT: Ms Truang

RESPONDENT: Mr Ping

FILE NUMBER: PAC 319 of 2013

DATE DELIVERED: 13 August 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watkins

APPLICANT – SELF-REPRESENTED LITIGANT: Ms Truang

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Orders

1. Leave is granted to the Applicant wife to make oral application as to enforcement of orders made on 3 March 2016.

2. The wife is hereby appointed trustee for sale of the 4WD vehicle formally registered ... for the purposes of selling that motor vehicle for the best price reasonably obtainable and for that purpose the said vehicle shall vest in the wife as trustee for sale.

3. That upon sale of the said motor vehicle the wife shall do all things necessary to deposit the proceeds of sale in a discrete interest bearing bank account in her name pending assessment of costs as provided for in the order made 29 July 2016.

4. Upon assessment of the wife’s costs, the wife is at liberty to apply the proceeds of sale for the said motor vehicle in satisfaction of part or all of her costs as assessed and in the event that there is any surplus over and above costs due and owing to her she shall as soon as practicable account to the husband for that surplus.

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 Ping & Truang 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 PARRAMATTA

FILE NUMBER: PAC 319 of 2013

Ms Truang

Applicant

And

Mr Ping

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before the Court is an oral application as to enforcement of orders made 3 March 2016.  In these proceedings, on 3 March 2016, the Court made the following orders: 

   (1)By consent, the orders sought in the Applications filed by the Husband and the Responses filed by the Wife are dismissed except for the respective Applications for costs.

   (2)By consent,

   (a)The wife make the 4WD vehicle formerly registered number ... (“the 4WD”) available to the Husband or his nominee forthwith;

   (b) The Husband forthwith do all acts and things to sell the 4WD at the best available price;

   (c)The nett proceeds of sale be paid to the Husband’s solicitor, to be held in escrow pending any judgment as to costs;

   (d)On satisfaction of any order as to costs, the balance to be paid to the Husband;

   (e)The wife be granted a charge over the proceeds of sale of the 4WD vehicle in respect of her claim for costs and the Husband be restrained from disposing of the nett proceeds of sale until delivery of judgment on the issue of costs.

   (3)Each party file and serve on or before 14 April 2016 an affidavit in support of their application for costs and an outline of argument and submissions in support of such application.

2. Subsequently, the issue as to costs was listed for argument on 18 July 2016, with both the husband and wife represented by counsel.  On that day, judgment as to costs was reserved.

3. On 29 July 2016, it was ordered that the husband pay the wife’s costs as agreed within one month  or failing agreement, as assessed, of and incidental to the application to set aside the financial agreement, such costs to be assessed on a party-party basis and such costs to be paid within one month of assessment or agreement.

4. Subsequently, on 9 April 2019, the wife filed an application initiating proceedings, in effect seeking variation and/or enforcement of orders to facilitate the sale of the motor vehicle so as to meet her expectation in relation to her costs orders.   The husband resides overseas and, effectively, since the costs orders were made has disengaged from the proceedings.

5. On 14 May 2019, in respect to the wife’s Initiating Application, the registrar made orders for substituted service of that application, providing that the application be sent by way of international express post to the husband in an address disclosed in the order, and by uploading copies of documents to the husband’s email account.

6. The proceedings were further listed before the registrar on 4 July 2019.  The registrar being satisfied that the wife had complied with the order for substituted service by reason of an affidavit filed by the wife on 21 May 2019.

7. The proceedings come before the Court today by way of referral from the registrar, and the circumstances are such that the wife has not proceeded to have her costs assessed as required by the order, such assessment, of course, being necessary to quantify her order for costs and facilitate appropriate enforcement proceedings on behalf of the wife to recover those costs.

8. The only prospect that the wife has of recovering costs from assets of the husband in Australia is by way of realising a sale value for the 4WD vehicle that, notwithstanding orders made on 3 March 2016, has remained parked at the wife’s premises.  That vehicle is now unregistered, and there is perhaps a real prospect that, as an unregistered vehicle on a public road, the vehicle may be taken by the local council as an abandoned vehicle.  It is imperative that orders be made in relation to that vehicle so as to realise the ever-diminishing value of that vehicle so as to facilitate some security for the wife’s costs as yet to be assessed.

9. In all of the circumstances, and by way of enforcement, it is appropriate to make orders that the wife be appointed as trustee for sale of that vehicle and be able to sell that vehicle at the best price reasonably obtainable, with those proceeds being placed in a discrete bank account in the wife’s name, and those proceeds being applied by her in satisfaction, in part or all, of the order for costs to be quantified in her favour.  As to any excess in relation to such costs order, she will need to make arrangements to account to the husband for any excess in due course.

10. Accordingly, the Court is satisfied that, by way of enforcement of orders made 3 March 2016, and to facilitate the wife having some security for her costs order, that the orders should be made as sought by the wife in her oral application.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 August 2019.

Associate: 

Date:  13 August 2019