TRUSS & TRUSS

[2012] FamCA 1092

FAMILY COURT OF AUSTRALIA

TRUSS & TRUSS [2012] FamCA 1092

FAMILY LAW – PROPERTY – proceeds of sale – variation of previous orders.

Family Law Act 1975 (Cth)

APPLICANT: Ms Truss

RESPONDENT: Mr Truss

FILE NUMBER: MLC 9156 of 2010

DATE DELIVERED: 20 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 December 2012

REPRESENTATION

THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE 

APPLICANT:

Coote Family Lawyers

THE RESPONDENT: In Person

Orders

1. The balance of the net proceeds of the sale of the property at B Street, C Town ("the C Town property") of $48,822 be paid to the wife in part satisfaction of paragraph 1(c) of the Orders made 27 July 2011.

2. Paragraph 4 of the Orders made 27 July 2011 be varied to provide that upon completion of the sale of the C Town apartment, the proceeds be distributed:

   a.To meet all costs, commissions and expenses of the sale;

   b.To discharge any other encumbrance affecting the C Town apartment, including outstanding rates, body corporate and water;

   c.To pay to the wife $1,178 being the balance owing pursuant to paragraph 1(c) of the Orders made 27 July 2011, after payment pursuant to paragraph 1 herein;

   d.To pay to the wife all interest accrued on the sum of $50,000 pursuant to paragraph 1(c) of the Orders made 27 July 2011 at the rate provided by the Family Court Rules;

   e.To pay to the wife the monies referred to in paragraphs 1(d)(i) and (ii) and 1(e) of Orders made 27 July 2011 totalling $24,148.94;

   f.To pay to the wife $186.20 pursuant to paragraph 12 of the Orders made 10 November 2010;

   g.To pay to the wife $580.34 by way of reimbursement of expenses paid by the wife in relation to the C Town property as follows:

   i.Fire penalty $319.84;

   ii.Fire prevention levy $260.50; and

   iii.Maintenance $70.00.

   h.To pay to the wife $36,139.50 for expenses paid by the wife for the C Town apartment;

   i.To pay to the wife the sum of $4,000 by way of reimbursement for payments made to Capital Finance to meet loan expenses regarding the husband's motor vehicle;

   j.To pay to the wife costs of $1,650.00 fixed by the Court on 14 August 2012;

   k.To pay to the wife's costs of $1,650.00 arising from and incidental to her Response filed 10 August 2012; and

   l.The balance (if any) to the husband.

3. Paragraph 9 of Orders made 10 November 2010 be discharged.

4. The husband's Contravention Application filed 20 July 2012 and Amended Application in a Case filed 25 July 2012 and the wife's Response to the Application in a Case filed 10 August 2012 be otherwise dismissed.

5. That all outstanding applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Truss & Truss 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 9156  of 2010

Ms Truss

Applicant

And

Mr Truss

Respondent

REASONS FOR JUDGMENT

1. This matter was before the Court in the Judicial Duty List on 20 December 2012.  Ms Dellidis of counsel appeared on behalf of the applicant wife and Mr Truss, the respondent husband, appeared and represented himself. 

2. The proceedings were before the Court on previous occasions and it would appear that the parties were negotiating and contrary to a view held by the husband, those negotiations broke down bringing the dispute before the Court for determination.

3. The husband did not file material in respect of the discrete enforcement issue that was before the Court but he did make submissions in relation to some matters to which I shall return.

4. Final orders were made between the parties on 11 November 2010.  Those orders were made with the consent of both parties.  The husband at that time was not represented but the wife was.

5. It is not necessary for me to detail those orders but they were discussed at length in the enforcement proceedings and the wife through her counsel, was able to point to the various paragraphs in the affidavit that she filed on 10 August 2012 to show that breaches had occurred and that she was entitled to enforce her rights under the judgment. 

6. The matter was initially before the Court for enforcement purposes through a response filed by the wife on 10 August 2012. 

7. The solicitor for the wife filed an affidavit deposing to the service upon the husband not only of information about the hearing but also the proposed orders that would be sought by the wife.  The husband seemed to deny any knowledge of the proposed minute but he had an opportunity to read it and digest its contents.  Having read it, in my view, there is nothing controversial or difficult about its concepts.

8. Having heard the submissions of the wife’s counsel and reading the minute, I asked the husband whether he had any submissions in relation to the orders proposed.  He observed that there was a dispute about whether there was ever a mortgage on one of the properties and that there was no costs order ever made against him in an intervention order.  He complained that the wife was seeking the benefits of expenses she had incurred in relation to the property but at the same time she had been receiving rent.  When I pointed to the fact that he had acknowledged that the wife was the equitable owner from the making of the order, he acknowledged that she would have therefore been entitled to the rental on any property despite the legal title vesting in his name.  He pointed also to the fact that there had been agreements from which the wife had resiled but as I pointed out, the wife was not agreeing to what he wanted.  He had nothing further to add.

9. In the orders of 10 November 2010, the husband was to pay the wife two payments of $25,000 within a specified time.  He failed to do so.  It had been clear in the order that upon receipt of the two payments, the wife was to transfer a property at C Town to the husband.  However, the order then provided that should he fail to make the payments, the wife was to have the property transferred to her on a trust for sale and then various provisions were set out entitling her to be reimbursed the reasonable costs of the sale, interest and any costs incurred. 

10. Those orders were reviewed on 27 July 2011 when I made specific orders for the transfer of the property for the purposes of enforcement and indeed sale.

11. Those orders were clear, concise and simple.

12. In 2010, the husband had entered into a contract for the purchase of a property at D Town and the wife had guaranteed half of that purchase price.  The vender left in the half that was guaranteed.  The 2010 orders provided that the husband was to retain the property but indemnify the wife in relation to the outstanding debt.  The husband defaulted.  The orders that I made in July 2011 to which I have just referred also provided for that shortfall to be covered.  That altered the orders of November 2010.  The 2011 orders were simply machinery provisions to give effect to the orders of November 2010.

13. There was a further order made in 2010 that a small apartment was to be transferred but the husband was to refinance the debt.  That too was the subject of the 2011 orders wherein I required that property to be sold because of the default of the husband in the refinancing.  Again, there were costs associated with that sale.

14. In respect of one of the properties transferred to the wife for the purposes of the sale, an auction took place in November 2011 but failed.  Ultimately it settled by sale in April 2012 but there was a loss on the original purchase price paid for by the parties of $120,000. 

15. The various sales were intended by order to pay out the vendors in the D Town property, various conveyancing fees, and a mortgage commitment on a property at E Street, C Town.

16. It was the wife’s obligation under the sale of the E Street property to pay out the mortgage upon the sale.  In the meantime however, whilst it was on the market, the husband did not make the payments and the mortgagee threatened to foreclose.  Sensibly, the wife got in early and using money from one of the other sales, paid out the mortgage to the satisfaction of the bank to avoid the foreclosure.  Whilst that was an early payment, the reality was the effect was the same.  It seems to me that that was an order that could clearly be defined as a machinery provision rather than a substantive change.

17. On any view of the orders of 2010 and 2011, money was owing to the wife.  She had paid outstanding rates for the council, water obligations and body corporate fees.  She was entitled to interest.  Various sums were paid by the wife to cover a fire penalty in relation to the vacant block of land, the fire prevention levy and the maintenance associated with slashing the block.  All of those sums were included in the original orders and the wife paid them and was entitled to be reimbursed.

18. Other sums associated with the expenses of the wife included tax but at the time that the order was made, the precise sum had not crystallised.  In the intervening period, it had and there was every reason to have the payment made out of the funds in the hands of the wife.

19. The payments to which I have referred including the fire penalty and the fire prevention levy along with the maintenance were part of the husband’s obligations for which he indemnified the wife.  Accordingly she was entitled to repayment of those.

20. One controversial request for an order related to a sum claimed by the wife for $1800 arising out of a Magistrates’ Court hearing in Geelong.  The wife was not able to produce the order of the court and the best evidence she had was a letter from her solicitor to the husband.  The husband disputed that any order was ever made.  Whilst the letter looks remarkably like what happened, I do not have sufficient evidence upon which I could make that order and I accordingly declined to do so.

21. Another of the orders that were made required the husband to reimburse the wife payments that she made relating to a capital debt on a motor car in the possession of the husband.  That amounted to $4000. 

22. There was a hearing on 14 August 2012 relating to the initial enforcement proceedings and which were adjourned. At that date at the request of counsel, I reserved the wife’s costs. The purpose of the adjournment was to enable the parties to explore a resolution. Simply by virtue of the fact that the parties were back before the Court again, it was clear that the settlement negotiations were unsuccessful and that accordingly, the adjournment was wasted. Having regard to the fact that I am satisfied now that the obligations of the husband had not been fulfilled, it is appropriate that the husband pay the wife’s costs for that hearing. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party shall bear their own costs unless there are justifying circumstances for the Court to depart from that principle. If the Court is contemplating such a departure, it must take into account the matters set out in s 117(2A) of the Act. It is clear in this case that one of the provisions in that latter section relates to a failure to comply with orders. There was no justification for the husband’s position and accordingly he should be obliged to pay the costs. There are no legal aid considerations involved in this case and it is clear that there were substantial sums of money involved. As I understand what the husband told me, he is professional by occupation. Accordingly, but whilst the financial circumstances of the husband may not be good, he could have avoided the proceedings by resolving the matter along the lines of the orders I propose to make in any event.

23. Counsel for the wife assured me that although she was not counsel on the previous occasion, he predecessor had been appropriately briefed and as the matter was then a defended hearing of sorts, counsel’s brief was marked at $1650 and that is within the appropriate range and the rules.  Accordingly, it is appropriate that the husband pay those costs.

24. The wife also sought through her counsel the necessary solicitor’s costs associated with that particular hearing and because the solicitor did not have a copy of the relevant details, she gave oral evidence. In that oral evidence, she confirmed that she had done about 7 to 8 hours of work having regard to the obvious requirements to get the matter ready for hearing and she was seeking costs according to the scale in the schedule to the Family Law Rules 2004. The husband did not cross-examine the solicitor in respect of those costs. Accordingly, it is appropriate that those costs be paid by the husband as well.

25. Thus, apart from the costs of the Magistrates’ Court which the wife can enforce in her own time, I made orders in terms of the minute handed to me which the husband had had an opportunity to peruse.  In my view, those are appropriate enforcement orders in the circumstances.

26. The orders of 10 November 2010 had a provision that required the husband to forthwith pay and indemnify the wife and keep her indemnified in relation to all liability, outgoings and expenses of whatsoever nature and kind in relation to the C Town apartment.  The wife sought that that order now be discharged having regard to the property being in her name.  I agree that that is an appropriate course of action.

27. Accordingly, the extant applications are otherwise dismissed.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 December 2012.

Associate: 

Date:  27 December 2012