Uttar & Rajendra
[2023] FedCFamC2F 1609
•5 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Uttar & Rajendra [2023] FedCFamC2F 1609
File number(s): SYC 6488 of 2014 Judgment of: JUDGE BECKHOUSE Date of judgment: 5 December 2023 Catchwords: FAMILY LAW – ENFORCEMENT OF ORDERS – Orders varied under s 79A.
FAMILY LAW – CONTEMPT – Counts not proved – Prima facie case not met.
FAMILY LAW – COSTS – Circumstances justifying order for indemnity costs – Discretion – Costs in a fixed sum awarded.
Legislation: Family Law Act 1975 (Cth) Pts VIII, XIII, XIIIA, ss 79, 79A, 105, 106A, 112AB, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.17, 11.71
Real Property Act 1900 (NSW) s 86
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fierro & Fierro (No 7) [2023] FedCFamC1A 24
Kohan and Kohan (1993) FLC 92-340
Lindon v the Commonwealth (No 2) [1996] HCA 14
Division: Division 2 Family Law Number of paragraphs: 133 Date of hearing: 30 November 2023 Place: Wollongong Counsel for the Applicant: Ms Rusiti of Counsel Solicitor for the Applicant: Arch Law (Australia) Pty Ltd Solicitor for the Respondent: Self-Represented Litigant ORDERS
SYC6488 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RAJENDRA
Applicant
AND: MS UTTAR
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
6 DECEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Wife’s Contempt Application filed 11 September 2023 be dismissed.
2.Pursuant to section 79A(1)(c) of the Family Law Act 1975 (Cth) (“the Act”), Order 4.2 of the Orders made on 30 April 2019 (“the April 2019 Orders”) be varied by the addition of the following words at the end of the Order:
fixed at $4,500 inclusive of GST for professional costs and disbursements.
3.Pursuant to s 79A(1)(c) of the Act, Order 4.4 of the April 2019 Orders be varied as follows:
(a)The addition of sub-clause 4.4.2 in the following terms:
Payment to the Husband of:
(i)the sum of $5,000 in accordance with Order 3 of the Orders made on 5 February 2020;
(ii)the sum of $12,122 being the expenses incurred by him or on his behalf in preparing B Street, Suburb C for sale and providing vacant possession of the property;
(iii)the sum of the sum of $27,502.67 being the additional conveyancing costs and disbursements incurred by him as trustee for sale of the Suburb C property, in excess of those amounts fixed pursuant to Order 4.2 above; and
(iv)the Husband’s costs of an incidental to the Husband’s Application for Enforcement filed 25 May 2022 and these proceedings since the filing of that Application fixed in the sum of $100,000.
(b)The addition of sub-clause 4.4.3 in the following terms:
Payment to or as directed by D Lawyers for the amount required to be paid to them by the Wife, such that D Lawyers did, on settlement of the sale of the Suburb C property, discharge Caveat no. … registered by them on the title to that property.
(c)Sub-clause 4.4.2 be re-numbered 4.4.4.
4.Pursuant to s 79A(1)(c) of the Act, Order 4.5 of the April 2019 Orders be varied as follows:
(a)The addition of sub-clause 4.5.3 in the following terms:
(i)$41,814.55 to the Wife in full and final satisfaction of any and all claims the Wife may have against the Husband for unpaid or under-paid interim spouse maintenance, as ordered on 12 December 2015; and
(ii)$12,750 in satisfaction of Orders 4.5.1 & 4.5.2 of the Final Orders
(b)Sub-clause 4.5.3 be re-numbered 4.5.4.
5.Pursuant to section 106A(1) of the Act, in the event that either party refuses or neglects to execute any deed, document or instrument required to give effect to these Orders, a Registrar or Deputy Registrar of this Court is hereby appointed to execute such deed, document or instrument in the name and on behalf of the defaulting party and to do all acts and things necessary to give validity and operation to such deed, document or instrument, AND THAT, pursuant to section 106A(4) of the Act, the defaulting party pay to the other party’s costs of and incidental to the obtaining of a Registrar’s or Deputy Registrar’s execution of such deed, document or instrument on an indemnity basis.
6.The Wife pay the Husband’s costs of and incidental to the Husband’s Application – Enforcement filed 25 May 2022 and these proceedings since the filing of that Application fixed in the sum of $100,000 and the payment will be made in accordance with Order 3(a)(iv) above.
THE COURT NOTES THAT
A.The Wife has requested a copy of the reasons for judgment delivered orally on 5 December 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These are settled reasons for judgment that were delivered orally on 5 December 2023. Grammatical, mathematical, and literal errors have been corrected from the transcript for comprehension. References have been included and if the transcript contains an incorrect or incomplete reference, it has been corrected.
These proceedings invite me to make orders pursuant to Parts VIII and XIII of the Family Law Act 1975 (Cth) (“the Act”).
The applicant husband (“the husband”) commenced proceedings on 25 May 2022, seeking enforcement of property orders that were made by consent on 30 April 2019, which I will refer to as “the Final Property Orders”. He now seeks a variation of the Final Property Orders pursuant to s 79A(1)(c) of the Act, arguing that he should not bear the costs associated with the steps he took arising from the wife’s default in carrying out the obligations imposed upon her by the Final Property Orders.
Further, because of the wife’s default in carrying out the obligations imposed upon her by the Final Property Orders, the husband says he did not receive the share he was entitled to pursuant to those Orders on time. He therefore argues that it is just and equitable for the wife to pay him interest, calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I will refer to them as “the Rules”.
He also seeks that the wife pay his costs on an indemnity basis.
The wife did not file a Response. However, she filed a Contempt Application on 11 September 2023, in which she alleges contempt by the husband of the Final Property Orders. The grounds of contempt are not pleaded with precision, but in summary, relate to payment of interim spouse maintenance and maintaining a personal guarantee over a line of credit in the wife’s name. By way of Response to the Application of Enforcement of the Final Property Orders, she argues that the husband “knowingly, deliberately and wilfully breached the final orders in contempt of Court”.
The parties asked that the contempt matter be dealt with contemporaneously with the husband’s Enforcement Application so that all matters are brought to an end.
THE EVIDENCE
The husband relied upon the following documents:
(a)Application – Enforcement filed 25 May 2022;
(b)Affidavit of Mr E filed 16 November 2023;
(c)Affidavit of Mr Rajendra filed 16 November 2023;
(d)Affidavit of Mr F filed 23 November 2023;
(e)Costs Notice;
(f)Minute of Order sought by the husband;
(g)Husband’s Outline of Contentions; and
(h)Documents contained in a tender bundle.
The wife relied on the following documents:
(a)Case Outline document filed 20 November 2023;
(b)Affidavit of Ms G filed 28 November 2023;
(c)Affidavit of Ms Uttar filed 27 September 2023;
(d)Application – Contempt filed 11 September 2023; and
(e)Documents contained in the tender bundle.
The wife was not represented. She was assisted by her friend, Ms G, as a support person.
The husband was represented.
The parties agreed that the matter would proceed by way of oral and written submissions, and that no cross-examination was required.
I observe that in the wife’s Case Outline document she identified, amongst the many issues of the case, that the Court should determine:
1. Whether [Ms Uttar] was denied procedural fairness and impartiality?
2. Whether an adjournment of hearing is required?
3. Whether leave be granted to serve subpoenas, including subpoena upon [Mr H], who offered more than $3 million?
(As per the original)
The wife made no oral application nor submissions on the issues of procedural fairness, nor the adjournment application. Trial directions in this matter were made on 25 August 2023. The wife did not bring any such Application formally to the Court. She was given the opportunity on the day of the hearing to seek advice and prepare for the hearing. At all times, it appeared she was agreeable to the matter proceeding in the manner in which it did.
CHRONOLOGY
The parties separated on 1 July 2014. Upon separation, the husband vacated the former matrimonial home at B Street, Suburb C, which I will refer to as “the Suburb C property”. The husband also alleges that in 2014, following separation he terminated a personal guarantee over a Commonwealth Bank of Australia line of credit, which will be referred to as "the line of credit”.
Proceedings to adjust the parties’ interests in property were commenced in October 2014.
In 2014, the wife argued that the parties received an offer from a developer to buy their interests in the Suburb C property for $3,850,000. The offer was rejected.
On 12 February 2015, an order was made that the husband pay the wife spousal maintenance of $950 per week, pending further order. The wife calculates that $98,785.45 was paid to her. The husband concedes that in around late 2017 he reduced the amount of spousal maintenance paid and then ceased making payments in late 2017.
In 2018, the wife obtained a Third Party Debt Notice for enforcement of arrears in interim spousal maintenance. Some time later, the husband recommenced spousal maintenance payments.
In 2018, the wife obtained a lump sum payment of spousal maintenance in the sum of $34,035, as a result of the Third Party Debt Notice.
From 2018, the wife made regular drawing and withdrawals from the line of credit.
Final Property Orders were made on 30 April 2019. They essentially ordered the sale of the Suburb C property, and for the wife to receive an overall division of 55 per cent of the net assets.
The husband alleges that the wife failed to comply with the Final Property Orders and list the Suburb C property for sale in accordance with those Orders. Consequently, on 12 December 2019, the husband filed an Application in a Case (Enforcement).
The wife alleges that on around late 2019, the husband withdrew his guarantee over the line of credit and the balance was reduced from $650,200 to $160,129.14. She argues his actions in doing so were in contravention of the Final Property Orders, particularly Order 2.6, which required the husband to maintain his guarantee to a maximum amount of $650,000.
On 5 February 2020, the Court appointed the husband sole trustee for the sale of the Suburb C property. A costs order was made in his favour, fixed at $5,000. The wife argues that following this, the husband should have transferred the title of the Suburb C property into his name and paid stamp duty on the transfer.
In early 2020, the husband received two offers to purchase the Suburb C property: one for $1.25 million with a 42-day settlement, and the other for $3 million with a 24-month delayed settlement. In his capacity as trustee for sale, the husband entered into a contract for sale of the Suburb C property in early 2020 for a sale price of $3 million with a 24-month settlement period. The wife argues that this was below value. She continues to argue that the contract of sale is void and invalid.
In early 2020, the wife lodged a caveat against the title of the Suburb C property.
The wife failed to vacate the Suburb C property in time for settlement of the sale to occur. Arising from her failure to comply, in mid-2022, the husband filed an Enforcement Application seeking the issuing of a Warrant for Possession of that property. That Application was heard in mid-2022 and a Warrant for Possession issued in the event that the wife failed to vacate the Suburb C property within a further seven days.
A Notice of Intended Execution Warrant for Possession was served on the wife by the Sheriff, but she continued to refuse to vacate the Suburb C property. The Warrant for Possession was executed by the Sheriff in mid-2022 and the wife forcibly removed from the Suburb C property.
The purchaser refused to settle on its purchase of the Suburb C property, arguing that the property was not being handed over with vacant possession in accordance with the contract for sale. The husband contends that expenses totalling $12,122 were incurred in assisting the wife to remove her belongings from the Suburb C property, in removing rubbish, cleaning, and otherwise bringing the property up to the standard required to satisfy the vendor’s obligations to deliver vacant possession, as was required by the contract for sale.
The husband contends that settlement on the Suburb C property was further frustrated because the wife refused to apply for and obtain a foreign resident capital gains withholding clearance certificate, as requested of her by the husband’s solicitor in early 2022. He argues that this too caused an unnecessary increase in conveyancing costs.
Settlement of the sale of the Suburb C property ultimately occurred in mid-2022, approximately three and a half months after the due date of settlement, which was early 2022.
From the proceeds of sale, the following payments were made:
(a)$1,790,125.18 to the wife;
(b)$900,000 to the husband; and
(c)$233,331.73 was held in trust by Arch Law.
Delays were then occasioned in registering the transfer of the Suburb C property. The husband says, in his capacity as trustee for the sale of the Suburb C property, he has incurred conveyancing costs and disbursements of $27,502.67 in excess of what the husband’s solicitor considered to be the reasonable estimate of ordinary conveyancing costs and disbursements of $4,500.
The husband alleges that the wife refused to withdraw the caveat she had registered on the title of the Suburb C property, causing him, in late 2022, to file an Application in a Proceeding seeking orders that a Registrar of the Court sign a Withdrawal of Caveat on behalf of the wife. That Application was heard and a s 106A Order made in late 2022, with the husband’s costs reserved.
The husband further alleges that on 5 October 2022, the wife seeks and is granted an adjournment in reliance upon what appeared to be a forged letter, purporting to be from and on the letterhead of the wife’s former solicitors, J Lawyers.
The transfer of the title of the Suburb C property from the vendor to the purchaser was not registered by the New South Wales Land Registry Services until mid-2023. These delays arose from:
(a)Difficulties in obtaining acceptance by the New South Wales Land Registry Services of the power of the Court appointed trustee for sale to execute or effect a transfer.
(b)Delay processing the withdrawal of the wife’s caveat signed by the Registrar.
On 21 August 2023, the wife filed an Application in a Proceeding that was rejected. When the matter came before his Honour, Deputy Chief Judge McClelland on 25 August 2023, he observed that the wife did not have a current Application before the Court. The husband’s Enforcement Application was listed for hearing before me, and trial directions were made.
On 11 September 2023, the wife filed a Contempt Application. The husband argues that she has not proceeded with the correct Application, and rather should have filed an application to enforce orders.
On 21 September 2023, the wife says she sent an email to the purchaser of the Suburb C property advising that she was seeking to have the contract for sale declared void. She has filed no Response or Application wherein such orders are sought.
Now that the Suburb C property has been sold and the transfer registered, the parties are before the Court to bring all outstanding matters between them to an end. Practically, the remaining issue for determination is how the sum of $203,670.75 held in trust by Arch Law should be divided between the parties, in accordance with the Final Property Orders, or, having regard to all that has transpired since, should they be varied, and if so, how?
ENFORCEMENT APPLICATION
The applicable legal principles
I will now turn to the Enforcement Application. Section 105(1) of the Act provides the source of power to enforce orders.
The husband says that s 79A(1)(c) applies because the wife has defaulted in the carrying out of an obligation imposed by the order, and in the circumstances arising as a result of the default, it may be just and equitable to vary the order, to set aside an order, or make another order in substitution of the order.
Order 2.1 – listing property for blind tender
The wife asked me to consider at this point whether the contract of sale and settlement is illegal and invalid and should be set aside. Order 2.1 of the Final Property Orders required the listing of the Suburb C property for blind tender:
2.1 Within thirty (30) days of the date of these Orders, list for sale by blind tender the property situated at and known as [B Street, Suburb C] (“the [Suburb C] property”) with a real estate agreed upon by the parties and failing agreement the Wife shall forthwith in writing nominate two real estate agents from which the Husband shall within a further seven (7) days select one, and failing which the Wife shall select one who shall be the real estate agent appointed (“the agent”);
(As per the original)
I observe that when the husband’s Application in a Case (Enforcement) filed on 12 December 2019 came before a Registrar on 22 January 2020, notations were made, inter alia, by the Registrar that:
(a)The wife had only recently engaged a real estate agent to assist with the sale of the Suburb C property; and
(b)There had been non-compliance by the wife with the Final Property Orders.
Then, on 5 February 2020, the Honourable Justice Rees ordered that the husband be appointed sole trustee for the sale of the Suburb C property and ordered that the wife pay the husband’s costs of the Application in a Case (Enforcement) of $5,000.
A finding has already been made by the Court as to this issue, most likely because the wife, on her own evidence, did not appoint an agent within 30 days of the Final Property Orders as she was required to do by Order 2.1. The wife seeks to reopen this issue. She argues that (reading from her material):
I complied with order 2.1 make on 30 April 2019 (page 35 of 121) by signing an agreement with [Mr F] and giving him instructions to list property for sale.
[Mr Rajendra] made an inaccurate application to this court asserting that I had not complied with order 2.1 so that he could become trustee. Judge Rees made an order on 5 February 2020 (page 81 of 121) appointing [Mr Rajendra] as trustee.
…
Therefore, under section 86(2) of the Real Property Act 1900, order made by Judge Rees has no effect.
Therefore, contract of sale prepared by [K Lawyers] and executed by [Mr Rajendra] has no effect.
Therefore, settlement has no effect. An independent 3rd party trustee be appointed to re-sell this [Suburb C] property by auction.
(As per the original)
The Court has already made a finding that she did not comply with Order 2.1. No appeal was lodged. She is now out of time to reignite this issue. Settlement of the Suburb C property has proceeded and has been completed. In any event, this Court does not have the jurisdiction to grant the relief she is seeking.
That the wife defaulted in carrying out the obligations imposed upon her by the Final Property Orders in relation to the sale of the Suburb C Property pursuant to Orders 2.8.3, 3.2.3 and 5.2, and that she failed to maintain the Suburb C property in a neat and tidy condition, and that in contravention of Order 3.2.4, she hindered the sale of the Suburb C property from being effected.
The Orders in question provided that:
2.8.3 co-operate in every way with the agent in relation to the sale of the [Suburb C] property at all times requested by the agent and ensure that the [Suburb C] property is in a neat and clean condition;
…
3.2.3 Maintain the [Suburb C] property in a presentable condition so as to facilitate the sale including but not limited to presenting the [Suburb C] property in a neat and tidy condition at all times when the property is subject to inspection; and
3.2.5 Do all things necessary to facilitate a sale at the earliest possible time and shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the [Suburb C] property being effected.
…
5.2General maintenance and upkeep of the [Suburb C] property, and repairs to the [Suburb C] property that are occasioned by the actions of the Wife or any other person living in the [Suburb C] property (excluding repairs that arise from the usual wear and tear); …
(As per the original)
This Court has already been satisfied of the wife’s default of some of these Orders. For example, on 22 January 2020, a Registrar noted that there had been non-compliance with the Orders by the wife.
The matter was listed on nine later occasions in the subsequent three years to deal with enforcement issues.
The wife also made concessions about this breach. She argued that she did not have available funds to do otherwise. She appears to acknowledge that some deductions were made from her share of the money remaining in trust. These are set out in her Additional Submissions Document, which was tendered to the Court:
Less: [D Lawyers] $22,041
Less: Registration fees to discharge my caveat $154
Less: Remove furniture and clean up $1,000
Less: Tree lopping $3,000 + $3,000
Less: Rubbish removal, final clean up & locksmiths $2,660 + $1,000 + $462
Less: Council and water payments $11,300
Add: Interest on delayed settlement [mid]-2020 to [mid]-2022: $310,000
(As per the original)
I am not, however, clear on which payments have already been paid and which of them remain outstanding. It appears there is agreement in relation to the payment to D Lawyers, and this will be incorporated into the Minute of Order.
Having regard to the evidence before me, I accept the husband’s evidence that the wife:
(a)Failed to maintain the Suburb C property, such that work was required to be carried out at additional expense before the purchaser was prepared to settle on its purchase;
(b)Failed to remove all of her furniture and personal belongings from the Suburb C property, such that the husband’s agent was required to arrange removal and/or disposal of such items at further additional expense;
(c)Failed to remove rubbish from the Suburb C property, such that the husband’s agent was required to arrange its removal and disposal;
(d)Failed to vacate the Suburb C property, putting the husband to the expense of obtaining and having executed a Warrant for Possession;
(e)Caused the husband to incur the costs of a locksmith to secure the property and prevent any re-entry by the wife.
I also accept the husband’s evidence that the wife failed to comply with the obligations contained in Order 2.8.4 to execute all documents necessary to complete the sale of the Suburb C property within the time required by the contract for sale. Having regard for the evidence, I find that:
(a)She refused to apply for and obtain a foreign resident capital gains withholding clearance certificate;
(b)She lodged a caveat on the title of the Suburb C property, refused to sign a Withdrawal of Caveat, and the husband, as a result, incurred costs of an Application in a Proceeding for a s 106A order;
(c)She caused further delays with the husband’s dealing with the New South Wales Land Registry Service in relation to the registration of the Withdrawal of Caveat and the registration of the transfer of the title to the Suburb C property to the purchaser.
I am satisfied that the wife has defaulted in the carrying out of her obligation under the Final Property Orders as outlined. The wife conceded that if this Court does not declare the Orders made by the Honourable Justice Rees and the contract for sale and settlement invalid, then the Court was left to determine how the remaining funds in trust should be dispersed. This is now what I will consider.
What of the wife’s contentions that the contract for sale should be set aside?
As I have already observed, the wife did not file a Response as directed. She did however rely upon written submissions as well as a Case Outline document (filed seven days prior to the hearing).
In her Case Outline document, she identifies some additional issues for determination. They are:
·What is the amount of unpaid spousal maintenance payable to recoup the husband?
·What is the amount of unpaid settlement proceeds payable to recoup the husband if Order 1 is not granted?
·Whether each party is to bear their own legal costs.
·Whether prior “family court costs orders” be varied or set aside.
·Whether the husband breached any order in contempt of Court.
I will now proceed to also determine these issues.
Should the Court exercise its discretion under s 79A(1)(c) and make orders in substitution of the Final Property Orders?
Having made the above findings, it is open to me to exercise my discretion pursuant to s 79A of the Act.
The husband argues that if the Final Property Orders are not varied pursuant to s 79A(1)(c), Orders 4.1, 4.2 and 4.5 of the Orders will have the effect that the husband will bear 45 per cent of the additional legal and other costs and expenses arising from the wife’s default in carrying out the obligations imposed upon her by the Final Property Orders. This, he argues, would not be an outcome that would be just and equitable.
He also argues that several costs orders have been made, and these amounts should be paid from the wife’s share of the proceeds of sale.
Further, he argues that he should receive interest on the late payment of his share of the net proceeds of the sale of the Suburb C property, arguing that it is just and equitable that the wife pay interest to the husband, calculated in accordance with the Rules.
The orders sought by the husband do not require a re-exercise of the Court’s discretion under s 79, but rather are in the nature of a variation, with the goal of restoring the husband to the financial position he would have achieved had the wife not defaulted.
I do, however, need to be satisfied that it would be just and equitable to pay, in the manner and priority proposed by the husband, the amounts claimed from the $233,092.03 in trust, as set out in his proposed Minute of Order contained in his Case Outline document.
His position is contrasted with that of the wife’s. She also prepared a schedule, which I have had regard to. She further articulated her position in the document that became Exhibit 2. While she did not file a Minute of Order, the material does become relevant when I consider whether the variation proposed by the husband is just and equitable.
What orders should be made?
The wife argues that she was simply not in a position to comply with the Final Property Orders and vacate the Suburb C property, because she did not have the means to do so. The husband rejects this argument. He directs me to the Financial Statement filed by the wife in 2016, which showed that:
(a)She had an excess of $206,000 in various bank accounts and term deposits, not including funds in foreign bank accounts;
(b)Prior to the making of the Final Property Orders, the wife had accessed part of a superannuation in Super Fund 1, which was included in the Agreed Balance Sheet at $495,070;
(c)The wife retained the balance of her interest in the Super Fund 1, which was included in the Agreed Balance Sheet at $399,450. Furthermore, at the time the Final Property Orders were made, she was aged 61, which entitled her to access that superannuation interest;
(d)The parties closed their joint accounts and divided the balances equally between them, which resulted in the wife receiving further funds; and
(e)The wife retained shares in L Company and M Company, which were readily realisable, and which were included in the Agreed Balance Sheet at a combined value of $78,400.
I accept the husband’s assertion that the wife did have access to funds to draw upon, but she chose not to do so. But in any event, I am not sure of the relevance here. The Court has found that the wife has contravened the Final Property Orders. It is potentially a relevant consideration only in determining whether it would be just and equitable to vary the Orders restoring the husband to the financial position that he would have achieved had the wife not defaulted.
Conclusions
The husband seeks to be reimbursed $5,000 in accordance with the cost order made on 5 February 2022. In my view, it would be just and equitable to vary the Order to make provision for this amount, as the Court has already made this determination.
The husband also claims $12,122 was expended in removing the wife’s belongings from the Suburb C property, in removing rubbish, cleaning and otherwise bringing the property up to the standard required to satisfy the vendor’s obligation to deliver vacant possession. I am satisfied as a result of the documents contained in the husband’s tender bundle and exhibits, that further expenses were incurred by the agent on behalf of the husband. I am satisfied that the amount of $12,000 was reasonably expended to achieve this, as it was deducted by the agent from the deposit held by him, it would be just and equitable to vary the Order to make provision for this amount.
In his capacity as trustee for the sale, the sum of $27,502.67 was incurred on conveyancing costs and disbursements in excess of the $4,500 estimated. The husband seeks that this be paid from the wife’s share. The work undertaken on the conveyance was extraordinary, and it seems it almost entirely arose from the actions of the wife. I consider it would be just and equitable to vary the Order to make provision for this amount.
The husband seeks that interest of $26,231.63 is paid to him for late payment of his share of the net proceeds of the sale of the Suburb C property. He has provided to the Court an aide memoire, wherein he calculates that this comprises of two interest amounts, $17,214.24 and $9,017.39. These amounts are calculated from the due date for settlement of the Suburb C property, being 1 April 2022, to the date of actual payment to the husband at the rate prescribed in r 10.17 of the Rules. I will return to this amount later.
Finally, the husband seeks that the wife pay his costs of these proceedings from 25 May 2022 to date, noting that the husband’s costs were reserved on 17 June and 30 November 2022 on an indemnity basis. I will also return to this issue later.
Upon making the deductions outlined, the 55 per cent of the balance then remaining, he says, should be paid to the wife in accordance with the Final Property Orders. Before that is calculated, he agrees that from his 45 per cent share, the wife should be paid:
(a)$12,750 in satisfaction of Orders 4.5.1 and 4.5.2 of the Final Property Orders; and
(b)$41,814.55 for outstanding interim spousal maintenance as ordered on 12 December 2015.
The wife supported these payments being made to her. She also sought the payment on interest on the sums outstanding, arguing that interest on the outstanding spousal maintenance should be calculated from at least 2014, when it was not from time-to-time paid in accordance with the Orders. The legal representative for the husband argued that interest on the spousal maintenance could only run from the time of the garnishee order. There was also controversy on the calculation of interest deriving from Order 4.5.1, because they arguably fell due over different timeframes. The husband conceded that $18,825 interest might arise from these outstanding amounts. It seemed to me to be more than this, however, the wife put no evidence before the Court, except for the schedules of payment she had received or failed to receive.
The husband calculated interest of $26,231.63 arising from the late payment of his share of the net proceeds of the sale of the Suburb C property. Having regard to both positions taken, and the difficulty arising from the calculations, I will exercise my discretion to not include interest. While the husband was penalised for the late payment of his share of the Suburb C property, the wife was arguably disadvantaged over a much longer period of time, when the husband failed to make payments of spousal maintenance. For these reasons, it would not, in my view, be just and equitable to adjust for interest on either of the outstanding amounts.
For the reasons above, the husband’s proposal to supplant the Final Property Orders with a further adjustment to him out of the wife’s share of the sale proceeds is just and equitable as it permits the same outcome envisaged, with the overall property adjustment orders made by the Court.
At the same time, orders will be made adjusting the wife’s share so that she is paid an additional sum of $54,564.55 for the outstanding costs and spousal maintenance payments.
CONTEMPT APPLICATION
I now turn to the Contempt Application. On 11 September 2023, the wife filed a Contempt Application. It appears to have been filed in Response to the husband’s Application to enforce the Final Property Orders.
Part XIIIA of the Act deals with sanctions for failure to comply with orders and obligations that do not effect children, and includes s 112AB, which provides the following definition of the term “contravene an order”:
(1)A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:
(a)where the person is bound by the order – he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b)in any other case – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
The husband asked me to summarily dismiss the Application.
As was observed by the Full Court in Fierro & Fierro (No 7) [2023] FedCFamC1A 24, at [38] to [41]:
38.Prosecutions of “offences”, which nomenclature is apt to include allegations of contempt, are not typically amenable to summary dismissal pursuant to the same principles which apply in conventional civil proceedings, requiring demonstration that the civil suit does not enjoy any reasonable prospect of success. Instead, incompetent prosecutions are met by one of two defence submissions.
39. First, an accused person may demur to the validity of the charge or indictment before the criminal prosecution formally commences, alleging defects in it, which procedure similarly applies at common law in respect of contempt proceedings. It is unclear whether the respondents demurred to the contempt counts by expressly asserting they were all an abuse of process (r 10.09(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), but even if they did, the primary judge did not determine the proceedings on that basis.
40. Secondly, an accused person may submit there is “no case to answer” at the close of the prosecution case, asserting the prosecution cannot be sustained on the evidence adduced by the prosecutor. At that point in time, the legal question for the court is whether the accused could be convicted on the evidence adduced; not the factual question of whether the accused should be convicted on the evidence. If the defence submission is successful, the prosecution is terminated by dismissal at that stage of the substantive hearing. The primary judge did not do that here either.
41. Conversely, “no case to answer” submissions are not usually apposite in civil proceedings, as in that context the phrase tends to be used indiscriminately and is liable to mean different things. The summary dismissal procedure is preferable in ordinary civil proceedings.
(As per the original, citations omitted)
I am therefore left to consider whether the counts are inherently defective and, hence, it would be an abuse of process to prosecute them, or if there is a case for the respondent to answer. In doing so, I observe that the wife appears to have complied with r 11.71(2) of the Rules.
I cannot find that the counts are inherently defective, so I need to consider whether the counts of contempt can be established beyond reasonable doubt on the totality of the unchallenged evidence. If I find that any or all of the counts of contempt can be established on the wife’s unchallenged evidence, then I will adjourn the matter to ensure that the procedures set out in the Rules are applied and allow the husband to enter a plea in accordance with r 11.71(6) and (7). Essentially, the task now is to consider whether there is a prima facie case to answer beyond reasonable doubt.
I have adopted this course, observing that in Lindon v the Commonwealth (No 2) [1996] HCA 14, the Honourable Justice Kirby says at [14]:
… If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relive the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
While those comments were made in relation to summary dismissal applications, they seem to apply equally here.
I will now consider each of the four grounds set out in the wife’s Statement of Contempt. As I approach this task, it is important to observe that the allegations of contempt or any allegations of contempt, are serious matters. They must be prosecuted in a strictly adversarial way. The wife bears the burden of proving the alleged contempt to the criminal standard of proof. While the husband has adduced evidence by way of rebuttal of the Contempt Application, I have not relied upon that material for now, but will do so if the wife satisfies me that there is a prima facie case to meet on the criminal standard of proof.
Count 1: On 25 August 2023, the husband wilfully breached the Court Order made on 12 May 2023
The wife does not specify the actual order that was breached on 25 August 2023.
In her affidavit at paragraph 12, she says:
On 25 August 2023 court made orders annexed and marked N. [Mr Rajendra] knowingly, deliberately and wilfully breached these orders in contempt of court by failing to file and serve a single consolidated affidavit without making reference to prior affidavits.
(As per the original)
She alludes to this issue again at paragraph 17 of her affidavit.
However, that is the extent of the evidence given in support of her contention.
Even if she were able to satisfy me that the husband was in contempt of Court, she would need to put before the Court evidence that he knowingly, deliberately and wilfully breached the Order as alleged.
Her Application on this count must fail.
Count 2: Mr Rajendra, as trustee, wilfully breached Court Orders made on 5 February 2020 by failing to execute contract of sale as vendor on 1 April 2020.
Order 2 set out the procedure for the sale of the Suburb C property.
The wife alleges that the husband acted in contravention of Order 2.3 because he did not accept the highest written offer following the blind tender process required in Order 2.2.
On page 3 of her Outline of Contentions, the wife refers to a person called “Mr H” and claims:
[Mr H] told me that he made the highest offer of $3,500,000 to the real estate. [Mr H] told me that the real estate agent told him, [Mr H], that [Mr Rajendra] told the real estate agent to reject [Mr H]’s offer and accept the offer of $3 million.
(As per the original)
She does not make this assertion in her sworn affidavit.
Mr H is not on affidavit.
Ms G has sworn an affidavit on behalf of the wife, but it contains hearsay evidence on these issues that cannot be accepted as evidence that the husband acted in contempt of the Order.
Furthermore, the evidence of Ms G does not satisfy the Court that Mr H ever submitted an offer as part of the blind tender process. Nor does the wife give any evidence of whether Mr H ever submitted an offer in accordance with the blind tender process. Indeed, the husband’s real estate agent’s evidence is that he has never had any dealings with anyone named “Mr H” and no such offer was ever received.
Even if she were able to satisfy me that the husband was in contempt of Court, she would need to put before the Court evidence that he knowingly, deliberately and wilfully breached the Order as alleged.
Her Application must fail on this ground.
Count 3: That Mr Rajendra wilfully breached Court Orders 2.4.3 and 2.6 and 4.4 and 4.4.2 made on 30 April 2019
The wife alleges that the husband acted in contempt of the Final Property Orders because he:
(a)Failed to instruct J Lawyers to act on the sale, pursuant to Order 2.4.3;
(b)Failed to maintain his guarantee of the line of credit, pursuant to Order 2.6; and
(c)Acted in contempt of Orders 4.4 and 4.4.2, although the precise actions are not identified.
Because she has grouped all of these together, the Court would need to be satisfied that she could establish a prima facie case on each element. To meet the prima face case, the wife would need to carefully set out the date the offences occurred on and the precise nature of the actions she said were in contempt of the Final Property Orders. She has not done so.
The wife has pleaded an amount of evidence in relation to the line of credit. She relies upon a statement from the Commonwealth Bank of Australia which purports to show that the husband reduced the limit from $650,200 to $160,129.14.
The wife also refers me to the evidence of Ms G. She has annexed to her affidavit what she purports to be a record from the bank. It is difficult to read. She says it is evidence that the husband asked for a stop to be placed on the line of credit and for the bank to release him of his personal guarantee. I cannot see a date.
While the wife argues that the husband’s actions meant she was unable to make any further withdrawals after 1 December 2019, she admits in her Application that she continued to make withdrawals until 15 November 2023.
Even if I am satisfied that the husband breached the Final Property Orders, the evidence adduced in support of this count seems incapable of proving that the husband maliciously, knowingly, deliberately and wilfully breached these Orders.
Accordingly, on this ground of contempt, the wife has not made out a prima facie case and it must fail.
Count 4: That Mr Rajendra wilfully breached Court Order 2 on 12 February 2015 by failing to pay spousal maintenance of $950 per week
The background to the husband’s failure to pay spousal maintenance to the wife in accordance with the 12 February 2015 Orders has been set out earlier and is not controversial.
The wife has not pleaded the dates upon which she alleged that the husband wilfully breached the Court Order. She has, however, set out a table of the payments she says she received for spousal maintenance. The table falls well short of proving the count.
There is no evidence relied upon to ground her allegation that the husband wilfully, knowingly and deliberately failed to pay or underpaid her spousal maintenance.
Whilst it is agreed that pursuant to a Third Party Debt Notice obtained by the wife, the sum of $34,035.45 was garnisheed from the husband’s bank account in mid-2018, there is no evidence to ground the allegation that the husband remained aware that he continued to have money outstanding to the wife by way of under or non-payment of interim spousal maintenance. The wife needed to put such evidence before the Court.
Accordingly, on this ground of contempt, the wife has not made out a prima facie case to the requisite standard.
In her affidavit, she does, however, seek orders for unpaid spousal maintenance arrears to be paid, or set off against money payable by the husband. He has made this concession as referred to earlier and such an order will be made as requested by the wife.
COSTS APPLICATION
I now turn to the husband’s costs application. The husband seeks an order that the wife pay his costs of these proceedings since 5 February 2020 on an indemnity basis. He calculates that the costs and disbursements that he incurred to date in enforcing the Final Property Orders to be $113,059.27.
In this Court, each party generally bears their own costs. However, where there are circumstances that justify an order for costs, the Court is able to make such order as is considered just, having regard to the matters contained in the relevant subsections of s 117, and applicable rules of the Court.
An additional source of power to award costs in an appropriate matter is to be found in s 192(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCoA Act”), which empowers the Court to award costs against a party and that the costs awarded be assessed on an indemnity basis or otherwise.
There is an additional mandatory requirement created by s 191(4) of the FCFCoA Act, which requires the Court to take into account any failure to comply with the duty imposed by s 191(1) or (2) which requires the parties and lawyers for the parties to conduct the proceedings in a way that is consistent with the overarching purpose of the Family Law Practice and Procedure provisions of the FCFCoA Act. The overarching purpose is set out in s 190 and requires, amongst other things, that proceedings be conducted as “quickly, inexpensively and efficiently as possible”.
The list of matters to which the Court must have regard when determining a costs application are also set out in s 117(2A) of the Act.
Not one consideration under that section prevails over the other, and the weight to be accorded to each of the relevant factors is at my discretion.
The Court will not lightly make an order for costs to be paid on an indemnity basis. There needs to be some circumstance of an exceptional kind to justify that course (see Kohan & Kohan (1993) FLC 92-340 at 79,614; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive”) at [233]). It is not usual for the Court to make an indemnity costs order, and the circumstances of the case, however, must warrant a departure (Colgate-Palmolive at [256]).
Should costs be awarded?
The wife asked that each party bear their own costs under s 117(1) of the Act. On the issue, the wife says that the costs referred to were unreasonably and unnecessarily incurred because the contract of sale is void and invalid. She has been unsuccessful with this argument.
The wife’s misconduct in not complying with the Final Property Orders has caused delay in the finalisation of the proceedings between the parties. The wife’s actions have caused a loss of time to the Court and to the parties in circumstances where, by this time, the husband would have had the benefit of his entitlement to the net proceeds of sale. This has happened because of both the actions and inactions of the wife.
In my view, the circumstances of this case reach a standard as to enable the Court to make an indemnity costs order.
Taking into account all of the circumstances of this case, it is just that I make a costs order against the wife for the following reasons:
(a)The entirety of these proceedings, since the making of the Final Property Orders has been necessitated by the wife’s failure to comply with the obligations imposed upon her by the Final Property Orders.
(b)The husband was wholly successful in obtaining a Warrant for Possession of the Suburb C property in mid-2022, and in obtaining a s 106A order for the signing of the Withdrawal of a Caveat on behalf of the wife in late 2022, and on both occasions the husband’s costs were reserved.
(c)The institution of the enforcement and the s 79A proceedings arose from the wife’s failure to comply with the Final Property Orders.
(d)There were occasions in the course of the proceedings where the wife appears to have deliberately failed to comply with the Final Property Orders and has generally sought to delay and frustrate compliance with the Orders, the conduct of these proceedings, and a final division of the matrimonial assets. Examples included:
(i)Seeking to delay these proceedings in reliance upon what was alleged to be a forged letter, purporting to be on the letterhead of her former lawyers, which the wife tendered in evidence before his Honour Judge Kemp.
(ii)Refusing to sign a Withdrawal of Caveat, even when requested to do so by the Judicial Registrar.
(iii)Refusing to cooperate in applying for an ATO Tax Clearance Certificate.
The total costs claimed is $113,059.27. The claim is made from 5 February 2020 when the Honourable Justice Rees ordered that the husband be appointed sole trustee for the sale of the Suburb C property and awarded the wife costs of $5,000.
I have been directed to both the Cost Notice filed in these proceedings, as well as the itemised bill, commencing at page 207 of the affidavit of Mr E. I am satisfied that the costs and disbursements in the quantum claim were reasonably incurred.
I do, however, observe that the husband has not been completely successful. The wife correctly sought to be paid the additional sum of $54,564.55, representing the outstanding spousal maintenance amounts and the outstanding costs order. Whilst not contained in his initial Application, the husband made this concession prior to the hearing.
These proceedings have gone on for long enough, and in the interests of justice and in the light of the Court’s overarching purpose to resolve disputes as quicky, inexpensively and efficiently as possible, a costs order will be made. There is no evidence to suggest that the outstanding spousal maintenance issue prolonged these proceedings. It remains the case, in my view, that these proceedings have continued because of the wife’s conduct.
So, whilst I am prepared to reduce the wife’s liability for all of the husband’s legal costs and disbursements, such a reduction should be minimal and in proportion to the main issues that led to the costs beings incurred.
Having regard to these matters, I will fix the husband’s costs and disbursements at $100,000 Such costs can be paid from the money remaining in the husband’s solicitor’s trust account.
CONCLUSION
In all the circumstances of this case, I am satisfied that the orders I intend to make are just and equitable, appropriate and otherwise in the interests of giving justice to the parties.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 20 December 2023
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