Vasilias and Vasilias (No. 4)

[2008] FamCA 419

FAMILY COURT OF AUSTRALIA

VASILIAS & VASILIAS (NO. 4) [2008] FamCA 419

FAMILY LAW – PROPERTY – Caveats

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

APPLICANT: MRS VASILIAS

RESPONDENT: MR VASILIAS

INTERVENOR GRANDPARENTS: MR and MRS VASILIAS (SNR)

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3158 of 2005

DATE DELIVERED: 12 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 12 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CANTWELL

SOLICITOR FOR THE APPLICANT: HOGG & REID

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT: BERGER KORDOS

COUNSEL FOR THE INTERVENOR: MS PIGGOTT

SOLICITOR FOR THE INTERVENOR: S KOURKOULIS & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR ROCKMAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ROCKMAN & ROCKMAN

Orders

1. That paragraph 2 of the orders made on 31 January 2008 as amended on 26 February 2008, be varied further so that the wife pay to:

   (a)the Child Support Agency, $2564.67;

   (b)J School, $4100;

   (c)the Greek School, $1500;

   (d)the husband’s parents c/- S Kourkoulis & Associates, $32,000; and

   (e)Mr RW c/- Rockman and Rockman, $18,500.33.

1. That contemporaneously with the payments referred to in paragraph 1(d) and (e) hereof, the recipients of the said funds provide to the wife at settlement, a withdrawal of any caveat lodged by them or on their behalf over and in respect of, the real property referred to in the orders made on 31 January 2008.

1. That in the event that the said persons (the caveators) fail to provide the withdrawal of caveats, then upon the wife tendering to them the sums she is obliged to pay on the settlement date, any document required to enable the withdrawal of the said caveats shall be signed in the name of that caveator by a registrar of the Melbourne Registry of this Court pursuant to s 106A of the Family Law Act.

1. That the filing of an affidavit by the solicitor for the wife of the wife’s compliance with Order 2 hereof and the caveators or either of them having failed to provide the said withdrawals of caveats shall be sufficient evidence to enable the said documents to be executed in the name of the caveators.

1. That by 4.00pm on 19 March 2008, the husband provide to the solicitors for the wife the most recent statement showing the outstanding balance owed under the mortgage encumbering the former matrimonial home.

1. That any application by any party for costs arising out of these proceedings be filed with my Associate in submission form by no later than Monday 14 April 2008.

1. That the recipient of any application for costs referred to in paragraph 6 hereof shall have until Monday 12 May 2008 to reply to any such application and any submission shall be filed with my Associate by that date.

1. That the letter dated 7 March 2008 from Berger Kordos on behalf of the husband be marked as an exhibit and remain on the court file.

1. That a copy of these orders and my reasons for judgment this day be provided by the wife to the husband C/- Berger Kordos as soon as practicable.

1. That if the husband claims to have been prejudiced by these orders, he shall have until 4.00pm on 28 March 2008 to seek to have them varied or set aside.

1. That the husband by himself, his servants and agents be and is hereby restrained from communicating with any broker or financial institution to discuss the financial affairs of the wife.

1. That the provisions of paragraph 1 of these orders relating to the payment of the amounts outstanding to J school and the Greek school shall be sufficient discharge of any obligations of the husband and the wife under my orders of 31 January 2008.

1. That forthwith the paternal grandparents file and serve a Notice of Address for Service.

IT IS NOTED that publication of this judgment under the pseudonym Vasilias & Vasilias is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3158  of 2005

MRS VASILIAS

Applicant

And

MR VASILIAS

Respondent

And

MR AND MRS VASILIAS (SNR)

Intervenor grandparents

REASONS FOR JUDGMENT

1. This is an application for orders to enable effect to be given to orders I made on 31 January 2008. 

2. The wife has brought an application against the husband’s parents and Mr RW because each has lodged a caveat against the former matrimonial home.  The husband was served with the proceedings and on 26 February 2008 did not appear but was represented by his solicitor.  Today, he through his solicitors, has provided a letter which is addressed to the solicitors for the wife and dated 7 March 2008.  In the letter, the husband consents to being restrained from communicating with various financial institutions and as a result of that consent, I have made orders.  The letter went on to say:

   We are further instructed that our client will consent to any orders made by the Family Court of Australia on 12 March 2008.

3. The letter was signed by a partner of the firm Berger Kordos.  As a matter of precaution, I have made a provision in the orders that if the husband feels he is prejudiced by orders which were not specifically sought in the wife’s documentation, he may make an application to set the orders aside.

4. The application by the wife for injunctions against the husband arises as a result of a letter that he has written to the wife’s finance broker. A copy of the letter is annexed to the wife’s solicitors’ affidavit filed 28 February 2008. It is less than flattering of the husband, certainly inappropriate and potentially in breach of s 121 of the Family Law Act 1975 (Cth) (“the Act’). Having regard to the consent however, I have made the orders that the wife sought.

5. The other respondents to these immediate proceedings have lodged caveats against the former matrimonial home.  Neither of these respondents raised the subject of their caveats in the contested proceedings before me notwithstanding each of them gave evidence. 

6. The respondents Mr and Mrs Vasilias (snr) are the husband’s parents. On 5 November 2007 through their solicitor Mr Kourkoulis, they lodged a caveat under s 89 of the Transfer of Land Act 1958 (Vic). No mention of the caveat was made to the wife. No search was done by the wife of the title prior to the trial commencing. The caveat alleges as its ground:

   The registered proprietor holds the title as trustee pursuant to a constructive trust between himself and the caveators.

7. The only thing that could give rise to that claim from a factual point of view was that the husband’s parents provided the husband $30,000 towards the acquisition of the home.  Subsequently, a loan agreement was prepared and executed.  Later again, the parents say they lent the husband $15,000 to enable him to acquire a taxi.  All of these matters were canvassed in the proceedings and I made findings about them.  Most importantly, the document recording the loan did not purport to give the parents any interest in the property nor have they ever lodged a mortgage.  To compound the matter, they sought to intervene in the proceedings and I refused their application on the basis that they were simply claiming at the time to be a creditor of the husband.  At no stage was there a suggestion of a charge and the caveat ground to which I have referred clearly indicates that that was not the case.  There was no evidence raised either by the parents or by the husband that could possibly have given rise to the constructive trust.  Even if there was something which had not been mentioned, the constructive trust must surely have failed when the father gave evidence indicating that he had no intention of recouping the money at that point or at any specific future point from his son.

8. Accordingly, there could not have been any legitimate suggestion that they had a caveatable interest.

9. The second caveat appears to have been lodged personally by Mr RW who gave his address as A Street, N.  The caveat was dated 13 February 2008 after the judgment in the proceedings had been delivered.  Mr RW claimed that the ground for his caveat was:

   Pursuant to an agreement between the registered proprietor [the husband] and myself to on 20/09/2007 secure a loan advanced by the caveator to [the husband].

10. Attached to the caveat is what appears to be a document which is a loan agreement signed by Mr RW and the husband claiming the sum of $22,318.10.  Importantly, that document refers to the fact that these monies were to be paid back upon demand and/or the sale of “the propery” (sic) at R.  The document does not appear on its face to be a charge of the property at all.  Mr RW gave evidence as I have indicated and made no mention of this money being owed now did the husband who was cross-examined for some days.

11. Even if the caveat had some legitimate basis in law, it must be seen as questionable having regard to the fact that it was lodged at a time when Mr RW would have been aware that judgment had been delivered.

12. In Victoria, when a person lodges a caveat without a legitimate basis, the provisions of s 89A of the Transfer of Land Act provide that a legal practitioner can advise the Registrar of Titles that there is no legitimate caveatable interest whereupon the Registrar can give notice that unless proceedings are instituted, the caveat will lapse. 

13. In this case, in the first mention of the matter, I indicated that that seemed to be the appropriate course of action for the wife to take.  However, my orders had provided a strict timetable for the completion of the settlement including a provision giving the husband an option to purchase if the wife failed to settle by the due date.  Time was therefore of the essence. 

14. The alternative is s 90 of the Transfer of Land Act which provides for a person to make an application at any time to “the court” to have the caveat removed.  The court is defined as the Supreme Court of Victoria.

15. Mr Cantwell of counsel indicated to me on 26 February 2008 that he was urging me to exercise accrued jurisdiction and to effectively operate as the Supreme Court of Victoria.

16. Ironically, the solicitor for the husband concurred in the course of action suggested by the wife but having regard to the fact that no specific application had been made along those lines, I directed that the proceedings be adjourned and that the respondents be notified of what was being contemplated and furthermore that the Registrar of Titles be given notice as well to enable them to have an opportunity to be heard about the question of jurisdiction.

17. When the matter returned to me on 12 March 2008, all of those jurisdictional issues seemed to have evaporated.  The practitioners for the caveators indicated that their only interest was in getting paid and there was no reason why a garnishee-type order could not be made against the wife who owed the husband money and as he was the debtor in each of the cases to the caveators, those funds could be paid.  There was some complication by virtue of the fact that I had previously made an order that any monies owing to the schools of the children were to be paid by the wife and that sum reduced from the money she was to pay to the husband.  In addition, since those orders were made, I was informed that the Child Support Agency had served notice on the wife’s solicitor anticipating that they would be holding the money on behalf of the wife to settle to the husband and that out of those funds, the wife’s arrears of child support were to be paid.

18. In the end, common sense prevailed and the parties reached agreement.

19. The dilemma arises because of the fact that the husband was not present and his letter to which I have referred earlier may be seen as a consent to any order or only to those orders that were specifically contemplated.  Certainly, an order was contemplated that money be paid to Mr RW.  That was set out in paragraph 6 of the amended application filed 28 February 2008 by the wife.  There is no problem with that particular order therefore.  The husband has consented.  However, the same course of action has now been taken by the husband’s parents but that was not contemplated in the application and hence I have given the husband leave to bring an application to vary or discharge that particular part of the order if he feels prejudiced by it.  It should be said however that if such an application was made, the husband would be significantly at risk on costs having regard to the fact that I have made very clear findings about the likelihood of the money having to be repaid to his parents specifically because of the evidence that the husband’s father gave.

20. The dilemma may also be compounded as Ms Cantwell the solicitor for the wife said by some “tactical” action by the husband in not settling. That problem might arise because of the matter that I earlier mentioned about the tight timeframe. For that reason, I have made an order to which the parties have all consented under s 106A of the Act directing that a registrar may sign the withdrawal of caveats in the name of the caveator if an affidavit is filed indicating that compliance has not been made. Section 106A of the Act applies to persons other than the husband and wife. It arises in circumstances where an order is made for “a person” to execute a deed or instrument. The Act is quite specific in its language; it does not simply refer to a party to the marriage. In those circumstances, and because of the consent of the relevant caveators, I am content to make the orders.

21. There was not sufficient time to deal with the other issue raised by the wife. That issue related to an application for costs. Mr Cantwell of counsel indicated that the wife’s costs were $1100 for counsel on 26 February and $1000 for solicitors’ costs for that hearing and $1100 for costs on 12 March and a further $500 for the solicitor for the preparation of those proceedings. I have made orders for any such application to be formally made in writing by way of submissions and for parties to respond by particular dates whereupon I will determine that issue in chambers. Orders for costs against persons who are parties can always be made but it is not entirely clear under the Act just what the considerations are and as such, each party will need to give some thought as to the basis upon which the orders are made and whether there is a justification for departure from the rule that each party pays their own costs. That is a matter that I will deal with in due course.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  12 March 2008