Vaughan and Bele (No 2)
[2012] FamCA 605
•23 July 2012
FAMILY COURT OF AUSTRALIA
| VAUGHAN & BELE (NO. 2) | [2012] FamCA 605 |
| FAMILY LAW – DE FACTO PROPERTY – Injunctions. FAMILY LAW – ORDERS – Order to State Registrar of Titles to produce new duplicate certificate of title – power to make order lies in accrued jurisdiction. FAMILY LAW – Costs. |
| Family Law Act 1975 (Cth) Transfer of Land Act 1958 (Vic) |
| Ascot Investments Proprietary Limited & Harper [1981] HCA 1; 148 CLR 337 Batey-Elton and Elton [2010] FamCAFC 79 Marshall & Williams [1974] VR 592 MG and MG [2000] FamCA 893 Mullen & De Bry [2006] FamCA 1380 Re Wakim [1999] HCA 27 Valceski & Valceski [2007] FLC 93-312 Yunghanns and Yunghanns (1999) FLC 92-836 |
| APPLICANT: | Mr Vaughan |
| RESPONDENT: | Ms Bele |
| FILE NUMBER: | MLC | 9056 | of | 2009 |
| DATE DELIVERED: | 23 July 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 23 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harrisss |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers Pty Ltd |
| THE RESPONDENT: | In person |
Orders
That until further order and pending settlement of the sale of the real property at No 9, MR VAUGHAN have the sole and exclusive use and occupation of the No 9 property.
That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained by injunction from attending within 100 metres of the No 9 property.
That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained from injunction from leasing, assigning, transferring, alienating or encumbering the No 9 property.
That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained by injunction from registering or attempting to register, any interests or caveats on the title to the No 9 property.
That the Registrar of Titles for the State of Victoria, cancel Folio of the Register Volume … Folio ….
That the Registrar of Titles create a new folio of the Register and Certificate of Title for the land in Certificate of Title Volume … Folio ….
The Court declares for the purposes of s 27B(6) of the Transfer of Land Act 1958 (Vic) that MS BELE being the recorded registered proprietor of the said land is the person entitled to delivery of the Certificate of Title to be so created pursuant to these orders but for their purposes, the new folio be delivered to Messrs Mills Oakley Lawyers, Level 6, 530 Collins Street, Melbourne to satisfy the orders of this Court made on 13 December 2011.
That Messrs Mills Oakley Lawyers hold the title issued pursuant to these orders on trust pending the settlement of the sale of the No 9 property and the said lawyers be authorised to hand over the title to the purchasers or their representatives or bankers upon the settlement of the sale.
That a sealed copy of these orders be forthwith served upon the proper officer of the legal department of the Land Titles Office of Victoria with a request that the Land Titles Office Victoria give full effect to these orders.
That the application filed 18 July 2012 save as to costs is otherwise dismissed.
That the respondent MS BELE pay the applicant’s costs by agreement and in default of agreement as assessed by the Registrar using the Schedule to the Family Law Rules 2004.
That any costs arising out of the said agreement or assessment be satisfied from the respondent MS BELE’S entitlements from the sale of the No 9 property.
That the application in a case filed by MS BELE by leave on 20 July 2012 be determined as follows:
(a) as to paragraphs 2, 4, 5, 6, 11, 12 and 15, those matters are adjourned to the Judicial Duty List at 10.00am on 11 September 2012 for determination; and
(b) as to paragraphs 1, 3, 7, 8, 9, 10, 13, 14, 16 and 18, those matters are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughan & Bele 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 9056 of 2009
| Mr Vaughan |
Applicant
And
| Ms Bele |
Respondent
REASONS FOR JUDGMENT
The dispute between Mr Vaughan and Ms Bele has many facets, but the application I am immediately concerned with has two aspects. First, should injunctions be granted against Ms Bele and her various agents, giving Mr Vaghan exclusive occupancy of a property at No 9 and restraining Ms Bele and her agents attending at that property or endeavouring to restrict the use of the Certificate of Title to that property by encumbrance or caveat?; and secondly, can and should an order be made that the Victorian Registrar of Titles issue a replacement duplicate Certificate of Title so that a settlement of the sale of the No 9 property can take place?
This application was brought on urgently before me. It was originally sought that it be heard before Strickland J who was, at that time, hearing an application within an appeal. Strickland J indicated that it was not appropriate for him to hear it.
The application in a case was filed on 18 July 2012 after being expedited by a Registrar. It relevantly sought the following orders which need to be set out in full because of the attendant problems with the proceedings:
3.That until further order and pending settlement of the sale of the real property at [No 9] in the State of Victoria (“the [No 9] property”), [MR VAUGHAN] have the sole and exclusive use and occupation of the [No 9] property.
4.That until further order, [MS BELE], by herself, her employees, servants and agents (including but not limited to Mr [A]) be and is hereby restrained by injunction from attending within 100 metres of the [No 9] property AND IT IS REQUESTED that all officers of the Australian Federal Police and all officers of the Victoria Police give effect to these orders and be authorised to use such reasonable force as is necessary to remove any person entering upon the [No 9] property in breach of this injunction from the [No 9] property.
5.That until further order, [MS BELE] by herself, her employees, servants and agents (including but not limited to Mr [A]) be and is hereby restrained by injunction from leasing, mortgaging, assigning, transferring, alienating or further encumbering the [No 9] property except by order of this Court.
6.That until further order [MS BELE] by herself, her employees, servants and agents (including but not limited to Mr [A]) be and is hereby restrained by injunction from registering or attempting to register any interests, caveats or like interests on the title to the [No 9] property, both before, and following, settlement of the sale of the [No 9] property.
7.The Court orders the Registrar of Titles for the State of Victoria to cancel folio of the Register Volume … Folio ….
8.The Court orders the Registrar of Titles to create a new folio of the Registrar and Certificate of Title for the land in Certificate of Title Volume … Folio ….
9.The Court find and declares that for the purposes of sub-section 27B(6) of the Transfer of Land Act 1958 that [MS BELE] is the person entitled to delivery of the Certificate of Title to be created pursuant to order 8 hereof and that for the purposes of this order, the new folio be delivered to Messrs Mills Oakley Lawyers, of Level 6, 530 Collins Street, Melbourne 3000.
10.That Messrs Mills Oakley Lawyers hold the title issued pursuant to orders 8 and 9 hereof on trust pending the settlement of the sale of the [No 9] property and the said lawyers be authorised to hand over the title to the purchasers or their respective representatives or bankers upon the settlement of the sale.
11.That a sealed copy of these Orders be forthwith served upon the Proper Officer of the Legal Department of the Land Titles Office of Victoria with a request that the Land Titles Office Victoria give full effect to these Orders.
And then there was an application for costs against Ms Bele on an indemnity basis.
Mr Vaughan, to whom I shall refer in these reasons as the applicant was represented by his solicitor, Mr Harriss. He relied on an affidavit filed on 18 July 2012.
Ms Bele, to whom I shall refer as the respondent in these reasons, was not represented by a legal practitioner. Initially the respondent asked whether could she be represented by Mr A or, in the alternative, have him as her “McKenzie friend”.
Before a ruling on that became necessary, the respondent said she wanted to negotiate a final settlement with the applicant. Sensibly the applicant agreed but after about two hours the discussions came to nought.
On the resumed hearing, the respondent said she wished to make an open offer. I cautioned her about so doing because it meant she may be indicating concessions about the issues that I had to determine. She said she understood and persisted. She then told me she had offered to withdraw all appeals if the applicant withdrew all proceedings. She said her offer included that she would sign all necessary documents to get the replacement Certificate of Title and the sale of No 9 would be treated as valid. She referred to various other offers relating to proceedings in city X in Europe and costs.
The unusual nature of the open offer was that I was made aware from recent proceedings and my past dealings with them, that the respondent desires to challenge the validity of the previous orders of this Court arising out of her argument that the Commonwealth parliament’s laws were either invalid or unconstitutional. As such, offering to completely end the proceedings and in particular validate the No 9 sale, would clearly be contrary to the argument about the validity of the orders. The applicant rejected the respondent’s open offer.
I then inquired whether the respondent opposed the applicant’s orders and if so what documents she relied upon having regard to the haste with which the application had been brought on before the Court. The respondent told me she had an application in a case with a supporting affidavit but had been prevented from filing them because of a filing restriction rule. Because the applicant had been given an expedited hearing I could not see how it could be argued that the respondent should not at least have material before the Court. The applicant opposed the respondent filing her application but not her affidavit.
The orders sought in the application in the case of the respondent were much more extensive than just responding to the applicant’s case. Indeed, many of the orders she sought were completely at odds with her position in the open offer that had been rejected by the applicant. Because there is an appeal pending or at least an interlocutory application relating to a proposed appeal which seems to relate to jurisdiction, it was not appropriate for me to deal with those matters in the respondent’s application at this time. Accordingly I will, at the conclusion of these reasons, adjourn that application to a date in September.
I have taken the respondent’s application in a case as an application that the applicant’s application be dismissed regardless of the documents format.
I return then to the respondent’s application concerning Mr A. The respondent asked me to rule about his ability to represent her but before I did so, I inquired whether she was calling witnesses in the controversy concerning the No 9 property. She said she was and as Mr A was an integral part of the factual dispute, she said she wished to call him even though she had no affidavit from him. She and later he, said that an affidavit would have been done except for the problems that they had had. I asked how Mr A could be her witness and her representative as she had proposed. After a discussion with Mr A, the respondent withdrew her application for Mr A to represent her or to be her McKenzie friend.
In case it should be interpreted that that was all that occurred, I also record the following. The respondent informed me that a similar request had been made to Strickland J for Mr A to represent her in the appeal process and his Honour refused. The respondent said she wished me to consider that position again.
I pointed out that I was aware that Mr A was a person who had a restriction applied to him under s 118 of the Family Law Act 1975 (Cth) (“the Act”) and that it would be unusual for him to be permitted to represent someone else.
Mr Harriss submitted that Mr A ought not be permitted to fulfil either role and referred me to the Full Court’s decision of MG and MG [2000] FamCA 893 concerning an appeal from Morgan J in which Mr A was refused permission to appear for a litigant and indeed on his own application, to intervene.
Mr A’s s 118 order is a subject I shall further mention. The Full Court decision simply refers to the anomalous situation of a person subject to a s 118 order appearing for another litigant. It is not authority for the proposition that such a person cannot be a McKenzie friend. That point must be determined on the well known principles including those set out in the Full Court’s decision of Batey-Elton and Elton [2010] FamCAFC 79. However that issue did not arise here.
It is important to record that to the extent that the respondent thought she may have had the need for some assistance from Mr A or a “McKenzie friend”, it was certainly not apparent to me in any way because she organised herself extremely well and conducted the hearing without difficulty. As an example, her cross-examination was targeted and relevant.
The respondent’s affidavit was largely directed to the validity and constitutional law issues. It referred to the incident which was the subject of the applicant’s complaint but it was not first hand evidence but rather what she was told. It transpired that it was Mr A who had told her although the affidavit did not indicate that. On the basis that the respondent was calling Mr A, whose evidence I was told was disputed, I struck out those paragraphs and asked Mr A to wait outside the court room.
Before embarking upon the evidence, I queried whether the respondent objected to the issue of the new Certificate of Title which was sought by the applicant. She told me she did not but she agreed with my synopsis of the problem which had arisen in discussion with Mr Harriss about the capacity of this Court to make an order against not only a non-party but one who was an official with statutory duties under State legislation. I shall return to that issue in a moment.
The respondent’s concession obviated the need for evidence to be canvassed about the issuing of a new Certificate of Title but Mr Harriss cross-examined the respondent about it anyway.
Before dealing with the discrete issue it is hopefully helpful to set out the relevant background. The applicant and the respondent lived together in a de facto relationship. In 2011, I made a declaration under s 90RD of the Act as to when their de facto relationship ended. That was after a hearing over some days at which both parties were represented by senior and experienced lawyers. Initially the respondent lodged a Notice of Appeal but did not proceed with that process.
In December 2011, the substantive property trial came on before Le Poer Trench J and the parties comprised their dispute culminating in final property orders on 13 December 2011. In that hearing both parties were also represented by counsel.
In early 2012, the Australian community became aware of the flaw in the de facto relationship legislation which required legislative amendments to the Family Law Act.
Doing the best I can, arising from that common knowledge, the respondent sought to reinvigorate her abandoned appeal and hence the involvement of Strickland J.
The respondent had been represented by a solicitor by the name of Mr Y who told me in an earlier hearing that he was assisted by Mr A whom he described as “a constitutionalist”. I ruled the application was legally incompetent. Mr Y said there was to be High Court proceedings. Mr Y’s services were very recently terminated.
During the hearing, I expressed concern about Mr Y having employed Mr A doing legal work on behalf of his client but in her evidence, the respondent was uncertain about the nature of that professional relationship. I will leave that issue for the relevant law society to examine if they are concerned. It may be that the relationship between Mr Y and Mr A is quite appropriate. It is curious that Mr A confirmed that his business cards describe himself as a consultant to Y’s Lawyers in one case and no such connection in another.
The respondent gave evidence about the assistance she had received from Mr A for which he imposed no charge or fee.
The orders of 13 December 2011 seem to me to have created some confusion despite their clear terms. The No 9 property to which I have referred was registered in the name of the respondent only. Under the orders, upon the payment of a large sum of money by the respondent to the applicant, the respondent was to retain her ownership. Failing that and thus by default, the respondent was to transfer No 9 to the applicant on a trust for sale and it was then to be sold. A trust for sale in those circumstances could only have been under the control of the applicant.
To the extent that there was any disagreement about the terms and conditions of any sale, provision was made in the orders for application to be made to the Court.
To the extent that despite the legal title, the applicant had an equitable interest, any joint tenancy was expressly severed under the order. Thus, after the default day, the order was clear that No 9 was to be sold under the control of the applicant and the proceeds were to be divided in the defined portions under the order.
Despite the default day passing, the transfer for sale was never activated by the applicant and the auction went ahead on the basis of a sale under contract apparently in the name of the respondent. That became a bone of contention of the respondent as well because she complained that the solicitors for the applicant named themselves as her solicitors in her capacity as vendor. In my view nothing turns on that point.
The December orders drawn by the parties provided that pursuant to s 106A of the Act, a registrar could sign documents in the name of the defaulting party. The applicant sought refuge in that order for the purposes of documents associated with the sale. Perhaps that was unnecessary and unfortunate. The Registrar was accused of having inappropriately signed documents or that her signature had been forged. Nothing turns on either of those matters but it points to the complexity that arose because of the process that was followed by the applicant.
The auction proceeded and ultimately a contract of sale was signed by the purchasers. Until then the No 9 property had been tenanted. The tenants apparently wanted to stay despite the sale. I do not know what the purchaser wanted but I have presumed the contract provided for and they wanted, vacant possession. At this point on the evidence Mr A came into the picture because he was known to or by the tenants. He assisted them to dispute an eviction process at the Victorian Civil and Administrative Tribunal and they were successful. I do not know the reasons which were given. Just what was the logic behind that I am unable to say because the respondent had agreed to a sale by the orders of December 2011. The only inference open to me is that she changed her mind upon taking advantage of the argument she now seems keen to run relating to the invalidity of the relevant legislation.
The course the respondent took meant that the applicant was back before me in June 2012 to endeavour to exclude Mr A from dealing with the tenants but also requiring the respondent to produce the Certificate of Title for the purposes of the settlement of the sale. I made those orders and gave written reasons after that hearing.
To the extent that the tenants were complicit in any thwarting of the December 2011 orders, the respondent said they simply wanted to stay in the property. It is important to also understand that throughout all of this period the respondent remained residing in Europe and was represented by Mr Y. That has some bearing on the question of the involvement of Mr A. The evidence about the discrete application is therefore that to which I now turn.
Despite all of the drama, the tenants vacated the property. In addition, the purchasers remained patient.
Frankly, there is little dispute about what occurred on Tuesday, 27 July 2012 which brought the matter before the Court. Thus, having heard each of the witnesses, the following facts are findings of fact.
On Monday, 16 July 2012 the applicant was told by the selling agent that No 9 appeared vacant. The applicant went to the property and noted that there were some limited chattels still there, but that it otherwise looked as though the tenants had vacated. One of the tenants then arrived and confirmed the vacation, and that was again confirmed by an email from that tenant’s husband. The email finished by saying that any ongoing communication with the respondent, not the applicant, would relate to the bond money due to the tenants.
The applicant then organised a change of the locks that day, but when he went back to the property there was a car parked across the driveway. The locksmith changed the locks. It was observed by the applicant that someone had secured windows and a gate and, as it transpired, that was Mr A. His tools were still at the property as were other personal items.
The applicant then went to the police station to tell them what had happened, but he left a note on the newly locked door before leaving. That note included his contact details. The applicant returned from the police station to observe a woman and also Mr A, the latter demanding the new keys. The police were then called and, presumably, despite having better things to do, attended. The officers no doubt heard the various versions and then called for some senior assistance.
According to the respondent, the officer who attended was senior enough to know the law. That officer told the applicant that if he did not allow the woman entry to remove her chattels, he would instruct her to break the window. Whilst pragmatic, that probably was not appropriate, but, sensibly, the applicant complied. Mr A and the woman, who was in fact his daughter, collected their belongings and departed.
The evidence of the applicant was not challenged by the respondent in cross-examination. There was a vague assertion by her that money had been taken, but Mr A whose money it would have been, did not later say that. There was nothing that was controversial about the applicant’s evidence, and I accept it.
The evidence of the respondent was limited to her credit because Mr Harriss took her through all of the things that had happened in an endeavour to show that she was thwarting orders and defying the Court. Whilst there is a clear inference that the respondent does not accept the validity of the previous orders, it is because she has accepted the advice of Mr A that the law was invalid and that everything should be stopped pending a determination of her claim. I am not prepared to criticise her for that view because ultimately the Court will decide whether the view of Mr A is correct or that the respondent has been misled or misguided by him.
What is important to say is what I have previously said. The orders of 13 December 2011 stand and the applicant has a right to enforce them. As I earlier pointed out, the irony of this sad saga is that by her open offer, the respondent wanted to end this drama by giving effect to the provisions of that very order. I do not find that the respondent was deliberately obstructive.
Mr A gave evidence. He is clearly a crusader and there is a place in this community for such activists. On this subject he described himself as a “constitutionalist”. If that means he is an expert in Australia’s constitutional law, no doubt the Justices of the High Court of Australia will say so. In this dispute, however, he took the view that the order did not need to be carried out. I find he encouraged the tenants to resist the notice to quit. I find his evidence about the occupancy on or about 17 July mischievous. He said that he wanted to ensure the property was not left vacant and potentially abused. He said he did what he did because he was authorised by the respondent to secure and maintain the No 9 property. However, he knew that the sale had proceeded and that the person entitled to the control of the property was the applicant. He was of the view that the respondent, as a registered proprietor, was still liable for the outgoings. He pointed to a decision from the Supreme Court of New South Wales to support that and he knew the respondent was the sole registered proprietor.
Whilst I understand that Mr A does not accept the validity of the order, it provides that the respondent was responsible for the liabilities of the property until March 2012. The respondent said she was paying the outgoings until now and Mr Harriss said that that was the intent of the order. That is not how I read it, but, in any event, the payment of rates is not a basis for Mr A's view. Any unreasonable expense could have been adjusted in the settlement of the matters between the parties.
Mr A's view is mischievous because he was only putting his daughter into occupancy pending the settlement of the sale. This is the settlement of the sale under the orders that he disputed as being invalid. He attended the auction and he complained about being excluded from the contract negotiations or execution of the contract, but, as a consultant to Mr Y, he must have known the contract details. He, therefore, must have known the settlement date had already passed, and that putting a person into occupancy was unnecessary when the purchaser most likely would have been soon available to take possession. He said that he had told his daughter that if the Court required her to leave she would have to do so and that she should keep that in mind when taking a lease at $1. The curious but obvious point about that evidence is that, apart from the appeal process which was not even off the ground because of the requirement of leave, the Court has spoken through its orders.
It was not suggested by Mr A to me that any application had been made to the High Court of Australia on constitutional issues. As such, I must conclude that Mr A decided that the only person entitled to occupation was the respondent by virtue of her registered proprietorship and that because of his belief about the validity of the December 2011 orders, he took his agency given by the respondent, to the point where he acted on a frolic of his own. I do not accept he took instructions from the respondent. I find he orchestrated his agency and then set up the occupation not to protect the property and the financial interests of the respondent, but for his own activist purposes.
The applicant seeks orders to restrain the respondent and her agents from dealing with the No 9 property. The evidence supporting that came from cross-examination of the respondent. She acknowledged she had tried to lodge a caveat in her own name against the property of which she was recorded as the registered proprietor. The basis of the claim for the protection of the caveat had something to do with the validity of the orders, and, unsurprisingly, the Registrar declined to register it.
As I understand the respondent’s evidence, the document, whatever it is, has been put aside by the Office of Land Titles and is being treated as some sort of unregistered dealing. It concerns me that it may be resurrected having regard to the influence that seems to be exerted over the respondent by Mr A.
It remains to be seen whether there is a general basis to make an injunction order against the respondent from doing anything that would thwart the sale. There was also some cross-examination of the respondent about her efforts to produce the Certificate of Title as she was required to do by the June 2012 orders. She produced no corroborative evidence to show that the searches she had made had been fruitless, nor did she produce any evidence about what instructions she had given to other people to find the duplicate Certificate of Title, bearing in mind that she was in Europe.
It was submitted by Mr Harriss that the respondent was an unmitigated liar. I do not find that. The respondent offered to sign a declaration for the purposes of the Registrar of Titles to issue a new title. That evidence has a hollow ring about it because despite Mr Y indicating that he was seeking instructions from the respondent about the Certificate of Title, nothing further was said until she gave evidence. That is a period of nearly seven weeks.
However, considering the pathway that Ms Bele was following behind Mr A, I am not convinced to the requisite standard that she was deliberately hiding the Certificate of Title. Nothing in the evidence of the applicant indicates what efforts were made by him apart from the limited correspondence to obtain the document from the respondent through Mr Y. I accept that suspicion surrounds the evidence and, therefore, lack of action on the part of the respondent, but I could not find that she was deliberately obstructive about the Certificate of Title.
Despite that, having regard to the willingness of the respondent to allow Mr A to control things and her acceptance of his advice, I could not ignore the prospect that the respondent will be uncooperative about the production of the Certificate of Title in the immediate future. Thus, there is a need to make orders. Those orders do not require the respondent’s cooperation.
Before turning to the issue of the ability of the Court to make orders about the Certificate of Title, I shall deal with the injunctive orders sought by the applicant.
In submissions more about the Certificate of Title issue Mr Harriss said that the applicant relied on s 114 of the Act, but because the applicant and the respondent were in a de facto relationship, the injunctive power has to be found in s 114(2A). That provision says that in a de facto financial cause, the Court may make such injunction as it considers proper with respect to the property of the parties. A de facto financial cause is defined in s 4(1) to include any other proceedings including those with respect to the enforcement of a decree in relation to completed proceedings. Reference was made to s 114(3) which seems to extend the width of the power in s 114(2A) because this is a proceeding other than one under s 114(1). Section 114(3) appears almost unlimited, but does it extend as an aid to the enforcement of a decree against a non-party such as the Registrar of Titles? It is clear that the power to restrain the respondent and, hence, her servants and agents, lies in s 114 (2A) and that it is a discretionary power.
In Mullen & De Bry [2006] FamCA 1380, the Full Court examined the circumstances under which the discretion should be exercised without restricting it by the implementation of a strict guideline. The injunctive power here is akin to a Mareva injunction, but much wider because in the Mareva situation, the applicant needs to show there is an arguable case that the judgment will be obtained against the respondent and there must be real evidence that that judgment may remain unsatisfied without the injunctive order. In respect of s 114(2A), the focus is more on the protection of the asset from dissipation than the right to the judgment. There must be some objective evidence of conduct which points to an intention to defeat the entitlement that the applicant would have under the substantive order. In a property case, the inquiry can be whether the applicant claims to have the right to a just and equitable outcome which might be prejudiced by the respondent’s conduct, and if there is such evidence, the Court must look to the detriment to the respondent. To an extent, this is the balance of convenience test applied in injunctive applications in the civil jurisdiction.
It is much easier to obtain an injunction where the substantive judgment, as here, has already been obtained and is clear. Section 114(2A) by incorporating the s 4 definition, clearly contemplates its extension to the enforcement process. The evidence here is that the respondent unwittingly or otherwise has caused risks to the entitlement of the applicant in that his entitlement is being delayed. The evidence shows the respondent was content to use an agent to undertake that process.
There is evidence therefore that justifies the injunction concerning the respondent and her agents being at the property or within its vicinity. The December 2011 orders gave the applicant the responsibility for the sale and there was no basis for the respondent to be involved at the property. To the extent that there was a problem she had the right under the orders to clarify the terms and conditions of the sale.
Further, there is evidence of the respondent’s curious caveat attempt. That was simply a hindrance, but one that not only had no legal foundation, but also no logic in its form.
Further, the respondent, on Mr A's advice, took the view that she was still the registered proprietor and therefore had a right to do what she did. The extent of her understanding as to what she could do rather than what liability she should carry, was not explored. However, having left the agency work to Mr A and having followed his advice at a time when she had Mr Y acting for her, gives me little comfort that some attempt might not again be made using the registered proprietorship to gain control of the property that justifies a finding that the propriety of an injunction being granted. That is particularly so where there is currently no lawyer acting for her.
I turn then to the problem of the duplicate Certificate of Title. The applicant’s evidence, unchallenged by the respondent, was that with the absence of the Certificate of Title, there was a problem with settlement because the land is covered by the Torrens system of title. The applicant provided evidence from the Registrar of Titles that a new Certificate of Title would be produced if the process that was followed in Marshall & Williams [1974] VR 592 was followed. To a very large extent that is the same problem here. The Registrar said that:
No objection would be raised if an order was made directing the cancellation of the existing title, the issuing of a new one and setting out a declaration as to the person entitled to delivery of the new creation.
The Victorian Transfer of Land Act confers power on a court of competent jurisdiction to make a vesting order and upon service of the order, the relevant order is to be endorsed on the title. Section 103 of that same Act provides the court may direct the Registrar to cancel the existing title, and substitute a new one; and the Registrar shall obey such direction. The Registrar helpfully volunteered that information.
I am satisfied the duplicate Certificate of Title to the No 9 property cannot be found. I am satisfied the respondent will not or cannot produce it. I am satisfied it is appropriate to make the orders, but the question is the power to do so. Mr Harriss admitted s 114 covered the problem. But s 114, albeit wide, cannot extend to non-parties. See Ascot Investments Proprietary Limited & Harper [1981] HCA 1; 148 CLR 337. Section 90SS, the equivalent of s 80 for married persons, also does not assist.
In Yunghanns and Yunghanns (1999) FLC 92-836, the Full Court said that s 80 was not an independent source of jurisdiction. It empowered courts to make ancillary orders contemplated by Part VIII of the Act. Those proceedings do not contemplate an order against a non-party.
Ironically, the Registrar of Titles said that the order of this Court would be recognised. In Re Wakim [1999] HCA 27, the High Court struck down the Commonwealth’s cross-vesting legislation and said the Commonwealth could invest a State Court with federal jurisdiction, but not the reverse. Thus the State of Victoria cannot empower this Court to make the orders pursued by the applicant in the way pleaded if reliance is placed on this Court being a court of competent jurisdiction as described.
In Re Wakim, Gummow and Hayne JJ at paragraph 108 refer to the fact that what gives courts the authority to decide a matter is the law of the polity of the courts concerned, not some attempted conferral of jurisdiction on those courts by the legislature of another polity. As their Honours said, the authority to decide comes from the sovereign authority concerned, not from some other source. Thus the states cannot confer jurisdiction on the federal judicature.
Their Honours then at paragraph 135 referred to the fact that it had been established that the jurisdiction of a federal court having jurisdiction in a matter arising under a law made by the Parliament was not restricted to the determination of the federal claim, but extended beyond that to the judicial controversy between the parties of which the federal claim formed part.
Thus if the claims – in this case the pursuit of an order against the registrar of titles that could be made under the Transfer of Land Act, is part and parcel of the claim between the applicant and the respondent, there may be a single justiciable controversy and if so, the Court has jurisdiction and power in the whole matter. It is not to the point that an action against the Registrar of Titles would be in a separate proceeding and involve a different party. The question is whether there is a single justiciable controversy identifiable. That also depends upon what the parties have done. In this case the parties have sold a property pursuant to an order. That process requires production of a title which has not been produced.
The claims involving the Registrar are therefore related to the dispute between the application and the respondent. Thus, here there is one justiciable controversy and the title issue is simply part of the substratum of facts. Here, the Registrar of Titles recognises the Court’s orders under the state legislation. In my view, the Court has power to make the orders suggested by the Registrar and should do so.
The power, therefore, to make orders lies in the Court exercising what is called its accrued jurisdiction. This issue is about power. The jurisdiction comes from ss 34, 114(2A) and probably s 90SS. Section 34 points to s 31(1)(aa) which confers jurisdiction in matters arising under the Act in respect of which de facto financial causes are instituted. That is the case here.
There is a justiciable controversy arising out of the de facto relationship between the applicant and the respondent and that was litigated under the de facto financial cause. The No 9 property was to be sold as part of that dispute and the production of the title was always, albeit not specifically so stated, part of the substratum of facts that had to be determined to complete the matter or controversy.
A justiciable controversy may involve both federal and state law. See Valceski & Valceski [2007] FLC 93-312 citing Fencott & Muller (1983) 152 CLR 570. The jurisdiction to make the ancillary order is clearly extant.
The power comes from the capacity of a court to order the Registrar to create the new title. In my view, therefore, there is one controversy and the court does have the jurisdiction and the power to make the orders sought under the Transfer of Land Act, which would enable the Registrar to take the course suggested. I propose to make orders accordingly.
Finally then, I turn to the respondent’s application filed by leave last Friday. That leave was granted over opposition from the applicant. I have already indicated that I intend to adjourn the matter because there may be some justiciable issues that need to be heard. The respondent certainly has made the application. However, I want Mr Vaughan, the applicant in these proceedings, to be given the opportunity to respond as well.
I propose to adjourn the following paragraphs of the application of the respondent to the judicial duty list on 11 September 2012 at 10 am. Those paragraphs are numbers 2, 4, 5, 6, 11, 12 and 15. I propose to dismiss the following paragraphs as either determined by my orders today or as otherwise incompetent: 1, 3, 7, 8, 9, 10, 13, 14, 16 and 18.
Paragraph 1 has been determined. Paragraph 3 is clearly found not to have been an abusive process. Paragraph 7 has been determined. Paragraph 8 is incompetent. Paragraph 9 has no foundation in the evidence as I find there was no 000 call made by the applicant. Paragraph 10 is incompetent. Paragraph 13 is clearly incompetent and obviously a misunderstanding of the Australian judicial process. More so, because as I understand the respondent’s evidence, this was prepared by a constitutionalist. Paragraph 14 is incompetent. Paragraph 16 has been determined on the basis that any discovery associated with the conclusion of the sale of No 9 must now be seen to have been concluded. Paragraph 18 is unnecessary.
This application now concerns costs. The applicant seeks costs on an indemnity basis totalling $9614 specifically relating to the application that was filed 18 July and which was conducted all day Friday 20 July and which I have delivered extempore reasons this morning. Section 117 of the Family Law Act provides that each party in proceedings before it shall bear their own costs unless there are circumstances that justify a departure from that principle and if the court is contemplating that departure, it must take into account the matter set out in s 117(2A).
The circumstances that justify the departure in this case have been canvassed in the discussion I have just had with Ms Bele. This proceeding could very easily have been avoided. It was not and it meant that the matter was litigated all day last Friday. As I have also indicated, costs are not intended as a punishment for the loser. They are intended to compensate the person who has had to go through a process to achieve what the court ultimately finds is the appropriate outcome. Accordingly, one only has to look at what happened last Friday to see that there are justifiable circumstances. The question then remains as to whether or not the other matters in s 117(2A) apply.
There can be no doubt in this case that each of the parties is relatively financially comfortable. The No 9 property is a significantly valued property. Each of them upon the settlement of the sale will have significant funds.
There is a question in every case about whether or not someone has broken an order or caused the proceedings to be issued by not following the rules of the court. In this case, this is exactly what has happened.
In addition, Mr Vaghan has been wholly successfully and Ms Bele wholly unsuccessfully. Those problems all could have been avoided for the reasons I have already outlined.
In this case it is appropriate to make an order for costs. Mr Harriss on behalf of Mr Vaughan suggests that they should be indemnity costs, having regard to what has happened, I do not agree. Indemnity costs are applied in situations where there is something unusual or exceptional. In this case I have carefully considered the position associated with the Certificate of Title and found that I could not be critical of Ms Bele, notwithstanding I have suspicions about her evidence. In other words, I have given her the benefit of the doubt. In relation to the injunctive orders, however, there can be no doubt that Ms Bele should not have instructed her agent to do what he did in respect of the property, and more importantly, I do not have the confidence as I outlined in my reasons that it might not happen again.
It is not just being at the property. It includes the steps that she could or might have taken in relation to the title itself and the caveat type activity. On that basis, I propose to make an order for costs and I do not propose to make it on an indemnity basis.
I certify that the preceding Eighty Four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 July 2012.
Associate:
Date: 31 July 2012
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