WAIGHT & WAIGHT

[2020] FamCA 288

FAMILY COURT OF AUSTRALIA

WAIGHT & WAIGHT [2020] FamCA 288

FAMILY LAW – ENFORCEMENT – urgent injunctive relief sought to enforce monies owing under a binding financial agreement and a limited child support agreement – where payee husband is in gaol and admits some funds should be paid to wife from proceeds of imminent sale of real property but disputes other indebtedness to wife – other creditors – resolved by consent.

Child Support (Registration & Collection) Act 1988 (Cth)
Transfer of Land Act 1958 (Vic)

APPLICANT: Ms Waight

RESPONDENT: Mr Waight

FILE NUMBER: MLC 3776 of 2020

DATE DELIVERED: 27 April 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swann

SOLICITOR FOR THE APPLICANT: Leyton-Palma Lawyers

COUNSEL FOR THE RESPONDENT: Mr Barbayannis

SOLICITOR FOR THE RESPONDENT: Madison Lawyers

Orders

BY CONSENT IT IS ORDERED THAT:

1. The parties do all acts and things that may be required to direct and authorise that proceeds of the sale of the real property situate at and known as K Street, Suburb L in Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”) be disbursed as follows:

   (a)       First, to pay all costs, commissions and expenses of the sale;

   (b)       Secondly, to discharge the mortgage affecting the real property;

   (c)       Thirdly, to pay the outstanding rates and land tax encumbering the real property;

   (d) Fourthly, the sum of $33,835.97 to the Child Support Agency pursuant to the notice served on the Husband’s lawyers pursuant to section 72A of the Child Support (Registration and Collection) Act 1988;

   (e)       Fifth, to pay the Wife the sum of $108,898.98 being the secured amount referred to as the “third payment” in the Financial Agreement entered into between the parties on 30 January 2018 “the BFA” together with interest thereon pursuant to the BFA;

   (f)        sixth, to discharge any other charges encumbering the real property; and

   (g)       Finally, a further sum of $60,000 to the Wife in full satisfaction of the Husband’s obligations to the Wife pursuant to the BFA and a Limited Child Support Agreement entered into between the parties and dated 30 January 2018 (“the LCSA”); and

   (h)       The balance to the Husband.

2. Contemporaneously with the settlement of the sale of the real property and in exchange for the payments to be made to the wife pursuant to paragraph 1 of this Order, the Wife provide to the Husband’s lawyers a Withdrawal of Caveat for caveat number ... registered on the real property.

3. Subject to compliance with order 1(g) herein the LCSA be set aside pursuant to section 136(2)(c)(i) of the Child Support (Assessment) Act 1989 (Cth).

4. The Amended Initiating Application filed by the Applicant on 20 April 2020 be otherwise dismissed with no order as to costs.

5. Within 14 days the Wife notify the Registrar of Child Support of this Order.

6. My reasons for decision this day be published and, when published, sent to the parties.

IT IS DIRECTED:

1. That the signed minute of consent as amended be marked Exhibit “A” and remain on the Court file.

NOTATION:

A.The Respondent warrants that there will be sufficient funds available upon completion of the sale of the real property on 24 April 2020 to pay the Applicant the sum of $60,000 payable to her pursuant to order 1 herein. In the event that there are insufficient funds available to make the whole of the $60,000 payment to the Wife, the Wife reserves her right to pursue full amount she says she is owed pursuant to the BFA and LCSA.

B.For the avoidance of any doubt, the payment of $60,000 to be paid to the Wife pursuant to Order 1(g) herein is for the payment of all and any:

i.Periodic child support due or outstanding as at 24 April 2020 pursuant to the LCSA; and

ii.Non-periodic child support payments including but not limited to school fees, health insurance, school supplies or private health insurance that may be due or outstanding as at 24 April 2020;

and that the parties will execute all documents that may be required to give effect to same with the Child Support Agency.

C.As and from the date the Wife receives the payment of $60,000 pursuant to Order 1(g) herein, the Wife pay and otherwise be solely liable for and forever indemnify the Husband with respect to any school fees, health insurance, school supplies or private health insurance that may be due or outstanding as at 24 April 2020 relating to the children of the marriage X born … 2008, Y born … 2009, Z born … 2010 and W born … 2013 (“the children”).

D.In executing these Orders the Wife warrants and accepts that she has no further claim arising from the BFA and that she is solely liable for and will forever indemnify the Husband with respect to any personal taxation liabilities she is liable for as at todays’ date including the amount of approximately $20,000 from the financial year ending 30 June 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waight & Waight has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 3776 of 2020

Ms Waight

Applicant

And

Mr Waight

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me as the wife’s application for urgent injunctive relief to enforce obligations of the husband under a binding financial agreement (“BFA”) and a limited child support agreement (“LCSA”).  She seeks to enjoin the husband’s use of some of the proceeds of sale of a real property or which settlement is due on Friday 24 April 2020.  The parties have resolved issues as between themselves.  In due course and subject to some minor amendments, I will make an Order in the terms of minutes sought by consent.  However, a consequence of the husband not being able to make good on a payment of $60,000 to the wife from the settlement proceeds will be that the wife is, inter alia,  entitled to re-open these proceedings.  Further, two interested parties, Mr B and Mr D, figure in the material but did not participate in the proceedings.  I have no evidence that they were served but I was informed by counsel for the husband that both Mr C and Mr D have been instrumental in formulating the terms of settlement and have agreed to the wife receiving the payments agreed to by the husband in the amount specified.

2. These reasons record the context in which the Order is made, by consent.

3. The parties are parents of four young children.  They separated in 2015 and entered into a BFA and the LCSA on 30 January 2018.  The BFA appears at pages 13 to 28 of the annexures to the wife’s affidavit sworn on 16 April 2020 and the LCSA appears at pages 29 to 34 of the wife’s affidavit.

4. The wife deposes that she is studying. .  She has the care of the four children of the marriage, ages 12, 10, 9 and 6 years.  She is currently unemployed.  She has relied on Government benefits and borrowed funds from her mother.

5. The wife deposes that the husband has been in custody since November 2019 awaiting trial for drug trafficking related offences.

6. Pursuant to BFA, the wife was to receive three payments and the last one, due on 30 January 2019, is still outstanding in the sum of $100,000 and payable when a particular property is sold.  The property is situate at K Street Suburb L (‘Suburb L”) and stands in the name of the husband.

7. The wife is entitled under the BFA to lodge a caveat in respect of the $100,000 and did so in October 2018.  At that time the only encumbrance was a mortgage registered in favour of G Pty Ltd.

8. Suburb L was sold on 1 February 2020 and settlement is due on 24 April 2020.  The contract of sale for Suburb L was executed by the husband’s solicitor, Mr Stephen Dunn of Madison’s lawyers, as the husband’s attorney under power.  The sale price is $1,855,000.  The wife deposes [14] that the husband will receive approximately $600,000 from the sale.  I will refer later to further information from counsel for the husband in relation to how the proceeds of sale will be disbursed following payment of the registered first mortgage.

9. There is no issues with regard to $100,000 payment.  At settlement, the wife will provide a withdrawal of caveat No.  ... and will receive the $100,000 owing as an instalment under the BFA.  There is also interest due which brings the amount to something less than $109,000.

10. These proceedings have been brought urgently by the wife who claims that she is owed a further $120,000, being various other monies payable by the husband to her or on her behalf under the BFA but to which no entitlement to lodge a caveat attached, as well as arrears of child support under the limited Child Support Agreement.  Those amounts are detailed at [13] of the wife’s affidavit:

    In accordance with the Agreements, the respondent also owes me the following amounts which are not secured (“the unsecured debt”):

    As per the BFA:

    (a)Taxation Debt as at 30 June 2018 (clause 50)       $21,500

    (b)Motor Vehicle 1 (clause 53)  $10,000

    (c)Legal fees to date (clause 64)   $10,000

    TOTAL:  $41,500

    As per the LCSA (to date):

    (d)Periodic child support to date (clause 6)               $55,000

    (e)Private health to date (clause 5)  $7,000

    (f)School fees to date (clause 5)  $12,500

    (g)Other school expenses to date (clause 5)              $4,000

    TOTAL:  $78,500

    TOTAL OF UNSECURED DEBT:  $120,000

11. I will refer to the above amounts as the extra monies.

12. In December 2019 three caveats were lodged on the title to Suburb L.  The wife describes in para 17 of her affidavit:

    …one is from the respondent’s lawyer on behalf of his firm, another is from his friend Mr B and the third is from his other friend Mr D.  The respondent solicitor caused to be registered all the cave-ins in December 2019.

13. The wife refers to a copy title search taken by her solicitors which is pages 86 to 89 of the annexures to the wife’s affidavit.  Unfortunately the annexure is illegible.

14. By letter dated 30 March 2020, the wife’s practitioners stated that the title search revealed the three additional caveats registered on title:

    a.One for which your legal practice is Caveator pursuant to a charge contained in an agreement and registered on 9 December 2019;

    b.Another also lodged by your legal practice for which Mr D is Caveator and registered on 12 December 2019; and

    c.Another also lodged by your legal practice for which Mr J is Caveator and registered on 16 December 2019.

15. By letter dated 31 March 2020, which appears at pages 57 to 59 of the wife’s first affidavit, the Mr Stephen Dunn responded, inter alia, “that Mr D is represented by N Lawyers and Mr J is represented by M Lawyers in relation to their caveats.”

16. As to the amount of the husband’s indebtedness to Mr C and Mr D, the husband’s solicitor wrote:

    ...[the wife’s] caveat is ahead of the three remaining caveats and [she] makes first claim after G Pty Ltd as Mortgagee.  In those circumstances, [the wife] in my considered opinion, has no basis/standing to enquire as to the caveatable interests.

17. An affidavit was sworn by the husband’s solicitor, Mr Stephen Dunn today, in his capacity as the husband’s attorney under power, and was filed.  It has many of pages of annexures none of which are numbered.  Included are copies of three deeds of agreement upon which the husband relied in his proceedings to remove the wife’s caveat:

    a)A deed of agreement date 6 December 2019 between Madisons Lawyers Pty Ltd and the husband for the provision of legal advice and services to the husband.  The amount owing is not stated.  The deed recites that the husband:

    …agrees to a charge in favour of Madisons the whole of his interest in the Suburb L Property to secure the payment of outstanding accounts of Madisons.  [Ms Waight] agrees to execute on request a registerable interest in the form of a caveat recording the charge granted herein…

    The deed appears to have been prepared by Madisons Lawyers Pty Ltd.  It is signed by Mr Stephen Dunn on behalf of Madisons and Mr Stephen Dunn’s signature is witnessed by another person “Ms P”.  The husband’s signature is witnessed by Mr Stephen Dunn.

    b)An undated deed of agreement between the husband and Mr D for funds advanced and to be advanced and contributions to be made to the husband’s mortgage and legal costs.  The deed recites that the husband:

    …agrees to a charge in favour of Mr D the whole of his interest in the Suburb L Property to secure the repayment of Mr D’s advances and contributions.  [Ms Waight] agrees to execute on request a registerable interest in the form of a caveat recording the charge granted herein…

    The deed appears to have been prepared by Madisons Lawyers Pty Ltd.  It is signed by Mr D and the husband and both signatures are witnessed by Mr Stephen Dunn.

    c)A deed of agreement dated 16 December 2019 between the husband and Mr J for:

    i)Funds advanced between 21 November 2017 and 20 February 2018 totalling $173,000;

    ii)Interest and tax on the advances of $51,000;

    iii)Gardening and storage services invoiced at $30,560.

    The deed recites that the husband:

    “agrees to a charge in favour of [Mr B] the whole of his interest in the Suburb L Property to secure the repayment of Mr D’s advances and contributions.  [Ms Waight] agrees to execute on request a registerable interest in the form of a caveat recording the charge granted herein…” 

    The deed appears to have been prepared by Madisons Lawyers Pty Ltd.  It is signed by Mr J whose signature is witnesses by Mr Stephen Dunn and by Mr Stephen Dunn as the husband’s attorney under power and Mr Stephen Dunn’s signature is witnessed by Mr J.

18. Each deed refers to the husband as “currently incarcerated at a detention centre and may be for some time.”

19. It does not appear that any issue is taken of the distinction between a charge given over an interest in land and an agreement to give a charge over an interest in land.  It appears that the three deeds of agreement provide for the latter.

20. The wife apparently indicated through her solicitors that she would not withdraw her a caveat for registration over the title to Suburb L in dealing No. ... unless or until the husband undertook, through his lawyer, to pay her the extra monies.

21. By correspondence dated 15 April 2020 (pages 38 to 40 of the Annexures to the wife’s affidavit), the husband’s solicitors notified the wife that the husband would institute proceedings in the Supreme Court for withdrawal of the wife’s caveat pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic). Those proceedings were taken. The wife subsequently agreed that the withdrawal of caveat would not be in any way conditional upon payment of the extra monies.

22. By correspondence dated 15 April 2020, the wife’s solicitors requested security documentation which entitled the husband’s alleged friends, Mr B and Mr D, to lodge caveats.  Advice was also sought as to whether the additional caveat tours would withdraw their caveats at settlement of the sale and, if so, what amounts they would be paid in satisfaction for the withdrawals.  The wife deposes in her first affidavit sworn on 16 April 2020 that no response was forthcoming from the husband’s solicitors.

23. Today the wife swore and filed a further affidavit in which, inter alia, she deposes that the limited child support agreement is registered with the Child Support Agency.  Section 113A of the Child Support (Registration & Collection) Act 1988 (Cth) (“CS(R&C)Act”) provides that the wife may sue and recover a child support debt arising under a registered liability if she notifies the Child Support Registrar in writing of her intention to institute proceedings to recover the debt:

    a)At least 14 days before instituting the proceeding;

    b)In exceptional circumstances – within such shorter period as the court allows.

24. Section 113A(2) of the CS(R&C)Act provides that the payee who has instituted recovery proceedings must give notice to the Child Support Registrar, in the prescribed form, of any orders made on the application in relation to the child support debt within 14 days of the order being made.

25. Section 16A of the CS(R&C) Act provides for the Registrar to specify the manner in which notice may be given.

26. Section 113A(3) CS(R&C) Act provides that a payee who fails to notify the Child Support Registrar of an order being made in relation to a debt is guilty of an offence and a penalty of 10 penalty units.

27. The wife’s affidavit sworn and filed today states that the wife provided the Child Support Registrar with notice on 21 April 2020.  I required the minutes to be amended to provide that the wife provide the Child Support Registrar with a copy of the Order.

28. By these proceedings, the wife sought orders that the further sum of $100,000 be held out of the proceeds of sale pending a determination of her entitlement to the extra monies.  However the matter is compromised on the basis that the wife receives:

    a)$33,835.97 via the Child Support Agency;

    b)$108,898.98 from settlement and with priority over Maddisons Lawyers Pty Ltd, Mr C and Mr D;

    c)$60,000 after Mr C and Mr D.

29. By way of further information:

    a)A statement of adjustments for settlement of Suburb L on 24 April 2020, as annexed to Mr Stephen Dunn’s affidavit, indicates that the funds payable at settlement will be $1,673,741.46;

    b)Counsel for the husband informed the court that;

    i)The amount secured by the mortgage to G Pty Ltd is $1,268,000;

    ii)The husband owes Mr D $320,000;

    iii)The husband owes Mr J $254,000.

30. On my calculation, there will be a significant shortfall of funds at settlement on Friday of this week.  The amounts due under the first mortgage ($1,268,000) + the final instalment to the wife under the BFA ($108,898.98) + the Child Support Agency ($33,835.97), will leave only $263,006.61 available to Mr D, Mr C and the wife.  I am not informed of what (if any) monies are owing to Madison’s Lawyers Pty Ltd and secured by the husband’s agreement to charge his interest in Suburb L.

31. For the wife to receive the final $60,000, considerable reliance is being placed by the parties on the cooperation of Mr D and Mr J.

32. I make the Order set out at the front of these reasons.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 27 April 2020.

Associate: 

Date:  27 April 2020