Wells (Deceased) (by her Legal Personal Representative, Ms M) and Wells & Anor - [2016] FCWA 45

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WELLS (Deceased) (by her Legal Personal Representative, Ms M) and WELLS & ANOR [2016] FCWA 45

CORAM: THACKRAY CJ

HEARD: 23 JUNE 2015

DELIVERED : 21 JUNE 2016

FILE NO/S: PTW 2339 of 2006

BETWEEN: MS WELLS (Deceased) (by her Legal Personal Representative, Ms M)
Applicant
AND
MR WELLS
First Respondent
AND
MS SOMERTON
Second Respondent

Catchwords:

PROPERTY - Enforcement - Consent orders made in 2006 - Enforcement orders made in 2013, including for the wife to be reimbursed for mortgage repayments - Further application for enforcement made on behalf of the wife's estate - Three properties have sold and the wife's estate has still not been reimbursed - No proper basis for considering that enforcement would be inequitable - Discretion exercised in favour of enforcement - Orders for various payments to the wife's estate - Order foreshadowed for second respondent's funds to be used to reimburse the wife's estate, and for the husband to reimburse the second respondent - Order for a house owned by the husband and the second respondent to be sold if necessary.

COSTS - Application on behalf of the wife's estate for costs incurred since the commencement of the proceedings in 2009, including indemnity costs - Orders for the husband and the second respondent to pay costs in relation to particular parts of the proceedings in fixed sums, but no orders for indemnity costs.

Legislation:

Family Law Act 1975 (Cth), s 79A, s 79(1A), s 90AE(2), s 105(1), s 117
Family Law Rules 2004 (Cth), r 19.08

Category: Reportable

Representation:

Counsel:

Applicant: Mr Barry
First Respondent : Self Represented Litigant
Second Respondent : Self Represented Litigant

Solicitors:

Applicant: Holden Barlow
First Respondent : Self Represented Litigant
Second Respondent : Self Represented Litigant

Case(s) referred to in judgment(s):

Collins and Collins (1985) FLC 91-603
Duroux v Martin (1993) FLC 92-432
Fitzgerald v Fish (2005) 33 Fam LR 123
Greedy and Greedy (1982) FLC 91-25
I and I (No 2) (1995) FLC 92-625
Luadaka v Luadaka (1998) FLC 92-830
McIntyre & McIntyre [2016] FamCA 387
Ramsey & Ramsey (No 2) (1983) FLC 91-323
Ramsey and Ramsey (1983) FLC 91-301
Somerton & Wells and Anor (2014) FLC 93-574
Somerton & Wells (Deceased) and Anor (2015) FLC 93-631
Somerton and Wells & Anor [2013] FCWA 59
Wells and Wells & Anor [2012] FCWA 121

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1I am required to determine a dispute concerning the enforcement of financial orders made in 2006 and disputes relating to costs incurred in these protracted proceedings. Unfortunately, the applicant died while the proceedings were pending, and the litigation has been continued by her family who supported her financially before her death.

Background

2[Ms Wells] (“the wife”) and [Mr Wells] (“the husband”) were married in 1994. Their marriage ended in 2005, at which time the husband formed a relationship with [Ms Somerton]. The husband and Ms Somerton subsequently married.
3On 4 May 2006, property settlement and spousal maintenance orders were made in the unusual terms requested by the husband and the wife (“the 2006 consent orders”). The full terms of those orders and more background can be found in Wells and Wells & Anor [2012] FCWA 121, which is one of many judgments I have delivered in this matter.
4Relevantly, apart from making provision for the payment of spousal maintenance, the 2006 consent orders provided that:
•The wife was to receive a 78.5% interest in a unit in [Suburb A] (in which she was to reside) and the husband was to hold the remaining 21.5% interest.
•The husband was to assume liability and indemnify the wife for the mortgage on the property and was to maintain life insurance to cover the balance owing.
•The husband was to meet the rates on the property.
•The property was to be sold upon the wife ceasing to use it as her “principal place of abode”, and the “net proceeds” were to be disbursed 78.5% to the wife and 21.5% to the husband. (The expression “net proceeds” was not defined, but given the full indemnity that the husband was ordered to provide in relation to the mortgage, it is accepted that the balance on the mortgage at the time of sale was payable from the husband’s share of the proceeds.)

5On 12 November 2009, the wife commenced enforcement proceedings after the husband defaulted on his obligations under the 2006 consent orders. Thereafter, the mortgage payments and other outgoings were met with the assistance of the wife’s daughter and her partner, until they could no longer afford to pay.
6On 24 February 2010, the husband filed an application under s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside the 2006 consent orders and discharge the spousal maintenance order. On 9 September 2010, the wife filed a response seeking that the application be dismissed.
7On 22 October 2010, the wife filed a further application in which, inter alia, she sought the sale of properties the husband and Ms Somerton had acquired in [Suburb B] and [Suburb C].
8On 12 January 2011, consent orders were made for the husband to transfer his interest in the Suburb A property to the wife. The orders also provided for the wife to discharge the arrears on the mortgage and meet all future payments. These were interim orders only, designed to stave off a mortgagee sale following the husband’s failure to comply with the 2006 consent orders. I have previously found that these orders were made without prejudice to the wife’s entitlement to require the husband to indemnify her for the entire mortgage.
9On 4 February 2011, the enforcement proceedings were heard by an Acting Magistrate. On 8 February 2011, the Acting Magistrate delivered reasons in which he made clear he was not dealing with the s 79A application. His Honour’s orders required the husband to transfer his interest in the Suburb A property to the wife (an order which had already been made); required the wife to indemnify the husband in relation to the mortgage over that property; and discharged the spousal maintenance order, together with all arrears. An order was also made for the wife to withdraw caveats over the Suburb B and Suburb C properties.
10On 16 March 2011, the wife applied for an extension of time in which to appeal the orders of the Acting Magistrate. On 9 May 2011, Crisford J extended the time and ordered that the s 79A application be heard with the appeal, which was to proceed by way of hearing de novo.
11On 7 November 2011, Ms Somerton was joined as a respondent in the enforcement proceedings after an application to that effect was made by the wife on 18 October 2011. Ms Somerton thereafter resisted the orders for the sale of both properties, and took a very active part in the proceedings, strongly supporting the position adopted by the husband.
12At the hearing on 7 November 2011, I drew the husband’s attention to authority concerning s 79A and directed him to advise which grounds he was relying upon in seeking to set aside the property orders. By this time, the proceedings had already been set down for trial on 22 November 2011.
13On 11 November 2011, the husband wrote to the court in these terms (errors in the original):
Having carefully read the provisions of S 79(A) Family Courts Act 1975, the judgment in Sanger and Sanger and taken legal advice, I have decided that the outcome of my application under S79(A) 1 is uncertain. I will therefore be asking the court to allow me to withdraw my application on 22^nd November 2011.

14The hearing on 22 November 2011 was adjourned, not because of the late abandonment of the s 79A application, but because of a late amendment of the wife’s application, which sought that payment of the arrears be made out of Ms Somerton’s share of the Suburb B and Suburb C properties if the husband’s share proved insufficient. Counsel for the wife made an application for the husband to pay the wife’s costs of the s 79A application on an indemnity basis, but agreed that the costs issue should be resolved later.
15On 14 March 2012, the wife filed an amended enforcement application.
16The proceedings eventually came on for hearing before me on 15 August 2012. My reasons were delivered on 14 December 2012, and orders were made on 14 February 2013. A copy of the orders is attached and marked “A”. It will be observed that the orders:
•required the sale of the properties in Suburb B and Suburb C;
•suspended the spousal maintenance order pending the sale of the two properties;
•discharged the spousal maintenance arrears (which amounted to $81,250), along with $5,517 in other obligations the husband was meant to have discharged;
•required the husband to continue to comply with his obligations under the property settlement part of the 2006 consent orders, including meeting the mortgage payments and other outgoings on the Suburb A property;
•provided for the wife to receive $38,022.66 from the husband’s share of the proceeds of the two properties, being reimbursement of mortgage payments which were the obligation of the husband under the 2006 consent orders;
•provided for the husband’s share of the proceeds of the two properties to be used to reimburse the wife for any payments she (or her agent) might make on the Suburb A property after 12 February 2013 – i.e. if the husband failed to pay; and
•postponed a decision as to whether Ms Somerton’s share of the proceeds could be used to meet the husband’s obligations until such time as it could be ascertained if there was any shortfall from the husband’s share of the proceeds.

17I did not deal with costs at that time. In my reasons I said:
115Both parties have foreshadowed applications for costs. Each would need to reflect carefully on the outcome of the proceedings before pursuing such an application. However, the issue is a significant one, since the wife’s costs alone are said to be in the region of $75,000, of which $50,000 is unpaid.
116I will make directions for the filing of cost submissions; however I do not propose to deal with the costs issue until after the properties have been sold. It will only be then that the husband’s financial position will crystallise. In the meantime, pending resolution of the costs issues, I will make an order restraining the husband and the intervener from disposing of the surplus proceeds of sale pending further order of the Court.

18On 14 March 2013, Ms Somerton applied for leave to appeal my orders (I will refer to her application for leave as “the appeal”). She also applied for a stay pending the hearing of the appeal. The husband supported her appeal and her application for a stay. On 14 June 2013, I dismissed the application for a stay: Somerton and Wells & Anor [2013] FCWA 59. In doing so, I said at [113], “The Family Law Rules provide for the process to be followed in the event any order for costs is sought in relation to the application for a stay”.
19The wife did not make an application for costs of the unsuccessful stay application until she filed a further Form 2 enforcement application on 12 August 2013. Rule 19.08 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that an application for costs may be made at any stage during a case or by filing an Application in a Case “within 28 days after the final order is made”. “Final order” is defined to mean the order that “finally decides a case commenced by an Initiating Application”. The enforcement proceedings were not commenced by an Initiating Application, but it has not been argued that the wife is out of time in pursuing her application for costs of the stay application.
20On 22 August 2013, I made further enforcement orders on hearing the Form 2 filed on 12 August 2013. A copy of the orders is attached and marked “B”. It will be observed that they were ancillary to the orders of 14 February 2013 in that they were machinery provisions to enforce the order for the sale of the Suburb B and Suburb C properties. The orders did not vary the underlying obligations imposed by the orders made on 14 February 2013. The husband and Ms Somerton were ordered to pay the wife’s costs of the Form 2, fixed in the sum of $1,000, with the payment to be made on settlement of the sale of the two properties. The wife’s application for the costs of the stay application was adjourned generally with liberty to relist.
21On 2 October 2013, Ms Somerton applied for a stay of the orders of 22 August 2013. In her supporting affidavit, Ms Somerton acknowledged that the orders of 22 August 2013 were “designed to implement and/or enforce the Orders of 14 February 2013”, and noted that she was also challenging in the Full Court the orders made on 14 June 2013 and 22 August 2013.
22On 14 October 2013, the wife died. In this context, I note that in my reasons delivered on 14 December 2012, I said:
55.The husband and the intervener were very much inclined to resort to hyperbole to advance their cases. Nowhere was this more apparent than in their efforts to seek to convince me that the wife has an income earning capacity.
56I find that the wife is a seriously ill woman who has been struggling with cancer for some years. She had been undergoing chemotherapy in the period leading up to trial and was about to embark on radiotherapy. Apart from anything else, the wife’s presentation in the witness box persuaded me that the efforts to portray her as a person who has been deliberately refusing to maintain herself were quite fanciful. …

23Following the wife’s death, her daughter, [Ms M], was appointed as her Legal Personal Representative.
24On 21 October 2013, I granted the stay, having been informed of a new argument that was to be presented on appeal arising out of the death of the wife. The terms of my order strictly affected only the operation of the orders made on 22 August 2013, and not the substantive enforcement orders of 14 February 2013. (The wording of my order was that “the operation of the orders made on 22 August 2013 be stayed pending the hearing of the appeal against the orders made on 14 February 2013”.)
25When the appeal came before the Full Court on 31 October 2013, Ms Somerton submitted that the proceedings had abated as a result of the wife’s death. This proposition was dealt with as a preliminary issue, and by judgment delivered on 3 March 2014, the Full Court held that the proceedings had not abated: Somerton & Wells and Anor (2014) FLC 93-574. In the meantime, the husband and Ms Somerton had secured the administrative removal of a caveat the wife had lodged against the title to the Suburb B property.
26On 4 April 2014, the Full Court heard argument in relation to the appeal and reserved its decision.
27On 24 April 2014, Ms M made an urgent application after she discovered the Suburb B property had been sold. In doing so, she drew attention to Order 7 made on 14 February 2013, which restrained the husband and Ms Somerton from disposing of the proceeds of sale, and also to Order 2 requiring them to keep the wife’s solicitors informed about the progress of the sale. It transpired that the Suburb B property had been sold in January 2014, and that the husband and Ms Somerton had used $240,000 of the proceeds to purchase a new home in joint names in [Suburb F], rather than complying with the orders of 14 February 2013. They had also used $5,355 to install air-conditioning in the new home and $10,341 to carry out “urgent structural repairs”. The wife’s solicitors had not been informed about any of this.
28In her affidavit in support of her application of 24 April 2014, Ms M annexed correspondence showing that, on 28 March 2014, her solicitors wrote to the husband asking him to sign a transfer to reflect the unequal entitlements of the husband and wife in the Suburb A property, to which the husband had responded by saying, “I have an excellent and sustainable claim on the ownership of the property. In fact, it is indisputably mine. I will therefore not sign the transfer form”.
29There is a dispute about why the Suburb A property had not previously been transferred, with the husband claiming that he had twice signed a transfer as ordered, but that the transfer had been lost by the applicant’s solicitors or not processed. I cannot resolve that issue, given that the competing claims have not been properly tested.
30On 12 May 2014, over the husband’s objection, I appointed Ms M as the trustee for sale of the Suburb A property and directed that the proceeds be disbursed in accordance with the 2006 consent orders. I also charged the husband’s interest in the Suburb C and Suburb F properties with payment of his obligations. I made various other orders and adjourned Ms M’s application for indemnity costs fixed in the sum of $8,800.
31On 12 February 2015, the Full Court dismissed Ms Somerton’s appeal: Somerton & Wells and Anor (2015) FLC 93-631. It must be noted that the decision disposed of not only the complaint regarding the 14 February 2013 orders, but also the challenge to the orders made on 22 August 2013.
32In declining to order Ms Somerton to pay the costs of the appeal, the Full Court said:
95.Whilst we are sympathetic to the fact that the estate of [the wife] will have to bear the costs of opposing the appeal, given that the central issue in this appeal was one of jurisdiction, and that question was a difficult and complex one, we would not be disposed to make an order for costs against [Ms Somerton].

33On 16 March 2015, the parties were advised by letter from the court that a directions hearing would be held on 26 March 2015 to determine the future conduct of the proceedings following the dismissal of the appeal.
34On 24 March 2015, the court received a copy of a letter from the husband to the applicant’s solicitors advising that the husband and Ms Somerton would be leaving Perth for [Europe] that night in order to attend to the “affairs” of the husband’s aged mother, and asking that the proceedings not be listed before 15 June 2015.
35On 24 March 2015, Ms M filed a “Minute of Directions Sought” for the hearing on 26 March 2015, which included an order for the sale of the Suburb F property by way of enforcement of the obligations under the 2006 consent orders.
36On 26 March 2015, in the absence of the husband and Ms Somerton, I ordered Ms M to file, within 21 days, an application “setting out the substantive relief she seeks by way of enforcement and costs together with a brief supporting affidavit”. I listed the matter for hearing on 23 June 2015, and ordered the husband and Ms Somerton to file their response and any affidavit evidence on or before 22 May 2015, failing which Ms M would have leave to proceed on an undefended basis.
37Ms M failed to comply with my order, but the husband and Ms Somerton each filed an affidavit and a Financial Statement on 4 May 2015. Ms M eventually filed her documents on 19 June 2015. Her Form 2 largely replicated the relief sought in the Minute filed on 24 March 2015. While the affidavit in support of the Form 2 contained a litany of complaints about the husband, Ms Somerton and the court, it failed to note how the proceedings have been delayed and complicated by the way in which they were conducted by the wife, Ms M and/or their legal advisors.
38The final hearing on 23 June 2015 proceeded on the papers, at the request of the parties. For reasons I gave at the time, the delay on the part of Ms M in filing her documents was excused. The husband and Ms Somerton did not seek an adjournment since, notwithstanding their protest, they were not prejudiced by the late filing.

39After hearing oral argument, I ordered the husband to provide a copy of the settlement statement relating to the sale of the Suburb B property, which had not previously been provided. The statement was received the following day, and corroborated in part the evidence the husband belatedly provided to the applicant’s solicitors on 27 April 2015 concerning the disbursement of the proceeds of sale and the acquisition of the Suburb F property.
40On 26 September 2015, while judgment was reserved, the court received a letter from the husband advising that he had to travel to Europe on “urgent family business”, and that Ms Somerton was “engaged in a series of speaking engagements in Europe”. The letter requested that the matter not be listed prior to 6 November 2015.
41The court later received an unsigned letter, dated 19 October 2015, from the husband, advising that the Suburb C property had been sold and noting that “the nett proceeds of $38,412 are deposited in my bank account, where they will remain until you instruct otherwise”. No supporting documents were provided to establish the price and the manner of disbursement of the proceeds. In this regard it is noted that $106,881 from the sale of the Suburb B property had apparently been applied in reduction of the mortgage on the Suburb C property. It seems therefore that the Suburb C property must have sold for much less than had been paid for it (which is not surprising given other evidence provided earlier).
42The husband advised me at the last hearing that a firm of solicitors had a lien on the Suburb C property, supported by a caveat, to secure around $10,000 in unpaid costs that Ms Somerton had incurred in relation to the appeal. Although the evidentiary basis is clearly not satisfactory, I will proceed on the basis that $10,000 was removed from the proceeds to cover the lien and that the proceeds of Suburb C would otherwise have been $48,412. The $10,000 should be deducted from the half share of the proceeds to which the certificate of title at least suggests Ms Somerton is entitled. (I express no view here in relation to the conduct of solicitors in obtaining priority in payment of their fees in the circumstances described above.)

Delay in delivery of judgment

43The Principal Registrar has written to the parties on two occasions since the judgment was reserved, apologising for the long delay in delivery of these reasons. While the delay is inexcusable, it is related not only to pressure of work, but also to the priority of other matters and the unhelpful manner in which the case was presented (from which criticism I exclude counsel who appeared at the last hearing).
44Lest it be thought that the delay has impacted on my decision, I should record that I have reviewed a transcript of the hearing on 23 June 2015 when finalising my judgment. I have also reviewed the two boxes of documents that have been filed during the course of these proceedings and I have read transcripts of earlier hearings.

The discretionary nature of enforcement

45Subsection 105(1) of the Act provides that “all decrees made under this Act may be enforced by any court having jurisdiction under this Act”. Subsection 79(1A) provides that a property settlement order “may, after the death of a party to the marriage, be enforced on behalf of … the estate of the deceased party”.
46The law is well settled that a court exercising jurisdiction under the Act has the discretion to refuse to enforce one of its own orders: Ramsey and Ramsey (1983) FLC 91-301. To this fundamental proposition, I would add the following (albeit noting that no submissions were made about principles governing the exercise of the discretion):
•While there is a discretion not to enforce, like all discretions conferred on courts, it must be exercised judicially: Duroux v Martin (1993) FLC 92-432 at 80,407.
•It is only matters arising since the making of the order that can properly inform the exercise of the discretion: Ramsey and Ramsey (1983) FLC 91-301 at 78,062.
•Therefore, the court cannot seek to refashion the original order, however unjust it may seem in hindsight: Ramsey & Ramsey (No 2) (1983) FLC 91-323 per Nygh J.
•The question is whether it would be inequitable to enforce the order, not by reference to strict equitable doctrine but rather by reference to general notions of justice (see the authorities Tree J reviewed in McIntyre & McIntyre [2016] FamCA 387).
•Prima facie, a litigant (or those who stand in their place) is entitled to the benefit of an order of the court, and hence the onus to show it would be inequitable to enforce falls on the party in default: Ramsey & Ramsey (1983) FLC 91-301 at 78,061.

The relief now sought

47The Form 2 application filed by Ms M on 19 June 2015 seeks the following orders:
1.The property situated at [Suburb F], (“the [Suburb F] Property”) forthwith be sold by private treaty at the parties’ joint expense.
2.The Applicant be appointed as sole trustee to sell the [Suburb F] Property and the [Suburb C] Property (collectively “the Properties”).
3.For the purposes of the sale of the Properties, the Applicant shall keep the First and Second Respondents informed in relation to the sales, including but not limited to notice of:
(a)the nominated real estate agent(s) to market the Properties;
(b)the marketing price;
(c)the marketing strategy; and
(d)the particulars of any offers received or accepted.

4.The proceeds of sale of the Properties shall be distributed in the following priority:
(a)in payment of all real estate agent’s fees and commissions;
(b)in payment of any rates or taxes in relation to the Properties;
(c)in payment of the relevant sums to discharge any mortgages or other agreed encumbrances affecting the Properties;
(d)in payment of the sum of $38,022.66 to the Applicant and interest calculated pursuant to rule 17.03 Family Law Rules to be calculated from 13 February 2013 to 23 June 2015 i.e. $6,866.74 (being repayment of costs for the [Suburb A] mortgage payments made by the Applicant on behalf of the First Respondent) pursuant to Order 4(d)i of the Orders made on 14 February 2013;
(e)in payment of the sum of $39,486.76 to the Applicant and interest calculated pursuant to rule 17.03 of the Family Law Rules to be calculated from 21 August 2014 to 23 June 2015 i.e. $2,186.65 (being the reimbursement to the Applicant for the amount paid by the Applicant to the National Australia Bank to discharge the shortfall on the mortgage secured against the [Suburb A] property following the foreclosure as a result of the First Respondent’s noncompliance with Order 3 of the Minute of Agreed Orders annexed to the Orders pronounced 4 May 2006);
(f)in payment of the sum of $880.88 to the Applicant and interest calculated pursuant to rule 17.03 of the Family Law Rules to be calculated from 21 August 2014 to 23 June 2015 i.e. $48.78 (being the fees paid by the Applicant to the Water Corporation at settlement of the [Suburb A] property pursuant to Order 4 of the Minute of Agreed Orders annexed to the Orders pronounced 4 May 2006);
(g)in payment of the sum of $1,466.68 to the Applicant and interest calculated pursuant to rule 17.03 of the Family Law Rules to be calculated from 21 August 2014 to 23 June 2015 i.e. $81.22 (being the council rates paid by the Applicant at the settlement of the [Suburb A] property pursuant to Order 4 of the Minute of Agreed Orders annexed to the Orders pronounced 4 May 2006);
(h)in payment of the sum of $1,050 [to] the Applicant and interest calculated pursuant to rule 17.03 of the Family Law Rules to be calculated from 21 August 2014 to 23 June 2015 i.e. $58.15 (being the reimbursement to the Applicant for the mortgage repayments paid by the Applicant up to the settlement of the [Suburb A] property as a result of the First Respondent’s non-compliance with Order 3 of the Minute of Agreed Orders annexed to the Orders pronounced 4 May 2006);
(i)in payment of the sum of the cost Order in the sum of $1,000 to the Applicant and interest calculated pursuant to rule 17.03 of the Family Law Rules to be calculated from 22 August 2013 to 23 June 2015 i.e. $137.65, (pursuant to Order 7 of the Orders pronounced 22 August 2013);
(j) the sum of $80,900 pursuant to paragraph 9 below; and
(k) the balance to the Respondents in equal proportions.

5.Within 14 days of these Orders, and further the Orders of 12 May 2014 the First and / or Second Respondents provide the Applicant’s solicitors with a copy of all mortgage documents including the mortgage account statements in relation to the [Suburb C] property from its purchase to date.
6.Each party shall do all acts and things reasonably required to give effect of these Orders within 14 days of being requested to do so, including the signing or execution of all necessary documents.
7.If any party refuses or neglects to sign or execute and return a document pursuant to these or previous Orders within 14 days of a written request to do so then the Principal Registrar of the Perth registry of Family Court of Western Australia is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgment of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
8.A defaulting party shall pay the other party’s taxed costs of and incidental to such request and production of documents to the registrar.
9.The First and Second Respondents pay the Applicant’s costs fixed in the amount of $80,900 of and incidental to the following:
(a)the Trial commencing on 15 August 2012 in respect of which judgement was delivered on 14 December 2012 fixed in the amount of $60,000, (stated to include the Applicant’s costs of and ancillary to the abandoned s 79A Family Law Act 1975 Application);
(b)the stay application filed by the Second Respondent on 25 March 2013 in respect of which judgement was delivered on 14 June 2013 fixed in the amount of $8,800;
(c)the Applicant’s cost of and incidental to the commercial proceedings, arising from the First Respondent’s non-compliance with the Orders of this Honourable Court fixed in the amount of $5,500;
(d)the First and Second Respondents pay the Applicant’s costs of and incidental to the hearing fixed in the Family Court of Western Australia on 26 March 2015 fixed in the amount of $1,100; and
(e)costs of and incidental to these further (2015) enforcement proceedings fixed in the sum of $5,500 inc GST.

10.All parties shall be at liberty to relist these proceedings on short notice in relation to the implementation of these orders only.
11.The proceedings otherwise be listed for directions following the sale of [Suburb F] and [Suburb C] properties

48The affidavit of Ms M sworn in support of the Form 2 application should have contained the evidence supporting the orders sought. Remarkably, however, it failed even to confirm that the Suburb A property had actually been sold, and it therefore provided no details of how the proceeds had been disbursed. Evidence given earlier in the proceedings indicated that it was almost certain that the proceeds would be insufficient for the husband’s share to cover the balance on the mortgage, but there was no evidence to support the claim in the Form 2 that the shortfall was $39,486.76. Counsel for Ms M informed me that he understood the shortfall was about $40,000, which would be consistent with the estimate in my December 2012 judgment that the husband had “negative equity” in the property of $41,250.
49There is also confusion about the extent of mortgage payments that the wife and her family made after the orders of 14 February 2013 (it being noted that the husband paid none even though ordered to do so). According to the affidavit of Ms M’s partner of 9 August 2013, they had paid a total of $39,778.45 (which would include the $38,022.66 that had been paid prior to the 14 February 2013 orders). According to Ms M’s affidavit of 17 April 2014, the amount paid was $39,657, including a payment of an unspecified amount made in April 2013. However, as already noted, the amount now sought in the Form 2 application is $39,486.76 – a figure for which there is no evidence. Nor was there any evidence to support the claim in the Form 2 that a separate amount of $1,050 had been paid toward the mortgage (apparently on 21 August 2014, which I assume must have been the date of settlement of the sale of the Suburb A property). Similarly, no evidence was provided to support the claim for reimbursement of $880.88 in water rates and $1,466.88 in council rates owing at the time of settlement.
50Given the poverty of the evidence, any orders I make will need to be generic rather than stating the amounts to be reimbursed. Ms M’s solicitors should, in my view, not charge for any work done later in sorting this out, as I would have specified the sums payable if the evidence had been forthcoming when it should have been.

The exercise of the discretion to date

51It must be kept firmly in mind that I have already dealt with the question of whether the husband should be relieved of his obligation to comply with the 2006 consent orders. In my reasons of 14 December 2012, I explained why I considered the orders should be enforced, and orders were made accordingly. The husband did not appeal those orders, and Ms Somerton’s unsuccessful appeal went only to the question of jurisdiction (and to the orders themselves only insofar as they affected her interest in the Suburb A and Suburb C properties). That being the case, on dismissal of the appeal, the wife’s estate was entitled to the fruits of my earlier orders. The difficulty, however, was that further enforcement orders were needed, given that the proceeds of the Suburb B property had found their way into the Suburb F property, and that the husband’s share of the proceeds of sale of the Suburb C property were predicted (correctly as it turns out) to be insufficient to meet his obligations under the 2006 consent orders.
52Notwithstanding the dismissal of the appeal, the husband and Ms Somerton have continued to conduct their case as if I have some residual discretion to relieve the husband from his obligations under the 2006 consent orders. In my view, this cannot be so, since my power in relation to the matters dealt with by the orders made on 14 February 2013 and 22 August 2013 is now spent. In my view, this is so notwithstanding that the wife has since passed away, and the benefit of the orders will therefore now be received by her estate rather than by her personally. If I have any remaining discretion, this could only be in relation to matters not already the subject of enforcement orders and review by the Full Court.

The current financial position of the husband

53In making my decision, I must have regard to the practicability of the husband complying with his obligations. Apart from any other consideration, this will inform the question of whether there is need to look to Ms Somerton’s assets to meet the husband’s obligations (which would raise issues thus far only faintly touched on in these proceedings).
54According to the information provided informally after the hearing, the husband has $38,412 available from the sale of the Suburb C property. Ms Somerton no doubt maintains her claim to a half share, but given what I said earlier about the $10,000 lien, I propose to treat the husband as being entitled to $24,206 of that money.
55The husband and Ms Somerton also have the property in Suburb F, which they estimated in their Financial Statements to be worth $500,000 (although the husband said in oral submissions he considered it was worth about $400,000, even though they had paid $465,000 for it in March 2014 and spent money on it since). There is about $250,000 owing on the mortgage.
56The husband and Ms Somerton have no other assets of significance. The husband owes in the region of $45,000 on credit cards, while Ms Somerton owes about $4,000 on credit cards and had $30,000 outstanding in legal costs (although I infer this has been reduced after sale of the Suburb C property). The husband and Ms Somerton disclose weekly incomes of $1,800 and $1,300 respectively. The husband claims expenses of $1,767 per week and Ms Somerton claims expenses of $1,201 per week.

The court’s decision

57I recognise that making the order now sought for the sale of the Suburb F property involves a fresh exercise of power and might therefore be seen as providing a further opportunity to exercise the discretion not to enforce the 2006 consent orders (and, in doing so, to take account of the fact that the wife is now deceased). However, quite apart from any other reason, I do not consider that I should refrain from ordering the sale of the Suburb F property given that the decision to invest the proceeds of sale of the Suburb B property in that property, if not constituting a deliberate breach of the orders made in February 2013, was made in the knowledge that the failure of the appeal would result in the Suburb B proceeds being required for payment of the husband’s obligations. It is also noted that the husband and Ms Somerton failed to keep the other party’s solicitors informed in circumstances where they most certainly knew she would not stand idly by and allow the funds to be put into a new property.
58The reasons advanced by the husband and Ms Somerton do not provide a proper basis for considering that it would be inequitable for the court’s order to be enforced. While I accept that the husband and Ms Somerton may face health and financial difficulties, the fact remains that the husband appears to have sufficient assets to meet his obligations. These obligations were not incurred for the maintenance of the wife but rather were part of a package of agreed property settlement entitlements. It is not an appropriate exercise of my discretion to attempt now to conduct a retrospective analysis to see whether the wife may have ended up with the better part of the bargain in 2006, nor is it appropriate for me to attempt (even assuming I had the evidence to do so) to make some comparison between the position of the husband and Ms Somerton on the one hand and the beneficiaries of the wife’s estate on the other.
59Nor is it appropriate for me to take into account the suspicions of the husband and Ms Somerton about:
•who has been driving the enforcement of the husband’s obligations, and their motivations for doing so;
•whether it was the wife or Ms M and her partner who funded the mortgage payments which the husband himself was obliged to pay; and
•the extent of the income earned by the wife before her death.

60Similarly, I can have no regard to Ms Somerton’s beliefs that:
•Ms M’s partner “exhibits the characteristics of Arrogant Fraudster Executive Impression Management”;
•the “social policy implications of a new wife being forced to vacate her home due to the estate of an ex-wife, reach far and wide for innocent women who are dragged into court cases for vindictive and vexatious purposes”; and
•she has experienced “the worst possible post-traumatic stress disorder that’s available to a human being. If I was a refugee standing here saying I’ve spent two years on the seas and I’ve eventually struggled and put my life together in Australia – I’ve been here 28 years and I made good, there would be an awful lot of sympathy granted to me”.

61The husband received all that to which he was entitled under the property settlement component of the 2006 consent orders and ultimately was not obliged to comply in full with his spousal maintenance obligations. The emotive arguments now advanced by the husband and Ms Somerton overlook the fact that court orders are made to be obeyed and that a party will be relieved of their obligations only in limited circumstances that simply have not been established here.
62I therefore intend to make orders to enforce the property settlement part of the 2006 consent orders (noting that, in fact, they are more correctly understood as being by way of enforcement of the orders made on 14 February 2013).

Costs

63The applicant seeks a variety of costs orders spanning the duration of these proceedings. These are largely detailed in the Form 2 application of 19 June 2015, but unfortunately one of the costs issues that was reserved earlier was overlooked.

The law concerning costs

64Subsection 117(1) of the Act provides that, subject to s 117(2), each party to proceedings shall bear his or her own costs.
65In opposing the applications for costs, the husband said in his affidavit of 4 May 2015 (errors in the original):
It has been stated on several occasions by members of the Family Court, including the Chief Judge and by the full court, that it is customary, except under very exceptional circumstances, that each side to pay its’ own costs. Were [the wife] still alive and liable for these costs, it could possibly be argued that the circumstances were very exceptional. This is not the case, presently. The sale of [the [Suburb A] property] resulted in [Ms. M] and her brother inheriting a fairly substantial sum. Even if costs amounting to $50,000, which seems excessive, were to be subtracted from [the wife’s] estate both beneficiaries would still inherit unanticipated funds. I submit that in the current circumstances [the wife’s] estate and its’ representatives are far more likely to “make good” than are my wife and I and that each side should meet its’ own costs.

66I recognise that the husband is not a lawyer, but it is not the case that I have told him that it is customary that each side pays their own costs, save “in very exceptional circumstances”. In fact, I specifically told him at the hearing on 12 May 2014 that it is not usually the case in enforcement proceedings that each party pays their own costs (transcript, 12 May 2014, p 22).
67Subsection 117(2) of the Act provides that if the court is of the opinion there are circumstances that justify doing so, the court may, subject to s 117(2A), make such orders as to costs as it considers just. Subsection 117(2A) provides as follows (emphasis added):
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.

68The Full Court in Collins and Collins (1985) FLC 91-603 at 79,877 described the discretion conferred by s 117 as being a “broad” one, and noted that the s 117(2A) factors are not to be read in a restrictive way. The Full Court in Fitzgerald v Fish (2005) 33 Fam LR 123 also made clear that any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs. Nevertheless, as an earlier Full Court said in I and I (No 2) (1995) FLC 92-625 at 82,277, the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.
69The Full Court has made clear that it is unnecessary for a judge to spell out detailed reasons for costs decisions. An exercise of discretion in dealing with costs will be upheld if it appears to the appellate court that there are reasons on which the trial judge could rely: Greedy and Greedy (1982) FLC 91-250 at 77,382; Luadaka v Luadaka (1998) FLC 92-830 at 85,509.

The broad-brush approach

70I had originally directed that costs would be dealt with once the amount of proceeds of the Suburb B and Suburb C properties was known. At the time of the final hearing, the Suburb C property had still not been sold, but the parties sensibly agreed the costs issues should be argued, along with the substantive issue. Each side has clearly been worn ragged by this war of attrition, and wanted the matter finished. In dealing with the costs issues I intend to adopt an approach that will spare the parties the agony and expense associated with further disputation (at least about the quantum of costs).
71I recognise that I indicated at the last hearing that some issues of quantum would need to be referred to a registrar for assessment. However, upon reflection, I have accepted the argument of counsel for Ms M that I should make orders that will resolve the costs issues without further litigation. In anticipation of concerns about matters of procedural fairness, it is important to record that I have had the conduct of this matter for a number of years and am better placed than a registrar would be to attempt to dissect the issues and to determine where responsibility for costs of individual aspects of the proceedings should fall. In adopting this broad-brush approach, I will also be able to quantify the full extent of the obligations of the husband which may assist him and Ms Somerton to determine if there is any way for their obligations to be discharged without the sale of the Suburb F home.

Costs up to and including the orders made on 14 February 2013

72Ms M referred to the substantial costs she and her family have incurred in these proceedings and her “disappointment and surprise” about having to meet the costs of opposing the unsuccessful appeal. While her frustration can be appreciated, I am concerned only with the costs of the first instance proceedings.
73Ms M sought that the husband should pay the cost of “the trial” in the sum of $60,000. By “the trial”, I understand her to mean the proceedings prior to my substantive orders of 14 February 2013. Ms M sought in particular the costs of the s 79A application which she claimed was “abandoned at the last minute / morning of trial”. She asserted that this application had been “a deliberate (and effective) way of delaying the enforcement of the Final Orders”.
74Prior to the orders of February 2013, the proceedings comprised three elements:
•the wife’s application to enforce the obligations under the property settlement and maintenance parts of the 2006 consent orders (and the husband’s request that the court not enforce the property settlement orders);
•the husband’s application to discharge the maintenance order and the arrears; and
•the husband’s application under s 79A.

75As earlier recorded, the s 79A application was abandoned shortly prior to the date on which the trial was due to commence. The parties achieved mixed success in relation to the balance of the litigation in that the wife was successful in obtaining orders by way of enforcement of the property settlement obligations, but the husband was successful in obtaining discharge of significant spousal maintenance arrears and obtaining a suspension of the spousal maintenance order. In my view, the costs of this part of the proceedings were unnecessarily increased by the unsatisfactory way in which both parties conducted the litigation. In any event, given that both parties achieved significant success (the wife with the property aspect of the proceedings and the husband with the maintenance aspect), it clearly cannot be said that either party was wholly unsuccessful. In these circumstances, I consider that each party should bear their own costs, save for any additional costs which were incurred by the wife as a result of having to defend the abandoned s 79A application.
76As the husband conceded in oral submissions, it would be difficult for a registrar to attempt to assess what additional costs were incurred as a result of the abandonment of the s 79A application, especially given the extent to which there was crossover between that application and the other matters. Having perused the documents in relation to the s 79A application and having studied the court record, in the exercise of my wide discretion I propose to fix those costs in the sum of $2,000. In arriving at this figure, I have had regard only to the relevant scale of costs, since the arguments presented to me did not persuade me costs should be assessed on an indemnity basis. In this context, I have no reason to doubt the husband’s assertion that he made the application on legal advice, and I note that he withdrew it promptly after I drew his attention to authority indicating that the prospects of success were poor.
77The s 79A proceedings did not involve Ms Somerton, so the order for payment of costs fixed in the sum of $2,000 will be made against the husband only.

Costs of the first application for a stay

78Ms M’s affidavit in support of her Form 2 application of 19 June 2015 claimed that “we were further awarded costs of the stay application” and she sought that these be fixed at $8,800 (being $5,000 plus GST for senior counsel and $3,000 plus GST for her solicitors). In fact, no order for costs was made in relation to the stay application, other than an order reserving those costs.
79In considering whether to order costs in relation to this part of the proceedings, I am aware that the Full Court decided that Ms Somerton would not be required to pay the costs of the appeal notwithstanding the appeal failed. Although I am not in any way bound by that decision, especially as different issues arise, I consider that there should be no order as to costs in relation to the stay application. The application potentially had merit, and it was only by a painstaking analysis of the law relating to the novel and complex issue that was the subject of the appeal itself that I determined that there was a respectable argument why the appeal should be dismissed, which is one of the reasons why I refused the stay.

Costs of the application of 24 April 2014

80The Form 2 application filed on 19 June 2015 overlooked the outstanding issue of costs of the application filed on 24 April 2014 in relation to which indemnity costs were sought. The question of payment of those costs has not yet been determined as those costs were reserved by order made on 12 May 2014.
81This oversight by the applicant’s solicitors only came to my attention when preparing these reasons. I do not propose to further prolong the dispute by seeking to relist the matter for submissions to be made on this issue given that the husband and Ms Somerton have had an opportunity to present their opposition to the application – and in fact did so in the husband’s affidavit filed 5 May 2014 in which he opposed the application on the following basis:
As this application is completely unnecessary and was only bought [sic] to cause my wife and I inconvenience and stress, the Applicant should not be entitled to any costs in this matter.
It is my belief that this is yet another vexatious application in a series of attempts to make our lives a misery, previously using the excuse that my former wife was in immediate danger of being made homeless and now that Ms. [M] and her partner are impoverished. This is probably untrue.

82In my view, there is no conceivable basis upon which the husband and Ms Somerton could escape an order for costs in relation to this application, which had to be brought on an urgent basis after it was discovered that the Suburb B property had been sold without notice and the proceeds invested in a new property rather than being used to comply with the obligations under earlier orders of the court. The application was also necessary in view of the husband’s extraordinary claim that he had become the owner of the Suburb A property following the death of the wife. In my view, the circumstances come close to warranting the indemnity costs order sought, but given the failure of the applicant’s solicitors to advance any submissions in support of an application for an order which is a significant departure from the norm, I intend to fix the wife’s costs by reference to the scale.
83The costs involved would have included attending on Ms M to obtain instructions, preparation of the application (and an amended application), preparation of an affidavit of Ms M, preparation of the application for exemption from fees, attendance at the hearing on 28 April 2014, arranging service of documents and proving service, considering the response to the application and attending a two-hour hearing on 12 May 2014. To avoid any possibility of complaint by the husband and Ms Somerton about the “rough and ready” process of assessment I have adopted, I intend to fix the amount at what I would regard as being at the bottom end of the range of costs likely to be assessed by a registrar.
84On this basis, costs will be fixed in the sum of $2,250, and will be payable jointly by the husband and Ms Somerton, who both participated in the purchase of the Suburb F property in the circumstances I have described.

Costs incurred since the dismissal of the appeal by the Full Court

85The costs incurred since the dismissal of the appeal by the Full Court arise from the ongoing failure of the husband to comply with his obligations under the 2006 consent orders. The costs have been increased as a result of Ms Somerton’s opposition to the orders sought against her. In this regard, it should be observed that while there has been an application on the record for Ms Somerton’s share of the sale proceeds of the properties to be utilised in payment of the husband’s obligations, little or no costs have been incurred in relation to that issue, determination of which has been postponed pending the court ascertaining whether the husband’s share of the properties will be sufficient to meet his obligations. The issues concerning Ms Somerton primarily related to whether property owned by her should be sold at all, and she has been wholly unsuccessful in opposing the sale.
86The applicant sought $1,100 costs incidental to the hearing on 26 March 2015 (which was the directions hearing the husband and Ms Somerton failed to attend) and a further sum of $5,500 in relation to “these further (2015) enforcement proceedings”.
87The cost incurred in relation to the hearing on 26 March 2015 would have included making the request for the relisting of the matter, preparation of the detailed minute of orders sought and attending at the hearing itself which lasted half an hour. Clearly there would have been other related work, including keeping the client informed. The amount of $1,100 claimed is reasonable, and the husband and Ms Somerton should pay that amount, not because of their failure to attend the hearing, but rather because it was an essential part of the enforcement proceedings.
88As for the balance of the “(2015) enforcement proceedings”, this involved consideration of the affidavits and financial statements of the husband and Ms Somerton, preparation of an application and a supporting affidavit, and attendance at the hearing on 23 June 2015 which took over 2 hours. Doing the best I can, and again being generous to the husband and Ms Somerton to avoid complaints about me making the assessment in a broad-brush fashion, I propose to assess the costs at what I consider to be the very modest figure of $3,750.
89In ordering the husband and Ms Somerton to pay the costs of this final part of the proceedings, I have taken into account that:
•the proceedings were necessitated by the failure of the husband to comply with his obligations under the 2006 consent orders;
•the husband and Ms Somerton have been wholly unsuccessful in resisting the sale of the Suburb F property;
•the costs were increased by Ms Somerton’s unsuccessful involvement; and
•the husband and Ms Somerton increased the costs by agitating arguments with no legal relevance.

90Although it is not the basis upon which I have made my order, I should also record that there seems to be some substance in some parts of the complaint of Ms M regarding the disclosure of documents by the husband and Ms Somerton. I have not made a definitive finding about this given the lack of satisfactory evidence.

The costs of negotiations with the bank

91The failure of the husband to meet his obligations under the 2006 consent orders ultimately led to the mortgagee selling the Suburb A property. In the process, the applicant engaged solicitors to negotiate with the bank to obtain some delay in the sale to allow improvements to be made. It is claimed that the negotiations cost $5,000 (or $5,500 depending on which affidavit was correct). Although Ms M seeks an order that the husband and Ms Somerton meet these costs, I do not see that they are costs of these proceedings, even though I accept they would not have been incurred if the husband had not defaulted.
92Quite apart from the fact that the costs claimed are not part of the costs of these proceedings, the issue of whether the costs needed to be incurred is, in my view, intertwined with the dispute relating to whether the husband sent signed transfers of the Suburb A property to the wife’s solicitors in accordance with the earlier orders of the court. As I understand the position, part of the difficulty the wife and her representatives had in dealing with the bank was that the transfer had not been registered. Given the haphazard manner in which this case has been conducted, I cannot exclude the possibility that the husband had in fact, as he vigorously asserted, sent the transfer to the wife’s solicitors on two occasions.

Summary of costs to be paid

93For the reasons above, the husband and Ms Somerton will be individually and severally responsible for costs totalling $8,100 (including the $1,000 costs ordered on 22 August 2013). In addition, the husband will be responsible for costs of $2,000.
94In arriving at my decision, although I have not discussed them, I have taken into account all of the matters in s 117(2A) to the extent they are relevant, including the financial circumstances of the parties. I fully recognise that the costs ordered are only a small portion of the costs that have been incurred by Ms M and her mother, but it is to be stressed that they were not successful in relation to a significant element of the proceedings, and that the costs were increased unnecessarily, in my view at least, by the way their case was presented.

Orders

95Although Ms M seeks an order appointing her as trustee for sale of the Suburb F property, I do not consider it is necessary for a trustee to be appointed at present, notwithstanding that some aspects of the conduct of the husband and Ms Somerton have been unsatisfactory. I recognise that there was a long delay in the sale of the Suburb C property, but I am not persuaded that this was entirely the fault of the husband and Ms Somerton – it was likely largely a reflection of the difficulty of selling a rural property which had been damaged by bushfire. If evidence emerges indicating that the husband and Ms Somerton are not making appropriate efforts to sell the Suburb F property, then I will have no hesitation in appointing someone as trustee for sale, or alternatively, making orders which will bring about a sale by lowering the asking price. In the meantime, the amount owing to the applicant will increase at the healthy rate of interest prescribed by the Rules.

96Subject to Ms Somerton being given an opportunity to be heard, I am inclined to satisfy portion of the entitlements of Ms M from Ms Somerton’s share of the proceeds of sale of the Suburb B property on the basis she will, subject to any further order to the contrary, be reimbursed from the husband’s share of the proceeds of the Suburb F property. I have not at this point determined that Ms Somerton should be regarded as holding any portion of the proceeds of the Suburb B property on trust for the husband, but I recognise that were it not for the actions of both the husband and Ms Somerton, the money to satisfy Ms M’s claim would have come from the husband’s share of the proceeds of sale of the Suburb B property. In those circumstances, at least as presently advised, I do not consider it appropriate that Ms M should have to wait until the sale of the Suburb F property before she receives satisfaction of her claim from the assets of the husband.
97In arriving at this tentative position I have taken into account the matters referred to in s 90AE(2) of the Act and consider such an order would be just and equitable. However, as Ms Somerton is not on notice in relation to my intention, it is important that she be afforded procedural fairness, and I will therefore make provision to ensure she can be heard on this issue if she so desires.
98For these reasons, I propose to make the following orders:
1.The first respondent and the second respondent shall within 21 days cause the proceeds of sale of the property at [Suburb C] to be paid to the applicant on the basis that:
(a)$1,000 represents the costs ordered on 22 August 2013;
(b)$2,000 represents payment by the first respondent of the costs referred to in Order 10 of the orders made today.
(c)$7,100 represents payment by the first respondent and the second respondent of the costs referred to in Order 11 of the orders made today.
(d)$18,156 represents part payment by the first respondent of his obligations pursuant to the orders made on 14 February 2013; and
(e)$10,156 represents part payment by the second respondent toward the first respondent’s obligations pursuant to the orders made on 14 February 2013 (with such sum to be reimbursed by the first respondent to the second respondent).

2.The first respondent shall pay to the applicant within 42 days:
(a)$9,710.66 representing the balance of monies owing pursuant to the orders made on 14 February 2013;
(b)such sum as shall represent the monies paid toward the mortgage, rates and taxes for [the property at Suburb A] by the applicant, the applicant’s partner and the applicant’s mother from 14 February 2013 to the date of settlement of the [Suburb A] property;
(c)such sum as shall represent the total of the mortgage outstanding on the [Suburb A] property at the date of settlement of that property;
(d)such sum as shall represent the amount of rates and taxes outstanding on the [Suburb A] property at the date of settlement of that property; and
(e)interest pursuant to rule 17.03 of the Family Law Rules 2004 (Cth) to be calculated from:
(i)14 February 2013 to the date of payment (in the case of the payments due under Orders 1(d), 1(e) and 2(a) of the orders made today);
(ii)22 August 2013 to the date of payment (in the case of the payment due under Order 1(a) of the orders made today);
(iii) the date on which each payment was made by the applicant, the applicant’s partner and/or the applicant’s mother to the date of payment (in the case of payments due under Order 2(b) of the orders made today); and
(iv)the date of settlement of the sale of the [Suburb A] property to the date of payment (in the case of payments due under Orders 2(c) and 2(d) of the orders made today).

3.The applicant shall advise the first respondent and the second respondent in writing within 14 days of the amounts payable pursuant to Order 2 (and shall provide them with documentary evidence to prove the amounts payable, other than the interest unless such evidence has been previously provided).
4.In the event that the first respondent does not comply in full with his obligations pursuant to Order 2 within the prescribed time or within such greater time as may be permitted by subsequent order of the court, the first respondent and the second respondent shall forthwith place the property at [Suburb F] (“the on the market for sale at a price to be nominated by a real estate agent.
5.The first respondent and the second respondent shall use their best endeavours to sell the [Suburb F] property and shall keep the applicant or her solicitors informed on a regular basis (and in any event not less than once every two weeks) concerning progress in the sale of the property, including details about:
(a)the nominated real estate agent;
(b)the marketing price;
(c)the marketing strategy; and
(d)the particulars of any offers received or accepted.

6.Upon sale of the [Suburb F] property, the first respondent’s half share of the net proceeds (after payment of costs of the sale and discharge of the mortgage) shall be disbursed as follows:
(a)in discharge of the first respondent’s obligations pursuant to Order 2; and
(b)in reimbursement to the second respondent of the sum of $10,156.

7.In the event that the first respondent’s half share of the proceeds of sale of the [Suburb F] property is insufficient to meet his obligations pursuant to Order 2, then the second respondent shall retain in an interest bearing account, pending further order of the court, sufficient funds to cover the deficit.
8.The applicant’s application to be appointed as trustee for sale of the [Suburb F] property be adjourned generally with liberty to relist.
9.Within 7 days, the first respondent shall provide to the applicant’s solicitors copies of all documents relating to the disbursement of the proceeds of sale of the [Suburb C] property.
10.The first respondent shall pay $2,000 costs to the applicant in relation to the abandoned s 79A application.
11.The first and second respondents shall pay $7,100 to the applicant by way of a contribution to the costs of these proceedings.
12.If the second respondent wishes to be heard on Order 1(e) she shall advise the Administrator to the Chief Judge in writing within 21 days, seeking a listing for further argument. In the event such a request is made, the operation of Order 1(e) shall be stayed until determination of the second respondent’s objection to that order.
13.All parties have liberty to apply in relation to the implementation of these orders.

I certify that the preceding [98] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
21 June 2016

ATTACHMENT A

IN THE FAMILY COURT OF

WESTERN AUSTRALIA

AT PERTH PTW2339 of 2006

IN THE MATTER OF

Applicant [Ms Wells]

and

First Respondent [Mr Wells]

and

Second Respondent [Ms Somerton]

MINUTE OF PROPOSED ORDERS

1.The orders of 12 January 2011 and 8 February 2011 be discharged.
2.The First and Second Respondents forthwith do all acts and things necessary to sell at market value the properties situate at:
(a)[Suburb B] (“the [Suburb B] property”); and
(b)[Suburb C] (“the [Suburb C] property”);

and keep the Applicant Wife’s solicitors informed of the same, including but not limited to the nominated real estate agent to market the property, the marketing price, the marketing strategy and the details of any offers received or accepted.
3.The Applicant Wife be at liberty to liaise with the nominated real estate agents (or auctioneer if applicable) in relation to the marketing and sale of both properties in paragraph 2 above, including, but not limited to:
(a)The provision of all information in relation to the sale; and
(b)Any offers to purchase.

4.Upon the sale of the [Suburb B] property, the net proceeds are to be distributed, in priority, as follows:
(a)In payment of all fees and agents’ commissions;
(b)In payment of any rated or taxes in relation to the property;
(c)The amount required to discharge the National Australia Bank Mortgage Number [XXX];
(d)To the extent not satisfied by the sale of the [Suburb C] property, the remaining balance of the First Respondent Husband’s share (50%) of the net proceeds be distributed as follows:
i.The sum of $38,022.66 to the Applicant Wife (being repayment of costs for the [Suburb A] mortgage payments made to date on behalf of the First Respondent Husband); and
ii.Subject to paragraph 7 below, the remaining balance (if any) to the First Respondent Husband and Second Respondent.

5.Upon the sale of the [Suburb C] property, the proceeds are to be distributed, in priority, as follows:
(a)In payment of all fees and agents’ commissions;
(b)In payment of any rates or taxes in relation to the property;
(c)The amount required to discharge the National Australia Bank Mortgage Number [XXY];
(d)To the extent not satisfied by the sale of the [Suburb B] the remaining balance of the First Respondent Husband’s share (50%) of the net proceeds be distributed as follows:
i.The sum of $38,022.66 to the Applicant Wife (being repayment of costs for the [Suburb A] mortgage payments made to date on behalf of the First Respondent Husband); and
ii.Subject to paragraph 7 below, the remaining balance (if any) to the First Respondent Husband and Second Respondent.

6.There be liberty to apply in relation to the sale of the properties.
7.The First and Second Respondents be restrained by injunction from disposing of the balance of the proceeds of sale of either property paid to them pursuant to either paragraph 4(d)(ii) or 5(d)(ii) above pending further order of the Court.
8.The First Respondent Husband forthwith continue to comply with his obligations under paragraphs 3, 4 and 6 of the Orders pronounced in the Family Court of Western Australia on 4 May 2006.
8A.Within 28 days from the date of these orders the First Respondent Husband shall provide written confirmation to the Applicant Wife’s solicitors with confirmation of his compliance with paragraph 4 of the Orders of 4 May 2006 insofar as it relates to the insurance of the [Suburb A] property, and compliance of paragraph 6 of the Orders of 4 May 2006 insofar as it relates to life insurance of the First Respondent Husband.
9.The First Respondent Husband make all payments on the [Suburb A] property as they become due and payable effective from 12 February 2013.
10.In the event the Applicant Wife (or her agent) is required to make any payments on the mortgage of the [Suburb A] property beyond 12 February 2013, these amounts be added to the sum payable by the First Respondent Husband under paragraphs 4(d)(i) and/or 5(d)(i) above.
11.In the event the [Suburb B] property and [Suburb C] property is not sold within 3 months from the date of these orders the head of the Real Estate Institute of Western Australia be requested to appoint a suitable agent to sell the said properties by way of public auction, with the reserve price to be set by the auctioneer (or as otherwise ordered by the Court), and to apply the net proceeds of the same in accordance with these Orders.
12A.The operation of paragraph 7 of the Minute attached to the Orders of 4 May 2006 be suspended until further order of the Court.
12.Any arrears of spousal maintenance payable pursuant to the Orders of 4 May 2006 be discharged.
13.Until 4 May 2016 the First and Second Respondents disclose to the Applicant Wife in a timely manner, and certainly no more than 28 days after receipt or possession of such information or documentation) copies of the following documents:
(a)Personal tax returns for the First and Second Respondent, along with the tax returns of any other entity in which the First or Second Respondent has an interest;
(b)Associated ATO assessment notices with the lodged tax returns referred to in 13(a) above;
(c)Financial Statements, including the full notes to the accounts and any depreciation or other schedules attached, for each business or entity in which the First or Second Respondent has an interest;
(d)On no less than a 6 monthly basis, copies of all bank statements in which either the First or Second Respondent have an interest, including the bank accounts for any entity in which they have an interest; and

14.After the parties have attempted to resolve issues by negotiations, the parties have liberty to apply to re-list the matter in relation to spousal maintenance upon written notice to the other parties.
15.The Applicant Wife file and serve written submissions as to costs within 28 days of the sale of the last of the [Suburb B] property or [Suburb C] property to be sold, and the First Respondent Husband the Second Respondent shall file and serve responding written submissions within 14 days of service, and the Applicant Wife shall file and serve a reply within 14 days of service.
16.All parties file and serve a sworn Form 13 Financial Statement within 14 days of the sale of the [Suburb B] property, or the [Suburb C] property, whichever is the latter.
17.There otherwise be liberty to apply as to the implementation of these Orders only.

ATTACHMENT B

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF File No: (P)PTW2339/2006

WESTERN AUSTRALIA

AT PERTH

BETWEEN:

[MS WELLS]

(Applicant)

AND

[MR WELLS]

(First Respondent)

AND

[MS SOMERTON]

(Second Respondent)

BEFORE THE HONOURABLE CHIEF JUDGE THACKRAY
22 AUGUST 2013

UPON the hearing of the Form 2 application of the Applicant filed on 12 August 2013.

IT IS ORDERED THAT:-

1.In relation to the properties at [Suburb B] and [Suburb C], (collectively, “the Properties”):
(a)On or before 6 September 2013, the respondents, [MR WELLS] and [MS SOMERTON], appoint a Real Estate Agent to sell the Properties by private treaty at such price as the Agent considers to be a fair market price; and
(b)The respondents forthwith comply with all reasonable requests and recommendations of the appointed Real Estate Agent, including making the Properties available for “home open” inspections.

2.Liberty to all parties to apply at short notice for orders to implement these orders including, if necessary, orders for relief under s 106A of the Family Law Act1975.
3.The payment to be made by the first respondent, [Mr Wells], pursuant to paragraphs 4(d)(i) and 5(d)(i) of the orders made 14 February 2013, be such amounts as are due and payable on the day on which settlement of the relevant property occurs.
4.Until the sale and settlement of the Properties, the respondents shall do all things necessary to:
(a)Keep and maintain the Properties in good order in readiness for sale;
(b)Pay all outgoings for the Properties, including mortgage repayments, house insurance and local government rates and taxes, as and when they fall due.

5.The first respondent forthwith obtain and produce to the applicant, [MS WELLS], a copy of the insurance required in compliance with paragraph 6 of the orders made 4 May 2006 and paragraph 8(a) of the orders made 14 February 2013.
6.The relief sought in paragraph 9 of the Form 2 application filed 12 August 2013 be adjourned generally with liberty to relist.
7.The first respondent and second respondent pay the applicant’s costs fixed in the sum of $1,000, with such payment to be made at the time of the settlement of the Properties.
By the Court
REGISTRAR