White and White

[2019] FamCA 713

FAMILY COURT OF AUSTRALIA

WHITE & WHITE [2019] FamCA 713

FAMILY LAW – PROPERTY – enforcement of final orders – failure to effect transfers of real property – blockage to settlement of property transfers– property transfer forms – who bears responsibility for particular steps.

Family Law Act 1975 (Cth)

APPLICANT: Mr White

RESPONDENT: Ms White

FILE NUMBER: CAC 1775 of 2015

DATE DELIVERED: 4 October 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 2 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Howard

SOLICITOR FOR THE RESPONDENT: Phelps Reid Foster Johnson Lawyers

Orders

1. The Wife shall forthwith and in any event within seven days execute the Form 1 transfer document previously executed by the parties (the Form 1) in order to evidence her agreement to the amendment of the document to reflect the proper description of the Queensland property;

2. Thereafter the Wife shall forthwith cause the Form 1 to be sent to the Husband;

3. Forthwith on receipt of the Form 1 and in any event within a period of fourteen days from the sending of the Form 1 the Husband shall execute the Form 1 transfer  document (the Form 1) in order to evidence his agreement to the amendment of the document to reflect the proper description of the Queensland property;

4. Following execution of the Form 1 document the Husband shall forthwith cause the Form 1 to be sent to the solicitors for the Wife in order to facilitate the settlement of the Queensland property;

5. It is noted that the Husband has authorised the Wife to amend the Form 24 document in respect of paragraphs 4, 5, 6 and 19 of that form to enable that form to be ready to use in settlement of the Queensland property;

6. The Wife shall forthwith, and in any event within seven days complete Parts A, B, D, E and F of the relevant stamp duty exemption form or dutiable transaction statement (the stamp duty form) and execute said document;

7. Forthwith thereafter the Wife shall forthwith cause the stamp duty form to be sent to the Husband;

8. Forthwith on receipt of the stamp duty form and in any event within a period of fourteen days from the sending of the stamp duty form the Husband shall complete Parts C and F and execute the stamp duty form;

9. Following execution of the stamp duty form the Husband shall forthwith cause the stamp duty form to be sent to the solicitors for the Wife in order to facilitate the settlement of the Queensland property;

10. Forthwith and in any event within fourteen days the Husband shall complete and execute a priority notice;

11. The Husband and shall then, forthwith upon completing and executing the priority notice, send the completed and executed priority notice to the solicitors for the Wife in order to facilitate the settlement of the Queensland property;

12. In the event that a party seeks to pursue their application for costs in relation to the Husband’s application in a case filed on 20 August 2019 that party shall, within seven days of the issuing of this judgment file and serve written submissions directed to the issue of costs, such written submissions to be limited to a maximum of five pages at size twelve font at one and a half line spacing;

13. In the event that costs are pursued in accordance with the above order and a party wishes to oppose the making of the orders then that party shall, within a further seven days file and serve written submissions directed to the issue of costs, such written submissions to be limited to a maximum of five pages at size twelve font at one and a half line spacing;

14. The Wife’s application in a case filed 17 April 2019 is otherwise dismissed;

15. The Husband’s application in a case filed 20 August 2019 is otherwise dismissed.

Notation:

1. Forthwith means immediately, straightaway, as soon as possible, as soon as reasonably possible.

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 White & White 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 CANBERRA

FILE NUMBER: CAC 1775 of 2015

Mr White

Applicant

And

Ms White

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the enforcement of final property orders made on 18 January 2019 and amended under the slip rule on 31 January 2019.  A previous application for enforcement by means of an Application in a Case was filed by the Wife on 17 April 2019 and dealt with on 19 July 2019.  At that stage it appeared that the orders were sufficient, but not certain to resolve the dispute between the parties as to the carrying out of the orders.  Accordingly, the orders provided that the application in a case would be discharged 56 days thereafter, which allowed time to ensure that compliance occurred.

2. However it was not to be.

3. On 20 August 2019 the Husband filed an Application in a Case seeking a suite of orders purportedly dealing with enforcement.  In support of this he relied on affidavits from himself filed 20 August 2019 and 16 September 2019. 

4. On 10 September 2019 the Wife filed a response to his Application in a Case supported by affidavits from herself and the conveyancer employed by her legal representatives, Ms BB.

5. On 2 October 2019 the hearing took place with the Husband appearing via videolink from the United States of America, with the Wife appearing in Canberra.

6. At the hearing the Husband indicated that he did not press the first of the orders sought by his Application in a Case (which related to the provision of a particular document by the Wife) but, with modifications, pursued the balance of the orders sought.  He also sought, by oral application without notice to the Wife, a suite of other orders but was refused leave to pursue those. He was, however, permitted to orally amend the terms of orders that he sought as set out in his application in a case.

7. The second of the orders that he sought, as orally amended at the hearing, although unclear, was directed to obtaining a declaration regarding a copy of a trust deed document being the same as the original deed document.  This application was dismissed during the hearing of the matter and reasons were given at the time.

8. The matter then turned essentially to competing arguments about what orders ought to be made regarding the enforcement of the Orders of 18 January 2019 insofar as they dealt with the transfer of properties held by the parties in the Australian Capital Territory to the Wife and a property held in Queensland to the Husband.

9. This dispute arises because, despite the time having passed to effect the settlement (42 days in each case) and despite steps being taken by each party, they have proven to be insufficient to allow the settlement of the properties.

What was the problem?

1. For the ACT properties, the last blockage to settlement was the failure of the Husband to provide a document known as a “seller’s declaration” or “seller’s verification form”, despite his completion of said document.  This document was required to settle the transaction and was ultimately provided by the Husband during the hearing.  He explained that he had withheld it because of his lack of trust in the Wife to effect settlement on the Queensland properties at the same time.

2. The provision of the document means that there is now no blockage to the ACT settlements taking place, and so no orders are required to effect compliance in respect of the transfer of the ACT properties.

3. The Queensland settlement is a different story.  A number of documents were identified by Ms BB as required in order to settle the transaction.  It did not appear that there was any real dispute as to the need of each of these documents, being documents required by the relevant Queensland authorities.  They were as follows:

   1.The correction of a defective transfer form (Form 1);

   2.The correction of a defective Form 24;

   3.A stamp duty exemption form or dutiable transaction statement;

   4.A priority notice form.

Re the transfer form

1. The evidence established that the form, which had previously been executed by the parties, required an amendment by virtue of a misdescription in the property on the face of the form.  The correction of that misdescription required initialling by the parties.  Otherwise the form has been executed.

2. An order will issue requiring each party to execute the document and for it to be returned to the Wife’s solicitors to effect settlement.  I was advised by the Husband that 14 days would be sufficient for this. 

3. If there is a failure to comply with the initialling of this document then it will be amenable to an order under section 106A which will likely carry with it costs implications.

Re the defective form 24

1. This form had been completed by the parties but the Wife identified a number of defects in the form.  Her position was that, with the Husband’s authority, she could amend the form to correct that information.  That authority was given by the Husband in court.

2. The giving of this authority means that no order is required in respect of the completion of this document.  Rather a notation will be made recording the authority given by the Husband to the Wife for the correction of paragraphs 4, 5, 6 and 19 of that form. 

Re the stamp duty exemption form

1. The evidence established the need to complete this form in order to procure the stamping of a document to allow registration of the transfer.  It was common between the parties that the transaction should be stamp duty exempt. 

2. The quarrel was as to who should complete this document.

3. The Husband argued that Order 11 of the Orders of 18 January 2019, which provided that the Wife do all things and sign all documents necessary to transfer her right, title and interest in the property, meant that she should complete the document.

4. Against this, the Wife argued that it was not for her to prepare the application to waive stamp duty where it is a duty imposed upon the Husband and involved the Husband procuring his right to be excused from the payment of the stamp duty.

5. The Wife referred me to the Duties Act 2001 (Qld) (‘Duties Act’) which I was advised dealt with liability to pay duty. It should be observed that it appears that the Duties Act imposes liabilities upon the parties to a transaction (plural) for the payment of stamp duty. This did not carry with it the implication, therefore, that the matter lay solely at the feet of the Husband.

6. Similarly, the form was unclear on its face as to who was to complete the form, with space for multiple signatures to verify information both as to transferor and transferee.

7. Doing the best that I can, it is necessary that both parties engage in the completion of the document.  It falls neither solely at the feet of the Husband nor solely at the feet of the Wife.  Orders will issue to provide for the Wife to complete the form in relation to parts A, B, D, E and F within a period of 7 days from the making of this order.  Orders will also issue for the Husband to complete parts C and F within 21 days of the making of the Order and to return the document forthwith to the solicitors for the Wife to effect the preparation of documents for settlement.

The priority notice form

1. This is a document that sets out the order of registration of documents for the transfer.  In this case, it was sensibly suggested that the order of registration of documents on transfer would involve the withdrawal of the Wife’s caveat, followed by the discharge of the current mortgage, followed by the transfer of the property to the Husband, followed by the registration of the mortgage to the Husband’s financiers.

2. This is a document for the Husband to complete.  The registration of the mortgage following a transfer is a matter that is peculiar to the interests of the Husband.  Inferentially it is his responsibility, not the Wife’s, to complete the form.  It is not for the Wife to nominate registration of a document evidencing an interest on the property which by then will have been transferred to the Husband. 

3. Orders will issue for the Husband to complete and return that document within 14 days. 

Other issues

1. The Husband sought orders that the Wife discharge the caveat that she currently holds in the Queensland property in advance of settlement.  I am not persuaded that it is necessary to order that the caveat be discharged in advance of settlement and so accordingly no order will be made as sought by the Husband.  The evidence in support of the notion that it had to be discharged in advance was at best equivocal and unpersuasive.

2. The Wife also articulated a fall-back position in case settlement was unable to occur, which involved her being appointed as trustee for sale for the Queensland property.  The Husband opposed this order, noting its potentially severe consequences to him.  It does not appear, at this stage, to be a necessary order to make, given the balance of orders that will be made to effect compliance with the orders of 18 January 2019. 

3. Each of the parties sought an order as to costs.  However, it was sensibly noted that, in advance of receipt of the judgment, it would be difficult to advance proper argument as to whether a costs order should be made.  It was also noted that, dependent on the terms of the judgement, no order for costs might be pursued.  Both of the parties invited me to make orders for the filing of written submissions in the event that costs were pursued within a fixed period of time, with a set limit as to the scope of the submissions.  Accordingly, it will be ordered that if a party seeks costs after the delivery of judgment, then that party is to file and serve written submissions within 14 days, such written submissions to extend for no more than 5 pages, with font size and spacing to be specified.  If a party opposes the making of a costs order, then they may file written submissions within a period of 14 days following the receipt of the submissions in support of a costs order, again limited to 5 pages in the same terms.

4. These orders now resolve the issues raised by the parties in respect of compliance by each of their applications in a case (other than as to any costs order).

5. In the event that further steps are necessary to secure compliance with the orders, a fresh application will be required.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 October 2019.

Associate:

Date:  4 October 2019