Wolter and Wolter (No 3)

[2015] FamCA 1006

FAMILY COURT OF AUSTRALIA

WOLTER & WOLTER (NO 3) [2015] FamCA 1006

FAMILY LAW – ENFORCEMENT – Interpretation of orders made under the slip rule – Order made for the distribution of the proceeds of sale of a property
FAMILY LAW – COSTS – Costs order made where the wife was wholly successful in an application for enforcement

Family Law Act 1975 (Cth)

APPLICANT: Ms Wolter

RESPONDENT: Mr Wolter

FILE NUMBER: SYC 5747 of 2009

DATE DELIVERED: 21 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: S & Associates

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. By way of implementation and/or machinery provision of the Orders of 21 December 2012, upon completion of the sale of the property at V Street, Suburb N, the Commonwealth Bank of Australia its servants and agents do all acts and things and sign all documents necessary to disburse the net proceeds of sale in the following order and priority:

   1.1.In payment of the expenses incurred by the Commonwealth Bank of Australia in relation to enforcement of the mortgage, possession and sale of the property;

   1.2.In payment of that sum required to discharge the mortgage secured over the property;

   1.3.In Payment of that sum required to discharge the mortgage to the Commonwealth Bank of Australia secured over the property at I Street, Suburb F ;

   1.4.In payment of the balance of funds thereafter remaining into a controlled money account styled “S & Associates”.

2. ... (omitted)

3. The husband pay the wife’s costs of the interim application as agreed or assessed on a party/party basis except for the cost of the appearance on 21 September 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wolter & Wolter (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5747 of 2009

Ms Wolter

Applicant

And

Mr Wolter

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter came before me in the duty list on 21 September 2015. On that day the husband appeared on his own behalf. The only application that was properly listed before me on that day was the wife’s application for interim orders that was filed 13 May 2015. The wife pressed an order in terms of [7] of the interim orders sought as follows:

   7.That, by way of implementation and/or machinery provision of the Orders of 21 December 2012, upon completion of the sale of the property at [V Street, Suburb N], the Commonwealth Bank of Australia its servants and agents do all acts and things and sign all documents necessary to disburse the net proceeds of sale in the following order and priority:

   (a)  In payment of the expenses incurred by the Commonwealth Bank of Australia in relation to enforcement of the mortgage, possession and sale of the property;

   (b)  In payment of that sum required to discharge the mortgage secured over the property;

   (c)  In Payment of that sum required to discharge the mortgage to the Commonwealth Bank of Australia secured over the property at [I Street, Suburb F];

   (d)  In payment of the balance of funds thereafter remaining into a controlled money account styled “[S & Associates]”.

2. On 21 September 2015 the husband consented to orders 7(a) and (b) so they are not a matter of any contention. Orders 7(c) and (d) as sought are contentious.

3. Other matters were raised by the husband during exchanges on 21 September 2015 but none of those matters that were raised were the subject of any application that was actually before me.

4. Counsel on the day did not do a satisfactory job of explaining the basis upon which he sought order 7(c) and I indicated as much during exchanges. After submissions, I reserved my judgment. The day after the interim hearing, the solicitor for the wife forwarded on an unsolicited basis, supplementary submissions that had been prepared by counsel who represented the wife before me the previous day. Those supplementary submissions were copied to the husband’s email address by the lawyers for the wife. The matter was relisted today for consideration of whether or not those supplementary submissions would be read by me.

5. The husband does not appear today. The court file will reveal that a significant number of emails have passed between the court and the parties in an attempt to fix today’s listing date and time. The husband was directly sent emails by the court on 14 October and 20 October. He was also copied into about eight other emails that passed between the court and the wife. The husband has not responded to any of that communication. The emails were sent to the husband at the email address that is recorded in the court case management system as his email address, namely ...

6. I proceed in the absence of the husband today.

7. The relevant history is as follows.

8. On 10 May 2012 Justice Ryan made orders requiring the parties to sell their Suburb D property, including order 13 which was as follows:

   13. That, on completion of the sale of the [Suburb D] property pursuant to these orders, the parties shall divide the proceeds in the following manner and priority as follows:

   (a)In payment of Agent's commission, advertising, marketing and auction expenses on the sale.

   (b)In payment of legal costs and disbursements on the sale to [Mr DD].

   (c)In payment and discharge of all mortgages, charges and encumbrances in respect of the [Suburb D] property.

   (d)In payment and discharge of all mortgages, charges and encumbrances in respect of the property situate at and known as I Street, Suburb F  (“the Suburb F property”)

   (e)In the event of any shortfall between the proceeds of sale of the Suburb D Property and the amount required to discharge the mortgage presently registered on the titles to the Suburb D property and the Suburb F property, the parties shall do all acts and things and sign all documents necessary to provide additional security over the property situate at and known as [V Street, Suburb N] and [U Street, Suburb L].  However, in the event that the Commonwealth Bank refuses to accept additional security over the [Suburb N] and [Suburb L] properties to secure the shortfall, then the husband is to do all acts and things to provide the property situate at and known as [E Street, Suburb Y] to the Commonwealth Bank by way of additional security.

   (f)In the event that there is a surplus following payment of the expenses set out in Order 13(a) – (d) above, then any such surplus shall be deposited into the new CBA joint account.

9. The important order for today’s purposes is order 13(e) which provides that if the mortgage secured upon both the Suburb D and Suburb F property was not discharged by the sale of the Suburb D property, then alternate security would be offered on Suburb N and Suburb L and if the bank was not happy with that additionally on Suburb Y, with the intent that Suburb F would become unencumbered.

10. When Justice Ryan delivered her judgment in December 2012 it was clear there was not going to be sufficient to pay out the loan secured against Suburb D and Suburb F from the sale of Suburb D. Justice Ryan delivered her reasons in December 2012 and invited the parties to prepare a document which engrossed orders consistent with her reasons. The parties did that. It was the mutual intent of the parties that order 13(e) of the orders of 10 May 2012 be preserved. Unfortunately when the parties engrossed the orders they preserved order 13(f) instead of order 13(e). Justice Ryan made orders in accordance with the document prepared by the parties, those orders being made in December 2012.

11. The matter came back under the slip rule before Her Honour and in orders made 13 May 2014 Her Honour pursuant to the slip rule corrected the error and replaced 13(f) and 13(e). Additionally, Her Honour made order 2 of 13 May 2014. That order makes it clear that either from the proceeds of Suburb L or proceeds of Suburb N, the mortgage on Suburb F should be discharged. I note when Her Honour made that order, there was unfortunately another slip in as much as that order refers to an order dated 12 May 2012, that should be 10 May 2012, but the intent is clear from the reasons. Justice Ryan at [8] records that at the hearing that concluded in December 2012 the agreed value of Suburb D was $555,000 and it had an outstanding mortgage of $782,000 secured over Suburb D and Suburb F and at [14] of her reasons of 13 May 2014 Justice Ryan makes it clear that if the funds were insufficient from Suburb D to discharge the mortgage which was secured over Suburb D and Suburb F, then the shortfall would be paid out of the sale of other properties and not Suburb F.

12. During the proceedings before me on 21 September 2015, the husband asserted that I should not enforce the orders because the mortgage that was secured over Suburb F were not signed by him and the documents were forgeries. Justice Ryan has previously dealt with that assertion in [24] of her reasons of 7 May 2014 and I do not need to consider that issue further in the context of this enforcement application.

13. The other issue that was raised by the husband was he objected to S & Associates being the holders of controlled monies on the basis of alleged malfeasance on their behalf. The husband provided no evidence to support his assertion that S & Associates or anybody else representing the wife on previous occasions had acted improperly. The firm has obligations under the Legal Professional Uniform Law and the husband’s suggestion the solicitors would not fulfil their statutory obligations has not been established by him. There is no evidence to indicate that the solicitors would not fulfil their professional obligations to hold the funds until the court made some further order about what was to happen. Given that the husband is unrepresented, the wife’s lawyers should hold these monies as stakeholder pending further order.

14. For those reasons, order 7 as sought by the wife in her interim application filed 13 May 2015 will be made in the terms that are sought.

15. Counsel for the wife today presses application 8 of the interim application filed 13 May 2015, which is an order the Commonwealth Bank provide each party with a schedule of costs and expenses paid from the sale of the property, including details of any fees, charges, penalties, interest charges and legal costs and disbursements. That is on the basis that Suburb N is in the husband’s name and the wife might not otherwise be told what the payment under order 6(a) was in terms of dollar amount and/or how that amount has been calculated in terms of its various elements. I am told the Commonwealth Bank was served with this application but has not participated in the proceedings. It seems to me that it is a fairly small impost upon the bank to ask them to provide the wife with that information. She will need the information at a later date to make the appropriate application to the court in relation to the funds that have been frozen by what will be order 1.4.

16. Accordingly, I make an order in accordance with order 4 as sought in the application filed by the wife on 13 May 2015.

17. I find that it is just to make an order the husband pay the wife’s costs of the interim application filed 13 May 2015 as agreed or assessed on a party/party basis except for the cost of the appearance on 21 September 2015. The wife has been wholly successful in her application for enforcement. The reason for excluding the appearance on 21 September 2015 is that today could have happened on that day had things been properly explained to me.

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 21 October 2015

Associate:

Date: 30.10.2015