Wyre & Beadles

Case [2022] FedCFamC1F 326

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wyre & Beadles [2022] FedCFamC1F 326

File number(s): SYC 2890 of 2013
Judgment of: SCHONELL J
Date of judgment: 13 May 2022
Catchwords: FAMILY LAW – PROPERTY – Enforcement – Where final property orders had been made – Where the husband had not fully complied with those orders – Where a trustee was appointed to effect sale of a property that was the subject of the final property orders – Where it would not be inequitable to enforce the Court’s orders – Warrant for possession granted – Costs sought by the trustee and wife – Costs order made for the husband to pay the trustee and wife’s costs of the Application – Application for indemnity costs otherwise dismissed.  
Legislation:

Family Law Act 1975 (Cth) ss 105, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 11.56, 12.13

Cases cited:

Colgate Palmolive & Anor v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

Cross & Beaumont (2008) 39 FamLR 389; [2008] FamCAFC 68

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 FamLR 123; [2005] FamCA 158

Graham v Squibb (2019) FLC 93-892; [2019] FamCAFC 33

Greedy and Greedy (1982) FLC 91-250; [1982] FamCA 41

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Nestor & Ripley & Anor [2020] FamCA 694

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Stoian & Fiening (Costs) [2014] FamCA 944

Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189

Younghanns and Ors v Younghanns and Ors & Younghanns (2000) FLC 93-029; [2000] FamCA 681

Division: Division 1 First Instance
Number of paragraphs: 50
Date of hearing: 12 May 2022
Place: Sydney
Counsel for the First Applicant: Mr Packer
Solicitor for the First Applicant: Hannafor Cox Conellan & McFarland
The Respondent: Did not participate

ORDERS

SYC 2890 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS WYRE

First Applicant

MR COOKE
Second Applicant
AND:

MR BEADLES

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:

1.A Warrant for Possession of the property being the whole of the land described in Folio Identifier … (Lot … in Deposited Plan …) (“the Property”) be issued in favour of the trustee, Mr Cooke, authorising Mr Cooke to enter and take possession of the Property.

2.Any service upon the respondent husband (“the husband”) of documents required by these orders be effected by securing the documents to the front gate of the husband’s usual place of residence at C Street, Suburb B NSW and posting a copy of the documents in a pre-paid envelope addressed to the husband at C Street, Suburb B NSW.

3.The husband pay the costs of the applicant trustee and wife of the Application in a Case filed 9 June 2020 as agreed or…

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Details
AGLC
Wyre & Beadles [2022] FedCFamC1F 326
Case
[2022] FedCFamC1F 326
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an application for a warrant for possession of property and associated costs in the matter of Ms Wyre and Mr Cooke versus Mr Beadles. The dispute arose from the failure of Mr Beadles to fully comply with final property settlement orders made on 25 October 1993. The Court was required to determine whether enforcement of the orders was appropriate given the circumstances.

The legal issues before the Court included whether it was just and equitable to enforce the final property orders given the husband's continued non-compliance and the evidence of his avoidance of service. The Court considered the affidavits and submissions of the parties, particularly the evidence of the trustee, Mr Cooke, and the solicitor, Mr F, regarding the husband's actions to prevent the sale and inspection of the property. The husband's attempts to obstruct the trustee's efforts and his failure to comply with the orders were critical factors in the Court's decision.

The Court held that enforcing the orders was just and equitable, as the husband had not complied with the final property settlement orders and had taken actions to prevent the property from being sold. The husband's efforts to avoid service and the continued occupation of the property were significant. The Court granted the warrant for possession to the trustee and ordered the husband to pay the costs of the application as agreed or taxed. The application for indemnity costs by the trustee and wife was dismissed.

In summary, the Court issued a warrant for possession of the property in favour of the trustee, Mr Cooke, and ordered the husband to pay the costs of the application as agreed or taxed. The application for indemnity costs by the trustee and wife was dismissed.

Orders

Orders of the court

SYC 2890 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WYRE

First Applicant

MR COOKE

Second Applicant

AND:

MR BEADLES

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:

1. A Warrant for Possession of the property being the whole of the land described in Folio Identifier … (Lot … in Deposited Plan …) (“the Property”) be issued in favour of the trustee, Mr Cooke, authorising Mr Cooke to enter and take possession of the Property.

2. Any service upon the respondent husband (“the husband”) of documents required by these orders be effected by securing the documents to the front gate of the husband’s usual place of residence at C Street, Suburb B NSW and posting a copy of the documents in a pre-paid envelope addressed to the husband at C Street, Suburb B NSW.

3. The husband pay the costs of the applicant trustee and wife of the Application in a Case filed 9 June 2020 as agreed or taxed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The following documents were relied upon:(1)Application in a Case filed 9 June 2020;(2)Affidavit of Mr Cooke filed 4 June 2020;(3)Affidavit of the wife filed 4 June 2020; (4)Affidavit of Mr E filed 4 June 2020;(5)Affidavit of Mr F filed 4 June 2020;(6)Affidavit of Mr F filed 17 June 2020;(7)Affidavit of Mr F filed 15 December 2020; and(8)Case Outline document.BACKGROUND FACTS Final property settlement orders were made on 25 October 1993 between the wife and the husband. The orders have as yet not been fully complied with. On 6 November 2017, McClelland J (as he then was) made orders appointing Mr Cooke as trustee for sale of property the subject of the final property orders. His Honour also made orders for service of documents in a particular way. Service of his Honour’s orders was effected on 15 October 2019. Mr E in his affidavit filed 4 June 2020 gives evidence as follows:5. I then placed a copy of my letter dated 3 July 2019 into the letter box at the Property. Annexed and marked “[E-03]” is a copy of my letter dated 3 July 2019. Annexed and marked “[E-04]” is a copy of the photograph depicting myself placing my letter in an envelope addressed to “[Mr Beadles, G Street, Suburb H] NSW […]” into the letter box at the Property.6. I attended the neighbours place and spoke to [Mr J] who said “[Mr Beadles] still lives there”. Mr Cooke says in his affidavit filed 4 June 2020:5. In late 2019 I was at my law firm practice when I received a telephone call from a person who identified himself as a Police Officer from the [City K] Police Station. The male voice did state his name but I can no recall it. He then went on to say, “I have received a complaint from a [Mr Beadles], that you are trying to force him off his [property] illegally as you have the wrong name of the property.” I said, “I am the court appointed trustee and I am sure the lot and deposited plan numbers correctly identify the property.”6.I am of the belief that [Mr Beadles] and his family still reside on the Property. The front access gate is always chained and padlocked shut. This stops anyone accessing the Property which prevents it from being marketed, inspected and sold. Mr F, a solicitor, has sworn a number of affidavits in the proceedings. In an affidavit filed 4 June 2020, he said:4. At about 2.22pm on Wednesday, 25 March 2020, I saw the owner of the neighbouring property, [Mr J] about to leave his property at [2 C Street, Suburb B] NSW […], by car. I drove up to [Mr J] and said, “I am [Mr F] from Hannaford Cox Solicitors in [City D]. Can you tell me if you neighbour [Mr Beadles] still resides next door”. [Mr J] said, “Yes he does, but he locks his front gates to stop the sheriff from serving him with anything.” Mr F gives further evidence that on 11 June 2020 he served the husband with copies of the Application in a Case seeking warrant for possession together with a copy of the affidavits of Mr Cooke affirmed 2 June 2020, Mr E affirmed 16 December 2019, Mr F dated 26 March 2020 and Ms Wyre affirmed 3 June 2020 by affixing them to the gate in accordance with the orders made by McClelland (as he then was).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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