Yardsley and Yardsley

[2018] FamCA 463

FAMILY COURT OF AUSTRALIA

YARDSLEY & YARDSLEY [2018] FamCA 463

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband lodged a Reply out of time and that step is of no effect – Where the husband seeks an extension of time to file and serve a Reply – Where that application is dismissed.
FAMILY LAW – PROPERTY – INTERIM – partial orders made by consent otherwise interim application reserved.

Family Law Act 1975 (Cth)

APPLICANT: Mr Yardsley

RESPONDENT: Ms Yardsley

FILE NUMBER: SYC 5348 of 2015

DATE DELIVERED: 30 April 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 30 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner

SOLICITOR FOR THE APPLICANT: Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

(Orders made 30.4.18)

1. The husband’s application to extend time to file his Reply lodged on the court portal 20 April 2018, be dismissed.

2. Orders be made in accordance with the following paragraphs of the wife’s Response to an Application in a Case filed 6 April 2018:

   7.That within 28 days from the date of these Orders, the Husband and Wife shall do all acts and things and sign all documents as are necessary to cause for the Suburb B property to be listed for sale and to thereafter sell the Suburb B property for the highest attainable price by way of private treaty or, if agreed between the parties, by public auction;

   8.1The Wife shall select a real estate agent of her choosing to list and market the Suburb B property for sale and within 21 days from the date of these Orders each of the Husband and the Wife shall sign an exclusive agency agreement and all other documents as may be required to formally retain such listing agent;

   8.2The Wife shall select a solicitor in New South Wales who shall be retained by the parties as vendors to act on the sale of the Suburb B property and who shall be instructed to prepare a Contract for Sale for the Suburb B property;

   8.3Within 21 days from the date of these Orders, each of the Husband and the Wife shall sign all necessary documents presented to them by or on behalf of the solicitor retained to act on the sale of the Suburb B property;

   8.5The sale price and the listing price from time to time for the Suburb B property (together with the reserve price if the Suburb B property is being auctioned) shall be as mutually agreed between the parties;

   8.6In the event the parties are ever in dispute for more than 7 days as to listing price, sale price and/or reserve price for the Suburb B property the listing price, sale price and (where applicable) the reserve price for the sale of the Suburb B property shall be determined by Mr C of C Valuers ("the single expert valuer") whose decision shall be final and binding upon the parties and for that purpose the Husband shall pay the costs incurred in the engagement of the single expert valuer and shall pay to the single expert valuer, as and when the same falls due and payable all monies that fall due;

   8.7The Husband and Wife shall each execute a Contract for Sale of the Suburb B property in the form prepared by the solicitor having conduct of the sale at a price agreed between the parties, or in the absence of agreement, at such price determined by the single expert valuer;

   8.9The Husband and Wife shall each execute a Transfer and all other documents necessary to complete a sale of the Suburb B property and early release of deposit monies in accordance with the Contract for Sale and within the time period specified in writing by the solicitor acting on behalf of the parties as vendors in respect of the sale of the Suburb B property; 

   9.Upon completion of the sale of the Suburb B property, the proceeds of sale are to be applied and disbursed in the following manner and priority:

   9.1in payment of agent's commission, legal/conveyancing fees payable to the solicitor acting on the sale of the Suburb B property, and any and all unpaid marketing and advertising fees on the sale (including any and all unpaid auction expenses);

   9.2in payment sufficient to discharge in full all mortgages and encumbrances registered on title to the Suburb B property including any and all unpaid mortgage arrears, penalties, interest and legal fees; and

   9.3in payment by way of reimbursement to the Husband of all amounts paid by him to the single expert valuer and to the solicitor acting and real estate agent acting on the sale of the Suburb B property prior to completion of the sale (if any).

3. Judgment on the balance of the outstanding applications is reserved.

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 Yardsley & Yardsley 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 SYDNEY

FILE NUMBER: SYC 5348 of 2015

Mr Yardsley

Applicant

And

Ms Yardsley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 16 February 2018, the husband filed an Application in a Case seeking that interim orders that had been made on 20 July 2016 be set aside; that a third party debt notice dated 14 July 2017 be set aside and that some orders, specifically orders 54, 55, 56, 57 and 60 made 1 September 2017 be set aside. He further sought an order for a sale of the parties’ property at Suburb B and consequential orders in relation to the distribution of the sale proceeds.

2. That application was set down for hearing on 11 April 2018.

3. On 6 April 2018, the respondent wife filed a Response to an Application in a Case. She joined in the application for the sale of the Suburb B property but sought different orders in relation to the management of that sale and the disposition of the proceeds of that sale. The wife sought to have $1.5 million released to her for her to be able to purchase a new property. She also sought some orders in the alternative to vary spousal maintenance orders mainly aimed at providing her with some funds for rental accommodation after the settlement of the sale in the event her application for funds to buy a new property was not successful. She also sought various procedural orders.

4. When the parties appeared before me on 11 April 2018, Mr Gardner appeared for the husband. Notwithstanding he was for the applicant, he sought an adjournment of the interim hearing primarily on the basis that the principal of his firm who was instructing him and also the lawyer at that firm involved in preparing the documents in respect of the application were not available and his client, who resided in Asia, was away from Asia internationally on business. It appears that that place was Italy. The wife opposed the adjournment application and pressed her applications contained in her Response to the Application in a Case.

5. On 11 April 2018 I made, inter alia, the following orders:

   1.    This matter be adjourned for hearing on 30 April 2018 at 10am. I will be dealing with the orders sought by the wife in her Response to the Application in a Case filed 6 April 2018. I will otherwise not be dealing with any application that was listed initially before me today unless those applications are contained in the husband’s Reply to the wife’s Response to the Application in a Case.

   2.    Within 7 days the husband file and serve a Reply to the wife’s Response to the Application in a Case setting out the orders he seeks, supported by an affidavit.

6. The date the husband was to file his Reply under my order was seven days from 11 April 2018, namely 18 April 2018.

7. The extension of time that was given to the husband was an indulgence. The period of seven days which I gave to the husband was not meant to be a vague estimate of time in which he had an opportunity to take advantage of that indulgence.

8. The husband has filed a Reply to a Response to an Application in a Case and a supporting affidavit and financial statement on the court’s portal 20 April 2018 at 5.54pm. That is, after close of business on Friday 20 April. As counsel for the wife points out, the effective filing date was 23 April 2018, which is five days after the date upon which I ordered the documents to be filed.

9. Rule 11.02(1) of the Family Law Rules provides that the filing of those documents is of no effect. Rule 11.02(2)(a) provides if a party does not comply with a procedural order the court may dismiss part of the case.

10. Rule 11.03 provides relief from that rule and allows the court to consider an application for that relief. Mr Gardner has made an application under rule 11.03 to be relieved from the effect of rule 11.01. That application is opposed by the wife.

11. Rule 11.03(2) of the Family Law Rules sets out matters I may consider on the question of extending time. Firstly, I consider whether or not there is a good reason for non-compliance. The husband seeks to rely upon two emails sent by his lawyer to the wife’s lawyer on 18 April and 19 April 2018 (Exhibit 6). Those emails in my view, do not provide any real explanation as to why someone with the husband’s skill, even though he was in Italy, could not communicate with his lawyers. Further, as counsel for the wife has pointed out, the husband was due back in Asia on 14 April in any event. There is no adequate explanation for the non-compliance.

12. Secondly, I consider the extent to which the husband has complied with orders.

13. The impact of the non-compliance with orders relating to the court’s management of this case includes an impact upon the ability of the court to properly prepare for the hearing of the case, particularly in the circumstances where a very limited time frame is given by way of an indulgence to the husband. In many cases, a five day delay in filing documents may not be critical but in this case, an indulgence had been given with a short time frame from when the hearing was to take place. Case management directions are not just for the convenience of the parties. The husband now wishes to rely upon quite voluminous material given that his most recent affidavit also seeks to rely on an affidavit filed 16 February 2018 and it is of some 196 pages. The court may have had time to consider that material had the directions been complied with but the husband must bear the responsibility for eliminating that opportunity.

14. More generally, it is at the heart of this case and an agreed fact, that orders that were made for the husband to pay periodic spousal maintenance have not been complied with since May 2017 and orders for him to pay outgoings on the matrimonial home at Suburb B and in particular the mortgage, haven’t been complied with since October/November 2017.

15. Thirdly, in relation to the issue of costs, obviously the costs thrown away by the wife in these proceedings is not something for which the wife is likely in the short term to easily be compensated, particularly, in circumstances where the husband has failed to comply with the order for spousal maintenance for almost a year and failed to comply with the order to keep the mortgage on the Suburb B property up to date which has led to a position where the wife has now been forced to agree to a sale of that property. The husband currently has control over whether or not he pays any costs order that is made.

16. For those reasons, I intend to dismiss the husband’s application under rule 11.03 and, accordingly, the effect of rule 11.02(1) is that the filing of the reply and the affidavit was of no effect. As I have already noted, the notation that I made in paragraph 1 of my orders and notations of 11 April 2018 indicated I would not otherwise deal with any application that was contained in the Application in a Case of 16 February 2018 and that application shall be dismissed.

17. I shall make those orders sought in the wife’s Response to an Application in a Case filed 6 June 2018, to which the husband agrees. There is agreement in relation to the wife appointing a solicitor and an agent for the sale and for the price of the sale to be agreed upon between the parties but in default to be determined by the single expert who had previously valued the Suburb B property in these proceedings. There is also agreement about how some of the proceeds of the sale are to be disbursed.

18. I shall reserve my judgment on the balance of the outstanding contested applications.

I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 30 April 2018

Associate:

Date:  20.6.18