FAMILY COURT OF AUSTRALIA
| YILMAZ & YILMAZ AND ANOR | [2014] FamCA 663 |
| FAMILY LAW – S105 APPLICATION FOR ENFORCEMENT – application by the wife for enforcement of orders – consideration of the discretionary power of the Court to enforce orders pursuant to section 105 of the Family Law Act (Cth) 1975 – where the respondents’ defence of laches is not established – enforcement orders made in favour of the applicant wife. FAMILY LAW – s79A APPLICATION TO SET ASIDE ORDERS – consideration of the operation of res judicata and Anshun estoppel in family law proceedings – where the respondents are precluded from making an application to set aside orders by virtue of these principles. FAMILY LAW – ORDERS PURSUANT TO S102QB – where the respondents bring ‘vexatious proceedings’ – where the respondents pursue orders without reasonable grounds – where the conduct of respondents has caused delay and detriment to the applicant – orders made prohibiting respondents from instituting proceedings without leave of the Court. | |
| Family Law Act 1975 (Cth) ss 79, 79A, 105, 102Q, 102QB, 102QE, 117B Family Law Rules 2004 (Cth) rules 17.03, 20.07, 20.09 Limitation Act 1969 (NSW) s 17 | |
| Caska & Caska (2002) FLC 92-132 | ||
| APPLICANT: | Ms C Yilmaz | |
| FIRST RESPONDENT: | Mr A Yilmaz |
| SECOND RESPONDENT: | Ms B Yilmaz |
| FILE NUMBER: | (P)WOC | 532 | of | 2007 |
| DATE DELIVERED: | 13 August 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 21 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms DD |
| COUNSEL FOR THE SECOND RESPONDENT | Mr Kumar |
Orders
Mr A Yilmaz (1st respondent) and Ms B Yilmaz (2nd respondent) pay to Ms C Yilmaz (the applicant) the sum of $225,000 together with interest calculated on that sum in the manner specified in the order made 21 August 2002 subject to the following additions and restriction. Interest is not to be calculated for the period 2 October 2004 to 18 June 2007. Interest is to be calculated pursuant to Rule 17.03 of the Family Law Rules 2004, as and from the commencement of the operation of that rule (29 March 2004). Interest is to be…
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- AGLC
- Yilmaz & Yilmaz [2014] FamCA 663
- Case
- [2014] FamCA 663
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were: (1) whether the respondents were precluded from applying to set aside the existing orders by reason of *res judicata* or *Anshun* estoppel; (2) whether the defence of laches was established in relation to the wife's application for enforcement; and (3) whether orders should be made under s 102QB of the Act to restrain the respondents from instituting further proceedings without leave.
The Court found that the respondents were precluded from making an application to set aside the orders due to the principles of *res judicata* and *Anshun* estoppel. Furthermore, the Court determined that the defence of laches was not established by the respondents. Consequently, the Court made orders for the enforcement of the principal sum of $225,000, with specific directions regarding the calculation and payment of interest. The Court also made detailed orders for the sale of a property to satisfy the debt, including the appointment of a trustee for sale and the distribution of sale proceeds. Finally, pursuant to s 102QB of the Act, the Court prohibited the respondents from instituting further proceedings without leave, noting their history of vexatious conduct and the delay and detriment caused to the applicant.
Orders
Orders of the court
1.
Mr A Yilmaz (1st respondent) and Ms B Yilmaz (2nd respondent) pay to Ms C Yilmaz (the applicant) the sum of $225,000 together with interest calculated on that sum in the manner specified in the order made 21 August 2002 subject to the following additions and restriction. Interest is not to be calculated for the period 2 October 2004 to 18 June 2007. Interest is to be calculated pursuant to Rule 17.03 of the Family Law Rules 2004, as and from the commencement of the operation of that rule (29 March 2004). Interest is to be calculated pursuant to Order 40 Rule 1 of the 1984 Rules until 29 March 2004.
2.
The court notes the wording in order 2.2 contained in the “Consent Orders Under Section 79A Family Law Act 1975” made 21 August 2002 as: “daily interest at the rate set out in Order 40 Rule 1 of the Family Law Rules or, if a rate is not set under that Order, at the rate of 11.3 per cent per annum, calculated from 1 August 2002 until the date of payment.”
3.
The amount of interest owing on the principal sum, as specified in the previous order is to be calculated by a person, selected and engaged by the applicant, being a person carrying on business as an Accountant in the State of NSW. The interest is to be calculated to the date of this order and then there is to be calculated a daily amount which will accumulate as and from the date of the order until the date of payment. If a daily rate cannot be calculated then the accountant is to provide a formula which is capable of being applied by the parties to calculate the amount which will be needed to be paid to satisfy these orders albeit at a date later than the date of the order.
4.
The calculation of interest, as above ordered, is to be provided in a document by the selected accountant, and a copy filed in the Court. The applicant is also, at the time of filing the document, to serve that document upon each of the respondents by ordinary prepaid post, addressed to the last known residential address of each. Service is to be deemed to have occurred on the day the document is posted to each of the respondents.
5.
The respondents, or either of them, are to pay to the applicant all money payable under the orders made herein on or before the expiration of 28 days after service upon them of the document providing the calculation of interest on the principal sum as required by these orders.
6.
Upon the time expiring for the payment to be made by the respondents to the applicant pursuant to this order, the property at E Street, Suburb F is to be sold. The sale is to be conducted by a trustee for sale appointed by the applicant.
7.
The trustee for sale is to be a person, over the age of 18 years, and entitled to carry on business in the State of New South Wales as an accountant or solicitor, who accepts the appointment in writing where the document containing the written consent also contains the remuneration provisions for the trustee. The document is further to annex a copy of these orders. The document is to contain an acknowledgment by the proposed trustee that he/she has read the orders and the terms of the trust and is prepared to accept the appointment as trustee for sale of the subject property.
8.
The trustee for sale is hereby authorised to sell the property at E Street, Suburb F, being the land described in Folio Identifier …, (“the property”) for the best price reasonably obtainable. In the process of selling the property the trustee is empowered to take all steps reasonably required to sell the property including, but not limited to:
(a) Engaging real estate agents and/or auctioneers, on usual terms, to act for the trustee on selling the property;
(b) Engaging lawyers to act on the sale of the property;
(c) Taking all steps necessary to obtain a certificate of title for the property;
(d) Taking all steps necessary to have the title to the property transferred to the name of Ms B Yilmaz as sole registered proprietor, or to the name of the trustee as trustee for sale or any other registered proprietor which may be required in order to permit the trustee to be able to transfer title of the property into the name of a successful purchaser;
(e) Taking any other action which may be required to place the title to the property in a state where the property might be successfully transferred to an incoming purchaser;
(f) Taking whatever steps are necessary to gain vacant possession of the property for the purpose of selling the property (including applying to the Court for a writ of possession);
(g) Approaching the Court for any further orders which may be necessary to complete the sale of the property; and
(h) Incurring expense which may be necessary to place the property in a state of repair or presentation which is reasonably necessary to make the property capable of being inspected by potential buyers.
9.
Upon a sale being effected, the trustee is empowered to cause the proceeds to be paid as follows:
(a) Payment of all sale expenses including real estate agents commissions, and legal costs of sale;
(b) Payment of any costs incurred in preparing the property and the title to the property for sale;
(c) Payment of the fees to the accountant appointed pursuant to these orders to calculate the interest payable to the applicant pursuant to the Court's order;
(d) Payment of the fees charged by the trustee at the rate specified in the agreement entered into by the applicant with the trustee;
(e) Payment to the applicant of all money payable to her pursuant to these orders;
(f) Payment to the applicant of all monies owing to her pursuant to any cost order made in her favour against the respondents collectively or against Ms B Yilmaz, the 2nd respondent, solely; and
(g) (Subject to other orders made herein) Payment of any remainder to Ms B Yilmaz or as she may direct in writing.
10.
In the event two months (or such later time as the Court allows upon application by the wife) has not expired between the date of this order and the date for the distribution of funds to Ms B following the sale of the property, then the trustee is to hold any funds payable to Ms B for that period so as to allow the applicant to complete the assessment of her costs orders against Ms B.
11.
In the event that the respondents, or either of them, fail to pay to the applicant all monies due to her pursuant to these orders by the time specified in these orders, then within seven days of the due date for payment, they are to cause to be delivered to the Manager of the Sydney Registry of the Family Court of Australia the certificate of title for the property.
12.
In the event that the respondents, or either of them, fail to pay to the applicant all monies due to her pursuant to these orders by the time specified in these orders, then within 28 days of that date the respondents and each of them is to vacate the property and remain away from the property thereafter. In departing from the premises the respondents are to ensure the property is not damaged. They are further to ensure the property is left in a clean and tidy state upon their leaving.
13.
Within 14 days of receipt of notice from the trustee for sale appointed pursuant to these orders, the respondents are to cause to be delivered to the trustee at the address set out in the notice, a full set of keys to all locks in the property.
14.
Prior to the departure from the subject property the respondents, or either of them, are to take no action to impede any person attending upon the property at the instruction of the trustee for the purpose of preparing the property for sale.
15.
The applicant has leave to apply to the Court for any further orders as may be necessary to implement the orders herein made or to seek any further order which may be necessary to enforce the orders of the Court including those made herein. Such leave is to extend to the applicant applying for a writ of possession of the property at E Street, Suburb F.
16.
Upon the completion of the sale of the property at Suburb F, as required by these orders, or the payment to the applicant of all funds owing to her pursuant to these orders, whichever first occurs, the respondents or either of them may apply to the Court for discharge of any order which prevents them departing Australia. Such application may be made by providing a copy of same, without the necessity to formally file the application, to the Associate to Justice Le Poer Trench, Family Court of Australia, 97-99 Goulburn Street, Sydney NSW 2000. Upon the applicant confirming the sale of the property has completed, an order will be made by Justice Le Poer Trench in chambers discharging the court orders preventing the respondents from leaving Australia and a copy of such discharge provided to the respondents and to the Australian Federal Police.
17.
Within 14 days from the making of these orders the applicant wife is to provide to the Court by email addressed to … any submission to support the order for costs she seeks against the respondents or either of them. The applicant is to include the quantum of the cost order together with information showing how that figure is calculated. At the time of providing the submission the applicant is to serve a copy of the submission upon the respondents by sending a copy of same to any email address which might be available for them and by sending a copy by ordinary post addressed to each of the respondents at 2/E Street, Suburb F and E Street, Suburb F, respectively. Service will be deemed to be effected on the day of posting.
18.
Within 21 days of receipt of the applicant’s submissions each of the respondents is to send to the Court and to the applicant a submission in response which sets out the cost order sought by each respondent and also provides submissions stating why that order should be made.
19.
Pursuant to section 102QB of the Family Law Act 1975 (Cth) (“the Act”) each of Mr A Yilmaz and Ms B Yilmaz is prohibited from instituting proceedings under the Act (other than an appeal against the orders made herein or an application made pursuant to order 16 hereof) without first obtaining leave from a Judge of the Court.
20.
The Registrar is to ensure that all action which may be taken to alert the Court to the attempted filing of an application by either of the said Mr A Yilmaz and Ms B Yilmaz, without first obtaining leave from a judge to do so, is taken.
Background
Background to the litigation
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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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