Husband Opposes Interim Property Orders in Favor of the Wife

Philkin & Philkin (No 3) [2021] FedCFamC1F 224 (3 December 2021)

Interim property orders were made for the continued sole occupation and use of the FF Street property by the wife pending settlement or sale of that property.  The husband filed an application for a Stay of Orders made by the court on 16 September 2021.  The husband also sought an injunction restraining the parties from dealing with properties as provided for in earlier orders of the court.  The Court in deciding whether the application of the husband is with merit, relied upon each of the parties' evidence as well as the husband's disclosure of sought documents. 

Facts:

On 13 July 2020, the Court made interim property orders by consent (“the July orders”) in circumstances where both parties were legally represented.  Those consent orders dealt with the sale of the FF Street property; the HH Street property; and a further property, the 3 HH Street property, being a property in respect of which no injunction was sought by the husband in this proceeding.

The orders by consent provided for the mechanisms of sale, including the manner of appointing a selling agent; the determination of the selling list price; the sale price; the appointment of a solicitor or a conveyancer; and the application of the proceeds of sale.   The July orders also provided for the continued sole occupation and use of the FF Street property by the wife pending settlement or sale of that property; of the HH Street property by the husband pending settlement or sale of that property; and of the 2 HH Street property by the husband pending settlement or sale of that property. 

The solicitor for the Applicant husband (the husband) advised the Court, and the other party, that he intended to file an Application in a Case for leave to adduce further evidence, and that he intended to file a further affidavit, by the end of that day, to include correspondence from the solicitors acting for the Westpac Banking Corporation in its litigation against the husband. 

The husband did not file his affidavit material until 26 November 2021.  By 30 November 2021, the husband had not filed an Application in a Case.  The Court's chambers wrote to the parties and directed that the husband file and serve his Application in a Case by 5 pm Eastern Standard Time that day.

In the event he did not do so, then judgment would be delivered at 9 am on 1 December 2021.  

The husband filed his Application in a Case on 1 December 2021, at 11 minutes past midnight. 

The Court indicated thereafter that judgment delivery would again be delayed, but was required to further direct the husband to serve his material upon the other party by 2 pm on 1 December 2021, or judgment would be delivered. 

The husband’s Application in a Case for leave to adduce further evidence is, relevantly, evidence as contained in correspondence from VV Solicitors, lawyers acting on behalf of Westpac Banking Corporation in litigation against the husband (proceeding in the County Court of Victoria), to the husband’s lawyer in this proceeding, dated 23 November 2021. 

Upon the hearing of the application on 3 December 2021, the Respondent wife (the wife) did not oppose the introduction of that evidence, but made submissions as to such evidence, and tendered as evidence documents numbered 1-5 in a tender bundle of the wife. 

The submissions of Counsel for the wife were that the further evidence as adduced by the husband did not assist the husband’s case.  The orders made 16 September 2021 (“the September orders”) provided for the wife to have sole responsibility for the conduct of the sale of the FF Street property; the 2 HH Street property; and the HH Street property.  The husband unilaterally, as conceded by him, placed the 2 HH Street property on the market for sale without the knowledge of the wife and before the return date of his Application in a Case of 17 November 2021.

The husband, as also conceded by him, unilaterally engaged Z.R.E. to conduct the sale of 2 HH Street, notwithstanding the fact that the orders made on 16 September 2021 provided for the wife to have sole conduct of the sale and for RR Real Estate to be the appointed selling agent.  The husband ignored the operative orders and acted contrary to them.  The wife’s solicitors requested that Z.R.E. immediately suspend all conduct relating to the sale, including to remove their listings from the property forums.  The husband had not withdrawn his instructions to Z.R.E. and Z.R.E. continued to list the property for sale contrary to the orders of the Court.

By Application in a Case filed 19 October 2021, the husband sought for an injunction be granted restraining the parties from having any dealings with the subject properties except by agreement between the parties or until after proceedings relating to children’s matters have been finalised and the final hearing in relation to the property and financial matters has been finalised.  There is also a Notice of Appeal filed by the husband on 21 September 2021, being an application for leave to appeal interim property orders as made by me on 16 September 2021. In that appeal, the husband seeks as to one part that there not be a sale of a property as ordered which in this proceeding he seeks to sell as referred to hereafter.

The wife seeks that the husband’s Application in a Case filed 19 October 2021 be dismissed.  The wife seeks a costs order in respect of the hearings on 17 November 2021 and 3 December 2021.  The wife sought an enforcement warrant to issue, pursuant to rule 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) for possession of HH Street, Suburb F in the State of Victoria (“the HH Street property”) with other consequential orders.  The husband seeks a stay of the operation of the orders of 16 September 2021.

Issue:

Whether or not the husband's application is without merit

Applicable law:

Family Law Act 1975 (Cth) - whereby a registrar of the Melbourne Registry is appointed to execute all deeds and/or instruments in the name of the husband and do all acts and things to give validity and operation to the deeds and/or instruments.

Analysis:

The evidence demonstrates that the husband has acted to unilaterally market the 2 HH Street property, for the purpose of its sale, indeed a matter conceded by the husband.  The husband had no authority to engage Z.R.E. or flat fee conveyancing services being an alternate conveyancer engaged by the husband contrary to order 8 of the September orders. 

There are no court orders that permit the husband to act in the unilateral manner in which he has with respect to the sale of the 2 HH Street property and his actions were taken prior to his hearing for a stay of the Orders made on 16 September 2021.  The husband submitted that the 2 HH Street property had a value of in excess of $600,000 and that the mortgage encumbering the property was presently in the sum of approximately $260,000, leaving approximately $340,000 net proceeds of sale before deduction for various associated selling expenses. 

The husband asserted that the Bank would not take the totality of the net proceeds to reduce the current significant debt outstanding to it as secured by cross-collateral mortgages over the husband’s properties, and would allow the wife to receive the sum of $100,000.  However, there was no evidence before the Court to substantiate that assertion.  It was not conceded by the wife, and the wife was not optimistic about the Bank adopting the approach necessary to the formulation of the order proposed by the husband which included a payment of $100,000 to the wife.  The further evidence relied upon by the husband, being the 23 November correspondence, made no suggestion of any payment to the wife and indeed stated the contrary.  The husband has not cooperated in making necessary disclosure to the wife in providing transparency in respect of these matters, and his lack of cooperation continues.

Conclusion:

The Court ordered leave to the Applicant husband ( the husband) to adduce further evidence in the proceeding being email correspondence from VV Solicitors to the husband’s solicitor, Mr Jeff Thompson, dated 23 November 2021, as contained in the affidavit of the husband filed the 26 November 2021.  

The Application in a Case filed by the husband on 19 October 2021 is dismissed.  

Within fourteen (14) days from the date of these Orders, the husband is to file and serve a financial statement.  The husband should make a full and frank disclosure, at his expense, and provide the wife with copies of documents relevant to his financial affairs such as are requested by the wife’s solicitors within twenty-one (21) days of any such request.  Within fourteen (14) days of the making of these Orders, the parties do all such acts and things and sign all such documents as may be necessary to forthwith sell the property situate at FF Street Suburb F in the State of Victoria (“the FF Street property”) in compliance with Order (2) of the consent orders made by the Court on 13 July 2020. 

The wife shall be solely responsible for the conduct of the sale of the property up to and including settlement of its sale.  The husband be restrained from further dealing in any way with the sale of the property situate at 2 HH Street Suburb F in the State of Victoria.  In the event that the husband refuses or neglects to execute a deed and/or instrument in compliance with the provisions of these Orders, a registrar of the Melbourne Registry is appointed to execute all deeds and/or instruments in the name of the husband and do all acts and things to give validity.  

The husband pay the costs of the wife on a party-party basis fixed in the sum of $8,000.