Olwyn & Olwyn [2010] FamCA 204 (12 February 2010)

[2010] FamCA 204

FAMILY LAW - Property - Enforcement of final orders

Family Law Act 1975 (Cth)

(1) That the wife forthwith attend to the removal from the real property situated at and known as K property in the State of Victoria ("the property") of all stock, plant, machinery and other items deemed unsightly ("unsightly items") by the real estate agent authorised to auction the property ("the agent") and in order to give force and effect to this order and without limiting its generality:

(a) the wife be at liberty to employ a locksmith or locksmiths and instruct him/her/them to remove and/or change whatever locks are necessary to enable her to access the property and any sheds or other buildings on the property in which stock, plant, machinery or unsightly items are stored, and the locksmith or locksmiths may do all things reasonably necessary to ensure the wife's access;

(b) the wife shall do everything necessary to remove from the property all stock, plant, machinery and unsightly items and may employ a person or persons to undertake the removal;

(c) the wife shall make all arrangements necessary to sell to M Metal so much of the stock, plant, machinery and unsightly items as M Metal is prepared to buy and the terms of the sale shall be in the absolute discretion of the wife and M Metal;

(d) the wife shall arrange for such stock, plant, machinery and unsightly items which cannot be sold to M Metal to be delivered to a public or private tip;

(e) all costs and expenses incurred by the wife to give effect to paragraphs (1)(a), (b), (c) and (d) hereof shall be deducted from the sum of $110,000 to be paid to the husband pursuant to paragraph (3)(e)(v) of the orders of 31 August, 2009 prior to payment to the husband;

(f) the wife shall account to the husband in writing in respect of the nett proceeds of sale to M Metal of items pursuant to paragraph (1)(c) hereof and the nett proceeds shall be paid to the solicitors for the wife and held in the husband's name on trust pursuant to these orders;

(g) as soon as practicable after the removal of all stock, plant, machinery and unsightly items from the property, the wife shall give the husband a key to each of the locks which have been replaced by a locksmith pursuant to paragraph (1)(a) hereof and, absent agreement to the contrary, do so by sending the keys by ordinary prepaid post to the husband's address for service; and

(h) in the event the husband is required to sign any document or do any act to give force and effect to the earlier provisions of this paragraph, a registrar of the Family Court of Australia in Melbourne is hereby appointed to execute all deeds and documents in the husband's name and do all acts and things necessary to give validity and operation to these orders :

(i) the husband in default is ordered to pay any and all foreseeable damages to the wife caused by the default; and

(ii) the husband in default is ordered to pay all reasonable costs incurred by the wife for the purpose of enforcing this order and proving her damages.

(2) That the husband pay to the wife her costs and disbursements of and incidental to the following applications :

(a) application filed by the wife on 21 October, 2009;

(b) application filed by the wife on 26 November, 2009; and

(c) application filed by the wife on 2 December, 2009;

and the quantum of such costs be as agreed or, failing agreement, be assessed pursuant to Chapter 19 of the Family Law Rules 2004.

(3) That from the sum due to be paid to the husband pursuant to paragraph (3)(e)(vi) of the orders made herein on 31 August, 2009 the sum of $10,000 be retained by the solicitors for the wife in the husband's name on trust pursuant to these orders.

(4) That upon agreement as to the quantum of costs or assessment, whichever occurs first, the costs payable by the husband to the wife shall be paid to her from the sums held in trust by her solicitor in the husband's name pursuant to paragraphs (1)(f) and (3) hereof, and any balance remaining shall then be paid to the husband.

(5) That the hearing date of 18 May, 2010 be vacated.

(6) That as soon as practicable the wife serve the husband with a sealed copy of this order by :

(a) delivering a sealed copy to the property and placing it in the letter box or, if the letter box has been removed, onto the property or as close to the property as can be achieved; and

(b) by sending it by ordinary prepaid post to the husband's address for service.

(7) That all extant applications be dismissed and removed from the List of matters awaiting finalisation.

(8) That the reasons for judgment this day be transcribed and copies made available to the parties.

(9) That the preparation of these orders be expedited forthwith.

(10) That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

1. That ..., real estate agents, are authorised to conduct an auction of the real property at ... am. on ... February, 2010.
2. That mail posted to the property is routinely placed in a post office box rather than delivered to the property.

IT IS NOTED that publication of this judgment under the pseudonym Olwyn & Olwyn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

1. The application before the court is for enforcement of final property orders made on 31 August, 2009 in proceedings between the wife, husband and their adult son, D Olwyn. Pursuant to those orders, the husband and wife were to "complete obtaining" title to land adjoining a property owned by them at K. Upon registration as proprietors, they were to sell both that land and the adjoining land. The orders contained a number of provisions. Paragraph (5) of the orders provided :

That in order to best present the [K] land and the adjoining land for sale the husband shall at his cost remove from the [K] land within 35 days of these orders all stock plant and machinery and any other unsightly items which the agent may deem appropriate.

1. Orders provided for the real property to be auctioned. A joint overdraft and joint business loans were to be discharged and accountant's fees were to be paid. The costs of obtaining title were to be reimbursed, tax consequent on the dissolution of a partnership of Olwyn & Olwyn was to be paid and the husband was to receive $110,000. The balance then remaining was to be divided between the parties.
2. On 16 October 2009, the husband's solicitors filed a notice of ceasing to act. On 21 October 2009, the wife filed an application in which she sought that a registrar be authorised to sign all documents necessary to effect the sale of K property and that she attend to cleaning up the property, as the husband had failed to comply with the provisions of paragraph (5) of the orders of 31 August, 2009 and had refused to do what was necessary to authorise an agent.
3. The wife also sought an order requiring the husband to vacate the property fourteen days prior to its auction, and an order for costs.
4. In support of her application, the wife filed an affidavit sworn by her on 19 October, 2009 and a second affidavit sworn on 5 November, 2009. She deposed to the husband's failure to clean up the property. He had agreed to an agent but had refused to sign an authority; it is her evidence that the bank was threatening to foreclose.
5. On 26 November, 2009 the wife filed another application in which she sought to dispense with service of her earlier application on the husband.
6. That application was supported by an affidavit sworn by the wife on 17 November in which she deposed to the husband's refusal to accept service. While the parties' daughter had spoken to a process server at the property and had read the documents, the husband had not accepted them. An affidavit of the process server, sworn 13 November, 2009 deposed to numerous attempts to serve the husband, and numerous conversations with the husband, in the course of which arrangements were made to deliver court documents, arrangements on which the husband reneged. He also deposed to the discussions with the parties' daughter, to which the wife had deposed. Finally, there is an affidavit of MC, sworn 1 December, 2009 in which she deposes to service on the husband by post on 27 November, 2009.
7. The court can find that the husband received the documents because he attended this court when the matter was listed before Bennett J. on 2 December, 2009. Mr Glover of counsel appeared for the wife and the husband appeared in person. The husband was ordered to file a notice of address for service. The wife's application was adjourned until 18 May, 2010 for further directions, subject to liberty to apply for the implementation of the final property orders of 31 August, 2009. It is probable the parties resolved the outstanding issues at that time and the adjourned date was fixed as a back-up, in case the agreement was not executed.
8. As required, the husband filed a notice of address for service on 2 December. His address for service is K property, the property in question. A mobile telephone number was provided.
9. On 1 February, 2010 the wife filed another application, being the one before me today, in which she sought that she attend to clearing the property as husband had still failed to comply with paragraph (5) of the orders of 31 August, 2009. She sought that he provide the keys to enable her to access the property, and that he pay the costs of the application and of the cleaning. In support of that application she swore an affidavit on 19 January, 2010. Today, an affidavit of service has been filed deposing to service of the application and affidavit in support on the husband, at his address for service, on 1 February, 2010.
10. The case was transferred from Bennett J's list to me, as a trial is running before her Honour. Her Honour's associate, I am informed, endeavoured to contact both parties to advise them of this fact. Staff spoke to the solicitors for the wife. The phone number provided by the husband was rung; it was turned off. Despite a number of attempts, staff could not contact the husband.
11. The documents served on the husband show the court date as 9:00 am. today. The husband has been called. He has failed to appear. I am satisfied orders should be made which will allow this property to proceed to auction in February, 2010, as envisaged when the final orders were made back in August 2009.
12. I will make orders in the terms proposed in paragraph (1) of the application, together with orders to give effect to those orders. In my judgment, there is no point in giving the husband further time to comply. That has been done on previous occasions; nothing happened. The husband refused to accept service of the previous process; the affidavit of the process server is a compelling document having regard to the many conversations, agreements and subsequent failure to comply. The auction is fixed for February, 2010; that is next week. The property must be cleared and made available for auction.
13. To enable the wife to attend to the clearing of the property, I propose to order that she be at liberty to engage locksmiths to do whatever is necessary to enable her to access the land and sheds on the property, and to attend to removal of stock, plant and machinery, and the other unsightly items. Without limiting the generality of the order, all metal or other material which is capable of being purchased by M Metal, can be sold to them. Other rubbish can be taken to a tip.
14. The costs of the locksmith, and of the clearing and disposal, will be deducted from the husband's share of the proceeds of sale. Any proceeds of the sale of metal to M Metal will go to the husband; the wife will need to account in respect of that. An order already allows a registrar to sign documents, but as I am concerned that might be construed as relating to an earlier order, I will make another section 106A order. The authority to the locksmith can be oral but the contact with M Metal may have to be in writing. If it does, it can be signed by a registrar. I will certify for counsel and my reasons for judgement will be transcribed.
15. I add that the court was advised that the husband is illiterate. Arrangements were in place to ensure documents before the court, on which the wife relied, could be read to him. The evidence before the court satisfies me that the husband has done his best to delay the sale of the property and has flagrantly breached obligations imposed on him by final property orders, against which no appeal has been filed. He has failed to appear. Illiteracy is a significant disability and one the court does not ignore. However, it does not provide justification for the husband's conduct, and lack of action, as found by the court.