Adamson and Fuller and Anor

[2017] FamCA 623

FAMILY COURT OF AUSTRALIA

ADAMSON & FULLER AND ANOR [2017] FamCA 623

FAMILY LAW – PROPERTY – enforcement – where orders are made by consent of the parties for the sale of a property with requirements as to the fixing of a “listing price” to be done through an unnamed delegate, the parties cannot later complain if the delegate does not do what they wish – where the orders provided for a party to seek for the court to deal with “terms and conditions” of the sale, that did not enable the disgruntled litigant after the delegate had had a contract of sale signed by a potential purchaser, to then start negotiating – applicant within her rights to seek that the contract of sale be signed notwithstanding the respondent offers more money but on a conditional basis – contract of sale executed at court.

Family Law Act 1975 (Cth)

APPLICANT: Ms Adamson

1ST RESPONDENT:	Mr Fuller
2ND RESPONDENT:	Ms B Adamson

FILE NUMBER: MLC 5740 of 2016

DATE DELIVERED: 21 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mansfield

SOLICITOR FOR THE APPLICANT: Kennedy Partners

THE 1^ST RESPONDENT: In Person

COUNSEL FOR THE 2^ND RESPONDENT: Ms Moran

SOLICITOR FOR THE 2^ND RESPONDENT: Kenna Teasdale Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

Orders

1. That all parties have liberty to apply concerning the settlement of the sale of the C Town property on short notice.

2. That all outstanding applications are adjourned to 8 September 2017 at 10.00am.

3. That the respondent is restrained by injunction from attending the premises at D Town other than in accordance with paragraph 7 of the orders made in December 2016.

4. That the applicant file and serve an amended application by 4.00pm on 28 August 2017.

5. That the respondent file and serve an amended response by 6 September 2017 together with any response to the applicant’s application in a case and any affidavit in support thereof.

6. That the costs of the applicant are reserved.

7. That the reasons for this day concerning the sale of C Town be delivered as soon as practicable.

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 Adamson & Fuller 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 MELBOURNE

FILE NUMBER: MLC 5740  of 2016

Ms Adamson

Applicant

And

Mr Fuller

1^st Respondent

And

Ms B Adamson

2^nd Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Two issues were raised by an application in a case filed by Ms Adamson (the applicant) on 17 August 2017 seeking orders against her former partner Mr Fuller (the respondent). They were:

   (a)      Should the respondent be ordered to sign (or there be some alternative system of completion of) a contract for the sale of the parties’ property at C Town; and

   (b)      Should the respondent be restrained from entering certain apartments at D Town which he would otherwise be entitled to attend with the parties’ children.

2. In respect of (a), an explanation is necessary for the outcome under which, the respondent signed a contract for the relevant sale. Had he refused to do so, the Court would have made other orders.

3. No explanation is necessary in respect of (b) because the applicant decided not to pursue that order immediately but I understand her position is that it will be pursued on the return date.

4. The application was listed urgently having been so assessed by the registrar. Consistent with the Court’s policy, it was listed only giving the respondent a limited amount of time to attend let alone file any responding material. Thus, the Court had limited evidence which could neither be tested nor responded to. Having said that, much of the evidence was not controversial. The assessment of whether the evidence justifies the orders will be the focus of the reasons about (a) but the context will include (b).

5. In this case, there is a second respondent who is the mother of the applicant. She has sought that she be repaid $400,000. That issue was not a matter to be determined in this interlocutory hearing but it became relevant because the second respondent has an interest in one of the D Town apartments. Similar to the applicant, not opposition was suggested to the position adopted by the applicant about not pursuing an absolute exclusion of the respondent.

6. The substantive proceedings relate to both parenting and property issues.

7. Having regard to the nature of the interlocutory dispute in (a), the application of each party for final remedies or relief is very important.

8. The usual background of the parties does not assist in this immediate determination.

9. The starting point is that the applicant filed her initiating application on 23 June 2016. She amended her proposed orders on 5 December 2016. It is sufficient to say that in respect of financial matters she sought that:

   ·Apartment 1 in D Town be transferred to her mother;

   ·The respondent transfer a German motor car to her;

   ·The subject property at C Town be sold and after paying the usual outgoings, her mother be repaid $400,000 and she have the remained.

10. Although not an order altering property interests, the applicant sought the respondent retain certain corporate interests.

11. Critical to the applicant’s application is the third dot point in [9] above because she was indicating she did not wish to keep the real property.

12. The respondent has not filed any response to that amended application and as the court file stands, he seeks financial orders that:

    ·That there be Orders adjusting the parties’ property interests that the Court deems to be just and equitable, pursuant to section 79 of the Family Law Act 1975 (Cth).

    ·The Respondent otherwise be excused from particularising the final Orders he seeks pending the full disclosure from the Applicant.

13. He also sought not to commit himself to what parenting orders he wanted “pending the release of a family report”. Why that was necessary was not said but it seems odd that a parent who has had a significant role in the lives of his children would defer making a decision about what he wanted until he had some expert advice.

14. In relation to the second dot point in [12], I have underlined the words he used but when asked, he said he did not want any documents from the applicant. It will therefore be seen that there was no apparent specificity of orders to enable the court to determine the parameters of the dispute. The parties had attended the Court previously so one wonders what they were negotiating about if anything.

15. What may be concluded from the way the respondent put his application for substantive relief was that he was not apparently seeking to retain C Town.

16. That concept is reinforced by what happened when the parties attended court on 15 December 2016. Each was represented by counsel. At the end of the day, Johns J was asked by the parties to make orders. Interestingly, the respondent who is now without legal representation said that it was a pressured day and there were scrawled pieces of paper and he was asked to commit to them. Indeed, he signed them. His position was that time had passed and things had happened but he could not point to anything to say that there was agreement to change the relevant orders made that day. They are enlightening in the context of the immediate dispute.

17. Para [9] of the orders provides for the sale of C Town forthwith. It provided for the appointment of an agent by agreement and in default of agreement, the parties were to request the President of the Real Estate Institute to appoint an agent for them. Then this appears:

    [d].The husband and the wife will ensure that the [C Town] property is marketed for sale by private treaty or by public auction, as may be recommended by the agent, within 14 days of the agent’s appointment at such listing price as the parties agree in writing and failing agreement as may be recommended by the agent.  (my emphasis)

    [e]The parties will accept any offer to purchase the [C Town] property made which is equal to or higher than 95% of the listing price unless the husband and wife otherwise agree in writing. (my emphasis)

18. The order went further and required the parties to execute the contract of sale and other documents (in a particular time frame) to ensure the purchaser did not obtain a right to terminate [9](f).  If damages and costs flowed from a party’s failure to comply, the defaulting party was responsible [9](g).

19. Notwithstanding my reservations about the delegation exercised under the order, the parties retained “liberty to apply” with respect to the “terms and conditions of the sale” [9](h).  No such application has been made about those terms and conditions.

20. The orders provided for the proceeds of any sale to be retained in trust.

21. It was the applicant’s evidence that by January 2017, agreement under the orders about the estate agent was not achieved and she activated the clause about the delegation.  In turn, the delegate took time but in May 2017, an estate agent was appointed.  That agent said the realisation price was $475,000 to $500,000 but suggested the “listing” of the property for $509,000.  The applicant asserted that the respondent agreed to the listing price.  Paragraph [9](d) was therefore activated.

22. On 1 August 2017, a purchaser offered $509,000 and then signed the contract of sale.  Paragraphs [9](e) was therefore activated.  Because of that activation, and absent any application to the court to somehow alter the terms and conditions of sale, the respondent was obliged to execute the contract of sale to avoid the purchaser rescinding it (paragraph [9](f)) because the applicant was willing.  The applicant had signed the contract of sale on 5 August 2017.  In my view, the paragraph of the orders relating to damages and costs has nothing to do with the obligations that each party had in relation to the sale.  The damages and costs clause related only to what would happen so that on a property hearing, the parties had fixed solution.

23. Ultimately, the respondent refused to sign the contract of sale.  The applicant said the contract of sale was sent to the respondent, a fact he agreed in court, was correct. 

24. Why then did the respondent resist or refuse to sign that contract of sale?  On 12 August 2017, the respondent “offered” by email to the agent to buy C Town for $515,000 but that “offer” was open “subject to valuation and approved loan by the lender”.  The respondent had no right to delay the execution of the contract of sale for the reasons set out but this “new” offer was not an offer at all because there was no provision for him to buy; no provision for him to obtain a valuation; nor a right to hold off the purchaser who had executed the contract of sale because of the reasons set out even if he had some notion of paying more than the listing price.

25. It is doubtful in my view whether the respondent could seek to alter the terms and conditions of the sale in any event because of the earlier terms [9](e) and (f).  The reference to terms and conditions must relate to matters up to the finalisation of the listing price [9](d) or how long the contractual terms relating to settlement could be.  I stress again that these were the parties’ arrangements.

26. Although the purchaser offered $509,000, he (or they) also said it was subject to a pest inspection; they could withdraw if somehow dissatisfied but, it will be remembered that paragraph [9](f) required that the parties ensure a purchaser who had otherwise signed a contract, did not have a right to terminate.  Thus, they were obliged once the contract of sale was executed by the purchasers to permit a pest inspection because the date of settlement had otherwise been fixed in the contract of sale. 

27. When the respondent declined to execute the proffered contract of sale, he wrote that the “price” set by the applicant was “appalling low”.  That was not only unfair, it was unreasonable in the context of paragraph [9](d).  It was not the applicant who set the price at all.

28. The respondent went on to say he would not be “bullied” and the proposed arrangement was not in the best interest of the children.  Thus, he ignored his own contractual obligations.  He did not do more than decline to participate in the sale putting himself in the position where paragraph [9](g) could have meant he would have been responsible for significant costs and damages.  That responsibility does not obviate the obligations he had under the orders. 

29. In my view, absent some other explanation from the respondent as to why he adopted the position he did, it was he who was failing to consider the lawful rights and interests of the applicant.

30. The applicant wanted to do everything to avoid allowing the purchaser to rescind.  Her evidence is that there was no other purchaser and the respondent did not say otherwise.  The only issue was whether the respondent could be treated as a competitor for the purchase but as his proposed terms were nothing short of a conditional offer, the applicant was entitled to adopt the view that there was a risk of losing the known and signed purchaser.

31. I gave the respondent an opportunity to explain how he could put $515,000 on the table and he equivocated.  My conclusion was that he intended to acquire C Town but only to offer to pay an amount equivalent to what he thought was that which the applicant would receive in a property settlement if the $515,000 was the figure used as the value.  That amount could only be known if there was a property settlement and as I have already observed, the respondent did not have an articulated or pleaded application for relief.

32. Whilst the respondent’s approach might have been practicable before this contract of sale had reached the point it had, I find the applicant was within her rights to bring the application on an urgency basis to seek that the contract of sale be completed by the respondent.  Her evidence was that unless a contract of sale was executed on the day of the hearing before the court, the purchaser “may” withdraw.  In my view, the applicant was entitled to be concerned about that risk bearing in mind that the best part of eight months had gone by without any proposed purchaser coming forward. 

33. I gave the respondent the opportunity to either sign or face the alternative of the court exercising the powers under s 106A of the Act being exercised.  He opted for the former.

34. To cure the uncertainty about the parameters of the parties’ dispute including whether the respondent also disputes the claim of the second respondent which seems to be admitted by the applicant, I have also made orders for proper and precise applications to be filed and for the matter to be reviewed on 8 September so that the respondent can file material in response to that of the applicant if he so wishes and for the applicant to decide whether she presses her application for the orders relating to D Town.

I certify that the preceding Thirty-Four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 August 2017.

Associate: 

Date:  21 August 2017