Argyle and Argyle and Ors

[2010] FamCA 1100

FAMILY COURT OF AUSTRALIA

ARGYLE & ARGYLE AND ORS [2010] FamCA 1100

FAMILY LAW – PROPERTY – Sale between trial and judgment
FAMILY LAW – INTERVENTION –Third Party

Family Law Act 1975 (Cth)

APPLICANT: Ms Argyle

RESPONDENT: Mr Argyle

1^st INTERVENOR: Mr Matthews

2^nd INTERVENOR: Mr Bruce

3^rd INTERVENOR: Ms Bailey

4^th INTERVENOR: E Law Firm

FILE NUMBER: PAC 811 of 2007

DATE DELIVERED: 23 November 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 23 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Rowlandson & Co

COUNSEL FOR THE RESPONDENT: Self Represented

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE 1^ST INTERVENOR No appearance

SOLICITOR FOR THE 1^ST INTERVENOR Antwan Lawyers

COUNSEL FOR THE 2^ND  INTERVENOR No appearance

SOLICITOR FOR THE 2^ND  INTERVENOR Antwan Lawyers

COUNSEL FOR THE 3^RD INTERVENOR Mr Ash

SOLICITOR FOR THE 3^RD INTERVENOR Medcalf Grand Lawyers

COUNSEL FOR THE 4^TH INTERVENOR Mr Jackson

SOLICITOR FOR THE 4^TH INTERVENOR E Law Firm

Orders

1. That leave be granted to Mr E to intervene in these proceedings. It is noted that Mr E has indicated that the amount he will seek in the Final Hearing of this matter is $11,000.

2. That Ms Bailey do all things and execute all documents required to remove any caveat, charge or encumbrance over or effecting W property (“the property”), so as to enable a settlement of the sale of the property to take place.

3. That upon such settlement, in addition to amounts already ordered to be paid pursuant to orders of this Court, the vendor shall direct payment of the sum of $45,000 to the said Ms Bailey, or as she shall in writing direct.

4. That in lieu of the amount of $85,700 that the husband was to receive pursuant to Order 6 of this Court, made 5 February 2010, subsequently amended by Order 5 of this Court made 11 June 2010, the husband shall be paid the sum of $40,700.

5. That by Monday 29 November 2010, parties will be notified in writing of the time and date of a Conference with a Registrar of this Court. Such Conference shall occur no less than 14 days from the date on which notice is given.

6. That the costs of all parties of today be reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 811 of 2007

MS ARGYLE

Applicant

And

MR ARGYLE

Respondent

And

MR MATTHEWS

First Intervenor

And

MR BRUCE

Second Intervenor

And

MS BAILEY

Third Intervenor

And

E LAW FIRM

Fourth Intervenor

REASONS FOR JUDGMENT

Background

1. This matter comes before me today to determine what is to be done in respect of various creditors who made claims against Mr Argyle, the husband in these proceedings.  A series of orders have been made by me in this Court for the sale of a property at W and for the distribution of the proceeds of sale of that property.

2. The first set of orders in this regard, made on 5 February 2010, effectively provide that:

   ·    The property was to be sold;

   ·    On settlement all the usual expenses for solicitor and agent were to be paid;

   ·    An amount was to be paid to the outgoing mortgagee;

   ·    An amount was to be paid to the New South Wales Crimes Commission;

   ·    Of the amount then arrived at, $100,000 was to be paid to each of the husband and wife;

   ·    The balance then remaining was to be placed in a controlled money account operated by solicitors for the parties.

3. Subsequently, the matter came before Boland J in the Full Court. The application before Her Honour was for leave to appeal out of time against my orders of 5 February 2010. On 27 May 2010 her Honour refused that application and therefore the appeal was not proceeded with.

4. The matter was back before me on 11 June 2010.  On that occasion, I dismissed a number of applications by the husband.  I made further orders for the distribution of the proceeds of sale of the property.

5. The matter was before me on 15 October 2010.  On that occasion I made an order for the immediate execution of a contract for sale to enable a sale to proceed, and I made further orders as to how the monies received on settlement were to be received and dealt with.

6. On 15 October 2010, contracts for sale were exchanged.  The matter is now approaching the date upon which it is to be completed. 

7. Mr E, solicitor, has now sought leave to intervene in these proceedings.  I will grant him that leave. 

Discussion

1. There have now come to the notice of the Court in all some four persons who allege that the husband owes them money.  They each seek payment from the husband’s property entitlements as determined by this Court in a final hearing.  In the case of Ms Bailey, to whom I will refer shortly, an amount is sought to be paid from an amount the husband is, pursuant to orders, entitled to receive on settlement. 

2. Ms Bailey obtained a judgment in the Supreme Court of New South Wales in Equity, that judgment being entered in September 2010.

3. I have now been given a calculation by Mr Ash, who appears on behalf of Ms Bailey (and which I accept) that the amount that is outstanding under that judgment at the present time is some $80,361.90 which I have rounded for the purpose of these proceedings at $80,361.

4. There is also an unsecured component of the loan claimed by Ms Bailey to be owed to her by the husband.

5. In addition, there are amounts alleged to be outstanding to Mr Bruce of $42,000; to Mr E of $35,000 (Mr E indicated he would only seek to pursue a sum of $11,000) and to Mr Matthews of $65,000.

6. It seems to me that there is no immediate difficulty in dealing with the unsecured debts.  Each of the persons claiming has, or will be, joined as interveners in the proceedings.  At the final hearing of this matter (and I will do my very best to bring this matter on for hearing as soon as possible) they will each have the opportunity to prove their respective claims, and establish the priority for payment of those claims.

7. Of more concern, particularly today, is the amount secured by caveat by Ms Bailey, being the amount due under the Supreme Court judgment to which I have already made reference.  It is put with some force by Mr Ash that I should simply order the whole of the secured amount be paid from the amount that the husband is to receive on completion of sale.  That amount pursuant to order 2.6 of 15 October 2010 is $87,500.

8. Mr Ash has in discussions with me, whilst not consenting, conceded that I can order a lesser amount be paid on settlement from that fund, the balance then remaining to be proved in priority on the final hearing.

9. I am satisfied that an amount needs be paid to Ms Bailey, at least on account of her secured debt, to enable her to be satisfied that it is proper and appropriate that she withdraw any caveat. As Ms Bailey is now a party to the proceedings, I am satisfied that I am able to make an order against her, requiring her to sign all documents necessary to withdraw a caveat or encumbrance or charge on the property that may prevent the sale of the property proceeding, and I will do so.

10. I am satisfied that an appropriate amount to be made available to Ms Bailey on settlement is the sum of $45,000. That means there will be a balance to be taken into account the time of the final hearing. Further, the effect of an order for payment of such an amount will mean that the amount that the husband is to receive will be accordingly reduced. Thus, the amount the husband will receive is as follows, the amount previously to be received by the husband was $85,700 by operation of order 2.6 of 15 October 2010.  The amount to be paid to Ms Bailey from that amount of $85,700 leaves a balance of $40,700 which is the amount the husband will now be entitled to receive on settlement.  That of course means that there will be a balance owed to Ms Bailey in respect of the judgment debt to be taken into account at final hearing.

11. Thus the husband will receive at, or immediately following, settlement an amount of $40,700. 

12. I reserve the costs of all parties of today.

13. I will make orders accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 23 November 2010.

Associate: 

Date:  2 December 2010