Argyle and Argyle (No 2)

[2010] FamCA 1082

FAMILY COURT OF AUSTRALIA

ARGYLE & ARGYLE (NO. 2) [2010] FamCA 1082

FAMILY LAW – PROPERTY – Sale between trial and judgment – Interim Distribution

APPLICANT: Ms Argyle

RESPONDENT: Mr Argyle

FILE NUMBER: PAC 811 of 2007

DATE DELIVERED: 15 October 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 15 October 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

Orders

1. That the Registrar of this Court forthwith upon presentation of the contract for sale and these Orders execute the contact for sale in its current form.

2. That orders be made in accordance with paragraphs 2 and 3 of the Minute of Order handed to the Court today by the solicitors for the wife, herein set out as follows:

   2.That upon completion of the sale of the property pursuant to Order 1 above the parties cause the proceeds of sale to be paid in the following manner and priority –

   2.1.to pay the agent’s commission on and expenses associated with the sale;

   2.2.to pay the solicitors’ legal costs and disbursements relating to the sale;

   2.3.to pay to Perpetual or as Perpetual directs the loan secured by the mortgage and Perpetual’s legal costs and disbursements of and incidental to discharge of the mortgage;

   2.4.in payment of monies owing to the New South Wales Crimes Commission pursuant to consent orders made in the Supreme Court of New South Wales Common Law Division on […], 2008 in proceedings no. […];

   2.5.to pay to Rowlandson & Co Solicitors (wife’s solicitors) the sum of $14,300.00 (pursuant to Order 5 of Orders made 11 June, 2010);

   2.6.to pay to the husband the sum of $85,700.00 (pursuant to Order 6 made 5 February 2010 and Order 5 made 11 June 2010);

   2.7.to pay to the wife the sum of $100,000.00 (pursuant to Order 6 made 5 February 2010); and

   2.8.to pay the balance then remaining into a controlled money account to be operated by the wife’s solicitors on behalf of the wife and, on behalf of the husband, a solicitor nominated by the husband who within 7 days from the date of these Orders indicates his or her acceptance to act in that capacity, or, in default of such nomination or indication, the wife’s solicitors. The monies shall be held in such controlled money account in the name(s) of those solicitors as trustee(s) for the parties.

   3.That in the event that either party shall fail, neglect or refuse to execute any deed, instrument or document to give validity and effect to these Orders and upon the other party filing an affidavit setting out such failure, neglect or refusal then a Registrar or Deputy Registrar of the Parramatta Registry of the Family Court is hereby appointed pursuant to Section 106A of the Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.

3. That the wife’s costs of today be reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAC 811 of 2007

MS ARGYLE

Applicant

And

MR ARGYLE

Respondent

REASONS FOR JUDGMENT

Background

1. This matter was mentioned by telephone before me, on 30 September, when I was sitting in Dubbo. On that occasion I stood the matter over until today.   This was done largely, if not solely, to enable the husband to pursue a number of avenues that might enable him to prevent the sale proposed by the wife and acquire the property himself.  He was to make material available today that would evidence the attempts he had made and the prospects of obtaining finance.  This he has not done. 

2. The matter has a somewhat unusual history.  Orders were made by me on 5 February this year in relation to a sale of the property at W on certain terms and conditions.  The husband clearly does not consent to those orders and clearly has opposed them at all times.  My orders were the subject of an application for leave to appeal out of time which was unsuccessful.  The matter was back before me on 11 June 2010 when a Mr Neagle, solicitor, appeared for the husband. Various applications made by the husband were dismissed on that occasion.  Further orders were made for the husband to pay costs.  Payment was to be effected by deducting the amount ordered from the amount the husband was to receive on completion of the sale of the property, as provided for in order (6) of Orders made 5 February 2010. 

3. The wife had the matter relisted on this occasion to seek specific orders to enable the sale of W property to proceed in an orderly manner. A minute of the orders sought by her was made available to me today.  I note from the material (which I will identify shortly) that there has been a significant drop in the asserted value of the property.  When Orders were made on 5 February 2010, and before the Full Court, it was indicated that the property had a value of approximately $2,300,000 to $2,500,000.  Now I am told that the best price currently available for the property is $1,800,000.

The Affidavit Material

1. The affidavit material in support of the present application is:

   ·Affidavit of Mr MR sworn on 28 September and filed on 30 September,

   ·Affidavit by Mr TP, sworn on 29 September and filed on 29 September, and

   ·Affidavit by Mr TP, sworn on 12 October and filed 13 October.

The Wife’s Case

1. What is sought before me today are specific orders to enable the marketing of the subject property.  The second affidavit by Mr TP, that is, the affidavit that was sworn by him on 12 October, clearly discloses that there are purchasers who have indeed paid a 10 per cent deposit into the agent’s trust account. Those purchasers, I am informed, will withdraw from the sale unless something is done this week to achieve an exchange of contracts.

2. Accordingly, I am asked to make orders that enable that to occur. The orders that are sought require the parties to do all acts and things and sign all necessary documents to enable an exchange of contracts to be effected, and to ensure that upon completion of the sale moneys received from the purchasers are to be dispersed in accordance with various orders made by the Full Court of the Family Court and by this Court.  In the event that the husband does not sign the required document, I am asked to make an order to allow the Registrar of this Court to sign the document on his behalf.

Discussion

1. The contract for sale that would enable an exchange and subsequently, one would trust, completion of the sale of the property is present in Court today; indeed, I have it in my hand.  It has been shown to the husband, who has made complaints initially that it was done without knowledge of his solicitor.  I would point out that on the front page of the document it is prepared by a solicitor he agreed to.

2. In all the circumstances, I consider that the husband’s behaviour has been nothing more than an attempt to prevaricate and postpone the inevitable.  I am satisfied that there is absolutely no prospect of success in any of the actions that husband has asserted he has undertaken (or will undertake if given more time) and which he has endeavoured to explain to me in some detail, in an attempt to prevent the sale and possibly allow him to acquire the property himself.  This has resulted in further delay and unnecessary cost and expense to the wife.

3. Noting the latest interruption from the husband, I am satisfied on the evidence of Mr TP that the sum of $1,800,000 is the best price achievable on the present market, following the proper testing of that market as to the correct sale price for this property.  The husband, having been given the opportunity to execute the contract for sale, with the sale price of $1,800,000 and having refused to do so, I will order that the Registrar of this Court forthwith, upon presentation of the Contract for sale and my Orders made this day, execute that Contract for and on behalf of the husband. 

4. I will make further orders in relation to the manner in which the proceeds of sale are to be disbursed and otherwise held upon completion of the sale.  Such orders are made for clarity and ease of understanding.  The do no more than set out with precision, in one set of orders, the manner in which the sale proceeds are to be dealt with as provided for in earlier orders of this Court. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 15 October 2010.

Associate: 

Date:  1 December 2010