Ashley & Isaacs

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Ashley & Isaacs [2023] FedCFamC1F 828

File number(s): SYC 5162 of 2022
Judgment of: CURRAN J
Date of judgment: 22 September 2023
Catchwords: FAMILY LAW – PROPERTY – interim hearing – where orders previously made by consent for the property of the parties to be sold – application in a proceeding seeking a party be prevented from purchasing the property of the parties – whether an injunction should be made to prevent a party from bidding on the property at auction – whether consent orders for sale of the property should be varied or set aside – whether the wife should be compelled to sign a contract for sale – where a mechanism for resolving disagreement has been ordered by consent –application in a proceeding dismissed
Legislation: Family Law Act 1975 (Cth) ss 80, 106A, 114
Cases cited:

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337

Chief Commissioner of State Revenue v Danny and Steven Keevil [2015] NSWCATAP 98

Re Ross Jones, Ex Parte Green (1984) 156 CLR 185

Division: Division 1 First Instance
Number of paragraphs: 65
Date of last submission/s: 22 September 2023
Date of hearing: 18 September 2023
Place: Sydney
Counsel for the Applicant: Mr Apelbaum
Solicitor for the Applicant: KMJ Family Law
Counsel for the Respondent: Mr Fermanis
Solicitor for the Respondent: Sage Solicitors

ORDERS

SYC 5162 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ASHLEY

Applicant
AND:

MR ISAACS

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

22 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed on 25 August 2023 is dismissed.

2.The Application contained in the Response to Application in a Proceeding filed on 11 September 2023 is dismissed.

BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:

3.On a without admissions basis, the Respondent Husband shall pay the interest payments on the B Pty Ltd mortgage as and when they fall due pending the discharge of that mortgage.

NOTATION:

A.Points of claim were to have been filed by 1 September 2023 and within 6 weeks thereafter points of defence are to be filed pursuant to the Orders made on 21 July 2023 by Deputy Chief Justice McClelland. Following the filing of same the parties will attend a private mediation.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication…

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Details
Case
[2023] FedCFamC1F 828
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) was asked to decide issues relating to the sale of property owned by Ashley and Isaacs, married parties. The wife sought to be appointed as trustee for sale of the property, for an injunction to prevent the husband from bidding at the auction, and that pending the sale he pay her $1,200 per week in rent. The husband sought that the orders made on 26 April 2023 be discharged, and that the parties sign a contract for sale of the property to him and his fiancé. The legal issues were whether an injunction should be made to prevent the husband from bidding on the property at auction, whether consent orders for the sale of the property should be varied or set aside, and whether the wife should be compelled to sign a contract for sale. The court found that the wife's application for an injunction should be dismissed, as the husband was not acting in bad faith, and the court found that there was no basis for varying or setting aside the consent orders for the sale of the property. The court found that the wife should not be compelled to sign a contract for sale, as the mechanism for resolving disagreements had already been ordered by consent. The application in a proceeding was dismissed, and the orders made on 26 April 2023 were to remain in force. The husband was ordered to pay the interest payments on the B Pty Ltd mortgage as and when they fell due pending the discharge of that mortgage.

Orders

Orders of the court

SYC 5162 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ASHLEY

Applicant

AND:

MR ISAACS

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

22 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed on 25 August 2023 is dismissed.

2. The Application contained in the Response to Application in a Proceeding filed on 11 September 2023 is dismissed.

BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:

3. On a without admissions basis, the Respondent Husband shall pay the interest payments on the B Pty Ltd mortgage as and when they fall due pending the discharge of that mortgage.

NOTATION:

A. Points of claim were to have been filed by 1 September 2023 and within 6 weeks thereafter points of defence are to be filed pursuant to the Orders made on 21 July 2023 by Deputy Chief Justice McClelland. Following the filing of same the parties will attend a private mediation.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The present matters for determination relate to competing applications in respect of the sale of the property. The competing applications are, in short, that the wife seeks she be appointed trustee for sale; that the husband be restrained from bidding at the auction if it proceeds; and that pending the sale he pays rent of $1,200 per week. The husband seeks that the orders made on 26 April 2023 be discharged and that the parties sign a contract for sale of the property to him and his fiancé.BACKGROUND On 26 April 2023, interim orders were made by consent as to the sale of the property and the terms for that to occur, in the following terms: 1. The parties forthwith do all acts and things and sign all documents necessary to list the property situated at and known as [C Street], [Town D], NSW, being the land in Certificate of Title […] and […] (‘the Property’) for sale. For the purposes of the sale the following apply:a. Within seven (7) days of the date of these orders, the parties shall appoint [Mr E] of [F Company] [Town G] as the agent with respect to the sale.b. Within seven (7) days of the date of these orders, the parties shall agree upon and jointly appoint a conveyancer with respect to the sale, and in the event that the parties are unable to agree upon a conveyancer within seven (7) days then:i.Within seven (7) days of the date of these orders the Respondent shall forward to the Applicant a list of three (3) conveyancers; andii.Within a further seven (7) days upon receipt of the list referred to in paragraph 1(b)(I) hereof, the Applicant shall select one (1) conveyancer from the list;iii.Within a further seven (7) days the parties shall jointly appoint the conveyancer selected by the Applicant to be the conveyancer with respect to the sale;iv.In the event that the Applicant does not comply with order 1(b)(ii) the respondent shall select one (1) conveyancer from the list and notify the Applicant and within a further seven (7) days the parties shall jointly appoint the conveyancer selected by the Respondent to be the conveyancer with respect to the sale;c. Within 14 days of the appointment of the real estate agent, the parties shall list the Property for sale by private treaty;d. Both parties are at liberty to liaise with the appointed real estate agent and all written communications, including but not limited to texts and emails, with the real estate agent are to be provided to both parties;e. All verbal communications between the parties with the real estate agent and the conveyancer are to be relayed to the other party as soon as practicable;f. The Applicant may elect to inspect the Property on two occasions prior to settlement of the sale on the following terms:i.The Applicant shall provide seven days notice to the Respondent of her inspection of the Property.ii.At the inspection of the Property the Respondent must not be present at the Property.iii.The Respondent may nominate up to three people to be present at the Property when the Applicant inspects the Property and the Applicant may select one person from that list and the Court notes that the parties agree that [Mr H] and [Mr J] are nominated persons for the purposes of this Order.iv.The Applicant must accompany the real estate agent or their nominee (if available) and the person nominated (subject to their availability) in accordance with subparagraph (iii) above to the inspection of the Property.v.In the event that no nominated person is available, the wife can attend the Property with the real estate or their nominee.g. If the Property remains unsold for a period of three (3) months, the parties are to do all acts and things and sign all documents necessary to list the Property for sale by public auction and for the purposes of the auction:i.The public auction shall take place no later than 60 days from the date that the property is listed for sale by public auction (which is 90 days from the date that the property was listed for sale by private treaty and remained unsold); andii.the parties shall as soon as practicable agree upon a reserve and failing agreement the parties shall set a reserve as nominated by the agent;iii.The parties shall as soon as practicable agree upon such other terms and conditions necessary for the purposes of the sale and failing agreement shall agree to such other terms and conditions as nominated by the agent; andiv.In the event that the highest offer receive at auction is within 10% of the reserve price, then the parties shall accept the offer.h. If the Property remains unsold after a period of one (1) month after the auction the property be listed at a price 5% less than the reserve price and thereafter 5% less than the reserve price on a monthly basis until sold;i. The parties shall cooperate in every way with the agent including but not limited to the following:i.Making the keys available to the agent;ii.Ensuring the Property is in a neat and clean condition including the grounds, gardens and lawns at the time of inspection by the agent and prospective purchasers and shall allow inspection of the property at all reasonable times as requested by the agent. j. The parties shall execute a Contract for Sale in the form prepared by the conveyancer. In the event the parties cannot agree on the terms of the Contract of the Sale then the terms recommended by the conveyancer will be adopted; andk. The parties shall execute all documents necessary to complete the sale within the time required by the Contract for Sale to ensure that the purchasers do not have the right to terminate or rescind due to failure to do so.2. Any funds spent on preparing the Property for sale are to be agreed upon between the parties in writing. 3. In the event that the real estate agent uses photographs prepared by [K Company] in respect of marketing the Property, the wife shall reimburse the husband as to 50% of the costs which the Court notes equates to $357.50.4. Pending the sale of the Property the parties are restrained from:a. Encumbering, mortgaging or otherwise dealing with the property; andb. Spending any sum greater than $1,000 on the Property each week, without the written agreement of both parties.5. Pending the sale of the Property the Respondent to pay as and when they fall due, the following outgoings referrable to the Property including the council rates, water rates, electricity, and the like. 6. The Respondent shall forthwith arrange insurance on the Property up until settlement of the sale of the Property and provide to the Applicant proof of same.7. On the sale of the Property the sale proceeds be applied in the following way:a. To pay the real estate agent’s commission, auction and advertising expenses and any other expenses payable on the sale;b. To pay the legal costs and outlays relating to the sale;c. In discharge of the registered mortgage (dealing number […]) to B Pty Ltd;d. To repay the lender the sum of up to $65,494.65 for funds that may be lent to the husband between the date of these orders and 31 May 2023 strictly on the following conditions:i.That the totality of the funds lent to the husband are applied to pay [B Pty Ltd] in respect of the unpaid interest owing on the loan from [B Pty Ltd] up to 30 April 2023.ii.That the husband provides to the wife, prior to settlement of the Property, written confirmation from [B Pty Ltd] of receipt of the funds in payment of interest.iii.That the husband provides to the wife a duly executed Loan Agreement between him and the lender.e. To provide the sum of $250,000 to the Applicant; f. To provide the sum of $250,000 to the Respondent; andg. The remaining funds to be held in a controlled monies account with Sage Solicitors.8. Upon receipt of funds pursuant to order 7, the Applicant shall reimburse to the Respondent half the costs paid by the Respondent to insure the Property and half the costs paid by the Respondent in relation to the property valuation of the Property dated [late] 2022.9. If after a written request from the other party, either party refuses or neglects to sign or execute and return a document when obliged to do so under this order, within seven (7) days of the request a registrar of the Federal Circuit and Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 to execute such document on behalf of that party.10. All extant interim applications be dismissed.11. There be no order as to costs with the intention that each party bear their own costs.MATERIAL RELIED UPONApplicant wife

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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