FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bagsby & McIntyre [2021] FedCFamC2F 201
File number: MLC 516 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – final property – undefended hearing – where court is satisfied respondent is aware of proceedings – transfer of respondent’s interest and right in property – resulting trust – failed joint venture – constructive trust. Legislation: Family Law Act 1975 (Cth), ss 4AA, 90SF, 90SL, 90SM, 106A Cases cited: Baumgartner v Baumgartner (1987) 164 CLR 137
Black & Kellner (1992) FLC ¶92-287
Calverley v Green (1984) 155 CLR 242
Dyer v Dyer (1788) 2 Cox 92
Muschinski v Dodds (1985) 160 CLR 583
Weir & Weir (1993) FLC ¶92-338
Division: Division 2 Family Law Number of paragraphs: 50 Date of hearing: 23 September 2021 Place: Melbourne Solicitor for the Applicant: Verduci Lawyers Solicitor for the Respondent: No Appearance ORDERS
MLC 516 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BAGSBY
Applicant
AND: MR MCINTYRE
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.It is declared that the Respondent holds his interest in the property at B Street, Suburb C ("the property") on trust for the benefit of the Applicant.
2.The Respondent forthwith transfer to the Applicant all his right title and interest in the property to the Applicant ("the transfer").
3.Contemporaneously with the transfer, both parties do all acts and things and sign all necessary documents to cause the mortgage debt encumbering the property to ANZ Bank (Registration number …) to be refinanced, discharged and replaced with a mortgage in the sole name of the Applicant, save that the Applicant is at liberty, with the agreement with the mortgagee, to retain the existing mortgage security but provided that the Respondent is discharged from any and all liability pursuant to that mortgage .
4.If the Applicant cannot refinance the existing mortgage debt within a period of 120 days, or the transfer of the property cannot occur during this period for any reason, then the Applicant is appointed as trustee in order to effect the immediate sale of the property for the best price reasonably obtainable and that such sale occur either by way of private treaty or public auction as determined by the Applicant.
5.In order to give effect to these Orders the Applicant as Trustee (at her expense):
(a)Cause to be prepared a contract of sale for the property;
(b)List the property for sale by private treaty or public auction with any real estate agent she so desires (Agent);
(c)Execute all documents requested by the Agent for the sale of the property;
(d)Shall fix the listing price for private sale or the reserve price for any price recommended by the listing Agent in writing;
(e)Shall be entitled to accept any offer made to purchase the property within 10% of the Agent's recommended sale price or reserve price set for auction.
6.Upon the sale…
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CaseChat Overview and Summary
The legal issues before the court included whether the respondent held his interest in the property on trust for the benefit of the applicant, the appropriate division of the property, and the handling of the mortgage debt. The court needed to consider the nature of the failed joint venture and whether a constructive trust should apply. Additionally, the court had to decide on the procedures for refinancing or selling the property if the applicant could not meet the 120-day deadline for refinancing the mortgage.
In its reasoning, the court found that the respondent did indeed hold his interest in the property on trust for the benefit of the applicant. The court was satisfied that the respondent was aware of the proceedings and the implications of the joint venture's failure. The court ordered that the respondent transfer all his right, title, and interest in the property to the applicant. If the applicant could not refinance the mortgage within 120 days or if the transfer could not be completed for any reason, the applicant would be appointed as trustee to sell the property. The sale proceeds would be distributed after covering the agent's commission, mortgagee's dues, and legal expenses, with the balance payable to the applicant. The court also directed that any joint tenancy in any real or personal estate be severed, and each party bear their own costs.
Orders
Orders of the court
MLC 516 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BAGSBY
Applicant
AND:
MR MCINTYRE
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1. It is declared that the Respondent holds his interest in the property at B Street, Suburb C ("the property") on trust for the benefit of the Applicant.
2. The Respondent forthwith transfer to the Applicant all his right title and interest in the property to the Applicant ("the transfer").
3. Contemporaneously with the transfer, both parties do all acts and things and sign all necessary documents to cause the mortgage debt encumbering the property to ANZ Bank (Registration number …) to be refinanced, discharged and replaced with a mortgage in the sole name of the Applicant, save that the Applicant is at liberty, with the agreement with the mortgagee, to retain the existing mortgage security but provided that the Respondent is discharged from any and all liability pursuant to that mortgage .
4. If the Applicant cannot refinance the existing mortgage debt within a period of 120 days, or the transfer of the property cannot occur during this period for any reason, then the Applicant is appointed as trustee in order to effect the immediate sale of the property for the best price reasonably obtainable and that such sale occur either by way of private treaty or public auction as determined by the Applicant.
5. In order to give effect to these Orders the Applicant as Trustee (at her expense):
(a) Cause to be prepared a contract of sale for the property;
(b) List the property for sale by private treaty or public auction with any real estate agent she so desires (Agent);
(c) Execute all documents requested by the Agent for the sale of the property;
(d) Shall fix the listing price for private sale or the reserve price for any price recommended by the listing Agent in writing;
(e) Shall be entitled to accept any offer made to purchase the property within 10% of the Agent's recommended sale price or reserve price set for auction.
6. Upon the sale of the property, the sale proceeds be distributed as follows:
(a) Payment of the Agent's commission and advertising expenses and the legal expenses of the sale;
(b) Payment of any money due and owing pursuant to the mortgagee;
(c) The balance to be paid to the Applicant.
7. Other than as set out in these orders the parties have the sole right title and interest in any other property which is at the date of these orders in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
8. The Respondent and Applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to these orders.
9. The Applicant be and is authorized to execute such deed or instrument or authority that relates to the property and/or the mortgage … in the name of the Respondent and to do all acts and things necessary to give validity to the operation of such deed or instrument or authority and, in order to give effect to these orders (if necessary), the Applicant is hereby appointed to execute:
(a) The Transfer of Land for the property, causing the property to be transferred to the Applicant's sole name;
(b) Discharge Authority for the mortgage secured against the property; and
(c) The client authorisation form and the State Revenue Office Duties form in the name of the Applicant and the Respondent in order to satisfy any online requirements to complete the transfer.
(d) Any other necessary documents relating to the property.
10. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;
(b) Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c) Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(d) All insurance policies are to become the sole property of the owner as named;
(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f) Any joint tenancy of the parties in any real or personal estate is expressly severed.
11. Each party bear their own costs.
AND THE COURT NOTES THAT:
A. Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
B. The solicitor for the Applicant agreed to serve a copy of these orders by registered post on the Respondent.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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