Bale-Sutch and Bale-Sutch

[2011] FamCA 99

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH [2011] FamCA 99

FAMILY LAW – PROPERTY – Sale of property

Family Law Act 1975 (Cth)

APPLICANT: Ms Bale-Sutch

RESPONDENT: Mr Bale-Sutch

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 24 FEBRUARY 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barbayannis

SOLICITOR FOR THE APPLICANT: Wisewould Mahony Lawyers

THE RESPONDENT: In person

Orders

1. That paragraph 2 of the orders made on 17 September 2010 are varied such that each party forthwith sign the authority to Mr C of C & Co, … , in M for the purposes of him acting as sole agent in respect of the conditional sale referred to in the evidence of Mr C this day at a fixed commission of 3.3 per cent concerning the property at …, in K.

2. That if the said sale referred to in paragraph 1 hereof fails to become unconditional, the parties forthwith thereafter jointly reappoint C & Co and M Real Estate unless otherwise agreed, as agents in conjunction.

3. That for the purposes of paragraph 1, the parties forthwith sell the property on the terms and conditions as described in the evidence this day of Mr C.

4. That the application in a case and the response thereto are otherwise dismissed save that paragraphs 6 and 7 of the husband’s response filed 15 February 2011 are withdrawn.

5. That the husband’s oral application for:

   (a)    a stay of the final property orders; and

   (b)    a distribution of the dollars arising under the said orders to fund a lawyer for the husband,

   is refused.

6. That the reasons this day be transcribed and be made available to the parties

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800  of 2007

Ms Bale-Sutch

Applicant

And

Mr Bale-Sutch

Respondent

REASONS FOR JUDGMENT

1. On 24 February 2011 I heard the application of the wife and the response thereto of the husband.

2. The husband was heard by telephone from England where he apparently is currently living. 

3. On 17 September 2010, after a contested interim hearing, I made an order that the husband terminate a sole agency agreement with a real estate agent C & Co in M concerning the real property in K.  Reasons were given for that order.

4. On the same day I made an order that both parties appoint two agents to act in conjunction.

5. It was common ground that the property in K has not sold.

6. On 1 February 2011, the wife filed an application in a case.  Effectively, she sought orders that the husband comply with the orders of 17 September 2010 and that she otherwise have sole control of the sale.

7. The husband responded to the wife’s application filing a response on 15 February 2011.  He sought orders that related to the conduct of the sale, the commission and the like.

8. I propose to deal with all of those matters of the husband and the wife together below. 

9. Before doing so, the husband also sought an order that the wife be ordered to pay $17,550.62 for her share of “tax falls, administrative charges and general interest” as outlined in an annexure to an affidavit of the husband.  He also sought that an amount of $9629 be substituted in the February 2009 orders where there was a reference to $41,000.

10. The substance of both of these matters related to the question of evidence that has now come to the husband’s attention about liabilities that he has and superannuation figures different to those upon which the final hearing was conducted in 2009. 

11. Ultimately, after some discussion, the husband did not proceed with those applications and withdrew them on the basis of my suggestion that he might benefit from some legal advice.  I did that on the basis that his evidence was set out in his affidavit that he has now received significant tax penalties for using money from his superannuation account prior to the final orders.  His evidence was that the information was not available to him at the final hearing.  He went on to say that $41,000 was ordered to be repaid to his superannuation company but that after the audit which had been delayed as a result of the Tax Office, the amount was substantially less.  He then referred to the consequential affects. 

12. The husband’s complaint was that as the wife would ultimately benefit from what had occurred, an adjustment needed to be made to the final orders.

13. It was clear that the orders made in 2009 were final orders and as such, an exhaustion of the s 79 power under the Family Law Act 1975 (Cth) (“the Act”). The husband pointed to my reasons for judgment in September 2009 relating to the power of the Court to alter machinery orders. I indicated and I repeat, these were not machinery orders that he was seeking to order but rather the substantive rights of parties. Accordingly, based on what was before the Court, the step that might be required under s 79A of the Act had not been commenced.

14. Accordingly, the husband indicated that he would get some legal advice.  He pointed out the difficulties in getting legal advice having regard to the cost of it and that the issue was complex.  Those unfortunately, as I pointed out to him, are matters beyond my control.  I point out also that he was represented at the final hearing in 2009.

15. In respect of the dispute about the control of the sale, the case has taken an interesting twist because only in the last few days, one of the two appointed agents had introduced a purchaser who has signed what was described as a contract (but I suspect was a contract note) and had paid a holding deposit of $1000.  They have agreed to buy the property for $300,000 but on condition that they can obtain finance.  Both parties seemed keen for that contract to become unconditional but there is considerable water yet to pass under the bridge. 

16. One of the affidavits filed by the husband for this proceeding was by the agent mentioned above.  At the request of the husband, Mr C gave evidence by telephone confirming the details of the conditional purchaser.

17. Mr C also said that although the husband had only provided him with the authority to sell the property in the last few weeks, it had been actively marketed all of the way through since September 2010.

18. It seemed common ground also that no other potential purchaser had been introduced. 

19. I am satisfied on all of the evidence of the parties that there is no suggestion that any conduct of the husband has caused the real property not to have been sold since September 2010. 

20. I am also satisfied that the other agent referred to in the orders of September 2010 have not had any more success than Mr C.

21. One of the concerns of the husband was that the agency in conjunction had created higher commissions.  It now transpires that the second agent who had been authorised as a result of the September 2010 orders, no longer has a current authority to act for the parties.  On that basis, I was informed by counsel for the wife that there was no suggestion of an order being made here that would create a contractual problem for the wife or both parties.

22. The recent offer has the possibility of resolving the dilemma of the parties providing the contract becomes unconditional.  If that occurs, there will be other documents for the husband to sign.  He said that there was no suggestion of his capacity to get documents emailed to him and to the extent that any original document needed to be signed, there were “plenty of post offices in England” from which he could send the document back to Australia.

23. Notwithstanding the comprehensive affidavit of the solicitor for the wife indicating that the husband had been recalcitrant, I am not satisfied that that was the case.

24. Accordingly, it is appropriate that the opportunity be given to Mr C as sole agent at a commission that he agreed was less that the agency in conjunction commission.  If that contract does not proceed, the wife should have an opportunity to have a further agent involved and in those circumstances, both agents should then be appointed unless there is agreement otherwise.

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 February 2011.

Associate: 

Date:  25 February 2011