Baressi and Baressi - [2016] FCCA 890

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARESSI & BARESSI

[2016] FCCA 890

Catchwords:
FAMILY LAW – Undefended matrimonial property proceedings – service –matters to be considered – just and equitable – small property pool.

Legislation:

Family Law Act 1975 (Cth), ss.4(1), 75(2), 79, 79(4)(c)

Federal Circuit Court Rules: r 13.03A(2), 13.03(2)(d), 13.1A

Cases cited:
Taylor v Taylor (1979) 143 CLR 1
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Russell v Russell (1999) FamCA 187

Applicant:

MS BARESSI

Respondent:

MR BARESSI

File Number:

ADC 4146 of 2015

Judgment of:

Judge Brown

Hearing date:

8 April 2016

Date of Last Submission:

15 April 2016

Delivered at:

Adelaide

Delivered on:

15 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms McDonald

Solicitors for the Applicant:

Rossi Legal

Counsel for the Respondent:

No appearance

ORDERS

Property D

That the property at Property D, which is jointly owned by the Husband and Wife and which is comprised and described in Certificate of Title Register Book Volume (omitted) Folio (omitted) (hereinafter referred to as ‘the Property D property’) be sold by private treaty.
That the Wife appoint a Real Estate Agent to sell the Property D property.
That the sale price of the Property D property be determined by the Wife after consultation with the appointed Real Estate Agent.
That the Husband sign and return to the appointed Real Estate Agent a signed Sales Agency Agreement within 5 working days of the said Agreement being provided to him.
That in the event that the Husband does not sign and/or return the Sales Agency Agreement to the Wife that a Registrar or Deputy Registrar of this Honourable Court be appointed to execute the said Sales Agency Agreement for the sale of the Property D property in the name of the Husband, if required, and to do all acts and things necessary to give validity and operation to the said Sales Agency Agreement.
That pending the sale of the Property D property:
(a)As and from the date of the making of these Orders and until the settlement of sale of the Property D property the Husband make and be responsible for the payment of all moneys due and owing pursuant to the mortgage no. (omitted) to the (omitted) Bank as and when they fall due and the respondent indemnify the applicant in relation to it.
(b)As and from the date of the making of these orders and until the settlement of sale of the Property D property the Husband pay all other outgoings associated with the Property D property, including but not limited to, council rates, water rates, emergency services levy, home and contents insurance and utility bills.
(c)the Husband is to maintain the property in good order and repair whilst it is being sold.
(d)the parties each co-operate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baressi and Baressi

Details

AGLC: Baressi and Baressi [2016] FCCA 890
Case: [2016] FCCA 890
Decision Date: 15 April 2016

CaseChat Overview and Summary

This matter concerned orders made by Judge Brown in relation to property settlement between a Husband and Wife. The primary dispute revolved around the division of assets and liabilities, particularly the jointly owned Property D, and the allocation of personal debts. The court was tasked with determining how the jointly owned property should be dealt with, the responsibilities of each party pending its sale, and the distribution of the sale proceeds.

The court was required to determine the specific terms of the sale of Property D, including the method of sale, the appointment of a real estate agent, and the setting of the sale price. Further, the court had to establish the financial responsibilities of each party concerning the property's mortgage, outgoings, and maintenance until settlement. The court also needed to address the division of personal debts and the allocation of chattels and personal property between the Husband and Wife.

In relation to Property D, the court ordered its sale by private treaty, with the Wife to appoint the real estate agent and determine the sale price in consultation with the agent. The Husband was ordered to sign the sales agency agreement, with provision for a Registrar or Deputy Registrar to execute it on his behalf if he failed to do so. Pending sale, the Husband was to be responsible for mortgage payments, outgoings, and maintenance of the property, and both parties were to cooperate with the agent. The proceeds of sale were to be applied first to sale costs, then to discharge the mortgage and outstanding rates, with the balance to reimburse the Wife for any non-compliance by the Husband with his obligations, then 65% to the Wife, and the remainder to the Husband. The court also made orders regarding the allocation of personal debts and the retention of chattels and bank accounts by each party.

Orders

Orders of the court

Property D

That the property at Property D, which is jointly owned by the Husband and Wife and which is comprised and described in Certificate of Title Register Book Volume (omitted) Folio (omitted) (hereinafter referred to as ‘the Property D property’) be sold by private treaty.

That the Wife appoint a Real Estate Agent to sell the Property D property.

That the sale price of the Property D property be determined by the Wife after consultation with the appointed Real Estate Agent.

That the Husband sign and return to the appointed Real Estate Agent a signed Sales Agency Agreement within 5 working days of the said Agreement being provided to him.

That in the event that the Husband does not sign and/or return the Sales Agency Agreement to the Wife that a Registrar or Deputy Registrar of this Honourable Court be appointed to execute the said Sales Agency Agreement for the sale of the Property D property in the name of the Husband, if required, and to do all acts and things necessary to give validity and operation to the said Sales Agency Agreement.

That pending the sale of the Property D property:

(a) As and from the date of the making of these Orders and until the settlement of sale of the Property D property the Husband make and be responsible for the payment of all moneys due and owing pursuant to the mortgage no. (omitted) to the (omitted) Bank as and when they fall due and the respondent indemnify the applicant in relation to it.

(b) As and from the date of the making of these orders and until the settlement of sale of the Property D property the Husband pay all other outgoings associated with the Property D property, including but not limited to, council rates, water rates, emergency services levy, home and contents insurance and utility bills.

(d) the parties each co-operate in every way with the Real Estate Agent including (without limiting the generality of the foregoing):

(i) making the key available to the agent;

(ii) allowing inspection of the Real Property at all reasonable times requested by the agent;

(iii) doing or saying nothing to hinder or prevent a sale being effected; and

(iv) ensure the Property D property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers.

On settlement of the sale of the Property D property the proceeds of sale be paid in the following manner and priority:

(a) all costs and expenses of sale including any costs, disbursements and commissions to the real estate agent and conveyancing fees and disbursements;

(b) the amounts required to discharge the outstanding mortgage No. (omitted) to the (omitted) Bank secured over the Property D property;

(d) the balance then remaining will be divided as follows:

(i) firstly to reimburse the Wife any amounts arising from the Husband’s failure to comply with paragraph 6(a) to 6(c) of these Orders;

(ii) secondly to the Wife - 65% of the proceeds of sale by way of bank cheque made payable to Rossi Legal Trust Account;

(iii) thirdly the remaining balance to the Husband by way of bank cheque made payable to the Husband.

That a Registrar or Deputy Registrar of this Honourable Court be appointed to execute in the name of the Husband all other documents or instruments as shall be required to sell and transfer the Property D property and to deal with the proceeds of sale of the said property and to do all acts and things necessary to give validity and operation to the said documents or instruments.

Liabilities

The Husband be liable for and indemnify the Wife against all payments with respect to all and any credit cards in his sole name.

10.

That hereinafter the Wife meet payments of all her personal debts and liabilities incurred in her own name to the complete exoneration of the Husband who shall have no liability with respect hereto and the Wife hereby indemnifies the Husband against all claims, expenses, losses or demands incurred by her as a result of her refusal, failure, neglect so to pay.

11.

That hereinafter the Husband meet payments of all his personal debts and liabilities incurred in his own name to the complete exoneration of the Wife who shall have no liability with respect hereto and the Husband hereby indemnifies the Wife against all claims, expenses, losses or demands incurred by him as a result of his refusal, failure, neglect so to pay.

Chattels and Personal Property

12.

The Wife do retain for her sole use and benefit absolutely:

(i) Mitsubishi (omitted) motor vehicle registration number: (omitted);

(ii) furniture, furnishings and personal possessions in the wife’s possession;

(iii) proceeds in her bank accounts; and

(iv) any and all entitlements arising from her employment

13.

The Husband to retain for his sole use and benefit absolutely:

(i) furniture, furnishings and personal items currently in his possession;

(ii) proceeds in his bank accounts; and

(iii) any and all entitlements arising from his employment

14.

That contemporaneously with the settlement of the Property D property that the joint (omitted) bank account number: (omitted) be closed.

Consequential orders

15.

Liberty to either party to apply as to any consequential Orders particularly in regard to an enforcement warrant for seizure and sale of the Property D property.

16.

That the Wife be at liberty to apply for superannuation splitting orders once details of the husbands superannuation entitlements have been ascertained.

17.

A copy of the orders and there reasons for judgment are to be served on the Husband by pre-paid post at his last known address at Property D.

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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