Bode and Coyne and Anor

[2007] FamCA 485

FAMILY COURT OF AUSTRALIA

BODE & COYNE  AND ANOR [2007] FamCA 485

FAMILY LAW - PRACTICE AND PROCEDURE - Application seeking review of orders of Judicial Registrar - Adjourned proceedings still before Judicial Registrar - Adjourned application for directions only before Judicial Registrar - Adjourned application for costs for further consideration

APPLICANT: Mr Bode

RESPONDENT: Ms Coyne

THIRD PARTY: Mrs Coyne

FILE NUMBER: ADF 366 of 2005

DATE DELIVERED: 22 January 2007

PLACE DELIVERED: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 22 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gillam

SOLICITOR FOR THE APPLICANT: Von Doussas

COUNSEL FOR THE RESPONDENT:	Mr Haines QC
SOLICITOR FOR THE RESPONDENT:	Camatta Lempens

COUNSEL FOR THE THIRD PARTY: Mr J.G. McGinn

SOLICITOR FOR THE THIRD PARTY: Mead Robson Steele

Orders

1. I adjourn the husband's Form 2 Application for Review filed on 9 January 2007 for directions only before Judicial Registrar Forbes on 21 February 2007.

2. I adjourn any applications for costs for further consideration before the Judicial Registrar on 21 February 2007.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 366  of 2005

MR BODE

Applicant
And

MS COYNE

Respondent
And
MRS COYNE
Third Party

REASONS FOR JUDGMENT

1. I have before me today an application filed by the husband on 9 January 2007 seeking a review of the orders of Judicial Registrar Forbes made on 13 December 2006.

2. On that day Judicial Registrar Forbes refused the application of the husband filed on 7 November 2006 in which he sought the sale of a property known as Lot C, which is comprised in Certificate of Title Register Book Volume … Folio ….  That sale would require the granting of a right of way over Lot A, which is comprised in Certificate of Title Register Book Volume … Folio … .

3. The layout of the properties the subject of the dispute between the parties is conveniently depicted in an aerial photograph annexed to the valuation of Mr S, licensed valuer, that valuation being dated 11 December 2006.

4. Still before the court is an adjourned proceeding before the Judicial Registrar to be heard by the court on 21 February 2007.  On that day, as I am informed by counsel, the Judicial Registrar will be obliged to consider whether or not the two allotments mentioned by me, together with two other allotments, being Lots D and E contained in Certificate of Title Register Book Volume … Folios … and …, ought to be sold as a bundle of four allotments or whether or not the contract entered into by the husband on 1 November 2006 can be concluded.

5. The opposition of the wife and the third party - the third party being the wife's mother, who is third mortgagee on all four properties - is essentially based on two grounds.  One is that the completion of the contract as executed by the husband will not achieve the full sales potential for the four parcels of land.  They express the view through their counsel that it is far better to sell the allotments together, and certainly Lot C and Lot A.

6. A secondary argument by the two of them is to the effect that the improvements on the property at Lot C have not been completed and that a far better sale price will be achieved by the completion of that property.

7. The wife relies in support of those arguments principally upon the valuation of Mr S, but a reading of that valuation suggests that Mr S's valuation does not indeed support her argument as to there being a greater value to be achieved by selling allotments C and A together.  He describes the individual value in his valuation for Lot A at $65,000, the individual value of Lot C as $425,000, and the combined value of the two allotments at $495,000, which is only some $5,000 more than the individual component prices indicated by him.  This is despite the quite detailed description he gives in the body of that same valuation as to why it is that Lot A does not have a significant value on its own.  Thus, the conclusions drawn by Mr S do not seem to be supported by the valuations that he in fact provides.

8. As to the second issue, namely whether or not a completion of the improvements on Lot C will add to its value, no evidence has been provided to the court to support that argument by the wife.  I am informed that she has indeed asked Mr S to provide that expert opinion but that he has not to date provided it.

9. I therefore find that there is presently before the court no basis upon which the wife can sustain her objection to the husband's application, but note that all matters are again to be determined before Judicial Registrar Forbes on 21 February 2007.

10. I have made the order adjourning it simply for directions before the Judicial Registrar.  The purpose is obvious; namely, that if there are some further orders made by him on that day and the parties then seek to review those orders, they can be heard together.  As I said, it is not for me to tell the Judicial Registrar how to make any determination in these proceedings.  However, I make these detailed remarks on the basis that in my view the wife's opposition fails on the basis of the argument that the properties are worth more together than they are separate.

11. The remaining issue that may be alive, but is not yet available to the court, is the question of whether or not the property will be worth more once the improvements are concluded, and the wife needs to advance further evidence before the Judicial Registrar on the adjourned occasion to be able to pursue that argument.

I certify that the preceding eleven [11] paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate:

Date:

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BODE & COYNE