Bowling v Bowling (No 3) - [2012] NSWSC 1069

Supreme Court

New South Wales

Medium Neutral Citation: Bowling v Bowling (No 3) [2012] NSWSC 1069
Hearing dates: 10 August 2012; 13 August 2012
Decision date: 13 August 2012
Jurisdiction: Equity Division
Before: Rein J
Decision:
Defendant's application granted.

Catchwords: PROCEDURE - judgments and orders - enforcement of judgments and orders - where order has been made for property to be sold by court-appointed real estate agent under instruction of the co-owners - where property has not been put on the market more than seven months after judgment date - where one co-owner wishes to buy the property - where property market is a falling market - where relationship between the co-owners has disintegrated - where new sales agreement with real estate agent needs to be signed - trustees should be appointed for sale of the property
Legislation Cited: Property (Relationships) Act 1984
Trustee Act 1925
Cases Cited: Bowling v Bowling [2011] NSWSC 1168
Category: Consequential orders
Parties: Judith Dianne Bowling (Plaintiff)
Darryl Richard Bowling (Defendant)
Representation: Counsel:
R D Wilson (Defendant)
Solicitors:
Friend & Co Lawyers (Plaintiff)
Paltos Briggs Family Lawyers (Defendant)

File Number(s): SC 2010/267244

ex tempore Judgment

The plaintiff, who now goes by the name Ms Judith Anne Odlum, and the defendant, Mr Darryl Richard Bowling, lived together in a de facto relationship and at the termination of that relationship the plaintiff sought an adjustment of the parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984. His Honour Macready AsJ handed down reasons for judgment on 7 December 2011 in Bowling v Bowling [2011] NSWSC 1168 and at [145] are set out the orders.

The orders included an order that the property in which the parties had lived (and in which the plaintiff was living at the time of the judgment) at McMasters Beach ("the Property") be sold with an apportionment of the net proceeds to be 65 per cent to the plaintiff and 35 per cent to the defendant and ancillary orders were made to ensure that the sale was effected. A reserve price was fixed in the absence of agreement between the parties at $1.25 M. At [142] of the judgment His Honour noted:

"The plaintiff wishes to purchase Darryl's share of the property and I will, in my orders, allow her 21 days in which to come to an agreement to purchase the defendant's share in the McMasters Beach property and discharge the liability to Norma Odlum. Failing that, that the property will be sold."

The reference to Norma Odlum is a reference to the mother of the plaintiff, who, it is clear from the orders, had in place a caveat over the property.

By the orders, his Honour said that within 21 days of the date of the judgment the parties were to do all acts and things and sign all necessary documents to list the property for sale by private treaty. For that purpose they were to appoint Raine and Horne, Avoca as the real estate…

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 Bowling v Bowling (No 3)

Details

AGLC: Bowling v Bowling (No 3) [2012] NSWSC 1069
Case: [2012] NSWSC 1069
Decision Date: 13 August 2012

CaseChat Overview and Summary

The case of Bowling v Bowling (No 3) was heard in the Family Court of Australia. The matter involved a dispute between two co-owners of a property who were also married. The court was required to decide on the enforcement of an earlier judgment which mandated the sale of the property. One of the co-owners wished to purchase the property, while the other was not opposed to the sale but objected to the manner in which it was being conducted. The main issue before the court was the timeline for the sale of the property and whether the co-owner seeking to purchase should be allowed to buy the property before the scheduled sale.

The court considered the delay in listing the property on the market and the impact of the deteriorating property market on the sale. The co-owner seeking to purchase argued that the delay was unreasonable and that they should be permitted to buy the property to prevent further depreciation in value. The court recognised the importance of enforcing the judgment and the need for a timely sale, but also highlighted the necessity of adhering to the procedural fairness and ensuring that both parties' interests were protected. The court found that the delay in listing the property was unjustifiable and that the relationship between the co-owners had deteriorated to the extent that they could not cooperate in the sale process.

In light of these considerations, the court ordered that trustees be appointed to manage the sale of the property. This decision aimed to ensure a fair and transparent sale process, protect the interests of both co-owners, and expedite the enforcement of the earlier judgment. The court also noted that the co-owner who wished to purchase the property could still do so, provided that they followed the new sale agreement with the real estate agent and the appointment of trustees. The final orders included the appointment of trustees to oversee the sale of the property and the requirement for a new sales agreement to be signed with the real estate agent, ensuring that the sale process was conducted in a manner that was fair and just for both parties.

Orders