Busoni and Busoni and Anor

[2018] FamCA 132

FAMILY COURT OF AUSTRALIA

BUSONI & BUSONI AND ANOR [2018] FamCA 132

FAMILY LAW – INTERIM PROPERTY – Where the wife seeks orders as to interim property distribution, sale of the former matrimonial home, sole occupation and costs – Where the husband has had exclusive occupation of the former matrimonial home since separation in 2015 – Where the wife has accounted for monies she has had and  expended since separation for herself and the child – Where the husband has made limited financial contributions to the care of the child – Where the husband has made no attempt to rectify property issues lowering the value of the former matrimonial home – Where neither party has the financial capacity to rectify defects with the property or retain the property – Where the wife asserts financial difficulty – Orders made for the former matrimonial home to be sold and the wife to have sole occupation for the purpose of sale – Orders made for interim property payments to be made to each party from the proceeds of sale.

Family Law Act 1975 (Cth) ss 75(2), 79

Harris & Harris (1993) FLC 92-378
Moroni & Moroni [2014] FamCA 664
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Busoni

FIRST RESPONDENT: Mr Busoni

SECOND RESPONDENT: D Pty Ltd

FILE NUMBER: PAC 4490 of 2014

DATE DELIVERED: 2 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 February 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Matthews Folbigg Pty Ltd

SOLICITOR FOR THE FIRST RESPONDENT: Penhall & Co Lawyers

SOLICITOR FOR THE SECOND RESPONDENT: Penhall & Co Lawyers

Orders

1. That within 14 days from this date the husband vacate the property at B Street, Suburb C being the land comprised in Folio Identifier … and that thereafter the wife have sole use and occupation of the said property and the husband shall thereafter remain away from the said property.

2. That the husband is restrained on vacating the property from removing any items of furnishings or contents from the home save for his clothing and personal effects including any firearms without the written consent of the wife such writing to include SMS or email communication.

3. That the wife is hereby appointed trustee for sale of the property at B Street, Suburb C being the land comprised in Folio Identifier … at the best price reasonably obtainable and for such purpose the said property shall vest in her as trustee for sale.

4. That for the purposes of sale:

   (a)the wife shall appoint the selling agent  and accept the reasonable recommendations of such agent as to the mode of sale and the price at which the property shall be offered for sale;

   (b)the wife shall appoint an accredited specialist property law solicitor to have the conduct of the sale;

   (c)the wife is hereby authorised to sign all necessary documents on behalf of the husband to give effect to these orders for sale;

   (d)the wife shall authorise and direct the selling agent and solicitor with the carriage of the sale to provide to the husband or his solicitors such information as may be reasonably requested as to the progress of the sale; and

   (e)the wife shall on sale pay the proceeds of sale as follows:

   (i)in payment of agents’ commissions and expenses and costs incurred in the sale;

   (ii)in payment of legal fees on sale;

   (iii)in payment of any adjustments pursuant to the contract for sale,

   (iv)in payment of the sum of $200,000.00 to the husband from which shall be deducted and paid to the wife any outstanding costs and interest accrued thereon till payment;

   (v)in payment of the sum of $200,000.00 to the wife; and

   (vi)in payment of the balance then remaining to a controlled monies interest bearing account  held by the solicitor for the wife Matthews Folbigg Pty Ltd on trust for the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Busoni & Busoni and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4490  of 2014

Ms Busoni

Applicant

And

Mr Busoni

Respondent

REASONS FOR JUDGMENT

1. The present application for determination is the wife’s application for interim property orders as set out in her Further Amended Application in a Case filed 14 February 2018 as to the joinder of the husband’s company to proceedings, anti-suit injunctions, sale of the former matrimonial home, interim property payment in the amount of $200,000.00, that she be appointed trustee for sale and have exclusive occupation of the property and that the husband pay costs.

2. The wife relied on the following documents:

   a)her affidavits filed 5 December 2017 and 14 February 2018;

   b)her Financial Statement filed 28 August 2017;

   c)the affidavit of Mr E, valuer filed 15 February 2018; and

   d)the husband’s Financial Statement filed 14 September 2017 (Exh “B”).

3. The husband relied on:

   a)his Response filed 2 February 2018 to the wife’s Application in a Case;

   b)his Affidavits filed 12 December 2017, 2 February 2018 and 18 February 2018;

   c)the affidavit of Mr F filed 19 February 2018.

Context

1. Proceedings were commenced by the applicant wife in 2014. On 25 August 2017 by her Amended Application she sought orders as to property adjustment and orders as to the parenting arrangements for the child of the parties’ marriage G born in 2006.

2. Final property orders sought by the wife, in summary, provided:

   a)that the property at B Street, Suburb C be transferred to her subject to the existing mortgage;

   b)that the husband pay to her the sum of $500,000.00; and

   c)in the alternative, the Suburb C property be sold and the wife receive the whole of the net proceeds of sale.

3. The husband by his Amended Response filed 15 September 2017 sought final property and parenting orders. As to property, he sought orders, in summary:

   a)that the parties divide their property equally; and

   b)that the previous order be subject to the determination of pending proceedings in the Supreme Court of NSW between the parties and two third parties.

4. On 10 August 2016 consent orders were made as follows:

   1.That the husband shall within 7 days do all acts and things and sign all documents to obtain for the property a smoke detection certificate.

   1A.That the husband pay to the wife by way of interim property settlement the sum of $100,000.00 within 30 days of the date of these Orders.

   1B.In the event the husband fails to comply with 1A then the following orders shall apply.

   2.That the parties shall forthwith do all acts, sign all documents and give all consents necessary to effect a sale of the property B Street, Suburb C for the best price reasonably obtainable.

   3.The Agent shall be Abode Agents or such other agent as may be agreed in writing between the parties.

   4.The solicitor acting in respect of the conveyance shall be Mr H or such other Solicitor as may be agreed between the parties in writing hereinafter referred to as the agreed solicitor.

   5.That in relation to the preparation of the contract for sale for the property and the requirement that the vendors meet their legal requirements to particularise any  adverse matters effecting the property the parties shall

   a.Provide to the agreed solicitor acting in respect of the sale a copy of the current valuation by Mr E

   b.Provide to the solicitor the report prepared J Pty Ltd.

   c.1Any other relevant documents provided they are given to the other party simultaneously.

   c.Instruct the Agreed solicitor to prepare the contract for sale to include all matters as may be required by law to comply with the obligations of Vendor disclosure.

   d.The parties shall do all acts and things to facilitate the contract prepared to be forwarded to the Listing agent    

   6.The parties shall accept and follow all reasonable directions of the listing agent including as to the method of sale whether by way of auction or private treaty or such other method as may be advised by the agent from time to time.

   7.That the parties shall accept all reasonable directions from the agent as to the conditions of sale, the work to be done to facilitate the sale and as to presentation of the property for sale.

   8.Subject to these Orders, and on the basis that the listing Agent shall determine the method of sale from time to time; in the event that the property has not sold within 60 days from the date of listing, and in the event that it has not already been listed for sale by auction; then the parties shall forthwith do all acts, sign all documents and give all consents necessary to list the property for sale by auction.

   9.Subject to these Orders, in the event that the property does not then sell by auction then the parties shall forthwith do all acts and things and sign all documents necessary to list the property for sale by private treaty.

   10.The parties shall not be present when any prospective purchaser is inspecting the property and neither party shall make any comment or do any act or thing that may impede undermine or negatively affect any potential purchaser.

   11.The parties shall cooperate in every way to facilitate the sale of the property including providing a key to the listing agent and ensuring that the listing agent has access to the property to facilitate inspection at all reasonable times.

   12.In the event that the parties are unable to agree as to a list price, reserve price, sale price or any other matter relating to sale then it shall be $1,850,000.00 or as determined by Mr E of E Valuers to determine such matters.  His decision shall be binding upon the parties who shall equally bear the cost of the appointment.

   13.That prior to settlement the husband shall vacate the property and thereafter remain away. The husband shall ensure that he has left the property in a clean and tidy state.

   14.Upon the property being sold in accordance with these orders, the net proceeds of sale shall be distributed as follows:

   a.In payment of agent’s fees and commission and all proper sale costs;

   b.In payment of any conveyancing or legal costs of sale;

   c.Adjustment of Council and Water rates;

   d.As to the wife the sum of $100,000.00;

   e.As to the husband the sum of $100,000.00;

   f.As to the then balance to be held in trust and invested on behalf of the parties pending conclusion of the property proceedings.

   15.That in the event that either party shall neglect or refuse to sign any document or give any consent necessary to give effect to these orders then the Registrar of the Court shall and is hereby empowered pursuant to section 106 A of the Act to sign such documents and give such consent on behalf of the defaulting party. Such default to be proved by affidavit. It shall be sufficient to show default in the event that any document sent to a party for signing is not received back executed within 7 days of it being sent to the solicitor for the party or in the event that there is no solicitor acting then the document to be sent to the last known place of address of that party. 

   16.Liberty to restore the matter to the list on 14 days’ notice to the Court and to the other party. 

   17.The Husband be restrained from encumbering, transferring, selling or drawing down on his loan accounts or in any other way dealing with his interest in or the assets of D Pty Ltd ABN … and or ABN …pending further order.

5. On 18 July 2017 trial directions were made so as to progress the issues of parenting and property to final hearing. The matter was listed for a compliance check on 21 September 2017.

6. On 21 September 2017 the husband advised the Registrar that proceedings had been commenced in the Supreme Court of New South Wales that concern the husband’s company D Pty Ltd and the property owned by that company at K Street, Suburb L. As a consequence the issue as to parenting was separated from the property proceedings and listed for hearing commencing 13 December 2017.

7. Final parenting orders were made by consent on 13 December 2017 that provided for the wife to have sole parental responsibility for the child G, the child to primarily live with her and the child to spend defined time with the husband.

8. In late 2017 the husband, through his company D Pty Ltd, commenced proceedings in the Supreme Court of New South Wales in Equity by way of summons.

9. That summons sought relief, in summary, that provided:

   a)that the Registrar General rectify folio identifier … relating to the property at K Street, Suburb L , by substituting D Pty Ltd ABN …4 as registered proprietor in lieu of D Pty Ltd ACN …5; and

   b)that there be a declaration that the company’s trustee of the subject land as follows:

   i)Mr and Ms F as to a 47.03 per cent share;

   ii)M Pty Ltd as to a 31.86 per cent share; and

   iii)D Pty Ltd as to a 21.1 per cent share.

10. There was a Notice of Motion before that court filed by the wife for the proceedings to be transferred to this Court. The Supreme Court proceedings were commenced by the husband through his company notwithstanding the ongoing proceedings as to property adjustment in this Court in respect of which the parties’ interests in the property at K Street, Suburb L will be the subject of determination.

11. The wife has properly foreshadowed that in the event that her Notice of Motion seeking transfer of the Supreme Court proceedings to this Court is unsuccessful, she will make an application in this Court for an anti-suit injunction restraining the husband and his company from continuing proceedings in the Supreme Court of New South Wales.

12. There is, otherwise, a pending application by the wife to join the husband’s company as a party to these proceedings.

13. On 22 February 2018 orders were made in the Supreme Court of NSW as follows:

    The Court:

    1.Declares that the plaintiff [D Pty Ltd] ABN: … is entitled to be registered as proprietor of the land and premises known as [K Street, Suburb L] being the whole of the land comprised in folio identifier … (“the Property”);

    2.Directs that the Registrar General be ordered to rectify the folium … by substituting D Pty Ltd ABN: ...4 as registered proprietor in lieu of D Pty Ltd ACN: …5 and that the plaintiff do all acts and things and execute all documents required to give effect to this order;

    3.Pursuant to section 5(1)(b) of Jurisdiction of Courts (Cross-Vesting) Act (Cth), transfers these proceedings to the Family Court of Australia, Parramatta Registry;

    4.Orders that the plaintiff pay the sixth defendant’s costs of the Notice of Motion for transfer.

14. Clearly the company D Pty Ltd ABN: …4 and the various Defendants in the Supreme Court proceedings will now be parties in these proceedings.

Background

1. The parties commenced cohabitation in 1986 and married in 1987. They separated under the one roof in December 2013 with final separation occurring in April 2015.

2. The wife is aged 51 and the husband is aged 52.

The wife’s case

1. At cohabitation the parties had minimal assets.

2. After some prior property transactions the parties purchased the Suburb C property as vacant land in 2001 for $320,000.00. For more than two years the parties lived with the wife’s parents. A cottage was constructed on the property, but the property is not yet subject to an occupation certificate issued by the local council, although notwithstanding the parties resided in the property for some years prior to separation and the husband has resided in the property to the wife’s exclusion since early 2015.

3. In October 2011 the property was subject to flood damage and a later insurance payment of about $220,000.00 was received and deposited into the parties’ joint O Bank account. In January 2014, shortly after the parties’ separation, the wife transferred those funds to her own O Bank account from which she used about $18,000.00 for legal costs with the balance expended on living expenses for the family and the payment of private school fees for the child of the marriage over a period of years.

4. Subsequent to separation, the wife has resided in rental accommodation with the child since April 2015. The wife has primary care of the child pursuant to final parenting orders made in December 2017. At present the wife pays rent of about $500.00 per week.

5. The husband has since April 2015 occupied the unencumbered home at Suburb C. The home was valued at $1.85 million in May 2016. The wife asserts that the council rates are in arrears for this property.

6. The Suburb L property registered in the name of the husband’s company was valued at $1.225 million in January 2018.

7. The Suburb C property is incomplete in that there is no occupation certificate following building works but nevertheless it has been occupied by the parties and more recently by the husband alone. The husband asserts that he is not in a position to fund works necessary to obtain the requisite occupation certificate.

8. As to the $100,000.00 received by the wife pursuant to interim orders referred to above the wife asserts that she has primarily expended those monies in day-to-day living expenses and expenses for the child since the funds were received by her in September 2016, particularly, in the payment of rent for her accommodation since April 2015. The wife’s rental payments have averaged about $500.00 per week, resulting in her paying almost $75,000.00 in rent to date whilst the husband has remained in the unencumbered home. Otherwise, the wife has made payments totalling $27,600.00 in respect of her legal fees.

9. In her affidavit filed 14 February 2018 the wife provides a particularly detailed analysis of her expenditure of funds.

10. The wife has foreshadowed her ongoing expenses including rent and living costs that, in themselves, total about $1,300.00 per week. In addition to these expenses, she will be required to meet her legal costs and disbursements in relation to the present proceedings and her costs of and incidental to the Supreme Court proceedings inappropriately commenced by the husband.

11. The wife asserts that in the event that she does not receive a distribution of funds from the sale of the matrimonial home sought by her, she will be in difficult financial circumstances. She presently receives $184.00 per week from government benefits and child support of only $38.00 per week. She has some casual employment and proposes to continue to seek casual employment as such, so that she has flexibility to attend to the needs of the child who is primarily in her care, including taking the child to and from school, attending to the child’s extracurricular activities and medical and counselling appointments.

12. Otherwise, the wife has minimal funds at bank totalling about $1,750.00.

13. The husband has failed to pay costs ordered on 11 July 2017 including accrued interest in the sum of $3,524.00.

14. The wife asserts that she worked on a full-time basis until shortly before the birth of the parties’ child in January 2006 and did not thereafter return to work until 2012, except for a short period of about four weeks.

15. Subsequent to 2012 the wife worked in various positions and in August 2017 she obtained casual employment. The husband in his own evidence is most positive as to the wife’s contribution through her income during cohabitation.

1. The wife asserts that she was primarily responsible for child care and homemaker duties during the parties’ cohabitation and to some extent for the maintenance and upkeep of the parties’ home.

2. The husband in his Financial Statement filed 14 September 2017 (Exh “B”) asserts that he is only in part-time employment with “N Pty Ltd” earning about $55,000.00 per annum. Otherwise, he has accumulated superannuation of about $75,000.00.

3. The affidavit of the single expert valuer Mr E values the home at Suburb C on a comparable sale basis at $1.85 million. He describes the property as a modern single-storey architecturally designed freestanding residence offering comfortable spacious four-bedroom plus study accommodation and a four car lock-up garage. The property sits upon a large allotment of 4369 m² in an area comprising predominantly an increasing number of newly constructed single and two story dwellings. The single expert valuer opines that about 60 per cent of the rear of the site is subject to native vegetation protection and within a bushfire prone location, which would likely result in more stringent development guidelines being associated with any future work carried out on the site with the property also subject to flooding along the rear boundary extending to the rear of the main residence.

4. The single expert considered the question of sale and the requirement, if any, to provide home owners warranty insurance should the property be marketed. It is the opinion of the single expert that the provision of such insurance would not be required as works were completed at the property in about 2007 with the requirement for the provision of insurance being only for a period of six years after completion. Otherwise, the single expert, for reasons stated, asserts that the property would require the issue of an occupation certificate and in the absence of an occupation certificate and due to various identified maintenance and building compliance issues the overall value and the appeal of the property would be detrimentally affected. Overall, and by reason of identified comparable sales the property was valued at $1.85 million as at May 2016.

5. It may be inferred that by reason of overall property movements in Sydney, the property may well have increased in value to some extent.

6. The husband in his Financial Statement filed 14 September 2017 (Exh “B”) asserts the property to have a value of $1.3 million.

The husband’s case

1. The husband seeks orders that the wife’s Application in a Case be dismissed and that proceedings as to property be stayed pending the parties “attending a commercial mediation of their property issues”.

2. The husband complains that the wife has expended almost $320,000.00 since January 2014. Although, as noted above, she has expended in that time almost $75,000.00 just in rent to accommodate herself and the child, attended to payment of the child’s private school fees and provided for the living expenses of herself and the child with virtually no contribution from the husband.

3. The husband complains that the wife has the capacity to earn a full-time income on the basis that he has otherwise offered to care for the child while she works. He asserts that his capacity to work is restricted to light duties due to medical limitations.

4. The husband asserts that his company is simply a bare trustee in relation to the property at K Street, Suburb L and that third parties have equitable interests in the subject property. He has not sought to join those parties in these proceedings, nor in these proceedings does he seek any declaration as to any asserted equitable interests in the said property.

5. The husband asserts that there will be difficulties in selling the Suburb C property by reason of a failure to complete rectification and compliance issues arising from flood damage years ago. Yet the husband has been in occupation of the property now to the exclusion of the wife and his child for almost three years and adduces no evidence at all of any attempt by him to attend to rectification work. He provides “building repair quotations” in the ranging from $203,392.00 to $314,811.00.

6. The husband concedes that he is not a planning law expert or a building expert, but then seeks to opine as to aspects of planning and building issues allegedly impacting upon the value of the property. Much of his evidence appears to arise from things that he has been told by his solicitor.

7. Yet the single expert valuer opines that the value of the property is diminished by reason of the incomplete works.

8. The husband readily concedes that neither he nor the wife have funds to remedy the defects to the property or to obtain a building certificate. He opines that the Suburb C property is likely to be unsaleable. Yet he does not propose a way forward save that perhaps he may be able to acquire the property from the wife at what appears to be a significant discount to the value ascribed by the single expert valuer.

Interim property

1. The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.

2. Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.

3. In Strahan (supra), the Full Court said:

   132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

4. Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth).

5. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. In Harris & Harris (1993) FLC 92-378 the Full Court stated that either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so. (Emphasis added)

6. It is important to have regard to an overall caution. In Harris (supra), the Full Court said:

   As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.

7. In Strahan (supra), the Full Court said at [132]:

   … regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

8. It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then determine whether it is just and equitable to make a property settlement order.  Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.

9. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.

10. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

11. Both parties in this matter in any event seek that the Court makes final adjustive orders.

12. The present matrimonial asset pool of the parties as best can be determined comprises:

    Joint         The home at Suburb C (Single Expert Value)       $ 1,850,000.00

    Husband    Interest in D Pty Ltd

    (company property value $1.225m)  NK

    Husband    Superannuation   $      75,000E

    Husband    Firearms   $      27,500.00

    Husband    Motor vehicles   $      10,500.00

    Husband    Contents   $      10,000.00

    Husband    Business “D Pty Ltd”   NK

    Wife         Funds at   $        1,750.00

    Wife         Motor vehicle  $      17,500.00

    Wife         Superannuation  $      56,264.00

13. The parties have no significant liabilities.

14. There are issues as between the parties that may or may not impact on the asset pool for division including the husband’s allegation of the removal of about $100,000.00 in cash by the wife from his gun safe, the expenditure of significant unaccounted funds by the husband and the reality of the husband’s interest in the company that owns the K Street property.

15. Be that as it may, the present identifiable pool has an overall value of $2.048 million. It may increase by reason of the wife’s contentions as to funds expended by the husband, the K Street property issues or the cash allegedly retained by the wife.

16. The overall value is subject to the realisable sale value of Suburb C that neither party, it appears, has any financial capacity to retain.

17. There is no evidence to suggest that the parties’ contributions are much other than equal over a relationship of about 30 years with indicative s75(2) factors clearly favouring the wife by reason of the child primarily in her care and the limited financial support provided by the husband. The wife seeks $200,000.00 in interim property settlement. There is no reason why a similar sum should not be paid to the husband with the totality of $400,000.00 representing only 20 per cent of the presently identifiable pool.

18. There is no compelling reason necessary to make an interim property order, it is simply to be appropriate in the interests of justice as between the parties.

19. As opined by Watts J in Moroni & Moroni [2014] FamCA 664:

    The notion of a “level playing field” is one which almost axiomatically is in the interests of justice and an important matter to consider when deciding whether it would be appropriate to make an interim property order.

20. The husband has occupied the prime matrimonial asset to the exclusion of the wife now for almost three years.  The wife has had to rent a home for herself and the parties’ child at significant cost to her from her available capital referred to above. She has reasonably accounted for her expenditure of other funds available to her.

21. The husband has no plan to resolve the impasse as to the Suburb C property, indeed he asserts a multitude of issues that may impact on the sale of the property and leave him as the only viable owner.

22. In reality the market will set the sale price and hence the value of the property.

23. In the circumstances as discussed above, it is appropriate and in the interests of justice that the Suburb C property be sold and that the wife have the carriage of that sale particularly due to the husband’s lack of action in rectifying issues with the property in the past. The husband will be required to give vacant possession promptly with the wife having sole use and occupation pending sale.

24. By reason of a consideration of contributions and other factors above, it is appropriate that both parties receive $200,000.00 from the proceeds of sale and from the sum payable to the husband the wife be paid her outstanding costs and interest with the balance invested in a controlled monies account pending further order.

25. It is expected that property proceedings even if same includes third parties will be heard and determined within about six months.

26. Orders will be made accordingly.  

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 March 2018.

Associate: 

Date:  2 March 2018