C Pty Ltd (in Liquidation) and Karbines and Ors (No 2)

[2009] FamCA 1189

FAMILY COURT OF AUSTRALIA

C PTY LTD (IN LIQUIDATION) & KARBINES & ORS (NO. 2) [2009] FamCA 1189

FAMILY LAW – WARRANT – Enforcement of orders – where warrant of possession previously made – where order was stayed – warrant of possession to issue

FAMILY LAW – PRACTICE AND PROCEDURE – application by the second interveners seeking the variation of orders for the sale of a property – where the husband is overseas and sought an adjournment – where there is no basis upon which the husband could oppose the orders sought – where justice would not be served by granting the adjournment – adjournment refused

FAMILY LAW – ORDERS – application by the intervener seeking the variation of orders for the sale of a property – orders made in terms sought

FAMILY LAW – COSTS – application by the first intervener for quantification of costs previously ordered – application adjourned

FAMILY LAW – COSTS – applications for costs of the hearing against the husband – where the proceedings were brought to enforce orders the husband has either opposed or not taken steps to ensure compliance with – husband to pay the costs of the hearing of the wife and the second interveners

Family Law Act 1975 (Cth) s 117

APPLICANT FIRST INTERVENER: C Pty Ltd (In Liquidation)

FIRST RESPONDENT HUSBAND: Mr Karbines

SECOND RESPONDENT WIFE: Ms Karbines

RESPONDENT SECOND INTERVENER: Mr and Mrs Willa

RESPONDENT THIRD INTERVENER: J Karbines

FILE NUMBER: MLF 2479 of 2005

DATE DELIVERED: 23 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT FIRST INTERVENER: Mr Thomas

SOLICITOR FOR THE APPLICANT FIRST INTERVENER: Norman Waterhouse Lawyers

COUNSEL FOR THE FIRST RESPONDENT HUSBAND: Mr Mecoles

SOLICITOR FOR THE FIRST RESPONDENT HUSBAND: Patrick Cash & Associates

COUNSEL FOR THE SECOND RESPONDENT WIFE: Mr Jordan

SOLICITOR FOR THE SECOND RESPONDENT WIFE: Maddens Lawyers

COUNSEL FOR THE SECOND INTERVENER: Mr Bersee

SOLICITOR FOR THE SECOND INTERVENER: Herman Bersee

COUNSEL FOR THE THIRD INTERVENER: Mr Harvey

SOLICITOR FOR THE THIRD INTERVENER: Gall Stanfield & Smith

Orders

UPON NOTING that paragraphs 2-7 inclusive of the Orders made before The Honourable Justice Dawe on 12 November 2009 were stayed until 23 November 2009 and the stay will run out at the end of today

1. The Marshal and all officers of the Australian Federal Police and of the Police Force of Queensland for the purpose of giving effect to the Order of this Court made on the 23^rd day of November 2009 requiring MRS J KARBINES to vacate the property situate at and known as …, Queensland are directed with such assistance as they may require and if necessary by force to enter upon the property being Lot … on Registered Plan … in the County of … and Parish of …, Title Reference … and cause MRS J KARBINES to vacate the property and vacant possession of the land to be given to the 1^st Intervener C Pty Ltd (in liquidation) for the purposes of the sale of the said property. 

2. The application for the quantum of costs of the 1^st Intervener C Pty Ltd (In Liquidation) sought against the husband is adjourned to 22 January 2010 at 9.15 am before the Honourable Justice Dawe.

3. The husband pay the wife’s costs of attendance at the hearing today fixed in the sum of SEVEN HUNDRED DOLLARS [$700.00] being an amount which is reasonable in the circumstances of this matter.

4. All applications are dismissed other than that which relates to the application for costs of the 1^st Intervener C Pty Ltd (In Liquidation).

5. The wife and the 2^nd Interveners MR and MRS WILLA be at liberty to sell the property at M Street, G in the State of South Australia and comprised in Certificate of Title Register Book Volume … Folio … for no less than FIVE HUNDRED THOUSAND AND ONE DOLLAR [$500,001.00] and that a Registrar is appointed to sign the Contract and all other documentation for and on behalf of the husband to enable the sale of the said property to proceed and to give effect to the Final Orders herein.

6. The husband pay the 2^nd Intervener’s costs of attendance today fixed in the sum of THREE HUNDRED AND FIFTY DOLLARS [$350.00].

IT IS NOTED that publication of this judgment under the pseudonym C Pty Ltd (In Liquidation) & Karbines & Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2479 of 2005

C PTY LTD (IN LIQUIDATION)

Applicant First Intervener

And

MR KARBINES

First Respondent Husband

And

MS KARBINES

Second Respondent Wife

And

MR AND MRS WILLA

Second Intervener

And

J KARBINES

Third Intervener

EX-TEMPORE REASONS FOR JUDGMENT

1. The orders I made on 12 November in paragraphs 2 to 7 inclusive were stayed until 23 November 2009.  Nothing has been put to me that alters the basis upon which the orders were made.  The orders that I made on 12 November will continue.  The stay runs out at the end of today, the warrant of possession will issue for the premises in Queensland, and the injunction directed to Mrs J Karbines is obviously clearly part and parcel of it.

2. In relation to the application in a case filed on behalf of the other parties, Mr and Mrs Willa, which is an application filed on 19 November seeking orders varying the orders concerning the sale of the property in G, the orders which remain provided for the sale of the property for a price of $500,001, in accordance with a contract that then existed.  The affidavit in support of the application before me today indicates that that sale fell through and that there now is an offer subject to finance for the purchase of the property at $504,000.

3. The husband's solicitor appears by telephone link today seeking an adjournment of the application on the basis that the husband is in China and that he does not have comprehensive instructions.  The matter was listed urgently before me at the request of the solicitors for Mr and Mrs Willa because the matter had a listing before me today in any event on other matters.  That was granted on condition that service be effected promptly and it was effected by way of sending copies of the documents to the husband's solicitors.

4. The husband's solicitor tells the Court today that he has spoken to the husband who is in China.  He is aware of the application and the proposed sale and the amount thereof.  His instructions were to get an adjournment of the matter. 

5. Having heard the submissions of counsel for the other parties, Mr and Mrs Willa, and for the wife, I am unable to see upon what basis the husband could oppose the sale for a sum greater than that which was the valuation for the property.  The orders in relation to the sale of the property have been outstanding for a considerable period of time, with steps being taken without the co-operation of the husband to effect the sale of the property.

6. In view of those matters, and in view of the history of the matter, I do not see that justice would be served if the adjournment were granted.  Bearing in mind those matters, it would seem to me that it is a benefit to all parties for the litigation to come to an end and for the properties to be sold and the orders carried into effect. 

7. I therefore refuse to grant the adjournment.

8. I give consideration to the orders that are sought by Mr and Mrs Willa, and that is to be at liberty to sell the property at M Street, G, for no less than $500,001, and that a registrar be appointed to sign the contract and all other documentation for and on behalf of the husband to enable the sale of the said property to proceed and give effect to the final orders herein.

9. I do that on the basis that that order not only allows the sale of the property to the current by proposed purchaser for $504,000, but if that offer is not carried into effect because of difficulties with finance, the property can then be placed further on the market for sale to reach an appropriate figure based on the previous offers and valuations.  I therefore make the order in terms of the application of the interveners, Mr and Mrs Willa, filed on 19 November 2009.

10. In relation to the application for quantification of the costs of the liquidator, that is adjourned to 22 January at 9.15 before me.  The costs have already been ordered.  If there is to be argument as to the amount that should be fixed for those costs, I expect to have before the Court particulars of the assessment of those costs so that a decision can be made on that occasion.  Information should be shared between the interveners and the husband's solicitors in enough time for detailed instructions to be given.

11. In relation to the application for costs of today to be paid by the husband, the solicitors for the husband are correct when they refer to section 117 of the Family Law Act 1975 (Cth) which relates to the question of costs being borne by each party unless the specific provisions of section 117 are found, in that it is proper, just and equitable for the costs order to be made, taking into account the considerations of section 117(2) and 117(2A) The material contained therein specifically refers to whether a party has been wholly unsuccessful and the conduct of the parties.

12. What needs to be borne in mind, however, is that even though the application was adjourned on the last occasion on the basis that there were steps being taken to see whether arrangements could be made to overcome the forced sale of the Queensland property, and that the application on behalf of Mr and Mrs Willa is one brought at short notice in relation to the proposed sale of the M Street property, those applications need to be seen in the context of applications by way of enforcement and variation to enable enforcement of orders which were made by the Court in December 2008 which have thereafter been the subject of considerable proceedings.

13. Bearing that in mind and that the Court is required to consider the conduct of the parties in relation to the proceedings and the financial circumstances of the parties, in my view the exception in this case is made out.  All of these proceedings are brought because of the necessity to bring these proceedings to enforce orders of the Court which the husband has either opposed or not taken steps to ensure that the orders are complied with.

14. I dismiss all applications other than that which relates to the quantification of the intervening liquidator's costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  4 December 2009