CALHOUN & CALHOUN

[2012] FamCA 86

FAMILY COURT OF AUSTRALIA

CALHOUN & CALHOUN [2012] FamCA 86

FAMILY LAW - PROPERTY – interim orders – application by the wife seeking orders that the husband or in the alternative, the Registry Manager execute the contract for the sale of the property – where the husband opposes the application upon the basis that he seeks to purchase the wife’s interest – where the offer exceeds the market expectations for the property – where the wife alleges that the husband has no capacity to purchase the property – where the husband has remained residing at the property and has failed to meet mortgage repayments – where the husband has not had an opportunity to prepare his case – balancing of the urgency of the sale of the property against the husband’s right to put his case properly and fairly before the Court – orders that the matter be adjourned briefly to provide the husband an opportunity to prepare his case.

FAMILY LAW - COSTS – application by the wife seeking orders that the husband pay the costs of the hearing – whether the circumstances justify the making of a costs order – where proceedings have only been instituted – where it was not appropriate for a costs order to be made in the circumstances – application dismissed.

Family Law Act 1975 (Cth) s117

APPLICANT: Ms Calhoun

RESPONDENT: Mr Calhoun

FILE NUMBER: TVC 42 of 2012

DATE DELIVERED: 23 January 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 23 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Mayes

SOLICITOR FOR THE APPLICANT: BCK Lawyers

COUNSEL FOR THE RESPONDENT: Mr Knight

SOLICITOR FOR THE RESPONDENT: Stevenson & McNamara Lawyers as agents for Strategic Lawyers

Orders

1. Further consideration of the proceedings be adjourned before the Honourable Justice Burr at 9.30 am (Adelaide time) on Wednesday 1 February 2012 by telephone link between the Adelaide and Townsville Registries of this Court.

2. On or before 4.00 pm on Friday 27 January 2012 the husband do file and serve his answering documents.

3. On or before 4.00 pm on Monday 13 February 2012 the husband do provide the wife’s solicitors with the following documents:-

   (a)    bank account statements for the last six [6] months for all accounts in which the husband holds an interest, either personally or with another person or entity;

   (b)    all information, including all receipts, showing what the husband purchased with moneys from the Line of Credit;

   (c)    all information in relation to the sale of the Harley Davidson motor cycle and Virago motor vehicle, including documents showing where the sale proceeds were paid.

4. The wife’s application for costs in relation to today’s proceedings is dismissed

IT IS NOTED that publication of this judgment under the pseudonym Calhoun & Calhoun is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER:  TVC 42 of 2012

Ms Calhoun

Applicant

And

Mr Calhoun

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me for determination today interim orders being sought by the wife in the Initiating Application filed by her on 16 January 2012.  The specific order that she seeks today is that a contract for the purchase and sale of the property at F Street, Town M be executed by the husband, or in default, that various orders be made that would enable the contract to be pursued through a requirement that the Registry Manager sign all necessary documents in the event that the husband failed to do so.  That interim application is attached to the final orders for property settlement that the wife seeks in the same document.  Thus the order that she seeks today is part and parcel of the overall property settlement that she pursues in these proceedings.

2. Those proceedings will take some time to resolve if the parties are unable to agree anything between themselves, but in any event, it is the wife’s application that if I grant the orders that she seeks today on an interim basis for the sale of the property to be permitted, that the proceeds stand in a trust account until proceedings before this Court or agreement between the parties results in the matter being resolved as between the parties.

3. Mr Knight appears for the husband, who is opposed to the application for the sale of the property, indicating that it is his desire to raise an appraisal of the property and then make arrangements to purchase the wife’s interest in that property.  He says that he needs time to do both of those things, although I note that he has booked an appraisal for this afternoon. 

4. Interestingly, the instructions received by Mr Knight were to the effect that the husband is of the view that the property is worth more than the $370,000 offer now on the table.  The odd consequence for him is that if he were successful in his wish or desire to purchase the wife’s interest in the property, he would, if he is accurate in his belief the property is worth more, have to pay her more than it would appear she is otherwise prepared to accept.  It’s the wife’s case, though, that he has had every opportunity and every chance now to purchase her interest in the property and that he has failed to accept those opportunities.

5. The parties’ cohabitation commenced in 2005 and they married in July 2009.  Their separation was only a short time later in February 2011.  They have no children.  The former matrimonial home property of the parties is at F Street, Town M.  In July of last year both parties agreed that the property was to be sold and steps were then taken to place the property on the market for sale initially with the agents H Agents at a price of $438,000.  No offers were received and in November 2011 the parties changed the agents to P Agents.  The wife deposes to the fact that those agents were of the view that the property would market at a price between $360,000 and $390,000, but a figure of $400,000 was placed on the property, giving the parties some room to negotiate. 

6. The marketing campaign was not terribly successful and the range advertised was marked down to being between $345,000 and $365,000.  The first offer received was in November 2011 for $355,000.  The husband declined to accept that offer and the contract was not signed.  A second offer was received in December 2011 for $360,000 and again, despite the advice of the real estate agent that it was within range, the husband declined the offer and no contract was signed.  Finally in December 2011 an offer of $370,000 was received and the wife deposes that it is the advice of the agent that that far exceeds any of the sales team’s expectations. 

7. The wife signed the contract on 30 December 2011 and it is her understanding that the proposed purchaser signed the contract on the same date.  Despite numerous attempts by the agents to get the husband to sign the contract, he has declined to do so.

8. The wife made numerous attempts to pursue opportunities to talk to the husband about the offer and to get him to sign the contract.  However, the agent received advice from the husband on 3 January 2012 that he would not be signing the contract.  In paragraph 20 of her Affidavit filed on 16 January 2012 the wife refers to a conversation she had with the husband on 8 January 2012 where it is the wife’s contention that the husband said, “I am happy to drag this out if that’s what you want” and that resulted in her taking the proceedings now before the Court. 

9. Annexed as “JFC1” to the aforesaid affidavit of the wife is a letter from a Mr B of the real estate agents P Agents and it is dated 5 January 2012.  He records the history of the attempts at selling the property and records his view that the $370,000 on offer far exceeds any of the sales team’s expectations.  The prospective purchasers are insisting on settling by 12 February 2012. 

10. It is the husband’s case that he both intends and has the capacity to purchase the wife’s interest in the property but the husband has had many an opportunity prior to now to be able to do so.  It is the wife’s contention that he has no such capacity to purchase the property.

11. A complicating factor, of course, is the mortgage due to the wife’s parents and that presently stands at a figure of $191,000, together with the line of credit to the Commonwealth Bank of $50,000.  Thus a substantial amount of money would have to be raised by the husband in order to fund the purchase, make alternative arrangements for finance on the property and pay any share that is due to the wife. 

12. It is the wife’s application that there is first and foremost a preliminary amount of $50,000 due to be paid to her prior to there then being a distribution of any net proceeds between the parties. 

13. Of significance in this determination that I make today is the fact that the husband has remained resident in the former matrimonial home property since separation but has not made all of the payments that were due on the mortgage, despite the fact that those payments are of a modest amount only of $200 per week.  The wife records that he has missed a number of payments, including in May, June and December of 2011.  For her part though, the wife has continued to meet her contributions both on the mortgage amounts due and payable and in respect of other liabilities that emerge from the property and from its occupation.  Oddly enough, she is paying all of the rates, taxes and utilities on the property despite the fact that it is occupied by the husband.

14. All of the factors, in my view, clearly support an order being made as sought by the wife that the husband sign the contract for the sale of the property and in the event that he does not do so, that the Registry Manager of the Court sign all such documents.  The impediment to such an order though is that the husband has not had an opportunity to put his case before the Court.  The case that he puts before the Court today is only at a minimum, given the fact that his solicitors and counsel have not had an opportunity to secure fulsome instructions from him or, indeed, prepare any documents to be filed in these proceedings.

15. I note that the proceedings were only served upon the husband on 16 January 2012, which is only a week ago, and that he has only just now had an opportunity to instruct solicitors in the preparation of responding documents.  Thus the two competing factors for my consideration are the urgency from the wife’s perspective in pursuing the sale of the property at a price which she and her advising land agent say is the best that she can do, as against the husband’s right to put his case properly and fairly before the Court.  The urgency from the wife’s perspective is promoted by the insistence of the purchasers to settle on or before 12 February 2012. 

16. It was my initial inclination to afford to the husband an opportunity to file answering documents and make orders that he sign the contract but adjourn the matter before Murphy J on 6 February 2012 in order that the husband could be given the opportunity, as is everybody’s right, to put his case properly before the Court.  I feel somewhat cornered by the attitude of the proposed purchasers in insisting upon the settlement being by 12 February 2012 and in my view, that would be an inappropriate reason to rush the proceedings and otherwise not allow due process to run its course.

17. However, I am equally aware of the fragile nature of the real estate market and believe I am entitled to take judicial notice of that fact, and thus I am reluctant to permit circumstances to arise where the wife and, indeed, the husband will miss an opportunity to sell the property at a good price, particularly in circumstances where on the wife’s case, the husband is simply, in the vernacular “not pulling his weight”. 

18. The compromise between those two positions is a difficult one and counsel for the wife has indicated that adjourning the matter before Murphy J on 6 February 2012 is not the answer because settlement would be expected only six days later than that.  However, today is already 23 January 2012 and thus we are only talking a period of two weeks.  In my view, the wife would need to urge upon the proposed purchasers a reasonable attitude of extending the date by which they are prepared to settle on the property, but equally, I am reluctant to allow the husband to sit on his hands and allow yet another opportunity to sell the property to pass.

19. I say that in full knowledge that he has already agreed that the property be sold and has agreed to a change of agents who have informed him of a range within which this current offer falls.  The only compromise that I deem to be palatable is to adjourn the matter before me to be conducted by telephone link in a week’s time and that will give the wife an opportunity to urge upon the proposed purchasers some patience.  It will also afford to the husband an opportunity to file his answering documents, get his appraisal and find out whether indeed he can place himself in a financial position whereby he can make a realistic offer to the wife to purchase her interest in the property.

20. Counsel for the wife has also now made an application for costs of today’s proceedings or in the event that that application fails, that the costs be reserved.  Any application for costs must be based upon the factors raised in section 117 of the Act and in my view it is premature to make any sort of assessment of those factors.  In my view it is also inappropriate to make the order for costs today given that the proceedings were instituted only by the wife a week ago, namely on 16 January 2012, and served upon the husband on the same day.  He has had close to no opportunity to secure advice and file answering documents.  Whilst I accept and understand the urgency of the application from the wife’s perspective, it may well be that the husband is able to convince the Court that there are quite reasonable matters to be considered by the Court in the attitude that he has adopted to date. 

21. In any event, a costs application based on giving the husband one week’s notice of proceedings before the Court, in my view, not only cannot be sustained but is unreasonable.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 23 January 2012.

Associate: 

Date: