Cansdall and Cansdall

[2020] FCCA 1929

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANSDALL & CANSDALL [2020] FCCA 1929

Catchwords:
FAMILY LAW – Property – where the husband seeks to set aside a contract of sale – where husband seeks an injunction on the sale of property – consideration of whether the Court has power to make such an order – application dismissed.

Legislation:

Family Law Rules 2004 (Cth), r. 22.11

Federal Circuit Court Rules 2001 (Cth), r. 29.04

Applicant: MR CANSDALL

Respondent: MS CANSDALL

File Number: MLC 2209 of 2018

Judgment of: Judge Mercuri

Hearing date: 11 June 2020

Date of Last Submission: 11 June 2020

Delivered at: Melbourne (via videoconference)

Delivered on: 11 June 2020

REPRESENTATION

Advocate for the applicant: Mr McConvill

Solicitors for the applicant: James McConvill and Associates

Counsel for the respondent: Mr Nicholson

Solicitors for the respondent: Morrison and Sawers

ORDERS

1. The applications in a case filed on 26 March 2020 and 28 April 2020 be dismissed.

2. Leave is granted to the applicant to file an affidavit this day.

3. For the better implementation of order 10 of the orders dated 15 July 2019:

   In the event the wife is required to exercise the provisions of order 10 of the orders made on 15 July 2019, that Morrison & Sawers Lawyers be appointed as agent for the husband, Mr Cansdall for the sole purpose of the sale pursuant to order 13 and 14 of the orders dated 14 November 2018 and order 3 of the orders dated 15 July 2019, and in particular Morrison & Sawers Lawyers be and are hereby authorised to sign a client authorisation form to enable the transfer and discharge or release of mortgage and transfer statement for duties online on behalf of the husband.

AND THE COURT NOTES THAT:

(A)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2209 of 2018

MR CANSDALL

Applicant

And

MS CANSDALL

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. Having heard the parties’ submissions, I am not satisfied that the Court has the jurisdiction to deal with the applications in a case filed by the applicant husband on:

   a)26 March 2020 as amended on 15 April 2020; and

   b)28 April 2020.

3. I am also satisfied that, for the reasons which have been explored in the submissions by the respondent wife, the Court does not have jurisdiction to deal with that application. 

4. Interim orders were made by her Honour Judge Stewart on 14 November 2018 which provided for the sale of the property at C Street, Suburb D (“the property”), which is the subject of this application (“the November 2018 orders”).  The November 2018 orders provided a mechanism for the husband to sell the property forthwith, and for the sale proceeds to be divided.  These orders were not complied with by the husband, which led to the wife bringing an application on 15 May 2019. Further orders were made by his Honour Judge Riethmuller on 15 July 2019 providing for the wife to have control of the sale (“the July 2019 orders”).  The July 2019 orders provided for:

   a)the appointment of an agent;

   b)the determination of a sale price; and

   c)the sale to be effected.

5. On the basis of the material which has been filed in this matter, I am satisfied that the wife has complied with the July 2019 orders to effect that sale.  The July 2019 orders were made by his Honour after a contested hearing between the parties.  To date, no appeal has been filed against those orders.  This Court does not have the authority to vary those orders, which only an appeal Court would have.  In those circumstances, I do not have the power to deal with this application, and I therefore dismiss the application.

6. To the extent that an application for a stay has been made orally today, it has been said on behalf of the respondent wife that the Court does not have the jurisdiction to grant a stay until such time as an appeal or application for leave to appeal has been made. 

7. It was argued on behalf of the husband that rule 29.04 of the Federal Circuit Court Rules 2001 (Cth) is broader in its terms than rule 22.11 of the Family Law Rules 2004 (Cth) and is not dependent upon an appeal being lodged or application for leave to appeal being filed.

8. It is not necessary for me to determine that issue because I am not satisfied that the husband has identified any factors which would warrant the granting of a stay at this point in time.  If the husband files an appeal, then certainly it would be open to him in those circumstances to seek a stay of the orders to which the appeal relates. 

9. I therefore am not prepared to exercise any discretion that the Court would have at this point in time to grant a stay of the July 2019 orders.  That is an issue to be determined if and when a proper application is filed in this Court.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:         15 June 2020