Cantoni & Cantoni - [2021] FamCA 464

FAMILY COURT OF AUSTRALIA
Cantoni & Cantoni [2021] FamCA 464

File number(s): PAC 1840 of 2018

Judgment of: FOSTER J

Date of judgment: 2 July 2021

Catchwords: FAMILY LAW – PROPERTY – where application for review of the senior registrar’s determination ordering sale of unfinished property – where no application for interim property orders – where property requires completion of outstanding building and rectification works – where significant difficulty progressing any sale is the nature and extent of the caveators’ interests that need to be determined – where parties demonstrated little capacity to implement previous orders made as to completion of property – where consideration of applicable principles – where order made for sale of the property as is – where order for funds to be preserved pending final hearing

Legislation: Family Law Act 1975 (Cth) s 114

Cases cited: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Number of paragraphs: 68

Date of hearing: 18 May 2021

Place: Parramatta

Solicitor for the Applicant: Ms Khalil of Khalil Family Lawyers Pty Ltd

Solicitor for the Respondent: Mr Goldsmith of Goldsmith Lawyers
ORDERS

PAC 1840 of 2018

BETWEEN:
MS CANTONI

Applicant

AND:
MR CANTONI

Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:
1.All outstanding interlocutory applications be dismissed.
2.Mr B from C Real Estate is hereby appointed Trustee for Sale of the property situated at D Street, Suburb E, Victoria, more particularly described in the Certificate of Title Volume … Folio … (“the Suburb E Property”) with the property to be placed on the market for sale by such method determined by the Trustee forthwith for the best price reasonably obtainable and for the purposes of this order the property shall vest in the Trustee for Sale.
3.Upon sale of the Suburb E Property, the proceeds of sale are to be distributed in the following order and priority:
(a)In payment of all selling expenses, including the Trustee’s fees, selling agent’s commission, advertising expenses and conveyancing costs;
(b)In payment to discharge the Westpac mortgage registered on title to the Suburb E property;
(c)In payment of the balance then remaining to be held on trust for the parties by the Trustee for Sale in an interest bearing account in the name of the Trustee as trustee for the parties pending further order of the Court.

4.Pending settlement of the sale of the Suburb E Property:
(a)The parties are to keep the property in at least the same state of repair as at the date of these Orders;
(b)The parties shall do all things required of them to facilitate the sale of the Suburb E Property;
(c)The parties must deliver up possession of the Suburb E Property in vacant possession to the Trustee forthwith;
(d)Neither party shall further encumber the Suburb E Property or draw down on the existing Westpac mortgage registered on title without the prior written consent of the other party.

5.All previous Orders as to the completion and/or construction of the…

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 Cantoni & Cantoni

Details

AGLC: Cantoni & Cantoni [2021] FamCA 464
Case: [2021] FamCA 464
Decision Date: 2 July 2021

CaseChat Overview and Summary

In the matter of *Cantoni & Cantoni*, Foster J of the Family Court of Australia considered an application for review of a senior registrar’s determination regarding an unfinished property. The dispute involved Ms Cantoni (the applicant) and Mr Cantoni (the respondent), with significant difficulties arising from the nature and extent of caveators' interests that required determination, hindering any sale. The parties had demonstrated a limited capacity to implement previous orders concerning the property's completion.

The court was required to determine the appropriate course of action for the unfinished property, which necessitated outstanding building and rectification works. The central legal issue was how to best manage and ultimately resolve the disposition of this property, given the parties' apparent inability to complete the necessary works and the complexities introduced by third-party interests.

Foster J reasoned that given the parties' demonstrated difficulties in progressing the completion of the property and the need to resolve the sale, an order for the sale of the property in its current state ("as is") was appropriate. The court applied principles that favour pragmatic solutions to facilitate the resolution of property disputes, particularly where ongoing costs and deterioration are likely. The proceeds of sale were to be distributed in a specific order: first, to cover selling expenses and the discharge of the existing mortgage, and then the remaining balance was to be held on trust pending further order. The court also made orders for the parties to maintain the property's state of repair, facilitate the sale, deliver vacant possession to the appointed Trustee for Sale, and refrain from further encumbering the property. All previous orders relating to the completion and sale of the property were discharged.

Orders

Orders of the court

PAC 1840 of 2018

BETWEEN:

MS CANTONI

Applicant

AND:

MR CANTONI

Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:

1. All outstanding interlocutory applications be dismissed.

2. Mr B from C Real Estate is hereby appointed Trustee for Sale of the property situated at D Street, Suburb E, Victoria, more particularly described in the Certificate of Title Volume … Folio … (“the Suburb E Property”) with the property to be placed on the market for sale by such method determined by the Trustee forthwith for the best price reasonably obtainable and for the purposes of this order the property shall vest in the Trustee for Sale.

3. Upon sale of the Suburb E Property, the proceeds of sale are to be distributed in the following order and priority:

(a) In payment of all selling expenses, including the Trustee’s fees, selling agent’s commission, advertising expenses and conveyancing costs;

(b) In payment to discharge the Westpac mortgage registered on title to the Suburb E property;

(c) In payment of the balance then remaining to be held on trust for the parties by the Trustee for Sale in an interest bearing account in the name of the Trustee as trustee for the parties pending further order of the Court.

4. Pending settlement of the sale of the Suburb E Property:

(a) The parties are to keep the property in at least the same state of repair as at the date of these Orders;

(b) The parties shall do all things required of them to facilitate the sale of the Suburb E Property;

(d) Neither party shall further encumber the Suburb E Property or draw down on the existing Westpac mortgage registered on title without the prior written consent of the other party.

5. All previous Orders as to the completion and/or construction of the Suburb E Property and the sale of the Suburb E Property are discharged.

6. In the event that either of the parties refuse or neglect to sign any document required by them to be signed, the Registrar of the Family Court of Australia shall be and is hereby empowered to sign such documents on behalf of that party pursuant to section 106A of the Family Law Act 1975 (Cth).

7. The parties serve a copy of these orders and these Reasons for Judgment on each of the caveators within seven days from this date.

8. Liberty to each party and to the Trustee for Sale to apply as to implementation or enforcement of these orders.

9. The proceedings be listed before a registrar for directions so as to facilitate compliance with trial directions such as to facilitate the matter proceeding to final hearing.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

In support of his application the husband relied upon:(a)his Application in a Case filed 28 January 2021;(b)his affidavit sworn 28 January 2021;(c)the affidavit of Mr N sworn 10 March 2021;(d)the affidavit of Mr N sworn 9 April 2021.The Wife’s Evidence The wife contends that due to ongoing delays and the lack of engagement by Mr J as a consequence of earlier orders that he should be removed as the contract administrator for the proposed rectification and completion of works. The wife proposes that she be appointed trustee for the purposes of the ongoing construction works notwithstanding that she asserts no qualifications or experience in that area. The wife unilaterally approached Mr L, a licensed builder in South Australia, in relation to the proposed works. Mr L in December 2020 provided a fixed price estimate of $576,350 inclusive of GST to complete the necessary works with payment to be deferred until sale of the property. The wife, otherwise, asserts that the present Westpac loan facility secured on the property has a redraw facility remaining of about $234,000 that will not be needed to be drawn down by reason of the arrangement for payment with the builder. The building quotation from Mr L has now increased to the sum of $711,000 by reason of deterioration of building and vandalism. The building has now been locked up to avoid further damage and deterioration. A second quotation from another builder provided a building estimate of $815,430 inclusive of GST. It is the wife’s understanding that Mr L would be required to take out indemnity insurance in relation to the proposed works and, more importantly, would be required to make application to the Victorian Building Authority for approval of the proposed works. It appears that any building contract is required to be signed by both parties and will require a guarantor with the wife proposing that her father, Mr M, be guarantor. The wife, otherwise, proposes that a Mr B of C Real Estate be appointed as selling agent. The husband, through his solicitors, has previously agreed to the appointment of that agency for the purposes of selling the property. The wife complains that in default of rectification completion works being undertaken there is likely to be little equity in the property available for adjustment between the parties. The wife asserts that the matrimonial assets comprise:(a)the subject property with an outstanding liability to Westpac of $1.85 million;(b)the household furnishings and personal effects of the parties;(c)the wife’s modest Westpac account;(d)the wife’s superannuation of approximately $20,000. Otherwise, the wife asserts that the parties owe approximately $550,000 to her parent’s family company, P Pty Ltd, in addition to which she asserts that the company has advanced to her since her move to Sydney sums totalling about $230,000. The husband, she otherwise asserts, is in arrears of child support as at March 2021 in the sum of $46,890. The wife’s father Mr M, a solicitor, has through the family company advanced to the wife the sum of $39,060 to pay out mortgage arrears and asserts he will provide $6,500 per month to meet ongoing mortgage payments as they fall due and payable. It appears that the payment of mortgage arrears by the wife has precluded foreshadowed enforcement action by the mortgagee. The wife undertakes that she will pay mortgage payments as they fall due and payable.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	PAC 1840 of 2018
Judgment of:	FOSTER J
Date of judgment:	2 July 2021
Catchwords:	FAMILY LAW – PROPERTY – where application for review of the senior registrar’s determination ordering sale of unfinished property – where no application for interim property orders – where property requires completion of outstanding building and rectification works – where significant difficulty progressing any sale is the nature and extent of the caveators’ interests that need to be determined – where parties demonstrated little capacity to implement previous orders made as to completion of property – where consideration of applicable principles – where order made for sale of the property as is – where order for funds to be preserved pending final hearing
Legislation:	Family Law Act 1975 (Cth) s 114
Cases cited:	Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Number of paragraphs:	68
Date of hearing:	18 May 2021
Place:	Parramatta
Solicitor for the Applicant:	Ms Khalil of Khalil Family Lawyers Pty Ltd
Solicitor for the Respondent:	Mr Goldsmith of Goldsmith Lawyers

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	2 JULY 2021