CARNEY & CARNEY - [2019] FCCA 72

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARNEY & CARNEY

[2019] FCCA 72

Catchwords:
FAMILY LAW – Appointment of Trustee – where respondent non-compliant with certain orders – where applicant seeks orders appointing him trustee for sale.

Legislation:

Family Law Act 1975 (Cth), s.80

Federal Circuit Court Rules 2001, Division 25B

Cases cited:

Stanford v Stanford [2012] HCA 52

Midhurst (Deceased) & Midhurst [2008] FamCA 393

Applicant:

MS CARNEY BY HER LITIGATION GUARDIAN MR BAKER

Respondent:

ESTATE OF THE LATE MR CARNEY BY HIS EXECUTORS MS HOWARD AND MS NORMAN

File Number:

NCC 774 of 2018

Judgment of:

Judge Costigan

Hearing date:

20 December 2018

Date of Last Submission:

20 December 2018

Delivered at:

Newcastle

Delivered on:

17 January 2019

REPRESENTATION

Counsel for the Applicant:

Ms Carty

Solicitors for the Applicant:

Berryman Partners Pty Limited

Counsel for the Respondent:

Mr Bates

Solicitors for the Respondent:

Lea Smith Solicitors

ORDERS

That unless the former matrimonial home situate and known as Street A, Suburb B (‘the property’) has been sold at auction or a contract has been executed by both purchaser and vendor for the its sale prior to 15 March 2019 the property shall thereupon vest in Mr Baker as Trustee for Sale of that property upon the following terms:
(a)The selling agent shall be Real Estate Agent C located at Street D, Suburb E;
(b)The reserve price shall be $730,000 or such other sum as may be agreed in writing between the parties;
(c)The solicitors for the Wife shall act for the vendor on the sale;
(d)The sale be by public auction and the contract be prepared on an unconditional cash settlement basis; and
(e)Such other terms or conditions as are agreed in writing between the parties.
That upon the sale of the property monies shall be distributed as follows:
(a)Firstly, to pay the costs and commissions and all other necessary and proper expenses of the sale and in the adjustment of rates, taxes and other outgoings properly payable; and
(b)Secondly, to pay the balance to the Wife’s solicitors to be held in trust for the parties pending further agreement in writing between the parties or order of the Court.
Liberty to apply both as to the terms and conditions of the sale and the division of the sale proceeds, is reserved to both parties upon proper documents being filed and served.
The Wife's costs of the Application in a Case are reserved to the final hearing of the matter.
The matter is adjourned for mention to 29 March 2019 at 9.30 am for directions hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 774 of 2018

MS CARNEY BY HER LITIGATION GUARDIAN MR BAKER

Applicant

And

ESTATE OF THE LATE MR CARNEY BY HIS EXECUTORS MS HOWARD AND MS NORMAN

Respondent

REASONS FOR JUDGMENT

Introduction

These are property proceedings the facts of which are…

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 CARNEY & CARNEY

Details

AGLC: CARNEY & CARNEY [2019] FCCA 72
Case: [2019] FCCA 72
Decision Date: 17 January 2019

CaseChat Overview and Summary

In the matter of CARNEY & CARNEY, Judge Costigan considered an application by the applicant, Mr. Carney, seeking orders for the appointment of himself as trustee for the sale of the former matrimonial home. The dispute arose from the respondent's, Mrs. Carney's, non-compliance with previous court orders.

The primary legal issue before the court was whether to appoint Mr. Carney as trustee for the sale of the property, and if so, upon what terms, given the respondent's non-compliance with prior orders. The court was required to determine the conditions under which the sale would proceed and how the proceeds would be managed.

Judge Costigan ordered that unless the former matrimonial home was sold by auction or contract by 15 March 2019, it would vest in Mr. Baker as Trustee for Sale. Specific terms were stipulated for the sale, including the appointment of a particular selling agent, a reserve price of $730,000 (or as otherwise agreed), the wife's solicitors acting for the vendor, and a sale by public auction on unconditional cash settlement terms. Upon sale, sale costs and expenses were to be paid first, with the balance to be held by the wife's solicitors in trust pending further agreement or court order. Liberty to apply was reserved to both parties regarding the sale terms and proceeds, and the wife's costs of the application were reserved to the final hearing. The matter was adjourned for a directions hearing.

Orders

Orders of the court

That unless the former matrimonial home situate and known as Street A, Suburb B (‘the property’) has been sold at auction or a contract has been executed by both purchaser and vendor for the its sale prior to 15 March 2019 the property shall thereupon vest in Mr Baker as Trustee for Sale of that property upon the following terms:

(a) The selling agent shall be Real Estate Agent C located at Street D, Suburb E;

(b) The reserve price shall be $730,000 or such other sum as may be agreed in writing between the parties;

(d) The sale be by public auction and the contract be prepared on an unconditional cash settlement basis; and

(e) Such other terms or conditions as are agreed in writing between the parties.

That upon the sale of the property monies shall be distributed as follows:

(a) Firstly, to pay the costs and commissions and all other necessary and proper expenses of the sale and in the adjustment of rates, taxes and other outgoings properly payable; and

(b) Secondly, to pay the balance to the Wife’s solicitors to be held in trust for the parties pending further agreement in writing between the parties or order of the Court.

Liberty to apply both as to the terms and conditions of the sale and the division of the sale proceeds, is reserved to both parties upon proper documents being filed and served.

The Wife's costs of the Application in a Case are reserved to the final hearing of the matter.

The matter is adjourned for mention to 29 March 2019 at 9.30 am for directions hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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