Clyne and Clyne

[2019] FCCA 364

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLYNE & CLYNE [2019] FCCA 364

Catchwords:
FAMILY LAW – Interim property – wife seeks sole conduct of sale of property placed on the market at least a year – husband opposes.

Cases cited:

Bell & Graham (2000) VSC 142

Black & Garnock (2007) HCA 31

Applicant: MS CLYNE

Respondent: MR CLYNE

File Number: MLC 13202 of 2017

Judgment of: Judge Harland

Hearing date: 4 February 2019

Date of Last Submission: 4 February 2019

Delivered at: Melbourne

Delivered on: 4 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Hannan

Solicitors for the Applicant: Anthony G Black Lawyer Pty Ltd

The Respondent: In person

ORDERS

1. That the wife be permitted and authorised to sell (or re-sell) the property at Property A (Property A Property) on terms and conditions determined by the wife and with the wife to have the sole conduct of the sale (including the appointment of the conveyancer).

2. That the husband is restrained from any involvement whatsoever in the sale process including but not limited to the terms and conditions of sale or in the conveyancing process.

3. Until further order the wife have the sole use and occupation of the Property A Property.

4. The husband forthwith vacate the Property A Property.

5. That the wife be permitted and authorised to sell (or re-sell) the Property A property for $750,000 or at such sum as determined by the wife in consultation with … Valuers.

6. That the husband at his expense forthwith do all acts and things and sign all documents necessary to withdraw any caveat lodged by him or on his behalf over the Property A Property including the caveat lodged by MCK Legal.

7. The husband forthwith do all acts and things necessary and sign all documents necessary to instruct MCK Legal to give effect to Order 6.

8. In the event Order 6 is not complied with within 7 days of these Orders a Registrar of this Honourable Court is appointed and authorised pursuant to Section 106A of the Family law Act 1975 to sign all necessary documents to cause a withdrawal of the said caveat.

9. That the proceeds of sale be applied as follows:

   (i)Firstly, in payment of the costs and commissions of sale;

   (ii)Secondly, in discharge of the mortgage to the ANZ Bank;

   (iii)Thirdly, in discharge of the Equitable Charge in the sum of $27,442.70 registered against the title by the wife’s solicitors.

   (iv)Fourthly, the balance remaining to be held on trust on behalf of both parties in an interest-bearing account by the wife’s solicitors pending further order.

10. Liberty to Apply is reserved to the wife to apply in respect to the implementation and enforcement of these orders on short notice.

11. The wife’s costs of this day fixed in the sum of $2,750.00 and are reserved to the trial.

12. Orders 1 and 2 of the Orders made 3 July 2018 be discharged.

13. Save as otherwise provided all previous orders remain in full force and effect including but not limited to Order 2 of the Orders made 20 February 2018

14. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, it is certified that is was reasonable for the parties to employ an advocate.

15. The matter be adjourned to 28 January 2020 at 10.00am for final hearing (with an estimated hearing time of 2 days).

16. The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 and an updated financial statement, upon which they intend to rely at trial on or before 28 days before the final hearing.

17. Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.

18. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

19. At least 72 hours prior to the trial each party provide to the other party and to the Associate to the Judge a Case Outline document as follows:

    Parenting

    a)a list of the documents to be relied upon;

    b)a brief chronology;

    c)an outline of contentions with respect to:

    i.whether the presumption of equal shared parental responsibility applies (s.61DA),

    ii.the considerations relevant to equal time and substantial and significant time (s.65DAA);

    iii.each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

    iv.other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

    v.any other matters  relevant to the decision; and

    d)a statement of the precise orders sought

    Property

    a)a list of the documents to be relied upon;

    b)a brief chronology;

    c)a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;

    d)the main contentions on disputes as to:

    i.what items are to be included in the pool; and

    ii.the value of each asset in the pool;

    e)a list of contributions claimed or contended for;

    f)a list of other factors relied upon (s.75(2) factors);

    g)the percentage adjustment contended for; and

    h)a statement of the precise orders sought.

20. Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.

21. Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

22. Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.

NOTATION

A.The wife will seek orders at trial that any arrears of payments owed by the husband pursuant to his obligations pursuant to Order 2 of the Orders made 20 February 2018 (or any other order) shall be adjusted against the husband and deducted from his share of the final property settlement (if any).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 13202 of 2017

MS CLYNE

Applicant

And

MR CLYNE

Respondent

REASONS FOR JUDGMENT

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. The wife seeks orders today with respect to the sale of property at Property A which is the subject of consent orders made on 3 July 2018 where the parties agreed for the property to be sold.  The wife now seeks orders that she be able to conduct the sale without the husband’s involvement and seeks various other orders with respect to that.  The husband opposes that application. I granted leave to the husband to file an affidavit in court today, which I have read and considered.  The wife relied on the affidavit she swore on 30 January 2019.  There were also several exhibits which have been tendered during the course of the interim hearing. 

3. Looking at the uncontroversial facts, it is clear that the parties consented that the property be sold.  The parties had had the property valued at $810,000.  There is a contract for sale that was entered into selling the property for $850,000. 

4. It is the husband’s case that he was not consulted about terms of that sale.  What is apparent is that the sale price was for higher than the valuation, which is of the benefit of both parties.  It is also clear from both the affidavits, and the exhibits with the colour photographs, that there has been significant damage done to the property between the time the prospective purchaser was inspecting the property and the property being due to settle.

5. What is in dispute and what I cannot determine today, as the evidence cannot be tested, is who is responsible for that damage.  Each party blames the other.  It is the wife’s case that the husband has been in occupation of the property, and whilst in occupation he was arrested and charged and, for a period of time, on remand.  She says those charges related to drugs and firearms.  I do not know what the current status is of criminal proceedings.

6. The husband says in his affidavit that he did not destroy the property, but rather has gone to considerable effort to improve the state of the property.  He complains that the wife attended the property in breach of the intervention order.  He further complains that she has removed items from the property.  The husband says when he returned to the home after being released on bail on 26 September 2018, the property had been severely damaged and was uninhabitable.

7. The wife, in her affidavit, says she accepted an offer to purchase the property for $850,000 whist the husband was incarcerated, as the property is in her sole name, and exchanged contracts on 19 September 2018.  The husband’s solicitor has also lodged a caveat on the property on 3 October 2018. 

8. It is of concern given that orders have already been made for the sale of the property and the description on the title search with respect to the nature of the interest in the property is as being an implied, resulting or constructive trust. There is some real doubt as to whether or not that caveat should ever have been properly lodged, as it is well-established by authorities that having property proceedings on foot in family law matters, in itself, is insufficient to create a caveatable interest. That is quite a separate issue from seeking property adjustments with respect to property. 

9. The wife’s counsel referred to two authorities on that point, being Bell & Graham (2000) VSC 142 at [19] and the High Court decision of Black & Garnock (2007) HCA 31. I have concerns that the description does not refer to there being property proceedings, but rather a trust argument. From what I have read, that is not the argument put before the court. Indeed, the response filed on the husband’s behalf in March 2018 does not refer to any trusts.

10. What is also apparent is that the financial position of the parties is not strong.  The wife annexes to her affidavit evidence of the mortgage arrears, the rates arrears, and also arrears in child support. 

11. One of the other issues in dispute between the parties relates to business, being a franchise.  That issue is not agitated before the court today.  However, it may well be that there is little value in that business, if any, but significant debt. 

12. It is also apparent from the wife’s affidavit that there has been significant correspondence between the parties’ solicitors before the husband’s solicitors ceased acting for him with respect to the sale of the property and efforts to have the settlement go through in December 2018 , nothing that the purchasers had filed a rescission of the contract and sought a significant reduction in the contract price due to the damage to the property, which, looking at the photographs at exhibit E, is significant.

13. What is apparent from the state of the matter is that it is in neither parties’ interest for this property to remain unsold and that the longer the property remains unsold, then the higher the debts are likely to get, particularly with respect to the mortgage and the rates.  It is also quite apparent from the correspondence between the solicitors and the material that has been filed by both parties that the prospect of the parties being able to cooperate on the sale are extremely limited. 

14. In those circumstances, I will make the orders that the wife seeks with respect to the sale in terms of orders 1 to 8 of the minute sought.  With respect to the disbursement of the proceeds of sale, I will make orders with respect to discharging the equitable charge in the sum allowed for on the statement of adjustments as at 14 December 2018, which is an exhibit, $27,442.70. 

15. I will make an order that the balance be held in an interest-bearing account and by the wife’s solicitors on trust for both the husband and the wife and not to be released without further order of the court. 

16. I will reserve the wife’s costs, which have been particularised in the sum of $2750. 

17. I will also discharge orders 1 and 2 of the July 2018 orders, which were with respect to the sale. 

18. I will give liberty to apply with respect to the implementation and enforcement of these orders. 

19. I note that the wife will seek orders in the terms of order 10 in the proposed minute of orders with respect to payment of arrears owing, pursuant to the husband’s obligations under the orders of 20 February 2018 be deducted from his share of any final property settlement.

20. All other previous orders will remain in force.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  18 February 2019