Cull & Lenz (No. 4) - [2021] FamCA 142

FAMILY COURT OF AUSTRALIA
Cull & Lenz (No. 4) [2021] FamCA 142

File number(s): SYC 6598 of 2017

Judgment of: REES J

Date of judgment: 19 March 2021

Catchwords: FAMILY LAW – INTERIM PROPERTY – Where orders were in place prohibiting the wife from selling the former matrimonial home – Where the wife nevertheless proceeded with the sale of the property – Orders made to enforce the contractual obligation – Trustee for sale appointed.

Legislation: Family Law Act 1975 (Cth) s 106A

Number of paragraphs: 47

Date of hearing: 18 March 2021

Place: Sydney, by Microsoft Teams

Solicitor for the Applicant: Mr Zhu, Auyeung Hencent & Day Lawyers

First Respondent: Self-Represented

Solicitor for the Second Respondent: Ms Nolan and Ms Simes, Nolan Lawyers

Third Respondent: Self-Represented

Fourth Respondent: Self-Represented

Solicitor for the Fifth Respondent: HH Lawyers

Solicitor for the Sixth Respondent: ZZ Lawyers
ORDERS

SYC 6598 of 2017

BETWEEN:
MR DEA

Applicant

AND:
MS CULL

First Respondent

MR LENZ

Second Respondent (and others named in the Schedule)

ORDER MADE BY:

REES J

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS:
1.That Order 6 made on 12 February 2018, in so far as that order related to the sale of the property at EE Street, Suburb FF (“the Property”) is discharged to allow the settlement of the sale of that Property to Mr Dea.
2.That Order 5 made on 17 August 2020 is discharged to allow the settlement of the sale of the Property to Mr Dea.
3.That Mr BC, a solicitor, be appointed as Trustee for the sale of the Property (“Trustee”) and by this order Trustee do all things necessary to complete settlement of the sale of the Property to Mr Dea (“the Conveyancing Transaction”) and to deal with the proceeds of sale in accordance with the Orders made on 24 November 2020.
4.That the Trustee have the power to do all things and sign all documents on behalf of the First Respondent Ms Cull necessary to complete the Conveyancing Transaction, including but not limited to:
(a)the Discharge Authority in favour of CD Bank;
(b)the PEXA Client Authorisation form enabling the Trustee to sign documents on behalf of the First Respondent / Vendor of the Property electronically and submit or authorise submission of documents for lodgement with the relevant Land Registry;
(c)authorise any financial settlement involving the Conveyancing Transaction;
(d)do anything else necessary to complete the Conveyancing Transaction;
(e)invite the following parties to the PEXA workspace:
(i)the Applicant’s solicitor;
(ii)the Second Respondent’s solicitor;
(iii)CD Bank or their representative;
(iv)the Third, Fourth, Fifth and Sixth Respondents or their legal representative;
(v)the following Caveators or their legal representative:
A.Mr B Cull;
B.Mr B Cull;
C.ZZ Pty Ltd
D.Mr Lenz
E.HH Pty Ltd
F.JJ Pty Ltd
G.Mr Dea

5.That within 14 days of the date of these Orders the Wife shall vacate the Property and shall cause any other occupant of the Property to also vacate and she shall thereafter be restrained from re-entering the Property.
6.That, in addition to 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 Cull & Lenz (No. 4)

Details

AGLC: Cull & Lenz (No. 4) [2021] FamCA 142
Case: [2021] FamCA 142
Decision Date: 19 March 2021

CaseChat Overview and Summary

In the matter of *Cull & Lenz (No. 4)*, Rees J of the Family Court of Australia considered an application concerning the sale of a former matrimonial home. The applicant, Mr Dea, sought to enforce contractual obligations related to the property's sale, which had proceeded despite existing court orders prohibiting the wife, Ms Cull, from selling it. The dispute centred on the wife's actions in proceeding with the sale and the subsequent need for court intervention to facilitate its completion.

The primary legal issues before the court were whether to discharge previous orders that restrained the sale of the property and, if so, to appoint a trustee to manage the sale and the distribution of its proceeds. The court was also required to determine the powers to be granted to such a trustee to ensure the completion of the conveyancing transaction and to address the implications of existing caveats on the property's title. Furthermore, the court needed to consider the wife's obligation to vacate the property and the allocation of the sale proceeds, including the trustee's remuneration.

Rees J reasoned that the wife's prior actions necessitated the appointment of a trustee to enforce the contractual obligations and facilitate the sale. The court discharged earlier orders that had prohibited the sale, thereby enabling the settlement of the property to Mr Dea. Mr BC, a solicitor, was appointed as Trustee for the sale, vested with broad powers to execute all necessary documents and actions to complete the transaction and deal with the proceeds in accordance with prior court orders. The court also made orders for the wife and any other occupants to vacate the property and for the trustee to pay their remuneration and expenses from the sale proceeds. In the event of non-compliance with orders concerning the withdrawal of caveats, the Registrar of the Family Court was appointed to sign necessary documents.

Orders

Orders of the court

SYC 6598 of 2017

BETWEEN:

MR DEA

Applicant

AND:

MS CULL

First Respondent

MR LENZ

Second Respondent (and others named in the Schedule)

ORDER MADE BY:

REES J

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS:

1. That Order 6 made on 12 February 2018, in so far as that order related to the sale of the property at EE Street, Suburb FF (“the Property”) is discharged to allow the settlement of the sale of that Property to Mr Dea.

2. That Order 5 made on 17 August 2020 is discharged to allow the settlement of the sale of the Property to Mr Dea.

3. That Mr BC, a solicitor, be appointed as Trustee for the sale of the Property (“Trustee”) and by this order Trustee do all things necessary to complete settlement of the sale of the Property to Mr Dea (“the Conveyancing Transaction”) and to deal with the proceeds of sale in accordance with the Orders made on 24 November 2020.

4. That the Trustee have the power to do all things and sign all documents on behalf of the First Respondent Ms Cull necessary to complete the Conveyancing Transaction, including but not limited to:

(a) the Discharge Authority in favour of CD Bank;

(b) the PEXA Client Authorisation form enabling the Trustee to sign documents on behalf of the First Respondent / Vendor of the Property electronically and submit or authorise submission of documents for lodgement with the relevant Land Registry;

(d) do anything else necessary to complete the Conveyancing Transaction;

(e) invite the following parties to the PEXA workspace:

(i) the Applicant’s solicitor;

(ii) the Second Respondent’s solicitor;

(iii) CD Bank or their representative;

(iv) the Third, Fourth, Fifth and Sixth Respondents or their legal representative;

(v) the following Caveators or their legal representative:

A. Mr B Cull;

B. Mr B Cull;

C. ZZ Pty Ltd

D. Mr Lenz

E. HH Pty Ltd

F. JJ Pty Ltd

G. Mr Dea

5. That within 14 days of the date of these Orders the Wife shall vacate the Property and shall cause any other occupant of the Property to also vacate and she shall thereafter be restrained from re-entering the Property.

6. That, in addition to the payments specified in Order 6 made on 24 November 2020, the Trustee pay, from the balance of the proceeds of sale, the Trustee’s reasonable remuneration and expenses, to be approved by order of the Court.

7. That in the event of non-compliance with Order 4 of the Orders made on 24 November 2020, pursuant to section 106A of the Family Law Act 1975, the Registrar of the Family Court of Australia be appointed to sign the Withdrawal of Caveat and any other document necessary to ensure that the Caveats secured on title to the Suburb FF property are withdrawn on settlement.

8. That leave is given to the applicant, the husband and the wife to file and serve, within 7 days, any affidavit material and submissions in relation to the costs of the Application in a Case filed on 12 March 2021, noting that the issue of costs will be dealt with in Chambers.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 6598 of 2017
Judgment of:	REES J
Date of judgment:	19 March 2021
Catchwords:	FAMILY LAW – INTERIM PROPERTY – Where orders were in place prohibiting the wife from selling the former matrimonial home – Where the wife nevertheless proceeded with the sale of the property – Orders made to enforce the contractual obligation – Trustee for sale appointed.
Legislation:	Family Law Act 1975 (Cth) s 106A
Number of paragraphs:	47
Date of hearing:	18 March 2021
Place:	Sydney, by Microsoft Teams
Solicitor for the Applicant:	Mr Zhu, Auyeung Hencent & Day Lawyers
First Respondent:	Self-Represented
Solicitor for the Second Respondent:	Ms Nolan and Ms Simes, Nolan Lawyers
Third Respondent:	Self-Represented
Fourth Respondent:	Self-Represented
Solicitor for the Fifth Respondent:	HH Lawyers
Solicitor for the Sixth Respondent:	ZZ Lawyers

ORDER MADE BY:	REES J
DATE OF ORDER:	19 MARCH 2021