Cull & Lenz (No. 4)
[2021] FamCA 142
•19 March 2021
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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cull & Lenz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
On 24 November 2020, I made orders in relation to the sale of the property at EE Street, Suburb FF (“Suburb FF”) to Mr Dea in the following terms:
1.That the application of the husband, pursuant to section 106B of the Family Law Act 1975 Cth to set aside the contract for sale between the wife and Mr Dea, in relation to the property at EE Street, Suburb FF (“Suburb FF”), is dismissed.
2.That the husband serve ZZ Lawyers and HH Pty Ltd with the Application in a Case filed on 9 September 2020 and all affidavit material filed in relation to this application, including that of the wife and the respondents and a copy of these Orders and reasons for judgment forthwith.
3.That ZZ Lawyers and HH Pty Ltd be joined as respondents in these proceedings.
4.That upon the settlement of the sale of Suburb FF, the husband, ZZ Lawyers, HH Pty Ltd and Mr B Cull do all acts required to withdraw their respective caveats lodged on the title of Suburb FF.
5.That ZZ Lawyers and HH Pty Ltd have liberty to apply by arrangement with the Associate to the Honourable Justice Rees in relation to Orders 3 and 4.
6.That upon the settlement of the sale of Suburb FF, the proceeds of sale be applied in the following order and priority:
(a) To discharge the mortgage;
(b) To pay the agent’s commission and costs;
(c)To pay the sum of $10,000 to JJ Pty Ltd simultaneously with the withdrawal of the caveat lodged by that entity;
(d)To pay the balance of the amount into a controlled monies account held by Nolan Lawyers on trust for the husband and the wife, pending further order.
7.That the wife pay the costs of the fourth respondent in the sum of $30,000, such costs to be paid from any sum received by the wife by way of property settlement in the substantive proceedings.
8.That the wife pay the costs of the husband in relation to this application on an indemnity basis, as agreed or assessed, such costs to be paid from any sum received by the wife by way of property settlement in the substantive proceedings.
The sale of the Suburb FF property has not yet settled.
By an Application in a Case filed on 12 March 2021, Mr Dea seeks orders pursuant to s106A of the Family Law Act 1975 (Cth) (“the Act”) in terms, inter alia, which would require the registrar to arrange the settlement of the sale of Suburb FF to Mr Dea. Specifically the application seeks orders requiring the registrar to fix a time and place for the settlement; to certify the sum which, upon completion, is to be paid to the applicant and to execute an authority for the mortgagor to discharge the mortgage over the property on settlement.
The terms of section 106A are set out below:
Execution of instruments by order of court
(1) If:
(a)an order under this Act has directed a person to execute a deed or instrument; and
(b)that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;
the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
It can immediately be seen that the terms of section 106A do not allow the registrar to go beyond the execution of a document and do not permit the registrar to arrange the settlement as sought by Mr Dea.
However, the circumstances of this case require that the Court do what is necessary to ensure that the settlement of the sale is facilitated and the proceeds dealt with in accordance with the Orders of 24 November 2020.
Accordingly, Mr Dea was given leave to file an amended application, seeking the appointment of a trustee for sale of Suburb FF and the matter was stood in the list.
The husband consented to orders for the appointment of a trustee for sale.
An amended application, seeking the appointment of Mr BC, a solicitor, to act as trustee for sale was filed together with an affidavit of Mr BC, in accordance with the Family Law Rules, setting out his willingness to act as trustee, his experience as a conveyancer, his remuneration rate and his statement that he was not aware of any matter which would indicate that he should not be appointed.
The parties were told that the matter would be heard at 2:15pm.
THE WIFE’S APPLICATION FOR AN ADJOURNMENT
When the matter was called at 2:15pm, the wife did not appear. When she was contacted by telephone, she told the court officer that she was collecting her child from school. The parties were told that the matter would proceed at 3pm, whether or not the wife appeared.
The wife appeared by telephone at 3pm and applied for an adjournment. That adjournment was refused for the following reasons:
The wife exchanged contracts to sell Suburb FF to Mr Dea on 4 June 2020. She did so knowing that an order had been made that she be restrained from dealing with the property.
The husband made an application to the Court to have the exchange of contracts set aside. Mr Dea sought to proceed with the purchase. At the hearing of that application, the wife also asked to proceed with the purchase. Orders were made on 24 November 2020 dismissing the husband’s application and enabling the completion of the sale by the wife to Mr Dea and the preservation of the whole of the proceeds of sale pending the determination of the competing claims, including those of the wife’s creditors.
The wife then filed an application seeking the payment to her of $591,000 from the proceeds of the sale. That application has not been dealt with and will be considered in the substantive hearing.
The wife now seeks to either resile from the contract or to delay the completion of the sale. Her position is not clear.
She has told the Court that she has no other assets and that she has no income other than Child Support paid by the husband.
It is the husband’s case that the wife will not be entitled to any of the proceeds of the sale of Suburb FF, she having sold two other properties and retained the proceeds. Both of those sales were also contrary to orders restraining the wife from dealing with those properties.
Mr Dea has paid stamp duty on the purchase and has paid the deposit of $370,000. He is paying interest on the line of credit taken out for the purchase in the sum of $4,119 per month.
Mr Dea is ready and able to settle the purchase.
The wife cannot demonstrate that she has funds available to compensate Mr Dea for costs and charges which are being incurred as a result of the wife’s refusal to settle.
In those circumstances, justice and equity require that Mr Dea’s application be heard.
THE APPLICATION FOR APPOINTMENT OF A TRUSTEE FOR SALE
A contract for the sale of Suburb FF was entered into between the wife as vendor and Mr Dea as purchaser on 4 June 2020.
The time for completion specified in the Contract for Sale is 35 days after the date of exchange.
Mr Dea is ready and able to settle the purchase and has been trying to arrange settlement since 26 November 2020, but to no avail.
On 2 December 2020, Mr RR of TT Lawyers, then acting for the wife, wrote to the husband’s solicitor and included Mr Dea’s solicitor in the email, stating that he was awaiting the wife’s instructions in relation to settlement.
On 8 December 2020, the wife’s solicitor confirmed that he was still waiting for the wife’s instructions but forwarded the authority to discharge of mortgage document for execution by the husband. The document had not been signed by the wife.
On 22 December 2020, Mr Dea’s solicitors wrote again requesting settlement and foreshadowing an application to the court, albeit pursuant to s106A of the Act.
On 14 December 2020, the wife’s solicitors wrote to the husband’s solicitors to ask whether the husband had executed the authority to discharge the mortgage.
The authority to discharge the mortgage, signed by the husband, was forwarded to the wife’s solicitors on 23 December 2020.
On 15 January 2021, TT Lawyers notified the solicitors for Mr Dea and the husband that they no longer acted for the wife in relation to the conveyance. They were invited to correspond directly with the wife.
On 19 January 2021, Mr Dea’s solicitors wrote to the wife confirming their readiness to settle.
On 20 January 2021, a further letter was written indicating that there would be an application to the Court in relation to settlement.
On 21 January 2021, Mr Dea’s solicitors advised the wife that if she did not provide confirmation that she had applied for the mortgage to be discharged and provided a payout amount by 5pm on 22 January 2021, an application would be made to the Court.
On 27 January 2021, the solicitor for the mortgagee wrote to Mr Dea’s solicitors indicating that the mortgage required properly executed discharge authorities, payment of the debt and a discharge of the orders restraining the wife from dealing with the property.
On 28 January 2021, Mr Dea’s solicitor discovered that the Suburb FF property had been listed by the wife for sale. They wrote to the selling agent advising of the exchanged contract and the interest of Mr Dea in the property and putting the agent on notice that no further steps should be taken in relation to the sale.
The agent sought clarification from Ms UU, who was understood by the agent to be acting for the wife.
By letter dated 1 February 2021, Ms UU confirmed that she had advised the wife that she (Ms UU) could not proceed further with the sale of the property to another purchaser.
Also on 1 February 2021, Mr Dea’s solicitors wrote to Ms UU confirming they were ready and able to settle and asking for a completion date. Ms UU indicated that she would try to obtain instructions from “my client”.
On 12 February 2021, Mr Dea’s solicitors wrote again to Ms UU seeking settlement and foreshadowing an application to the Court.
Mr Dea’s Application in a Case was filed 12 March 2021.
At the hearing of the application, the wife gave no indication that she intended to settle the sale unless she received a substantial sum of money to pay her creditors and to secure alternate accommodation.
Mr Dea is entitled to the performance of the contract. He has done everything in his power to settle the purchase. It is clear that the settlement will not take place unless the matter is taken out of the wife’s hands.
Orders will be made as sought by Mr Dea.
COSTS
Mr Dea seeks an order that the wife pay his costs of this application.
Neither Mr Dea nor the wife made any submissions in relation to costs.
Order will be made for the provision of written submissions within seven days and the issue of costs will be dealt with in Chambers.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 19 March 2021
SCHEDULE OF PARTIES
SYC 6598 of 2017 Respondents
Third Respondent:
MR B CUL
Fourth Respondent:
MS C CULL
Fifth Respondent:
HH PTY LTD
Sixth Respondent:
ZZ PTY LTD ACN …
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