Cuny and Cuny

[2015] FamCA 778

FAMILY COURT OF AUSTRALIA

CUNY & CUNY [2015] FamCA 778

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the parties have agreed to submit a property to public auction and have agreed as to the distribution of the proceeds of sale – Where the parties are unable to agree on a reserve price – Orders made as sought by the wife – Where the husband also seeks a suspension of, and variation of, previous interim orders – Where the husband is suffering from a psychiatric condition and his Case Guardian deposes that he is unable to work – Where the Court finds limited financial evidence has been provided by the husband and declines to make the orders sought.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Cuny

RESPONDENT: Ms Cuny

FILE NUMBER: SYC 1927 of 2013

DATE DELIVERED: 18 September 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 16 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: V Lawyers

SENIOR COUNSEL FOR THE RESPONDENT:
Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: Karras Partners

Orders

Upon hearing counsel for each of the parties:

1. Orders 4 and 5 of the Orders made on 11 September 2014 are vacated.

2. The husband and the wife shall do all acts and things necessary and execute all documents instruments and writings required to sell the home known as L Street, Suburb M being the whole of the property contained in Certificate of Title Folio Identifier … ("the Suburb M property") by public auction to be conducted but no later than 24 October 2015, and the parties shall sign all documents and do all acts and things required to sell the Suburb M property by such auction and shall without limiting the generality of the foregoing attend to the following:

   (a)list the Suburb M property for sale within seven (7) days of the date of this Order with S Real Estate Agents, providing for a conjunction with T Agents;

   (b)instruct U Solicitors to act in relation to the sale of the Suburb M property;

   (c)execute all documents requested by the auctioneer for the sale of the Suburb M property;

   (d)cooperate with the agent in the presentation and promotion of the Suburb M property for sale, with the auction campaign to commence on 1 October 2015;

   (e)maintain the Suburb M property in a presentable state of repair having due regard to fair wear and tear;

   (f)nominate to the auctioneer a reserve price of $6.1 million for the sale of the Suburb M property;

   (g)attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and to accept a price not less than 5 per cent lower than the reserve price;

   (h)execute all contracts and documents necessary to complete the sale;

   (i)cooperate in every way with the auctioneer in relation to the auction of the Suburb M property.

3. In the event the Suburb M property is not sold either:

   (a)pursuant to auction sale in accordance with Order 5 hereof; or

   (b)within fourteen (14) days of the date of the auction by negotiation with the highest bidder;

   then the husband and the wife shall do all acts and things necessary and execute all documents required to cause to be held a further auction of the Suburb M property within two (2) months after the date of the first auction and the terms of these Orders shall apply accordingly in relation to such further auction, save and except that the reserve price shall be set at $5.8 million.

By consent:

1. Upon the sale of the Suburb M property, the proceeds of sale shall be distributed in the following order and priority:

   (a)       in discharge of the first mortgage to National Australia Bank;

   (b)       in payment of agents commission, costs and auction fees;

   (c)       in payment of the legal costs and disbursements incurred in the sale;

   (d)in payment of the balance to be placed in a controlled monies account in the name of V Lawyers pending further order or agreement between the parties in writing.

2. Each party be permitted to forthwith draw down $200,000 by way of partial property settlement from the National Australia Bank facility secured against the Suburb M property.

3. The husband is restrained from directly or indirectly purchasing or acquiring any interest in the Suburb M property.

Otherwise:

1. All outstanding Applications in a Case and Responses to Application in a Case are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cuny & Cuny has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1927 of 2013

Mr Cuny

Applicant

And

Ms Cuny

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Cuny (“the husband”) and Mrs Ms Cuny (“the wife”) are engaged in litigation concerning financial issues.  On 16 September 2015 the husband’s Further Amended Application in a Case was listed for hearing.  The husband pressed for orders in accordance with paragraphs 2, 4, 7, 8 and 17 of that Application, which read as follows:

   2.That pending further Order and until such time as the husband returns to full time employment, Orders 1(b) and 1(d) of the Orders made on 22 July 2013 be suspended.

   4.That Order 1(c) of the Orders of 22 July 2013 be varied to permit the wife to keep the net rent from [W Street, Suburb X] while Order 1(d) of the orders made on 22 July 2013 is suspended.

   7.That within 24 hours of the date of this order the wife execute a sales inspection report and exclusive agency agreement with [Mr T] of [T Agents] for the marketing and sale of [L Street] by public auction with a four week marketing program prior to the auction and with a reserve of $5.8 million.  In the event the reserve price is not reached at the auction a price of up to 7 per cent lower than the reserve price is to be accepted.

   8.In the event that [L Street] is not sold at the first auction it should be re auctioned six weeks later with a reserve of $5.5 million and in the event the reserve price is not reached at the second auction a price of up to 7 per cent lower than the reserve price is to be accepted.

   17.That pending the determination of these proceedings the wife be and hereby is restrained from further encumbering, mortgaging or in any way dealing with the property [W Street, Suburb X].

2. The parties agreed that the Court should make the following orders:

   1.That upon the sale of the property situate at [L Street, Suburb M] the proceeds of sale shall be distributed in the following order and priority:

   a)in discharge of the first mortgage to National Australia Bank;

   b)in payment of agents commission, costs and auction fees;

   c)in payment of the legal costs and disbursements incurred in the sale;

   d)in payment of the balance to be placed in a controlled monies account in the name of [V Lawyers] pending further order or agreement between the parties in writing.

   2.That each party be permitted to forthwith draw down $200,000 by way of partial property settlement from the National Australia Bank facility secured against the [Suburb M] property.

   3.That the husband is restrained from directly or indirectly purchasing or acquiring any interest in the home.

Background

1. The husband and the wife, who are aged 58 and 52 respectively, commenced cohabitation in 2003.  They married in 2007 and separated on 14 February 2013.  Each of the parties has adult children from previous marriages.

2. The husband is a health professional who currently suffers from “anxiety, insomnia, ruminations, mood lability and intrusive thoughts in relation to his ex-wife [Ms Cuny]”, according to his psychiatrist Dr Y.  The husband’s wife and Case Guardian, Ms Z Cuny, deposed that he has been unable to work since 10 July 2015.  The wife retired from her job in December 2011 and has not since held paid employment.

3. On 22 July 2013 the parties consented to interim orders which included the following:

   1.        That pending further order:

   (a)the wife be at liberty to occupy the home with the wife to maintain the property in a fit and proper state and condition.

   (b)the husband meet payment of all outgoings in respect of the [Suburb M] property defined as municipal and water rates, phone, Foxtel, gas, electricity, MSB and (home/contents) insurance, internet (in accordance with current package) and NES security.

   (c)the wife apply any rental income received from [W Street, Suburb X] to the reduction of either the mortgage to the National Australia Bank secured over the [Suburb M] property or the mortgage secured over the [Suburb X] property.

   (d)That without admissions the husband pay or cause to be paid to the wife the sum of $4,000 per calendar month, the first of such payments to be paid within 7 days of the date hereof.

4. On 11 September 2014 the following interim orders were made, apparently following a contested hearing:

   1.That forthwith upon his being notified by the wife that a payment is required, the husband do all acts and things to draw down from the National Australia Bank mortgage facility over the property at [L Street, Suburb M] (“[L Street]”) sufficient funds to pay for the re-instatement of the pontoon facility which work in the subject of a current Development Application (“the work”).

   2.That the wife do all acts and things necessary to complete the work with all possible expedition, including but not limited to giving all necessary consents, obtaining all necessary permissions and certificates and retaining and instructing a contractor and to finalise a lease from the Roads & Maritime Services authority (“RMS”) .

   3.That in the event that the husband so requests, the wife shall consent to the appointment by the husband of a suitably qualified project manager to supervise the work and report to the husband.

   4.That within 14 days of the receipt of the appropriate Certificate of Compliance and the grant of a lease by the RMS, the parties shall do all acts and things to sell [L Street] by private treaty and to pay from the proceeds of sale the agent’s commission and legal expenses and all registered encumbrances and to pay the balance into an interest bearing account as agreed upon between them, pending further order or agreement in writing.

   5.        That to facilitate the sale:

   (a)the husband shall, within 21 days, nominate three agents and three solicitors to handle the sale and the wife shall choose the agent and the solicitor to have the carriage of the sale;

   (b)forthwith upon the wife’s nomination of the agent, each party shall sign the necessary document to appoint the agent and the solicitor; and

   (c)the wife shall facilitate all reasonable requests for inspection for the purpose of marketing [L Street] from a date which is 21 days after the date when both the Certificate of Compliance is available and the lease has been executed.

   6.That the matter is stood over to 10 October 2014 at 10am for spousal maintenance and interim property settlement.

   IT IS NOTED

   7.That the husband’s attendance is excused on hearing date of 10 October 2014.

5. A lease from the Roads and Maritime Services Authority was signed by the wife, as sole registered proprietor of the Suburb M property, on 17 April 2015.  Thereafter, the property has been on the market for sale with the listing agent being T Agents.

6. There have been issues between the parties concerning the acceptance and rejection of offers to purchase the property, which I will not canvass in these reasons.  I consider that process to be unnecessary as the parties have now agreed to submit the property to public auction on 24 October 2015.  It was agreed further that T Agents and S Real Estate act as agents in conjunction in relation to the sale.

Consideration

Suspension of interim orders made on 22 July 2013

1. The husband seeks a suspension of the orders which provide that he pay the outgoings in relation to the Suburb M property and a sum of $4,000 per month, until such time as he resumes full-time employment.  The husband’s wife deposed: “[Mr Cuny] is not entitled to and is not receiving any payments or income while he is not working”.

2. The husband derives income for his work from the AA Investment Trust, which operates as AA Pty Ltd.  The finance director of those entities, Ms BB, deposed that the unit holders in that Trust receive a payment of $3,000 only on days when they work in the business.

3. On behalf of the wife, a bank statement for an account operated by the Trustee of the Cuny Superannuation Fund for the period 1 January 2015 to 23 June 2015 was tendered in evidence (Exhibit “1”).  This document shows that the Trustee made various lump sum payments, in totalling around $85,000, styled

   
   

   “Mr Cuny Pension” during that period.  I have no other evidence in relation to these payments.

4. The wife deposed that the husband has disability insurance which commences to make payments after three months of illness.  If that is so, the husband would begin to receive insurance payments on 10 October 2015 if he is still unable to work at that time.  As noted by counsel for the wife, the husband’s wife swore an affidavit on 4 September 2015 which responded to specific paragraphs in that of the wife of 5 August 2015.  There was no response to that paragraph in the wife’s affidavit.

5. There was no evidence as to the husband’s current financial position, such as the balances of his bank accounts.  In these circumstances, and having regard to the above submissions for counsel for the wife, I am not prepared to suspend the orders of 22 July 2013 as sought by the husband.

Rental from the Suburb X property

1. The wife is the owner of a property W Street, Suburb X, which generates rental income.  The consent orders of 22 July 2013 provide that the wife apply the rental income to mortgage debts secured on the title of the Suburb M and Suburb X properties.  These mortgages will be discharged upon the sale of the Suburb M property.

2. As I will not suspend orders made on 22 July 2013 as sought by the husband, I decline to put in place a situation whereby the wife additionally receives the rental income in respect of the Suburb X property.  The net result will be to leave unchanged the financial position for each of the parties created by the consent orders of 22 July 2013.

The reserve price for the auction of the Suburb M property

1. The husband sought an order that the reserve price be fixed at $5.8 million.  The wife proposed a reserve price of $6.1 million.

2. The highest offer for the purchase of the property has been a sum of $5.7 million.  On 26 March 2015 the husband’s solicitors advised by letter that he “does not agree to a sale price below $6.1 million”.  On 4 January 2014 a single expert valued the property at $6.1 million, upon completion of work on the boat facility and renewal of a lease by the Roads and Maritime Services Authority.  The necessary work was carried out and the lease issued on 17 April 2015.

3. The agreed conjunction agent, S Real Estate, advised the wife that an appropriate price range for the sale of the property is $6 million to $6.5 million (Annexure “C” to the wife’s affidavit of 15 September 2015).  CC Real Estate and DD Property advised an appropriate listing price in a range of $5.6 million to $6.1 million and “at least” $6.1 million respectively (Annexure “B” to the wife’s affidavit of 15 September 2015).

4. The husband’s suggested reserve price of $5.8 million appears to be out of step with the valuation of the single expert and the opinions of S Real Estate, CC Real Estate and DD Property.  Overall, it seems to me that the orders proposed by the wife in relation to the sale of the Suburb M property are likely to achieve the most favourable result for the parties.  I will make orders in that respect in accordance with the Minute submitted on behalf of the wife on 16 September 2015.

Injunction in relation to the wife dealing with the Suburb X property

1. No basis was offered in the evidence for the proposed injunction.  I am not prepared to make the proposed order in this evidentiary vacuum.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 18 September 2015.

Associate:  M. Rankin

Date:  18 September 2015