CUNY & CUNY - [2014] FamCA 825

FAMILY COURT OF AUSTRALIA

CUNY & CUNY

[2014] FamCA 825

FAMILY LAW – PROPERTY – INTERIM ORDERS – Interim application by the husband for sale of property owned by the parties – Where the wife agrees that the parties cannot retain the property but wishes the sale to be dealt with at the final hearing – Where the wife seeks to carry out capital works on the property prior to the sale – Where the husband asserts the property should be sold in its present condition – Where it is found that the postponement of the sale of the property and the draw-down of funds from the mortgage facility to fund the work will not cause financial difficulty to the husband – Orders made that the work on the property be done and the property be listed for sale upon completion of the work.

Family Law Rules 2004 (Cth) Rule 15.49

APPLICANT:

Mr Cuny

RESPONDENT:

Ms Cuny

FILE NUMBER:

SYC

1927

2013

DATE DELIVERED:

11 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

11 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Wheelhouse SC

SOLICITOR FOR THE RESPONDENT:

Rockwell Olivier (Sydney) Pty Ltd

Orders

IT IS ORDERED

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 access area which work is the subject of a current Development Application (“the work”).
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”) .
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.
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.
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…

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.

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Details

AGLC: CUNY & CUNY [2014] FamCA 825
Case: [2014] FamCA 825
Decision Date: 11 September 2014

CaseChat Overview and Summary

This matter came before Rees J concerning a dispute between a husband and wife regarding property settlement and spousal maintenance. The central issue revolved around the management and sale of a property located at L Street, Suburb M, and the associated costs for its reinstatement and sale.

The court was required to determine the respective obligations of the husband and wife in relation to the reinstatement of an access area on the L Street property, including the funding and execution of the necessary works. Furthermore, the court needed to establish the process for the sale of the property, including the appointment of agents and solicitors, and the distribution of sale proceeds. The matter also involved the finalisation of a lease from the Roads & Maritime Services authority and the provision for spousal maintenance and interim property settlement.

Rees J ordered that the husband was to draw down funds from a mortgage facility to pay for the reinstatement works. The wife was directed to manage the completion of these works, including obtaining necessary consents and permissions, and to finalise a lease with the Roads & Maritime Services authority. The court also stipulated that the wife would facilitate the sale of the property by private treaty within 14 days of receiving a Certificate of Compliance and the grant of the lease. The husband was to nominate agents and solicitors for the sale, with the wife making the final selection. The matter was then stood over for further consideration of spousal maintenance and interim property settlement.

Orders

Orders of the court

IT IS ORDERED

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 access area which work is the subject of a current Development Application (“the work”).

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”) .

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.

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.

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.

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

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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