DAULTREY & TAVENER - [2020] FCCA 399

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAULTREY & TAVENER

[2020] FCCA 399

Catchwords:
FAMILY LAW – Property – application for interim orders for the sale of several jointly-owned properties – where Applicant does not want to retain the properties in question – where Respondent wants to retain the properties but has no income or capacity to retain in her sole name – where Applicant has already expended significant sum on joint and other assets – where the Respondent’s lack of supporting documentation means Applicant’s version of events and evidence is preferred – Orders made for sale of properties.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Strahan v Strahan (interim property orders) (2009) 241 FLR 1; (2010) 42 Fam LR 203

Applicant:

MR DAULTREY

Respondent:

MS TAVENER

File Number:

CAC 374 of 2018

Judgment of:

Judge WJ Neville

Hearing date:

15 October 2019

Date of Last Submission:

18 November 2019

Delivered at:

Canberra

Delivered on:

11 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr A Givney

Solicitors for the Applicant:

Walsh & Blair

Counsel for the Respondent:

Mr G Blank

Solicitors for the Respondent:

Self-represented

ORDERS

The parties shall within 14 days do all things necessary to list the real property A Street, Town B being the whole of the land more particularly described in certificate of title folio identifier (the Property) and the real property Lot C, Town B being the whole of the land more particularly described in certificate of title folio identifier for sale by private treaty with Town B Real Estate (the agent).
The parties will list the Property and Lot C, Town B for sale at a price as agreed or failing agreement as determined by the agent.
The parties will each cooperate in every way with the agents including:
(a)making the key available to the agent;
(b)allowing inspection of the Property and Lot C, Town B at all reasonable times requested by the agent;
(c)doing or saying nothing to hinder or prevent a sale being effected;
(d)ensuring that the Property and Lot C, Town B including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers; and
(e)signing all documents requested by the agents in relation to the listing for sale of the Property except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
That City D Conveyancing & Law P/L have the primary conduct of the sale on behalf of both parties.
Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the Property or to any commission.
In the event that the Property and/or Lot C, Town B remain unsold for a period of 3 months from the date upon which it was first listed for sale, the parties will list the Property and/or Lot C, Town B for sale by public auction with a reserve price as agreed or failing…

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 DAULTREY & TAVENER

Details

AGLC: Daultrey and Tavener [2020] FCCA 399
Case: [2020] FCCA 399
Decision Date: 11 March 2020

CaseChat Overview and Summary

In the matter of DAULTREY & TAVENER, Judge WJ Neville of the Federal Circuit Court of Australia considered an application for interim orders concerning the sale of jointly-owned properties. The applicant sought the sale of several properties, indicating no desire to retain them. The respondent wished to retain the properties but lacked the income or capacity to do so in her sole name. The applicant had already made significant financial contributions to joint and other assets, and the respondent's failure to provide supporting documentation led the court to prefer the applicant's version of events and evidence.

The central legal issue before the court was how to best manage and resolve the parties' interests in multiple jointly-owned properties, particularly given the respondent's inability to retain them and the applicant's desire for their sale. The court was required to determine the terms of sale, including the method of sale, pricing, cooperation between the parties, and the distribution of sale proceeds, as well as provisions for default and future procedural steps.

Judge Neville ordered the immediate listing of two properties for sale by private treaty, with specific directions for cooperation between the parties and their agents. The proceeds of sale were to be applied first to sale costs, then to discharge mortgages, outstanding rates (with the respondent solely responsible for arrears), followed by a distribution of $200,000 to the applicant and $200,000 to the respondent, with any remaining balance to be held in trust pending further order. The respondent was also ordered to pay the mortgage and outgoings for these properties pending completion of their sale. Further orders were made for the sale of other properties, including provisions for sale by auction if private treaty failed, and for the release of funds to pay outstanding levies. The court also stipulated that in the event of a party's default, the Registrar was appointed to execute necessary documents, and the defaulting party would be liable for the non-defaulting party's costs.

Orders

Orders of the court

The parties shall within 14 days do all things necessary to list the real property A Street, Town B being the whole of the land more particularly described in certificate of title folio identifier (the Property) and the real property Lot C, Town B being the whole of the land more particularly described in certificate of title folio identifier for sale by private treaty with Town B Real Estate (the agent).

The parties will list the Property and Lot C, Town B for sale at a price as agreed or failing agreement as determined by the agent.

The parties will each cooperate in every way with the agents including:

(a) making the key available to the agent;

(b) allowing inspection of the Property and Lot C, Town B at all reasonable times requested by the agent;

(d) ensuring that the Property and Lot C, Town B including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers; and

(e) signing all documents requested by the agents in relation to the listing for sale of the Property except a contract or agreement for sale which has not been authorised by the parties’ solicitors.

That City D Conveyancing & Law P/L have the primary conduct of the sale on behalf of both parties.

Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the Property or to any commission.

In the event that the Property and/or Lot C, Town B remain unsold for a period of 3 months from the date upon which it was first listed for sale, the parties will list the Property and/or Lot C, Town B for sale by public auction with a reserve price as agreed or failing agreement as determined by the agent.

In the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the Property at a price which is not more than 10% below the reserve price.

If the Property and/or Lot C, Town B remains unsold, the parties will do all acts and things and sign all documents necessary to immediately re-list the Property for sale by public auction again, on a date nominated by the agent and at such auction there will be no reserve price.

On settlement of the sale of the each property the proceeds of sale be paid in the following manner and priority:

(a) all costs and expenses of sale including legal costs and disbursements, agent’s commission, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);

(b) the amounts required to discharge the mortgages relating to the Property and Lot C, Town B;

(c) the amounts required to pay all municipal and water rates outstanding with respect to the Property, with the Respondent to be solely responsible for such costs from her payment in (d) if such payments are in arrears;

(d) the balance then remaining to be divided:

(i) $200,000 to the Applicant;

(ii) $200,000 to the Respondent; and

(iii) the balance to held in trust pending further Order.

10.

That pending completion of the sale the Respondent shall pay the mortgage and outgoings for Lot C, Town B and the Property.

Town F Units

11.

The parties shall within 14 days do all things necessary to list the real properties known as E1 & E2 Street, Town F, Queensland folio identifiers for sale by private treaty with such agent and solicitor as is agreed or failing agreement within 14 days as nominated by the applicant.

12.

That on sale of the properties any shortfall in payment of the mortgage be paid from monies held in trust pursuant to order 9(d)(iii).

13.

In the event that a Unit remains unsold for a period of 3 months from the date upon which it was first listed for sale, the parties will list the Unit(s) for sale by public auction with a reserve price as agreed or failing agreement as determined by the agent.

14.

15.

That within 48 hours the parties authorise City D Conveyancing & Law P/L to release the monies held in trust in payment of outstanding Town F Unit levies.

Default

16.

That in the event that either party refuses or neglects within fourteen (14) days to comply with the provisions of these orders:

(a) the Registrar of the Federal Circuit Court at Canberra is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said order; and

(b) the party in default is ordered to pay all reasonable solicitor/client costs incurred by the non-defaulting party for the purpose of enforcing these orders, to be taxed if not agreed.

17.

Within 21 days of the date of these Orders, being by 8 April 2020, the parties are to jointly advise Chambers via email to Associate.JudgeWJNeville@federalcircuitcourt.gov.au as to an agreed procedural course for the matter going forwards.

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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