Duke & Duke

[2021] FCCA 1956

FEDERAL CIRCUIT COURT OF AUSTRALIA

Duke & Duke [2021] FCCA 1956

File number(s):	ROC 785 of  2020
Judgment of:	JUDGE VASTA
Date of judgment:	12 July 2021
Catchwords:	FAMILY LAW – Property – trustee for sale – price needed to extinguish debts – other chattels – whether those chattels should be sold as to assist in the extinguishing of debts
Legislation:	Family Law Act 1975(Cth) s 106A
Cases cited:	N/A
Number of paragraphs:	12
Date of last submission/s:	12 July 2021
Date of hearing:	12 July 2021
Place:	Brisbane
Counsel for the Applicant:	Ms McDermott
Solicitor for the Respondent:	The Respondent appearing on his own behalf

ORDERS

ROC 785 of 2020

BETWEEN:

MS DUKE

Applicant

AND:

MR DUKE

Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	12 JULY 2021

THE COURT ORDERS:

1.That pending the sale of the property at B Street, Suburb C (‘the property’) by the Trustee pursuant to the Order of 10 February 2021, the Applicant Wife be at liberty to do all such acts and things and sign all such documents and make any arrangements necessary so as to effect the sale of any remaining cattle, plant and equipment, scrap metal, roofing iron, building materials and any other goods remaining on the property (whether owned by the parties personally or by the Husband’s company, D Pty Ltd (‘the Company’) with any and all proceeds of sale to be deposited into the E Law Firm Trust Account on behalf of the parties jointly to be applied upon the settlement of the sale of the property to the secured business loans and/or the Caveat registered thereon as is necessary to ensure settlement is able to be effected and to otherwise remain in trust pending final property settlement or further Order of the Court.

(a)That such items to be sold by the Wife pursuant to the above order include but are not limited to the following:

(i)Plant Trailer – Rego …;

(ii)Tip Truck – Rego …;

(iii)Dog Trailer - No registration – VIN – …;

(iv)Semi Trailer – No registration – VIN – …;

(v)Excavator – VIN … (subject to any finance and/or security charge registered to F Pty Ltd).

(b)That if necessary, prior to any sale, the Husband and Wife do all acts and things and sign all documents needed to obtain from any PPSR secured party a release of their security in respect of the specific item to be sold, and obtain the necessary undertaking from that financier to amend the registration on the PPSR by registering a financing change statement in respect of the released property.

2.That in the event there are scrap, junk or goods remaining on the property that the Wife is unable to sell because there are no willing purchasers or such items have no resale value, then the Wife be at liberty to dispose of such items in preparing the property for sale.

3.That the Applicant Wife be at liberty to do all such acts and things and sign all such documents and make any arrangements necessary so as to effect the sale of the 13t CAT Excavator owned by the Husband’s company, with the Husband to do all acts and things necessary to advise the Wife in writing of the location of the excavator and deliver up to the Wife (by delivery to the Wife’s solicitors office) all keys to the excavator within 2 days of the date of these Orders and, if on private property, do all things necessary to arrange the consent of the property owner to permit access for the Wife to collect the Excavator.

4.That the Husband be prevented, either in his personal capacity or in his capacity as Director of the company, from registering any security interest on the PPSR over any of the property to be sold pursuant to the above Orders which would have the effect of preventing a sale.

5.That in the event that either party fails, refuses or neglects to execute (within three (3) working days of a written request to do so) any documents or do anything necessary to give effect to the terms of these Orders, then pursuant to section 106A of the Family Act 1975 as amended:

6.The Registrar or Deputy Registrar of the Federal Circuit Court of Australia shall be and is hereby appointed to execute any deed or instrument in the name of the defaulting party and to do all such acts and things necessary to give validity to the operation of the deed or instrument and to give validity and operation to these orders;

(a)The affidavit of the solicitor for the party seeking to give effect to these orders shall be sufficient proof of the default of the other party.

(b)That the Applicants costs of today are reserved.

7.That this matter remains listed for callover before Judge Carter at 9.00am on 2 August 2021 in the Federal Circuit Court of Australia at Brisbane.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Duke & Duke  is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 10 February 2021, I made an order appointing Mr G as Trustee for the sale of property in this long running dispute between Ms Duke and Mr Duke. 

2. It appeared to me that the only way in which there was ever going to be any resolution of this property adjustment application was for the property to be sold.  What has arisen since is that the Trustee has taken hold of the sale process and has looked at a number of the debts that are owed in this matter. 

3. From the material before me, there would need to be a gross sale price of the property of $509,000 for there to be a payout of all of the debts that have arisen and are linked to the real property for which Mr G is the Trustee for this sale.

4. There are a number of other assets and chattels that have been identified as being on the property.  Those assets and chattels have been valued at $59,000.  The wife is seeking an order that those chattels be sold so that the money that is received from the sale of those items would be able to reduce the amount of the gross sale price of the property that would be needed to extinguish the debts.

5. The evidence before me at the moment is that the property had been valued at $410,000.  I note that the husband has disputed this, and he says that the real estate agent who is handling the sale does not agree with this either.  Nevertheless, the property is targeted to sell at $475,000.  The process is underway at the moment, and it seems that there have already been offers over the $450,000 mark. 

6. But if it is that the sale price does only lead to a sale price between $450,000 and $475,000, there is going to be a significant debt still remaining.  As Mr G says, that even if a figure of $40,000 could be realised out of the sale of these other goods (that are valued at $59,000), that would go a good deal to reducing the figure needed to extinguish the debts; that is, if $40,000 were realised, the sale price could be as low as $470,000 to extinguish debts.

7. That is not to say that Mr G will be only content with this, but he will be trying to make sure that the property is sold at what the market has that it will be sold at. 

8. The husband does not agree with the proposed sale of the assets, notwithstanding that many of the motorised items are not registered and have not been registered for a while.  He announced to me that he could have those items registered very quickly.  He said that he does have some registration for two of those items, and he needs those items to be able to fill work that he has upcoming where he said that he will get in some $30,000.

9. Unfortunately for the husband, even though he has filed an affidavit on 19 July 2021, there is no evidence of this work.  There is no evidence as to what amount of money will be able to be realised from this work.  The other aspect is that the husband has sworn that he currently has been injured, and the injury has stopped him from work because he is incapacitated.  He says that he does have a personal injuries claim that is currently being looked after by H Law Firm.

10. The question for me, then, is to look at what is in the overall best interests of the parties and what is just and equitable having regard to the whole situation.  Mr G has said that the sale process now has momentum, and if these other items are able to be sold it means that there will not be any slowing down of the momentum, and that the money can be realised as soon as possible and the debts paid, which is really to the benefit of everyone.

11. That seems to me to be the overriding aspect here, notwithstanding those matters that the husband has put before me in his oral submissions today. 

12. Therefore, I am of the view that I should make the orders that have been sought.  I will make an order in terms of the draft that has been given to me by the legal representatives by the wife.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       3 September 2021