Ettridge and Somers

[2019] FamCA 166

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS [2019] FamCA 166

FAMILY LAW – PROPERTY – Enforcement – where the parties had the court appoint an agent for the sale of a real property by auction but the auction was unsuccessful – where the applicant asserts that the respondent thwarted the sale by failing to keep the property in a good order and condition – where the court finds on the evidence of the estate agent that the applicant’s evidence was unsupported and her allegations unsubstantiated – where it is important that the court control the sale of the property to enable the applicant to achieve her entitlements under the judgment – where an order for a silent auction is to occur in a private treaty marketing arrangement for the set reserve price – where if the property is not sold arising from the private treaty sale after four weeks, it be placed on the market without reserve.
FAMILY LAW – PROPERTY – Enforcement – where the respondent asserts that the applicant had failed to carry out her duties as a trustee of a superannuation fund to get the necessary accounts in order for the purposes of enabling her to roll out her interest in the fund – where the evidence did not support such an assertion – application for such an order fails.
FAMILY LAW – PROPERTY – Protection of applicant’s interest – where the applicant seeks the right to attend the property in which the respondent is living for the purposes of inspection – where the respondent opposes such an order and insists that any such order will lead to police intervention and potential the arrest of the applicant – where the court considers there is no basis for such an assertion and the applicant has a right to understand what condition the property is in for the purposes of a sale – where Victoria Police are to be provided with a copy of the order and a request for their assistance to attend the property with the applicant to prevent a breach of the peace.

Family Law Act 1975 (Cth)

APPLICANT: Ms Ettridge

RESPONDENT: Mr Somers

FILE NUMBER: MLC 11262 of 2015

DATE DELIVERED: 22 March 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkins

SOLICITOR FOR THE APPLICANT: Carew Counsel Pty Ltd

THE RESPONDENT: In Person

Orders

1. That to the extent it is necessary to say so, any order previously made relating to the sale of the property at B Street, Suburb C that is inconsistent with the present orders, is discharged.

2. That commencing on Saturday 23 March 2019 or so soon thereafter as can be arranged, Mr FF of the FF Group is to market the said Suburb C property for a period of four weeks on the basis that interested purchasers are to advise him in writing of any offer to buy the property.

3. That notwithstanding previous orders, the reserve price for the sale of the Suburb C property be fixed at $850,000.

4. That during the period of marketing referred to in paragraph (2), if a purchaser offers $850,000 or more, the agent on behalf of both applicant and respondent, but in the name of the respondent, shall sell the property and the proceeds shall be disbursed and divided according to the otherwise extant orders.

5. That paragraph [4] of these orders is subject to the condition that Mr FF confirms with both parties that the only offer he has is $850,000 or more and that he does not consider, arising from his inquiries, that there is any likelihood of a further offer greater than the sum of $850,000 or that offered.

6. If at the conclusion of the four week marketing campaign referred to in paragraph (4), the property has not been sold, Mr FF shall continue to market it for sale but that there be no reserve price and that it be sold to any person offering to so buy it unless either party can show by an application to the court that the offer is either not genuine or a contrivance or indeed that there are other purchasers immediately available who will pay more than that offered.

7. That for the purposes of the future sales of the Suburb C property whether in relation to the four week period or beyond, the applicant shall be entitled to attend to inspect it either personally or by an agreed nominee.  If no agreement is reached as to the nominee, the applicant or her nominated person may attend in the company of an officer(s) of the Victorian Police force who are requested to provide all such assistance as is necessary to enable such an attendance to occur without a breach of the peace.

8. That for the purposes of paragraph (7), the applicant be at liberty to provide to such police stations as she considers necessary, a copy of these orders (and the relevant parts of the reasons therefor) without such disclosure amounting to a breach of s 121 of the Family Law Act 1975 (Cth).

9. That any application by either party for costs arising out of these proceedings be by way of application supported by affidavit and such affidavit be listed in the Judicial Duty List as soon as practicable.

10. That the application in a case filed 5 March 2019 and the response thereto filed 17 March 2019 are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11262 of 2015

MS ETTRIDGE

Applicant

And

MR SOMERS

Respondent

REASONS FOR JUDGMENT

1. By an application in a case filed 5 March 2019, Ms Ettridge (“the applicant”) seeks a number of orders relating to a property at B Street, Suburb C.  The respondent to the application is Mr Somers (“the respondent”).  Throughout these proceedings and those of the past, the respondent has appeared for himself and whilst at times loud and verbally aggressive, was generally thoughtful and articulate in respect of the way in which the dispute needed to be determined.  Suffice to say however, he believes that he has not had a fair hearing in respect of the proceedings to which I refer in the background mentioned below.

2. The application filed on 5 March 2019 can be paraphrased.  The applicant sought orders that she have the sole conduct of the sale of the Suburb C property and that it be listed as a private treaty sale “or such further manner as proposed by the applicant in consultation with the agent”.  She sought a reserve price at $860,000 and

   thereafter if necessary, the list price be reduced in increments (sic) of $5000 to $10,000 as nominated by the applicant in consultation with the agent…until the property is sold.

3. In addition to her proposed orders, the applicant sought that the respondent vacate the property failing which a warrant for possession issue. She then sought various other ancillary orders including an order under s 106A of the Family Law Act 1975 (Cth) (“the Act”).

4. By his response filed 17 March 2019, the respondent sought that he have sole conduct of the sale.  His proposed orders did not set out what he would do (or how he would do it) if such an order was made and whether he was proposing a particular course of sale.

5. In addition to the respondent’s proposed orders, he sought the following orders:

   (a)That the applicant…be restrained by injunction causing any person to enter the B Street, Suburb C property for any reason;

   (b)That the court enforce paragraph 13 (of) the orders made on 29 October 2018…with specific reference to paragraph 12;  and

   (c)That the applicant produce within seven days all minutes and all supporting documentation prepared for the (superannuation) fund for sign off (sic) by the respondent for the period 29 October 2018 to 20 March 2019.

6. What will be seen later in these reasons is how the respective proposed orders changed after discussion in the courtroom and as a result of the evidence of the estate agent Mr FF.

Background

1. Little background needs to be set out here but the following matters will put the present dispute in some context.

2. The parties had a relationship between 2007 and 2015 but thereafter, there was a dispute as to whether they were in a de facto relationship.  On 15 September 2017, after a contested hearing, Thornton J found that they were.  That in turn led to the court having jurisdiction to determine the alteration of property interests dispute between them.  That hearing gave rise to the final orders that were made on 29 October 2018 the essence of which included the sale of the B Street, Suburb C property and the division of its proceeds along with the determination of a dispute between the parties about a superannuation fund of which they were both members.  In respect of the latter, as the reasons for judgment in 2018 will show, the respondent purported to remove any control from the applicant as a trustee.  That gave rise to a declaration that both parties were trustees of the fund but that the applicant was authorised, to the exclusion of the respondent, to make the determinations to regularise the trust and pay or deal with the taxation liability to enable the applicant to roll out her entitlement to a fund of her choice.

The superannuation issue

1. For whatever reason, no further affidavit material was filed by the applicant in response to the affidavit of the respondent about the superannuation issue.  Notwithstanding he sought orders relating to the applicant complying with previous orders, there was no evidence other than a bald statement that the applicant had continued to ignore the orders made in October 2018 relating to the superannuation fund. 

2. As the parties have no means of communication, it seems that the respondent had little knowledge of what her co-trustee was doing to try and rectify the superannuation issue.  Counsel for the applicant said that she had had difficulties but no more than that was said.  No time limit was set for the problem to be rectified and five months has gone by.  Again but not in evidence, the respondent who described himself as an expert in that area said that there was a risk that the Tax Office would take 48 per cent of the value of the fund if the situation was not rectified.  Of course, the applicant would be prejudiced by that occurring as much as would the respondent.  Absent any evidence from either party as to what orders could be made to overcome the problem, the court has no power to do anything.  In the circumstances, no order should be made.

The orders of 29 October 2018 and 7 December 2018

1. The relevant paragraphs of the order of 29 October 2018 were as follows:

   1.Forthwith, the respondent do all things necessary to put the real property at B Street, Suburb C on the market for sale by public auction with an agent to be nominated by the applicant.

   2.The respondent is to instruct the agent that, albeit he is the legal owner of B Street, Suburb C, the agent is to take instructions from both the applicant and the respondent in relation to:

   a.        The date of the auction;

   b.        The reserve price;

   c.        The terms of any contract with a purchaser;

   d.        The advertising and sale preparation expenses; and

   e.        The agents’ commission.

2. In respect of those orders, I gave liberty to apply about disagreement as to the terms of paragraph [2]. I then made the following orders:

   4.That the applicant forthwith nominate, and the parties jointly appoint, a legal practitioner or conveyancing company, to undertake the relevant conveyancing in accordance with these orders.

   5.If B Street, Suburb C does not sell at auction and the parties do not agree as to how it is to be sold thereafter, they shall have liberty to apply.

3. The orders otherwise provided for the disposal of the proceeds of any sale.  Ultimately, leaving aside a modest variation, there was to be division of the proceeds as to 58 per cent to the applicant and 42 per cent to the respondent. 

4. Significantly, and contentious in the present application, I made the following order:

   10.Pending the completion of the sale of B Street, Suburb C, the respondent shall be responsible for maintaining the property in good order and condition.

5. Paragraph [10] of the orders has apparently been interpreted by the respondent as meaning that once the property sells, he had to keep it in good order and condition until the completion of the sale.  In no way could that interpretation be seen as reasonable.  He was living in the property and it needed work done on it for the purposes of the sale and I dealt with all of those matters in the reasons for judgment.  In my view there could be no dispute that the meaning of paragraph [10] was that the respondent had to keep the property in good order and condition from that moment onwards until it settled.  That becomes relevant because, on the fundamental issue for the applicant, her assertion is that the property did not sell at auction because of the condition of the property and she blames the respondent for that.

6. The final orders did not resolve the implementation problems that I had anticipated and the matter was relisted.  The matter came on for hearing on 7 December 2018.

7. At the hearing on 7 December 2018, the following orders were made:

   1.        Paragraph (2) of the orders made on 29 October 2018 is discharged.

   2.For the purposes of the sale of the real property at B Street, Suburb C, Mr FF (of the FF Group) is appointed by the Court as the agent for the sale of the B Street, Suburb C property.

   3.For the purposes of the sale of B Street, Suburb C, the following shall apply:

   a.The auction shall be on 9 February 2019 or 16 February 2019;

   b.The reserve price should be fixed at $880,000;

   c.The contract (apart from the usual terms) shall be that the settlement should be in 60 days;

   d.The advertising and sale preparation expenses shall be up to $3,000; and

   e.The agent’s commission is fixed at 1.32% of the gross sale price. 

8. I also made orders for the management of the conveyancing issues. 

9. Significantly because of the accusations of the respondent against the applicant that he had been “stalked” by her and had needed an intervention order against her, a specific provision was put into the orders to cater for her rights to attend and participate in the auction.  The order reads as follows:

   7.The applicant is authorised to attend the auction and participate in all activities that day.

10. Notwithstanding paragraph [7] of the orders, the respondent made clear to the agent at the time of the auction that the applicant was not to attend the property and if she did so, he would call the police.  There is some dispute as to the exact wording that was used but the respondent did not deny that was his intention.  Indeed, when the issue was raised again at the conclusion of the present proceedings, the respondent became not only agitated but loudly and verbally aggressive towards the applicant in the courtroom to the point that I thought it appropriate to have security attend.  Whilst he calmed down, he made clear that the only thing he would countenance was the attendance of a designated nominee on behalf of the applicant to inspect the property prior to settlement.  Counsel for the applicant who had made the application (orally) for her client’s right to attend the property conceded that having regard to the outburst that she had just witnessed, an order for the applicant to attend was counterproductive if not dangerous. 

11. In my view, the respondent gives this court little comfort that he would cooperate with any nominated person and accordingly, the only sensible order which I shall make is that in the event that the respondent does not agree with the applicant’s nominated “inspector”, she have the right to produce the orders to Victoria Police who shall have the discretion to attend with the applicant solely for the purposes of keeping the peace. 

12. To the extent that the respondent maintains that the applicant has damaged him or stalked him and has some malevolent intention in respect of him, I reject that entirely on the evidence over the last three hearings. 

13. As the applicant has a significant equitable interest in the property which is now converted into the right to the majority of the sale proceeds, it is only reasonable that she have some entitlement to inspect the property for the purposes of its protection.  To the extent that there is a past history of an intervention order, the documents presented by the respondent show that it expired on 22 May 2018.  I do not encourage the attendance of (or intervention by) state authorities in cases such as this but it is important to observe that the respondent has difficulty controlling anger specifically towards the applicant.  His large size, loud voice and threatening gestures would all give rise to a reasonable apprehension of fear in the applicant.  In my view therefore, subject to the availability of police resources, this is a case where attendance for the limited purposes of the applicant inspecting the property may very well avoid a breach of the peace.

The evidence of the parties

1. The evidence of the applicant was set out in an affidavit filed 5 March 2019.  It asserted that the respondent had failed to maintain B Street, Suburb C in good order and condition.  The assertion was then that the respondent’s conduct was prejudicing the sale of the property.  What followed was a number of assertions about the actions of the respondent towards the agent and the conveyancing solicitor but it went on to say that the agent indicated to the applicant that “there was a considerable amount of effort” to encourage the respondent to comply with orders and prepare the property for photography and sale and which the respondent ignored. 

2. The applicant set out a litany of complaints about the state of the property at the time of the auction which included unkempt gardens, the house not vacuumed, toilets not clean, shower stall grimy with “many months of soap scum”, skirting boards covered in dust and grim, the pool containing dirt and suspended material, mould on the terracotta tiles outside the house, oil on the tiles in the carport and a sizeable plant growing in between the tiles on the front roof.  She went on to detail that there were dirty clothes in the laundry, cluttered pots and bedraggled plants in the driveway and the hallway and “piles of things” in and around the house.  To corroborate these assertions bearing in mind that the applicant had not attended the property on the day of the auction, she produced photographs obviously not taken by her.  The respondent denied the accusations even to the point of asserting that the photographs were not taken on the day of the auction and indeed were not current.

3. The state of the evidence was particularly unhelpful bearing in mind the lack of firsthand knowledge on the part of the applicant and the simple denials of the respondent.  Whoever took the photographs did not provide evidence to that effect.  Curiously, the agent, who had to deal with both parties, was also remarkably silent.

4. The applicant then set out a list of things that she believed were necessary and said that the agent agreed with her that they were to be carried out to maximise the potential for the sale of the B Street, Suburb C property.  She also said that he recommended an immediate reduction in the reserve price to attract buyers. 

5. Much of the applicant’s affidavit was argument and with a litigant in person responding, that approach was unhelpful.  For that reason, I queried why the agent was not on affidavit or present to give evidence to assist the court.  Inquiries were made and he was available by telephone and the respondent seemed to have no objection to that course of action. 

The evidence of the agent

1. Mr FF is an estate agent.  He was the agent appointed under the orders.

2. Mr FF told the court that the only public interest in the property had been in the vicinity of $830,000 but even then, it was not a firm offer.  He said he had not been successful in introducing a buyer.  He had the strong view that the parties had to “come off $880,000”.  He said it could be marketed at $850,000 to $880,000 and that there may be a need to adjust the reserve.  As can be seen, the reserve had been fixed at $880,000.

3. Counsel for the applicant took Mr FF through all of the complaints of the applicant and in her photographs.  It would be fair to say that he was not fussed about most of the assertions.  He agreed that the bathroom downstairs had not been “sheeted and tiled” and that the family room and bedroom upstairs had floorboards needing carpet.  There were a few nails on a rear deck that were unsafe and there was no railing and there was a broken window in the front bedroom.  He said the carpets could have been cleaner but ultimately the respondent had maintained the property to a reasonable level. In respect of some of the minor things such as the garden, Mr FF thought that nothing stood out as unacceptable and he was not aware of such things as “flies” on the carpet.  He did not see cigarettes in the downstairs bathroom nor did he notice whether or not the toilets had been cleaned but then again he had not had time to make those observations.  He agreed that the shower could have been cleaned but he did not notice such things as dust on the skirting boards because he thought there were more glaring issues.  More importantly, Mr FF said that subsequent to the auction, there had been changes and progress.  There had certainly also been progress by the time of the auction from what he had first witnessed.

4. Bearing in mind the assertion of the applicant that the respondent had failed to comply with the October 2018 order, Mr FF did not support her assertion.

5. Because of the absence of the applicant from the property, along with the absence of any evidence from the person other than the agent who witnessed this property, the allegations of the applicant must be found to be unsubstantiated.

The allegations of lack of effort on the part of the respondent

1. The applicant also asserted that the respondent had not complied with the necessary requests of the agent and indeed, that he had largely ignored them.  Mr FF disputed that.  He conceded what had occurred was not “perfect” but he thought that the respondent was trying to maximise what was available to him.  He said he talked to the respondent about what was expected and “given his health”, the respondent had done a reasonably good job. 

2. Again, the assertions of the applicant are not supported by the most important evidence which I consider to be objective from Mr FF who was charged with resolving a difficult problem.  His objectivity can also be presumed because the respondent was highly critical of him for not marketing B Street, Suburb C “properly”.  He went on to say in his final address that Mr FF had not “performed well”.  None of those assertions was put to Mr FF and I propose to not only ignore them but reject them.  I have presumed that they are part of the colourful approach that the respondent takes to anything that is inconsistent with his way of doing things.

The evidence of the respondent  

1. The respondent’s affidavit filed 17 March 2019 was largely responsive to the affidavit of the applicant.  In a true “pleading” style, he denied or admitted various asserted facts but in some cases, did not add a narrative thereafter to indicate what his position was.  For example, the applicant had asserted that the respondent had been ordered to pay her costs.  The respondent denied that but then conceded that he had been ordered to pay 50 per cent of what the applicant had sought.  Had he been a lawyer, he would have been accused of being obtuse and unhelpful but I take into account that he is a litigant struggling with a complicated process.  He persists in indicating that he suffers from post-traumatic stress disorder albeit no evidence was presented in these proceedings to indicate how that impacted upon his capacity to prepare.

2. He said that he had done a significant amount of work on the B Street, Suburb C property and produced photographs which were inconsistent with the photographs produced by the applicant.  The difference between the two seems to me to be one of timing.  Whilst the respondent asserted that the applicant was producing photographs that were not taken as she asserted, he produced photographs that were taken on 17 March 2019.  Obviously that was well after the auction.  That was consistent with the evidence of Mr FF that the respondent has continued to work on the property.

3. The respondent made an assertion that the applicant was the one causing delays due to her own conduct “over the entire course of these proceedings” including non-compliance with the October 2018 orders and “continuous disruption by way of vexatious applications, and continued stalking and harassment”.  I reject that assertion on the basis alone that it is not supported by any objective fact.  To the extent that it is necessary to say so however, the basis upon which this case is back before the court arises from the fact that no person offered anywhere near the reserve price fixed for the sale of B Street, Suburb C and the absence of any possible cooperation between the parties for all of the reasons that ought now be apparent, means that there is no prospect of any compromise being reached.

Alteration of proposals

1. As the evidence unfolded, it was clear that Mr FF had a different view about what should occur than that proposed by either of the parties.  He suggested that what I might describe as a “silent option” would not hurt but the most significant thing from his perspective was reducing the reserve down from $880,000 to $850,000 to give some prospect of a sale.  That is sensible having regard to the fact that the only potential buyer was someone who was contemplating something in the vicinity of $830,000.  The respondent seemed to be saying that this was some person connected with the applicant although there is no evidence to support such an assertion.

2. Mr FF suggested that the sale of the property needed a four week period commencing soon hereafter working on the basis that the property is marketed at between $850,000 and $880,000 and that any offer over $850,000 be accepted.

3. The respondent produced a letter addressed to him dated immediately after the failed auction from two sales people from a competitor of Mr FF.  The respondent was openly cynical about the motivation of these people but pointed to the fact that they indicated that his property was saleable at something around $880,000.  There is no reason in this case why those people could not contract with the respondent to produce a buyer who will pay $850,000 or more but they would have to negotiate the terms and conditions of any commission sharing with Mr FF.  As counsel for the applicant conceded, if such a genuine offer was made by such an agent and Mr FF rejected a sharing of commission, the respondent would have a good reason to bring the matter back to court to remove Mr FF on the basis that he was not genuine (as asserted by the respondent) in respect of the marketing and sale of the property. 

What to do next?

1. On the assumption that the proposed orders in the application of each party must fail for lack of evidence, it would be simple to dismiss them.  However, that would not resolve the problem.  I raised with the respondent what would happen if a marketing period with some sort of silent question concept took place over four weeks and the property did not reach a sale at the reserve price of $850,000.  His response was that it would continue to go on the market because he believed that it would ultimately sell and he would continue to prepare the tasks that were presently incomplete.  I have little confidence that the respondent has the will to sell the property.  His position consistently has been that the property belonged to him and it was only in the last stages of the trial that he conceded that it had to be sold.  He still maintains that he and the applicant were not in a de facto relationship.  A very strong impression that he gives, and which I accept to be his position, is that the applicant can wait for her money.

2. The applicant’s position is that the property needs to be sold because she needs the money.  Whether she needs the money or not, she has a very clear legal entitlement now to the money arising out of the interest in equity that she had in the property.  As can be seen from the orders already mentioned, she is to get the greater proportion of any sale proceeds yet she is prepared (according to her counsel) to forego pursuing the highest possible prices to end the proceedings.  She therefore has more to lose than the respondent.

3. The applicant’s position is that if the silent option concept is not successful, then there should be no reserve and the property should just sell to the highest bidder.  As difficult a concept as that is for the respondent to accept, he gives me no confidence that he would negotiate anything less than $850,000 and that whilst he thinks the property will ultimately sell, he makes no suggestions as to how the applicant could get her money save for one matter.  In the final submissions, he said that he still held out hope that he could buy the property but he was not in a position to do so at the moment.  That adds to the intrigue as to whether or not he really does wish to sell the property but importantly, I rely on the evidence of Mr FF that save for putting up some “blue board” on the incomplete bathroom, all of the other matters of a cosmetic nature do nothing for the purposes of getting the property sold.  Mr FF said that if the work was done, it would certainly attract people (other than trades people) who would be interested in a house where the bathroom was completed.  However, none of that evidence supports a conclusion that there will still be a buyer and Mr FF has been unsuccessful over some weeks now in getting any interest other than that which I have described.

Conclusion

1. The applicant is entitled to her money and entitled to have the court enforce her rights under the judgment.  There is little she can do to make the property more attractive having regard to the evidence of Mr FF such that a substantial increase in value might be obtained.  Likewise, substantial renovations would not necessarily attract more buyers.  How much of what is a dilemma here concerns the general market forces and how much relates to the specific condition of the property, I am unable to say but Mr FF seemed to think that the respondent was doing a reasonable job in completing the tasks to make the property attractive for a sale.

2. The respondent’s concession at the conclusion of the proceedings that he still held out hopes of buying Street B, Suburb C whilst at the same time living there albeit doing renovations, gives me no confidence about his proposal for a sale.  On the basis that the applicant has a far greater amount of money at risk and is willing to chance that with a no-reserve beyond the marketing period of four weeks, I find that the most attractive proposition and one likely to do justice to both parties is for there to be a four week marketing campaign with a reserve of $850,000.  During that four week period, the agent is to advise all interested persons that they can make written offers which will be considered along the way.  If an offer of $850,000 is made, then the property must be sold unless Mr FF considers that there are other interested parties who will go higher than that sum.

3. If after four weeks of such a marketing campaign, the property has not been sold, the agent should announce to the world that the property is on the market and all offers will be considered and subject to any order to the contrary of any future hearing, the best offer made to Mr FF must be accepted. 

Orders

1. For the reasons outlined, I reject the respondent’s proposed order relating to the superannuation fund. 

2. For the reasons outlined, I intend to make an order that the applicant and/or her nominee be entitled to attend the property for inspection purposes but in the case of the applicant, only in the presence of an officer of Victoria Police and for that purpose, a copy of the orders and the relevant parts of the reasons behind that order, be provided by the applicant and/or her solicitors without such action breaching s 121 of the Act.

3. I propose to order that the previous orders that are inconsistent with what I now propose to order be discharged and that the property be placed on the market for sale by private treaty but with a marketing campaign under which prospective purchasers are encouraged to put an offer in writing to the agent and if any offer is made in excess of $850,000, unless the agent indicates that there is a greater offer available, the property be sold to such a buyer.

4. I intend to order that after a four week period if the property has not sold, the agent is directed to continue to market it and that it be sold without reserve.

Costs

1. Part of the applicant’s application seeks an order for costs on an indemnity basis. The question of costs was not argued nor could it be having regard to the dispute between the parties. Any application for costs arising out of the orders that I now propose to make can be made by either party and heard by application supported by affidavit in the judicial duty list but such application must be made within the time prescribed by the Family Law Rules 2004.

Section 106A

1. The applicant also sought an order that a registrar be appointed to execute documents “on his behalf” (meaning that of the respondent) upon provision of an affidavit setting out such failure, refusal or neglect to execute. In my view, that order would face the problem that the wording is inconsistent with s 106A to begin with. However, nothing I could find in the present proceedings would justify such an order in any event. Whilst there may be some suggestion that the respondent was slow in responding to requests, the same must be said of the applicant in respect of not only the appointment of the agent but also the completion of the superannuation issues. In my view, s 106A of the Act should only be used in circumstances where a person has failed to comply with a specific order. I must also question why it is necessary to involve the registrar when a party to the proceedings could better be suited to execute documents in the name of the defaulting party in any event. That problem does not arise at the moment but in any event, I decline to make such an order on the basis that the evidence does not support the assertion made by the applicant.

2. There are no other orders sought by the applicant that need attention.

The respondent’s response

1. Having regard to what I have said earlier, it is not appropriate that the respondent have sole conduct of the sale.  In my view, if he had that opportunity, there would be no pressure upon him to conclude the proceedings allowing the applicant to have what is justifiably her present judgment.  I also decline to make orders relating to the superannuation and that is for the reasons that I have already mentioned.

2. The application in a case and the response thereto are otherwise dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 March 2019.

Associate: 

Date:  22 March 2019