Ettridge and Somers (No. 4)

[2018] FamCA 1042

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS (NO. 4) [2018] FamCA 1042

FAMILY LAW – ENFORCEMENT – where there is a dispute about how property is to be sold necessitating proceedings to vary the machinery provisions of the orders – orders made.

FAMILY LAW – COSTS – where the applicant is largely successful and the respondent was obfuscating – costs order made.

Family Law Act 1975 (Cth)

Ettridge & Somers [2017] FamCA 1173
Ettridge & Somers [2018] FamCA 874
Ettridge & Somers (No. 2) [2018] FamCA 863

APPLICANT: Ms Ettridge

RESPONDENT: Mr Somers

FILE NUMBER: MLC 11262 of 2015

DATE DELIVERED: 10 December 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 07 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dunlop

SOLICITOR FOR THE APPLICANT: Carew Counsel

THE RESPONDENT: In Person

Orders

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 (“Suburb C”), Mr FF (of the FF Group) is appointed by the Court as the agent for the sale of the Suburb C property.

3. For the purposes of the sale of 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 per cent of the gross sale price. 

4. By 4:00 pm on 8 December 2018, the respondent shall attend upon Mr FF for the purposes of signing any necessary document authorising him to act as agent for the sale of the Suburb C property. 

5. The respondent attend at the Suburb C property and make it available for inspections and indeed the auction, as and when required by Mr FF. 

6. The solicitor responsible for the conveyancing in respect of the sale of the Suburb C property shall be Mr GG.

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

8. A copy of these orders be provided by the applicant or her solicitor to Mr FF as the estate agent as well as the conveyancing solicitor.

9. The applicant have liberty to apply to the Court on short notice in relation to any issues of non-cooperation by the respondent. 

10. The reasons for these orders be published as quickly as possible.

11. The respondent pay the applicant’s costs fixed in the sum of $2,270, such sum to be paid from the respondent’s share upon the distribution of funds after the settlement of the sale of Suburb C.

12. The application in a case filed on 3 December 2018 is 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 (No. 4) 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. On 29 October 2018, I published orders arising out of a property settlement application between Ms Ettridge (“the applicant”) and Mr Somers (“the respondent”)[1].  Those reasons arose out of a three day hearing concluding on 25 October 2018. At that hearing, the applicant was represented by counsel and the respondent appeared in person.

   [1][2018] FamCA 863

2. The specific orders that are now the subject of these reasons were as follows:

   (1)Forthwith, the respondent do all things necessary to put the real property at [B Street, Suburb C] (“[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 [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.

   (3)If there is any disagreement between the applicant and the respondent about paragraph 2 (a) to (e) of these orders or either party asserts non-compliance with that paragraph, the aggrieved party may apply, by application and affidavit to the Honourable Justice Cronin for determination of such disputed issues including for orders (if necessary) for the exclusion from participation in the said sale of any party not complying with these orders, and the matter be listed as a matter of urgency by the Court.

   (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.

3. By application in a case filed 3 December 2018, the applicant sought orders that she have the sole conduct of the sale of the property at B Street, Suburb C (“Suburb C”) with various specified powers and that the respondent vacate it within 14 days. She also sought some ambitious orders for the issue of a warrant for possession. She also proposed that Mr GG be appointed as the conveyancing solicitor.

4. Although the respondent did not file a formal response, indicating that he had not had sufficient time to do so, he managed to file an affidavit which he lodged on the Commonwealth Courts Portal at 11.47 pm on the evening prior to the hearing.

5. The facts giving rise to the dispute were clear. Regardless of whatever the parties thought the orders meant, they are to be read literally. The applicant was to nominate an estate agent and the respondent was forthwith to put the Suburb C property on the market for sale.

6. The orders were also clear that notwithstanding the respondent is the legal owner of the property, the appointed agent was to take instructions from the applicant as well.

7. Undoubtedly, there would have been questions about the reserve price, the agent’s commission and the like, but in my view, having regard to the fact that the parties had litigated with a sworn valuation in evidence and both had ultimately accept that a sale was to occur, suggestions of having to have the property examined, discuss agents’ commission and reserve prices were unnecessary prior to the appointment of the agent. Paragraph (2) of the orders made clear that in the event that there was a disagreement between the parties, the Court would fix the arrangements.  It is that which has now occurred.

8. For reasons that remain obscure, the applicant sought the assistance of three estate agents to go to the property and she asserted that the respondent declined cooperation.  There was no basis in the orders for her actions.

9. Having been rebuffed by the respondent, the applicant formally notified him on 19 November 2018 through her solicitors of her nominated agent. Paragraph (1) of the orders then obligated the respondent to immediately place the property on the market for sale with that nominated agent. He did not do so.

10. The respondent’s argument was that he had had discussions with the nominated agent, but claimed that the applicant had not confirmed the nomination. In his affidavit he said:

    [13]([Mr FF]) awaits confirmation from the applicant with respect to her nomination of an agent and in relation to completing renovations, matters that have already been discussed with ([Mr FF]) by the Respondent.

11. It will be clear that whatever view the respondent took, he had already had discussions with Mr FF. 

12. I stood the matter down for the parties to have some joint discussions with Mr FF. Even in respect of that conversation at which they both attended, there was still some dispute.  I accept the version of counsel for the applicant is the more likely one. Mr FF confirmed to both parties that he had been nominated as the agent but that the property had not been put on the market.  He said the parties were open to discussions and he said he would attend the property for the purposes of seeing what was needed. That was not what was intended. Whatever marketing program Mr FF might have had in mind, this was intended by the Court to be a tightly controlled process between two very unhappy and mistrusting litigants. If he could not fulfil (and cannot now fulfil) the sale process, another agent must be contemplated

13. The estate agent was to carry out the instructions given by the parties and quickly so. This dispute has been going on for a number of years and it needed to be brought to an end.

14. The respondent began his submissions by indicating that he had not had sufficient time to prepare all of the things that he needed to run his case properly in resisting the orders sought by the applicant. When I pressed him for details as to what further evidence he would need, bearing in mind his concession that Mr FF had been nominated by the applicant, he obfuscated. When I pressed him again after the luncheon break to indicate whether he was proceeding with the adjournment, he indicated that he was not.

15. However, I find the applicant delayed giving the nomination that would have otherwise immediately triggered the responsibilities of the respondent putting the property on the market. That does not take away from the fact that a further three weeks has now gone by, during which the respondent has not bought the property formally on the market by instructing Mr FF to be the agent.

16. The applicant’s argument is that the respondent will not facilitate the sale. Having regard to the findings of Thornton J[2], the orders of Johns J[3] and my own expressed concerns about the respondent, there is some foundation for her view. Here, the most efficacious solution is for the Court to more tightly control the sale. Both parties heard Mr FF apparently say that if the property was put on the market now, it could be sold by auction in February. Both parties indicate that is what they want.

    [2] [2017] FamCA 1173

    [3] [2018] FamCA 874

17. One controversial issue was that the Suburb C property needs some renovation which was identified by the single expert witness Mr H. However, although not entirely clear, the applicant wanted the respondent out of the property so that she could do the work herself along with people of her choosing, and for which she would borrow the funds from her parents. The respondent wanted tradespeople to undertake those tasks along with some of the work being done by himself but again at the expense of the applicant.

18. As the reasons for judgment will show, I wanted the property sold quickly because of what had gone on over a number of years. The potential for problems arising out of doing renovations was one thing, but the reality was that the valuation had been struck on the basis of the condition of the property in any event. To do the renovations would have potentially increased the value of the property and on the basis that the ultimate sale price was to be divided on a percentage basis between the parties, obviously if renovations were done and the price went up, both parties would benefit.

19. Counsel for the applicant indicated that if her client was not to have the exclusive occupancy of the property to undertake renovations, she would ignore that issue and the property could go for sale in its present condition. I observed in discussion with the respondent that it was in his interest for the work to be undertaken on the basis that as a percentage entitlement, he was likely to receive more. Again he obfuscated and indicated that he would do some of the work himself but he was having difficulties with a number of other matters that he was trying to handle.

20. On the basis that the applicant no longer presses the question of the renovations, I need not consider that issue any further.

21. As can be seen from the orders above, I anticipated difficulties between the parties about the various items associated with the sale of the property through the agent.  I made specific provision for disagreement. It was patently obvious in the Court room that there will be ongoing disputes between the parties and as such, I indicated that I would amend the orders to eliminate that step being necessary over the ensuing weeks, on the basis that the property needed to be sold by auction in February.

22. Accordingly, in discussions with counsel for the applicant and the respondent in person, the dates, amounts and times were all agreed, not to mention the formal appointment of the Court for Mr FF to be the registered agent. He is to be provided with a copy of the orders of the Court to ensure there is no difficulty.

23. Thus, for the sake of clarity, the agent must take instructions from both the applicant and the respondent, albeit that the respondent will be the legal owner of the property and is therefore entitled to sign documents, but the agent is an agent responsible to the Court more so than to the parties. Accordingly, the agent takes direction from the Court rather than the parties if there is a dispute between them. In regard to the orders that I have made in relation to dates, times and amounts, those problems should not arise.

24. The applicant is cynical about what cooperation she will get from the respondent on which basis, I have made an order that she have liberty to apply on short notice in respect of issues of non-cooperation. 

25. On the conclusion of the hearing, the applicant sought costs. She sought the amount of $4,449 but did not have the scale details nor a copy of the costs agreement for her client.

26. The respondent opposed any order for costs being made. His submission was that the applicant had not complied with the orders and as I have already indicated, I reject that.  He said that as far as he was concerned, he had many separate obligations and as I have also set out above, I reject that suggestion as well.

27. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify departure from that principle. Here, the circumstances that justify departure from the principle are the fact that the Court had to be brought back into the proceedings because there was no agreement, or at least a dispute, as to what the orders meant. In my view, the respondent’s position was untenable and had a very strong suggestion of obfuscation. I am satisfied that his lack of cooperation with the applicant has put at risk the prospect of an immediate sale of the property.

28. Before making any order for costs, having found there are circumstances to justify departure from the principle in s 117 of the Act, the Court must take into account the matters set out in s 117(2A) of the Act. Here, the parties have limited assets but they are not impecunious. They continue to litigate and in the case of the respondent, he does so without the assistance of legal representation and therefore does not seem to be particularly concerned about costs incurred by the applicant. In addition, the issue of why the proceedings were before the Court is relevant. In my view as I have already indicated, the orders were clear. Whilst the applicant did not take the first step quickly, she certainly gave nomination details in the middle of November and almost 3 weeks later not much has advanced. Whilst she has not been wholly unsuccessful, and neither was the respondent, the applicant had certainly had every justification for bringing the matter back to Court because otherwise any sale prospect early in 2019 would be put at risk. Having regard to the history of this case and the position generally adopted by the respondent throughout those proceedings, I consider there was foundation for her suggestion that cooperation from him was unlikely.

29. Whilst the applicant had to come to Court to get orders and she indeed achieved some of them, she has incurred costs unnecessarily on the basis that to achieve some certainty of her entitlement to the judgment of the Court, this application was necessary.  I do not intend to give the applicant the costs that she seeks. I do intend to exercise my discretion and calculate costs on the basis of the amount thrown away and counsel’s fees on the lower scale. I want to stress that costs are not a punishment, but rather compensation for the person who has had to litigate to achieve what is the correct outcome. In this case, it will be clear to both parties that the applicant is out-of-pocket in any event having regard to the fact that she has engaged her solicitors at an amount in excess of the scale of the Court. That is her prerogative, but the Court does not endorse that sort of activity.

30. In the circumstances, the orders are appropriate. I intend to make an order therefore on the basis that it is just and equitable to do so, to make the respondent contribute towards the applicant’s costs the sum of $2,270.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 December 2018.

Acting Associate: 

Date:  10 December 2018