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

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

Paragraph (2) of the orders made on 29 October 2018 is discharged.
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.
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.
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.
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.
The solicitor responsible for the conveyancing in respect of the sale of the Suburb C property shall be Mr GG.
The applicant is authorised to attend the auction and participate in all activities that day.
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.
The applicant have liberty to apply to the Court on short notice in relation to any issues of non-cooperation by the respondent.
The reasons for these orders be published as quickly as possible.
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.
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…

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

Case: [2018] FamCA 1042
Decision Date: 10 December 2018

CaseChat Overview and Summary

In the matter of *Ettridge and Somers (No. 4)*, Cronin J of the Family Court of Australia considered a dispute between the applicant and respondent concerning the sale of a property. The proceedings arose from disagreements regarding the practical arrangements for the sale, necessitating court intervention to vary the existing property settlement orders.

The court was required to determine the specific terms and machinery provisions for the sale of the real property located at B Street, Suburb C. This included appointing a sale agent, setting auction dates, establishing a reserve price, defining settlement terms, capping advertising and preparation expenses, and fixing the agent's commission. The court also had to address the respondent's cooperation with the sale process and consider an application for costs.

Cronin J reasoned that the existing orders were insufficient to facilitate the sale due to the respondent's lack of cooperation. The court therefore discharged a previous order and appointed Mr FF of the FF Group as the agent for the sale. Specific directions were given regarding the auction dates, a reserve price of $880,000, a 60-day settlement period, advertising expenses capped at $3,000, and an agent's commission of 1.32 per cent of the gross sale price. The respondent was ordered to sign necessary authorisations for Mr FF and make the property available for inspections and the auction. Mr GG was appointed as the conveyancing solicitor. The applicant was authorised to attend the auction. The court also ordered the respondent to pay the applicant's costs fixed at $2,270, to be paid from the respondent's share of the sale proceeds. Liberty to apply was granted to the applicant regarding any non-cooperation by the respondent.

Orders

Orders of the court

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

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.

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;

(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.

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.

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.

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

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

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.

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.

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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