Executors of the Estate of Dace and Dace
[2015] FCCA 1229
•13 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EXECUTORS OF THE ESTATE OF DACE & DACE | [2015] FCCA 1229 |
| Catchwords: FAMILY LAW – Enforcement of property adjustment orders. |
| Legislation: Family Law Act 1975, ss.80, 117B |
| Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460 Friar & Friar [2014] FamCA 689 |
| Applicant: | EXECUTORS OF THE ESTATE OF DACE |
| Respondent: | MR DACE |
| File Number: | BRC 12064 of 2010 |
| Judgment of: | Judge Jarrett |
| Hearing dates: | 7 & 28 November 2013 |
| Date of Last Submission: | 28 November 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 13 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blond |
| Solicitors for the Applicant: | Atwood Marshall Lawyers |
| Counsel for the Respondent: | Ms Carmody |
| Solicitors for the Respondent: | A K Abbott & Co. |
ORDERS
The parties shall agree on the identity of a person or persons to be the trustee for sale for the purposes of these orders. In the event that the parties have not so agreed within 21 days of the date of these orders, a solicitor nominated by the President of the Queensland Law Society shall be the trustee for sale for the purposes of these orders. For that purpose either party may seek the appointment of such a person by the President of the Queensland Law Society after the period of 21 days following the making of these orders.
The person or persons agreed between the parties, or appointed by the President of the Queensland Law Society pursuant to order 1 hereof is hereby appointed as trustee or trustees for sale for any or all of the following properties:
(a)Property M1, in the State of Queensland;
(b)Property T1 & T2, in the State of Queensland;
(c)Property T3, in the State of Queensland;
(d)Property M2, in the State of Queensland; and
(e)Property R, in the State of Queensland.
The properties forthwith vest in the trustee or trustees.
The properties be forthwith sold on such terms and conditions as may be acceptable to the trustee/s including as to listing agent, list price and contract price and conditions and the conveyancing solicitor appointed on the sale.
The proceeds of sale of any and all of the properties be applied in the following manner and priority:
(a)to discharge the mortgage encumbering the property;
(b)to pay the real estate agent's costs and commissions associated with the sale;
(c)to pay the costs and outlays of the conveyancing solicitor;
(d)to pay the reasonable costs and outlays of the trustee/s;
(e)to pay the estate of the Late Ms Dace all of the proceeds of sale thereafter remaining until such time as the sum of $245,168.48 is paid;
(f)to pay the interest due on $245,168.48 pursuant to s.117B of the Family Law Act1975;
(g)to pay the estate of the Late Ms Dace, the amount of $2,065 ordered to be paid pursuant to the orders of the Court dated 30 January, 2013;
(h)to pay the estate of the Late Ms Dace, the amount of $2,610.00 pursuant to order (6) hereof; and
(i)to pay the balance thereafter remaining to the respondent via the respondent’s lawyer.
The respondent pay the applicant’s costs of and incidental to this application fixed in the sum of $2,610.00.
IT IS NOTED that publication of this judgment under the pseudonym Dace & Dace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 12064 of 2010
| EXECUTORS OF THE ESTATE OF DACE & DACE |
Applicant
And
| MR DACE |
Respondent
REASONS FOR JUDGMENT
The applicants seek orders by way of enforcement of certain property adjustment orders. They claim that the respondent, Mr Dace, is obliged to pay to them $265,168.48. They seek orders appointing them trustees for the sale of certain real property held by Mr Dace.
Whilst Mr Dace does not oppose the appointment of a trustee for the sale of those properties, he does oppose the appointment of the applicants as trustees for that purpose. Further, Mr Dace seeks that an accounting be undertaken so as to properly identify the amount to be paid by him to the applicants pursuant to the orders they seek to enforce. Whilst he concedes that he must pay something to them, he says that it is not the amount claimed by the executors.
The issue in the proceedings is whether, on the correct interpretation of some consent orders for the adjustment of property interests made between Mr Dace and Ms Dace on 26 September, 2011 the applicants and the respondent are equally liable for “holding costs” (as Mr Dace puts it) of certain real property that accrued prior to the sale of that property pursuant to the terms of the consent orders. If the applicants’ position that they are not liable for those costs is correct, the amount claimed by them appears to be due from the respondent. If Mr Dace’s claims are correct, the amount due to the applicants is less than that claimed by them.
The present application was filed on 27 October, 2013. It was originally listed for hearing on 7 November, 2013. I heard some argument on that day, but it quickly became apparent that Mr Dace was disadvantaged by the short period between the service of the application on him and the return of the application to court. His solicitors and counsel required more time to prepare his answer to the application. I adjourned the hearing and ordered Mr Dace to file a response together with any further affidavit material upon which he intended to rely. I fixed the matter for argument on 28 November, 2013.
At the conclusion of argument on 28 November, the parties’ counsel, and particularly Mr Dace’s counsel, sought the opportunity to make written submissions on the application and particular matters that had developed in argument. I made orders accommodating that request. However, for reasons that are not at all apparent, no written submissions have been received since that hearing from either party generally, or on the specific matters raised in argument. Nonetheless, I am led to understand that the parties now wish for the matter to proceed to judgment.
Background
On 23 December, 2010, Ms Dace commenced proceedings for property adjustment orders against her then husband, Mr Dace. The proceedings were settled between the parties without a trial. On 26 September, 2011 I made property adjustment orders by consent between the parties. Those orders are appended to these reasons and marked “A”.
Ms Dace passed away on (omitted) 2011. Her executors applied to be appointed her legal personal representatives in the proceedings. Mr Dace cross-applied to have the terms of the orders varied. Whilst there was no dispute about the appointment of the executors as legal personal representatives for Ms Dace, Mr Dace’s application to vary the orders was opposed.
I dealt with Mr Dace’s application by reasons and orders that I delivered on 15 October, 2012. I dismissed Mr Dace’s application, largely on the basis that the orders he was seeking would work a variation to the substance of the consent orders rather than the mechanics of how the substantive orders would be carried into effect: Executors of the estate of Dace & Dace [2012] FMCAfam 1298.
Mr Dace filed a notice of appeal against my dismissal of his application and an application to stay my orders under appeal. I dismissed the stay application on the basis that my orders under appeal simply dismissed his application and on that basis, there was nothing upon which a stay might operate. I ordered him to pay the executors’ costs of that application.
Mr Dace subsequently abandoned his appeal.
The consent orders have been carried into effect. Specifically, the following properties have been sold and Ms Dace’s estate has received the following payments:
a)$75,000 pursuant to order 2;
b)$120,960.85 from the proceeds of sale of Property A pursuant to order 2.1;
c)a further payment of $80,000 received from Mr Dace after the settlement of the sale of Property A pursuant to order 2.1;
d)$65,856.84 from the proceeds of sale of Property C pursuant to order 2.2;
e)$337,976.62 from the proceeds of sale of Property P1 pursuant to order 2.3; and
f)$95,037.24 from the proceeds of sale of Property P2 pursuant to order 2.3.
The estate has received a total payment of $774,831.55.
The total due pursuant to the consent orders was $960,000 plus 48% of the amount that the properties at Property P1 & P2 sold for over and above $1,000,000. The evidence is that Property P1 & P2 sold for a combined value of $1,125,000. Forty-eight per cent of $125,000 is $60,000. Accordingly, the total amount due to Ms Dace’s estate pursuant to order 1 is $1,020,000 ($960,000 + ($125,000 x 48%)).
The applicants allege that the amount now due to the estate is $265,168.45 ($1,040,000 - $774,831 .55). The applicant’s calculations are erroneous. The amount due is $245,168.45 ($1,020,000 – $774,831.55). Pursuant to order 2, any shortfall in the net sale proceeds otherwise referred to in order 2 is to be paid by Mr Dace within 30 days of the last sale of the property dealt with in order 2. There is no dispute that the last sale settled on 22 May, 2013 making payment of the shortfall due on 21 June, 2013.
However, Mr Dace has failed to pay the shortfall as provided for in order 2.
The dispute
The sale of the properties set out in order 2 did not occur immediately following the making of the consent orders. Of the four properties to be sold according to order 2, the first sale was completed on 30 July, 2012 and the last was completed on 22 May, 2013. It appears to be common ground that the parties had joint borrowings secured by mortgage over each of those properties and the real properties to be retained by the respondent pursuant to the orders. It also seems uncontroversial that since the consent orders were made the payments on those mortgages have been made until the mortgages were discharged. However, the source of the payments is not clear. That is important and I deal with that matter later in these reasons.
However, whilstsoever the loans secured over each of the properties remained in debit, the loans accrued interest. Mr Dace argues that it is unfair that he should bear all of the interest on those loans until each of the mortgages were discharged. He argues that the effect of order 2 would be to visit on him all of the interest that accrued between the date of the consent orders and the discharge of each mortgage.
In his affidavit filed on 25 November, 2013 Mr Dace sets out his claims. They can be divided between the four properties to be sold pursuant to order 2 and the other parcels of real property to be retained by Mr Dace as part of his entitlement under the order. In respect of the properties sold pursuant to order 2 his claims may be summarised thus:
a)Property C:
i)Interest costs and bank fees $20,234.59;
ii)Water charges $1,380.44;
iii)Registration fee – mortgage release $132.50;
iv)Bank cheque fee $50.00;
v)Fee to Mr S $44.00
b)Property P2:
i)Interest costs and bank fees $52,654.15;
ii)Real Estate Agent’s commission $16,170.00;
iii)Registration fee – mortgage release x 2 $274.20;
c)Property P1:
i)Interest costs and bank fees $27,039.64;
ii)Water charges $1,799.02
iii)Real Estate Agent’s commission $15,757.50;
iv)Registration fee – mortgage release $152.10;
v)Bank Cheque fees $40.00;
vi)Settlement Agent’s fee $55.00;
d)Property A:
i)Interest costs and bank fees $30,008.51;
ii)Water charges $2,252.46;
iii)Registration fee – mortgage release $152.10;
iv)Bank Cheque fees $50.00;
v)Settlement Agent’s fee $55.00;
vi)MPN Lawyers $100.00;
vii)Prime Legal $51.70.
Total$168,727.11
He also claims similar amounts in respect of the real property to be retained by him.
Consideration
The starting point is to record that neither of the parties has placed any evidence before me to clearly establish that the properties to be sold pursuant to order 2 were jointly owned, or that the parties were jointly, or jointly and severally liable for mortgage repayments, rates and the other expenses in respect of which Mr Dace claims. He has placed copies of some bank statements in evidence from which an inference of joint liability might be drawn. However, the liabilities in respect of which Mr Dace now seeks some recompense were never seriously challenged by the applicants as being joint or joint and several liabilities of Mr and Ms Dace. The argument before me proceeds on the basis that, save for the effects of the property adjustment order, if any, they are liabilities for which both Mr and Ms Dace (and now her estate) were both liable.
There is no evidence as to whether their liability for each of the amounts specified by Mr Dace was joint, or joint and several. I have assumed the latter rather than the former.
As between the parties and the various creditors (the Banks, local authorities and the like) the parties remain liable for the relevant debts according to the legal obligations cast upon them by the contractual or other arrangements between them. Thus, in respect of the mortgages, the parties each remain liable to the bank or financier to make repayments of both principal and interest until the liability is expunged. So too, in respect of rates, the obligation to pay the rates is cast upon the registered proprietors of the relevant properties (which I assume were co-owned as there is no evidence to the contrary). The existence of the consent orders does not expressly change the incidence of those liabilities on the parties.
Both in law and equity, where one joint debtor meets more than his or her share of a joint obligation, a right of contribution arises against his or her joint debtors: eg., Muschinski v Dodds (1985) 160 CLR 583 where the principles are discussed, particularly by Gibbs CJ at 596. So too, where property is co-owned, each co-owner has a right to an account and contribution arising out of the co-ownership. However, as between the parties, they might by their words or actions evince an intention that otherwise displaces the right to contribution: eg., Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460. So, in the context of matrimonial proceedings, it is commonplace for one party to give an indemnity to the other party in respect of what would otherwise be seen as a joint liability, either past or prospective. The making of an order to reflect the indemnity appears to be commonly accepted as a proper exercise of the Court’s power under s.80 of the Family Law Act1975.
The question becomes whether the order in this case, either expressly or by implication, evinces an intention to upset the position in law and equity that exists between Mr Dace and Ms Dace (by her estate) as joint debtors. Neither party argued that the orders made express provision about how the parties’ joint liabilities arising between the making of the orders and the sale of the relevant properties might be dealt with. If the orders evince an intention that upsets the legal and equitable right to contribution, it must be because of an implication to be drawn from the terms of the orders under consideration.
On their face, the orders operate by:
a)defining the parties’ net property pool by reference to a dollar value;
b)expressing their intention to divide that pool by each receiving a nominated sum, but permitting of an additional amount calculated by reference to a percentage of the amount that the Property P1 & P2 properties sale price exceeded $1,000,000.
The reference in order 1 to the parties “net assets” is significant. First, the use of the word “net” signifies that the assets being dealt with are what are left after the payment or discharge of liabilities. Second, the use of the words “assets” rather than “assets and liabilities” gives force to the notion that it is the value of their assets after the value of their liabilities have been taken into account to which the parties have ascribed a value of $2,000,000. That value must be a value derived from the value of the assets less the amount of the liabilities as at the date of, or for the purposes of, the order.
To give effect to order 1, order 2 provides that Ms Dace should receive a cash payment of $75,000.00 within 60 days of the order and otherwise she should receive the “net proceeds of sale” of the properties specified in orders 2.1 – 2.3. Again the use of the word “net” demonstrates that what is dealt with by that order is the amount realised by the sale of the relevant properties, less any calls upon the proceeds of sale. That is to say, the amount “left over” from the sale proceeds after payment of the debts associated with the property. Order 2 makes that provision without reference to when the properties might be sold. Subject to order 4, no timeframe is specified in the orders for the sale of the relevant properties.
That order 2 provides for the possibility that the sums paid to Ms Dace under that order might not fully discharge her entitlement to $960,000.00 (plus 48% of the sale price of the properties at Property P1 & P2 above $1,000,000.00) demonstrates that the parties did not intend to divide their property according to a percentage of its actual realised value when sold. Rather, they agreed that their “net assets” had a certain value and that each was entitled to a specified sum. Order 2 carries through that intention by requiring Mr Dace to make up any shortfall in the amount to be received by Ms Dace.
Moreover, order 2 operates to cast onto Mr Dace the risk that the properties to be sold to fund the payments to the applicant do not sell for their anticipated value. That must be so because the orders are structured in such a way that Ms Dace was to receive a specified sum, not a specified percentage of the net sale proceeds of the properties or the realised value of the assets as a whole.
Order 4 provides the mechanism whereby the properties to be sold pursuant to order 2 might be sold. Specifically, order 4 provides:
4.5 That the proceeds of sale of any property sold pursuant to order 2 hereof be applied in the following order and priority:
4.5.1 To discharge the mortgage encumbering the said property;
4.5.2 To pay the real estate agent’s costs and commissions associated with the sale;
4.5.3 To pay the reasonable costs and outlays of the conveyancing Solicitor; and
4.5.4 The balance thereafter remaining in accordance with order 2 hereof.
Order 4 makes it clear that any real estate agent’s costs and commissions associated with the relevant sale or the obligation to pay the reasonable costs and outlays of a conveyancing solicitor should be deducted from the proceeds of sale before they are accumulated to the wife pursuant to order 2. So too, any outstanding balance of any mortgage.
Assuming that any real estate agent or conveyancing solicitor engaged to sell or assist with the sale of a relevant property would be engaged by the parties together (that is to say, either jointly or jointly and severally), orders 4.5.2, 4.5.3 and 2 work to change the incidence of those liabilities on the parties. Those orders shift the burden of those liabilities as between the parties to Mr Dace.
Similarly, the requirement that any mortgage encumbering the property be discharged from the proceeds of sale before it is accounted for, for the purposes of order 2 demonstrates a shifting of the mortgage liability to Mr Dace. Between the making of the orders and the settlement of the sale of any of the properties listed in order 2 the repayments due on those mortgages might not have been paid. Had they not been paid, the burden of any accumulated arrears would have fallen upon Mr Dace because there is no provision in the order that would work against the combined operation of order 4.5 and order 2. The mortgage must be discharged and the sale proceeds after the deduction of any amount necessary to discharge (and the other costs and expenses dealt with in order 4.5) credited towards Ms Dace’s entitlements under order 1. Thus, whether Mr Dace met those payments or not, he would have been liable for them.
So too, any payments for rates and water charges would be viewed in the same way. Whilst order 4.5 makes no provision for the deduction of those amounts from the sale proceeds as it does for the other expenses mentioned above, such deductions habitually occur as adjustments to the sum payable by the purchaser of the property to the vendor. In that way, any arrears of rates or water charges would have been taken up and the burden of those liabilities would have, in any event, fallen upon Mr Dace.
Thus, in my view, the orders do evince an intention to rearrange the parties’ entitlements to seek contribution from the other in respect of their joint liabilities following the making of the property adjustment orders. The intention arises by implication from the way in which orders 2 and 4.5 work to shift to Mr Dace the burden of the liabilities as I have explained above.
However, in the event that I am wrong about that, it does not follow that Mr Dace is entitled to reduce the amount payable by him pursuant to order 2 by the amounts claimed by him. Mr Dace expresses his position in his affidavit filed on 25 November, 2013 as follows:
2. My position is that all of the joint liabilities are to be shared equally, irrespective of whether one (1) party or the other makes those periodical payments or not. For example, if neither party made any payment of those periodical interest payments, they are still equally liable for those debts. If the Applicant had met their share, it would have resulted in a substantially better payout to the Applicant. In fact, from 26 September 2011 the Applicant has paid nothing at all towards their share of those joint liabilities. The Bank Statements speak for themselves as to the interest payments made during the relevant periods.
There is some evidence in Mr Dace’s affidavit that the properties the subject of order 2 and the other properties dealt with in those orders produced income from being let. Apart from anything else, that inference is clearly open from the fact that the respondent describes himself as a pensioner, has limited income but nonetheless provides evidence that the repayments on the parties’ many borrowings have all been made. The direct evidence on the point is entirely unclear and consists of the following paragraphs in his affidavit of 25 November, 2013:
22. As part of this accounting, I have included income received during the relevant period of 26 September 2011to 21June2013. Referring back to the aborted sale of Property P1 & P2 to the State of Queensland, as buyer, they required vacant possession. Notice was, therefore, given for the tenants to vacate which they did in or about April 2011. We, therefore, lost any further income for that property. Also, the agent Mr J was of the view that he would sell the property fairly quickly and advised us not to put in another tenant, so we did not.
23. The only rental income received then was from the properties Property T3 and Property R. I have calculated the total amount of rental income for the property at Property R to be $15,170.00 for the period 29 September 2011 to 31 August 2012. The rent was paid to the (omitted) Bank account number (omitted), which is part of Annexure “B” hereto. From 20 September 2012 to 24 June 2013 the rent was paid to the (omitted) Bank account number (omitted) and I can produce by way of a bundle of documents the Bank Statements for that account.
24. As to the property at Property T3, I have calculated the total amount of rental income for that property to be $17,337.00 for the relevant period. I have receipts for these payments which go to 5 June 2013 so I have made an adjustment of two (2) weeks and two (2) days of $457.00 and I can produce those documents.
Whilst those paragraphs indicate that something was received by way of rental income, there is no detail. It is not clear, but seems reasonably likely that the expenses in respect of which the respondent now seeks an accounting were paid from income to which the parties were likely jointly entitled. If it was so paid, the likelihood that Mr Dace’s entitlement to contribution will come to anything is remote.
In any event, Mr Dace does not depose that he has paid any of the amounts in respect of which he now seeks contribution. In those circumstances, his claims nonetheless fails for want of proof.
Mr Dace also claims:
33. In gathering together the information, being Bank Statements, Rates Notices, Receipts, etc for all of these joint expenses, it has resulted in me spending an enormous amount of time and effort in obtaining the documents and presenting them to my legal representatives to prepare this Affidavit. This includes a significant amount of time and legal costs incurred in presenting this disclosure material to the court. I was also solely responsible for all of the disclosure of Bank Statements and the like, during the conduct of the proceedings until they were resolved in September 2011. I did this despite what has always been the Applicant's ability to do so themselves as a joint account holder. I had requested my solicitors to put it to the Applicant that they undertake that disclosure, as I believed it was their turn to do so. This was put on a number of occasions to them. I have, however, completed all of that additional work .
34. I seek a reasonable amount be accounted for by the Applicant to me in having to solely undertake this work. The Applicant made no effort at all to carry their share of that burden. I have spent hundreds of hours over the last three (3) years in doing this and incurred substantial additional legal costs in presenting it to the Applicants and this Honourable Court.
That claim cannot succeed. There is no basis for recompensing the respondent for the work that he has claimed to have done.
Conclusion
In my view, the applicants have made out their case to the sum of $245,168.45. Mr Dace has not made out his claim to a set-off or to contribution as he asserts.
I have had regard to the submissions made to me concerning the appointment of the applicants as trustees for sale. I agree that in the circumstances of this case it is inappropriate to appoint the applicants as trustees for that purpose. The orders I will make will provide the parties with the opportunity to agree on a trustee, but in default I will nominate the trustee.
The applicants also seek their costs of this application on an indemnity basis. No submissions were advanced in support of the claim that the costs should be assessed on an indemnity basis. I am unpersuaded that they should be so assessed.
However, I am satisfied that the respondent should pay the applicants’ costs of these proceedings because:
a)the proceedings have come about because of the respondent’s failure to comply with the terms of the consent orders referred to above;
b)the respondent’s opposition to compliance with those orders was ill-founded;
c)the respondent has been wholly unsuccessful in seeking the orders agitated by him; and
d)his financial circumstances are such that whilst his income is low, by the terms of the orders under consideration, he had assets exceeding $1,000,000 at the time those orders were made.
I assess the costs as follows:
Stage
Description
Amount
10
Application for family law enforcement
$844.00
13
Court attendance – 7 November 2013 (short mention)
$271.00
13
Daily hearing fee 29 November, 2013 – half day hearing (including advocacy loading)
$1,495.50
Total:
$2,610.00
As to the above assessment, I observe that I have not provided for Counsel’s fees as a disbursement: Hamlin v The University of Queensland (No. 3)[2013] FCCA 1129.
I make the orders set out at the commencement of these reasons.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 13 May, 2015.
Date: 13 May 2015
“A”
FAMILY LAW ACT 1975
IN THE FEDERAL MAGISTRATES
COURT OF AUSTRALIA FILE NO: (P)BRC12064/2010
BETWEEN:
MS DACE (Applicant)
AND:
MR DACE (Respondent)
BEFORE: FEDERAL MAGISTRATE JARRETT
DATE: 26 September 2011
MADE AT: BRISBANE
UPON APPLICATION MADE TO THE COURT and upon hearing Mr Hackett of Counsel for the Applicant and upon hearing Mr Gordon of Counsel for the Respondent
BY CONSENT THE COURT ORDERS THAT:
The net assets of the Applicant Wife and Respondent husband agreed in the sum of $2,000,000.00 (plus such further sum if the properties at Property P1 & P2 sell for a sale price above $1,000,000.00) be distributed in the following proportions:
1.1$960,000.00 to the Applicant Wife being 48% of $2,000,000.00 (plus 48% of the sale price of the properties at Property P1 & P2 above $1,000,000.00); and
1.2$1,040,000.00 to the Respondent Husband being 52% of $2,000,000.00 (plus 52% of the sale price of the properties at Property P1 & P2 above $1,000,000.00).
The Wife’s entitlement pursuant to order 1.1 hereof be received by her in cash payable as to the sum of $75,000.00 by the Husband within 60 days of the date of this order and otherwise from the net proceeds of sale of the following properties:
2.1Property A in the State of Queensland (“the Property A”) and more particularly described as Lot (omitted) on Registered Plan (omitted), Title Reference (omitted).
2.2Property C in the State of Queensland (“the Property C”) and more particularly described as Lot (omitted) on Registered Plan (omitted), Title Reference (omitted)
2.3Property P1 & P2 in the State of Queensland more particularly described as Lots (omitted) on RP (omitted), Title references (omitted) (“the Property P1 & P2 properties”),
and any shortfall in the net sale proceeds be paid by the Husband to the Wife within 30 days of the last sale and any surplus net sale proceeds be paid to the Husband.
3. The Husband’s entitlement pursuant to order 1.2 hereof be comprised of:
3.1The transfer to the Husband by the Wife, within thirty (30) days from the date of the last sale of properties pursuant to paragraph 2 and 4 of these orders of any remaining jointly owned assets and/or liabilities to the Husband (excluding the assets/liabilities described in order 2 herein) PROVIDED THAT contemporaneously with the said transfer any liability attaching to any asset to be received by the Husband shall be refinanced by the Husband into his sole name and that the Husband meet any associated costs thereof, such assets to include, but not be limited to:
3.1.1The property situate at and known as Property K;
3.1.2The time Share interest in the (omitted), (omitted) and (omitted);
3.1.3The parties Joint Bank omitted) Savings Account under account number (omitted);
3.1.4Shares held within the (omitted) Shares (11,320 shares);
3.2The retention by the Husband free from any and all claims of the Wife the following:-
3.2.1 The properties situate at and known as:
(i)Property R;
(ii)Property M1 & M2;
(iii)Property T1 & T2;
(iv)Property M3;
3.2.2 The Shares held within (omitted);
3.2.3 The Ford Falcon Motor Vehicle in the Husband’s possession.
For the purposes of facilitating the sale of the properties identified at order 2 hereof, the following shall apply:
4.1The Husband and Wife shall do all acts and things and sign all documents necessary to list the said properties for sale within 14 days of the date of these orders with such real estate agent as may be agreed between the Husband and Wife in writing and failing agreement as may be appointed by the Chief Executive Officer of the Real Estate Institute of Queensland;
4.2The properties shall be listed for sale at a list price as may be agreed between the parties in writing and failing agreement in an amount determined by the listing agent;
4.3The Husband and Wife shall execute any contract of sale presented which provides for a purchase price which is no greater than 5% less than the list price for the property, unless otherwise agreed in writing by the Husband and Wife;
4.4Attwood Marshall Lawyers shall be appointed by the Husband and Wife to act on the conveyance of any property sold pursuant to order 2 hereof;
4.5That the proceeds of sale of any property sold pursuant to order 2 hereof be applied in the following order and priority:
4.5.1To discharge the mortgage encumbering the said property;
4.5.2To pay the real estate agent’s costs and commissions associated with the sale;
4.5.3To pay the reasonable costs and outlays of the conveyancing Solicitor; and
4.5.4The balance thereafter remaining in accordance with order 2 hereof.
4.6That in the event that any of the properties in order 2 has not been sold by private treaty within 6 months of the date of these orders, that the Husband and Wife do all things and sign all documents necessary to cause the property or properties to be listed for sale by auction as follows:
4.6.1The property or properties be listed for sale with the real estate agents nominated to sell the property pursuant to paragraph 4.1 of these orders (“the Auctioneer”) for sale by auction within a further 60 days;
4.6.2The parties shall execute all documents requested by the Auctioneer for the sale of the property by auction;
4.6.3The reserve price of the property shall be as agreed by the parties in writing and failing agreement in accordance with the Auctioneer’s recommendation;
4.6.4Any sums requested by the Auctioneer for advertising or auction expenses shall be paid from the sale proceeds;
4.6.5The parties shall give any instructions necessary to Attwood Marshall Lawyers to prepare a contract of sale and provide it to the Auctioneer prior to the auction by no later than the date specified by the Auctioneer.
4.6.6The parties agree to cooperate in every way with the Auctioneer in relation to the sale by auction, including but not limited to allowing inspection of the property or properties at all times reasonably requested by the Auctioneer and ensuring that the property or properties are clean, neat and in good order at the time of any inspection and on the day of auction.
4.6.7That the balance proceeds of sale be applied as set out in paragraph 4.5 of these orders.
The Husband shall be responsible for and indemnify the Wife for and in respect of any Centrelink loan/debt in the Wife’s name with such liability to be either discharged in full by the Husband or transferred into his sole name and that from the date of execution of these orders the Husband indemnifies and keep indemnified the Wife in relation to this pension loan/debt and in this regard, the parties will sign all documentation as may be required by Centrelink to cease the charge of the pension loan on the property in the Husband’s name situate at Property M1 and the Wife have the option to have any future pension payments/senior payment paid to her nominated bank account and should a charge be required by Centrelink such charge be secured over a property in the Wife’s name.
The Wife retain all furniture, chattels and personal items in the former matrimonial home at Property A and that the Wife or her nominee, be at liberty to collect her personal possessions and belongings situate at Property M1 within 60 days of the date of these orders PROVIDED THAT the Wife shall first provide the Husband and / or any occupant of the property with 7 days notice of her intention to have the said items collected.
Each of the Husband and Wife shall be responsible for and indemnify the other for and in respect of any Capital Gains Tax liability accruing or attaching to any item of real property to be retained and/or received by them pursuant to these orders whensoever such liability arises.
By 30 January 2012 the Husband shall do all acts and things and provide all instructions necessary to complete and lodge with the Australian Taxation Office tax returns for the Husband and the Wife for any financial year outstanding at the date of these orders and that all taxation liabilities arising from the lodgement of tax returns pursuant to this order be paid from the proceeds of sale of Property P1 & P2, after any payment to the Wife pursuant to order 2 hereof.
Save as herein said, each of the Husband and Wife shall be responsible for and indemnify the other for and in respect of any and all liabilities in their own name as at the date of these orders.
Upon receipt by the Wife of the proceeds of sale of any or all of the properties or the sum of $75,000.00 identified at order 2 hereof, order 1 of the orders dated 30 March 2011 in the Federal Magistrates Court Australia, in relation to spousal maintenance be discharged.
Each party pay their own costs of and incidental to these proceedings.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
By the Court
FEDERAL MAGISTRATE JARRETT
Key Legal Topics
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Equity & Trusts
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Property Law
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Family Law
Legal Concepts
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