Falkner and Candle and Anor - [2019] FamCA 471

FAMILY COURT OF AUSTRALIA

FALKNER & CANDLE AND ANOR

[2019] FamCA 471

FAMILY LAW – PROPERTY – Where ongoing property proceedings – Where default by husband in obligations to pay mortgage payments in respect to property in his name where wife guarantor under the mortgage – Where prospective mortgagee action for default – Where such action would have adverse commercial impact on wife’s business – Where appropriate that the wife be appointed Trustee for Sale.

Family Law Act 1975 (Cth) s 114

APPLICANT:

Ms Falkner

FIRST RESPONDENT:

Mr Candle

SECOND RESPONDENT:

Ms Mills

FILE NUMBER:

PAC

623

2018

DATE DELIVERED:

2 July 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

2 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner

SOLICITOR FOR THE APPLICANT:

Coleman Greig Lawyers

FIRST RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

COUNSEL FOR THE SECOND RESPONDENT:

Mr Gardiner, by consent

SOLICITOR FOR THE SECOND RESPONDENT:

McPhee Kelshaw

Orders

The wife Ms Falkner be appointed trustee for sale of the property situate at Town B in the State of New south Wales being the whole of the land identify … and for such purpose the said property shall vest in her and that the wife as trustee do all things necessary and sign all necessary documents to sell the subject property for the best price reasonably obtainable by such method of sale as she may in her discretion determine and that the wife as trustee pay the net proceeds of sale of the said property in the following order and priority:
(a)In payment of agent’s commission, advertising and selling fees and legal costs of sale;
(b)In discharge of any registered mortgage encumbrance secured against the said property;
(c)In payment of the balance then remaining to be held on trust in a controlled monies account by the wife’s solicitors in the joint names of the parties pending further order or agreement between the parties.
The husband vacate the said property not less than 21 days before settlement of the sale of the said property.
The husband be restrained from doing any act or things that is likely to hinder access to the said property, its appropriate presentation for sale and access to the property by the wife as trustee for sale and the selling agent for the purposes of open for inspections or as otherwise necessary.
That the wife have liberty to apply to have this matter restored to the list on short notice in appropriate circumstances by application to the Court in chambers.
Any application for costs by the wife of and incidental to the present application be by way of short written submissions filed and served within 14 days of today’s date.
The proceedings are adjourned for further judicial case management to 9.30am on Thursday, 1 August 2019.
The husband be in attendance in person on that date notwithstanding that he may be legally represented.
In default of any appearance by the husband on the adjourned date directions will be…

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.

Continue reading Falkner and Candle and Anor

Details

AGLC: Falkner and Candle and Anor [2019] FamCA 471
Case: [2019] FamCA 471
Decision Date: 2 July 2019

CaseChat Overview and Summary

In the matter of *Falkner and Candle and Anor*, Foster J considered an application concerning a property dispute between a wife, Ms Falkner, and her husband. The core of the dispute revolved around the management and sale of a property located in Town B, New South Wales, which was held by the parties.

The court was required to determine the appropriate orders for the sale of the property and the distribution of the proceeds. Specifically, the court needed to decide who would be appointed as trustee for sale, the method of sale, the priority of payments from the sale proceeds, and the husband's obligations regarding vacating the property and facilitating its sale. Furthermore, the court had to consider orders to prevent the husband from hindering the sale process and to manage future court appearances and service of documents.

Foster J ordered that the wife, Ms Falkner, be appointed trustee for sale of the property. The property was to vest in her, and she was empowered to sell it for the best reasonably obtainable price, determining the method of sale at her discretion. The net proceeds were to be applied first to selling costs, then to discharge any registered mortgages, with the balance to be held in a controlled monies account by the wife's solicitors in the joint names of the parties pending further order or agreement. The husband was ordered to vacate the property at least 21 days before settlement and was restrained from any actions that could impede access, presentation for sale, or the trustee's and agent's access for inspections. The court also made directions regarding future case management, including the husband's attendance and the potential for the wife's property application to proceed undefended.

Orders

Orders of the court

The wife Ms Falkner be appointed trustee for sale of the property situate at Town B in the State of New south Wales being the whole of the land identify … and for such purpose the said property shall vest in her and that the wife as trustee do all things necessary and sign all necessary documents to sell the subject property for the best price reasonably obtainable by such method of sale as she may in her discretion determine and that the wife as trustee pay the net proceeds of sale of the said property in the following order and priority:

(a) In payment of agent’s commission, advertising and selling fees and legal costs of sale;

(b) In discharge of any registered mortgage encumbrance secured against the said property;

(c) In payment of the balance then remaining to be held on trust in a controlled monies account by the wife’s solicitors in the joint names of the parties pending further order or agreement between the parties.

The husband vacate the said property not less than 21 days before settlement of the sale of the said property.

The husband be restrained from doing any act or things that is likely to hinder access to the said property, its appropriate presentation for sale and access to the property by the wife as trustee for sale and the selling agent for the purposes of open for inspections or as otherwise necessary.

That the wife have liberty to apply to have this matter restored to the list on short notice in appropriate circumstances by application to the Court in chambers.

Any application for costs by the wife of and incidental to the present application be by way of short written submissions filed and served within 14 days of today’s date.

The proceedings are adjourned for further judicial case management to 9.30am on Thursday, 1 August 2019.

The husband be in attendance in person on that date notwithstanding that he may be legally represented.

In default of any appearance by the husband on the adjourned date directions will be made for the wife’s property application to proceed on an undefended basis.

The wife effect personal service of a sealed copy of these orders on the husband as soon as practicable after they are available on the portal together with a letter informing the husband that in default of his appearance on the adjourned date the wife will seek to have her property application proceed to undefended hearing.

THE COURT NOTES THAT

10.

The solicitor for the wife will inform the Second Respondent’s solicitors of the orders made today.

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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