Finau and Finau - [2018] FamCA 49

FAMILY COURT OF AUSTRALIA

FINAU & FINAU

[2018] FamCA 49

FAMILY LAW – PROPERTY – INTERIM – Where the wife seeks that the parties’ investment property be sold and a portion of the proceeds of sale be paid to her in litigation funding – Where the husband seeks to retain the investment property – Where the wife has no capacity to fund the litigation – Where the husband is in a stronger financial position than the wife – Where the husband controls the vast majority of the parties’ assets and finances – Where the husband has evidenced no capacity to buy out the wife and retain the investment property – Orders made as sought by the wife.

Family Law Act 1975 (Cth) ss 75, 79, 80, 117

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Poletti & Poletti (Unreported, Family Court of Australia, Nygh J, 2 March 1990)
Strahan & Strahan [2009] FamCAFC 166
Wilson & Wilson (1989) FLC 92-033
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Ms Finau

RESPONDENT:

Mr Finau

FILE NUMBER:

PAC

4871

2017

DATE DELIVERED:

6 February 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

17 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Stapleton

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Paramonte Legal

Orders

That the parties forthwith give requisite notice to the tenants of the properties known as and situate at 1 and 2 B Street, Suburb C NSW … (“the B Street property”) pursuant to the terms of the Residential Lease Agreement.
That the parties forthwith do all things necessary to list for sale at the best price reasonably attainable the B Street property and for that purpose the following shall apply, unless otherwise agreed in writing between the parties:
(a)       That the property be listed for sale by public auction;
(b)       That the parties do all things necessary to engage D Real Estate (“the agent”) as listing agent for the auction;
(c)       That the public auction is to be conducted on a date nominated by the Agent;
(d)       That the auctioneer shall be appointed by the agent;
(e)       That the marketing campaign is to be guided by the agent;
(f)       That the parties shall instruct a conveyancing solicitor to act on the conveyance of the property as agreed between them, and failing agreement Ms E, Conveyencer of F Lawyers;
(g)       The parties will give such instructions as necessary to the conveyancing solicitor to prepare a Contract of Sale and provide it to the agent and/or the auctioneer prior to the auction and no later than the date sought by the agent and/or the auctioneer;
(h)       The parties shall execute all documents required by the agent and/or the auctioneer;
(i)        The reserve price for the property shall be such an amount as agreed between the parties or failing agreement, as recommended by the agent and/or the auctioneer no less than seven (7) days prior to the…

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 Finau and Finau

Details

AGLC: Finau and Finau [2018] FamCA 49
Case: [2018] FamCA 49
Decision Date: 6 February 2018

CaseChat Overview and Summary

This matter concerned an application by the parties, Mr and Mrs Finau, for orders regarding the sale of a property located at 1 and 2 B Street, Suburb C NSW. The court was required to determine the terms and conditions under which the property should be listed for sale, including the method of sale, engagement of agents, and the distribution of sale proceeds.

The court ordered that the parties provide notice to the tenants of the B Street property and take all necessary steps to list the property for sale at the best reasonably attainable price. The sale was to be conducted by public auction, with specific directions regarding the engagement of D Real Estate as the listing agent, the appointment of an auctioneer, and the marketing campaign. The parties were also directed to engage a conveyancing solicitor, with Ms E of F Lawyers to be appointed if agreement could not be reached. The court further stipulated the process for preparing the Contract of Sale, the execution of necessary documents, and the determination of the reserve price. In the event the property was not sold at the first auction, it was to be relisted for a second auction with a reduced reserve price, and if still unsold, then listed for sale by private treaty.

Upon settlement of the sale, the proceeds were to be applied first to sale costs, then to discharge the mortgage with G Bank. Following this, $80,000 was to be paid to the wife’s solicitor’s trust account for interim costs, and specific credit card and school invoices were to be paid. The remaining balance was to be held in a controlled monies account pending further order, with both parties to provide necessary information for its establishment. Any surplus rental income received prior to settlement was to be applied to the home loan repayments. The court also made provision for the Registrar of the Court to execute documents on behalf of a defaulting party pursuant to section 106A of the Family Law Act 1975 (Cth).

Orders

Orders of the court

That the parties forthwith give requisite notice to the tenants of the properties known as and situate at 1 and 2 B Street, Suburb C NSW … (“the B Street property”) pursuant to the terms of the Residential Lease Agreement.

That the parties forthwith do all things necessary to list for sale at the best price reasonably attainable the B Street property and for that purpose the following shall apply, unless otherwise agreed in writing between the parties:

(a) That the property be listed for sale by public auction;

(b) That the parties do all things necessary to engage D Real Estate (“the agent”) as listing agent for the auction;

(d) That the auctioneer shall be appointed by the agent;

(e) That the marketing campaign is to be guided by the agent;

(f) That the parties shall instruct a conveyancing solicitor to act on the conveyance of the property as agreed between them, and failing agreement Ms E, Conveyencer of F Lawyers;

(g) The parties will give such instructions as necessary to the conveyancing solicitor to prepare a Contract of Sale and provide it to the agent and/or the auctioneer prior to the auction and no later than the date sought by the agent and/or the auctioneer;

(h) The parties shall execute all documents required by the agent and/or the auctioneer;

(i) The reserve price for the property shall be such an amount as agreed between the parties or failing agreement, as recommended by the agent and/or the auctioneer no less than seven (7) days prior to the public auction; and

(j) The parties shall do all things necessary to cause all payments requested for auction advertising expenses to be paid upon settlement of the property.

That in the event that the B Street property is not sold by public auction in accordance with Order (2) then the parties shall do all things necessary to cause the property to be listed for sale by a second public auction no later than eight (8) weeks after the date of the first public auction as provided for in Order (2) and with a reserve price of 5 per cent less than as agreed for the first auction.

That in the event the B Street property is not sold by public auction in accordance with Order (2) or Order (3) the parties cause the property to be listed by way of private treaty for a period of eight (8) weeks.

That upon the settlement of the sale of the B Street property the proceeds of sale be distributed as follows:

(a) To pay all costs associated with the sale of the property including the agent’s commission, conveyancing costs and advertising expenses;

(b) To pay out the mortgage secured over the property held with G Bank Account Number ...38;

(d) To pay the amount of $5,741 in full satisifaction of the credit card liability currently held as Commonwealth Bank Visa Gold Credit Card Account Number …92 in the wife’s sole name;

(e) To pay the invoice of H School dated 25 July 2017 for the amount of $2,534 and the invoice of J School dated 1 September 2017 for the amount of $1,638; and

(f) The balance of funds be held in controlled monies account on trust for both parties with Armstrong Legal pending further order with each party to provide all information requested in order for such account to be established.

That from the date of these Orders and pending the sale and settlement of the B Street property any surplus rental income received is to be applied to the ongoing home loan repayments associated with the property.

That in the event that either party refuses or neglects to execute any documents necessary to give effect to these Orders then the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such documents in the name of the defaulting party.

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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