FOSSE & FOSSE - [2019] FCCA 3140

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOSSE & FOSSE

[2019] FCCA 3140

Catchwords:
FAMILY LAW – Undefended hearing – property proceedings – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D,

4AB(1), 79(4), 79(2), 75(2), 79(1), 75(2).

Cases cited:

Lotta & Lotta [2017] FamCA 50

Russell & Russell [1999] FamCA 1875

Teal & Teal [2010] FamCAFC 120

Applicant:

MS FOSSE

Respondent:

MR FOSSE

File Number:

PAC 2598 of 2019

Judgment of:

Judge Newbrun

Hearing date:

2 October 2019

Date of Last Submission:

2 October 2019

Delivered at:

Parramatta

Delivered on:

8 November 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Horsborough

No appearance by or on behalf of the Respondent.

ORDERS

Within 28 days of the making of these orders the Respondent it is to vacate the property situated at B Street, Town C in the State of New South Wales (“the property”) and thereafter shall provide vacant possession to the Applicant.
That the Applicant shall be permitted to undertake any necessary cleaning and/or repairs of the property in order to ensure that the property is in a presentable and marketable state for sale. The costs of such cleaning and repairs shall be borne equally between the parties, and in the instance that such costs are paid for by the Applicant then an adjustment shall be made at settlement.
That on or before 30 June 2020 the Applicant shall do all such acts and things to cause the property to be sold.
For the purposes of order 3, herein the Applicant shall:
4.1Nominate the conveyancer to act on the sale of the property.
4.2Nominate the Real Estate Agent to act on the sale of the property.
4.3Nominate the Reserve Price of the sale of the property.
4.4Determine the sale price of the property.
For the purposes of order 3, herein the Respondent shall:
5.1Sign all documents required to facilitate the sale of the property, included but not limited to the contract of sale, the real estate agent agreement, the conveyancer's costs agreement.
That following the sale of the property, the proceeds of the sale shall be paid in the following manner and priority:
6.1Payment of all costs and expenses of sale including agent’s commission, advertising costs and legal costs.
6.2Payment to the Applicant for reimbursement of money spent on cleaning, materials and trades required to restore the house to saleable order.
6.3The balance to be divided between the parties as follows:
(a)60% to the Applicant; and
(b)40% to the Respondent.
That from the date of the making of these orders the Applicant shall be solely entitled to the exclusion of the Respondent all of the right, title and interest in the property situated at D Street, Town C in the State of New South Wales.
That within seven (7) days of the date of the making of these orders the parties shall do all such acts and things and sign all necessary documents to transfer into the Respondent's sole name, at the cost of the Respondent, 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 FOSSE & FOSSE

Details

AGLC: FOSSE & FOSSE [2019] FCCA 3140
Case: [2019] FCCA 3140
Decision Date: 8 November 2019

CaseChat Overview and Summary

In Fosse & Fosse, heard before Judge Newbrun, the parties presented an undefended property proceeding for determination. The dispute concerned the division of assets and liabilities between the parties.

The court was required to determine the appropriate orders for the sale of a jointly owned property, including the process for its sale, the allocation of sale proceeds, and the responsibilities of each party in facilitating the sale. Additionally, the court needed to make orders regarding the division of other assets, including a second property, a motor vehicle, bank accounts, and superannuation entitlements, as well as the allocation of liabilities.

The court reasoned that the sale of the primary property should be managed by the Applicant, who would nominate the conveyancer, real estate agent, and determine the reserve and sale price, while the Respondent was obligated to sign all necessary documentation to facilitate the sale. The proceeds of the sale were to be applied first to the costs of sale, then to reimburse the Applicant for cleaning and repair expenses, with the balance to be divided 60% to the Applicant and 40% to the Respondent. The court also ordered that the Applicant would retain sole interest in a second property, the Respondent would receive sole ownership of a motor vehicle, and each party would retain other property in their possession, including bank accounts and superannuation, with each party being solely liable for liabilities encumbering their respective assets.

The court made orders for the sale of the property, the transfer of other assets, and the retention of remaining property by each party. The orders also included provisions for the enforcement of the court's directions, appointing the Registrar or Deputy Registrar to execute documents on behalf of a defaulting party and requiring a defaulting party to pay the other party's costs.

Orders

Orders of the court

Within 28 days of the making of these orders the Respondent it is to vacate the property situated at B Street, Town C in the State of New South Wales (“the property”) and thereafter shall provide vacant possession to the Applicant.

That the Applicant shall be permitted to undertake any necessary cleaning and/or repairs of the property in order to ensure that the property is in a presentable and marketable state for sale. The costs of such cleaning and repairs shall be borne equally between the parties, and in the instance that such costs are paid for by the Applicant then an adjustment shall be made at settlement.

That on or before 30 June 2020 the Applicant shall do all such acts and things to cause the property to be sold.

For the purposes of order 3, herein the Applicant shall:

4.1 Nominate the conveyancer to act on the sale of the property.

4.2 Nominate the Real Estate Agent to act on the sale of the property.

4.3 Nominate the Reserve Price of the sale of the property.

4.4 Determine the sale price of the property.

For the purposes of order 3, herein the Respondent shall:

5.1 Sign all documents required to facilitate the sale of the property, included but not limited to the contract of sale, the real estate agent agreement, the conveyancer's costs agreement.

That following the sale of the property, the proceeds of the sale shall be paid in the following manner and priority:

6.1 Payment of all costs and expenses of sale including agent’s commission, advertising costs and legal costs.

6.2 Payment to the Applicant for reimbursement of money spent on cleaning, materials and trades required to restore the house to saleable order.

6.3 The balance to be divided between the parties as follows:

(a) 60% to the Applicant; and

(b) 40% to the Respondent.

That from the date of the making of these orders the Applicant shall be solely entitled to the exclusion of the Respondent all of the right, title and interest in the property situated at D Street, Town C in the State of New South Wales.

That within seven (7) days of the date of the making of these orders the parties shall do all such acts and things and sign all necessary documents to transfer into the Respondent's sole name, at the cost of the Respondent, the registration of the motor vehicle E.

That from the date of the making of these orders each party shall retain all items of property in their possession, custody and/or control and unless otherwise specified in these Orders except for the purposes of enforcing payment of any money due under these or any subsequent Orders:

9.1 Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any choses in action, jewellery, furniture, furnishings, shares and motor vehicles.

9.1.1 Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.

9.1.2 Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.

9.1.3 Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

10.

That:

10.1 Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within 14 days of being requested to do so.

10.2 If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar or Deputy Registrar of the Parramatta Registry of the Federal Circuit Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

10.3 A defaulting party shall pay the other party's taxed costs of and incidental to such request and production of documents to the Registrar.

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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