Gaines & Cotton - [2022] FedCFamC2F 284

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gaines & Cotton [2022] FedCFamC2F 284

File number(s): NCC 3092 of 2020

Judgment of: JUDGE COSTIGAN

Date of judgment: 9 February 2022

Catchwords: FAMILY LAW – Enforcement – whether the Orders made on 13 July 2021 should be set aside – whether the husband should be appointed trustee for sale of the property – orders made for husband to act as trustee for sale of property.

Legislation: Family Law Act 1975 (Cth) s.106A

Cases cited:
Gaines & Cotton [2021] FCCA 1586

Ramsey and Ramsey (1983) FLC 91-301

Division: Division 2 Family Law

Number of paragraphs: 37

Date of last submission/s: 9 February 2022

Date of hearing: 9 February 2022

Place: Newcastle

Solicitor for the Applicant: Gillard Family Lawyers

Solicitor for the Respondent: Toronto Legal
ORDERS

NCC 3092 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GAINES

Applicant

AND:
MS COTTON

Respondent

ORDER MADE BY:

JUDGE COSTIGAN

DATE OF ORDER:

9 FEBRUARY 2022

THE COURT ORDERS THAT:
1.Mr Gaines (“the trustee”) be appointed as trustee for the sale of the property B Street, Suburb C (“the property”) in the State of New South Wales, pursuant to order 2 of the orders dated 13 July, 2021.
2.The trustee be authorised to do all acts and sign all documents necessary to effect the sale, including but not limited to:
(a)Selecting an agent to market the property and entering in an agency agreement with said agent;
(b)Setting the listing price and method of sale;
(c)Selecting a solicitor or conveyancer to prepare the contract of sale and undertake the conveyancing;
(d)Accept an offer of purchase;
(e)Sign any document on behalf of the parties required to undertake the above steps.

3.In the event that either party refuses or neglects to sign within fourteen (14) days after receipt of a written request to do so any documents necessary to put into effect the terms of these orders the Registrar of the Newcastle Registry of the Federal Circuit and Family Court of Australia or such other person appointed by the court is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute all such deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the these orders.
4.I grant leave to the parties to re-list the matter in the event of non-compliance by any party with the interim orders made today or on 13 July 2021.
5.Any application for costs is reserved to the final hearing.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law)…

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 Gaines & Cotton

Details

AGLC: Gaines & Cotton [2022] FedCFamC2F 284
Case: [2022] FedCFamC2F 284
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, in Division 2, presided over the case of Gaines & Cotton. The case involved an application for the enforcement of property orders made on 13 July 2021, as well as the appointment of a trustee for the sale of the former matrimonial home at B Street, Suburb C. The husband, Mr Gaines, filed a response and supporting affidavit on 26 October 2021, seeking orders for his appointment as trustee for sale of the property, while the wife, Ms Cotton, opposed the application and sought to set aside the interim order for sale made on 13 July 2021, claiming the husband had failed to comply with disclosure obligations.

The legal issues before the court were whether the orders made on 13 July 2021 should be set aside and whether the husband should be appointed as trustee for the sale of the property. The court considered the wife's allegations of non-compliance with disclosure obligations, the wife's capacity to refinance the mortgage or buy out the husband's interest, and the need for the property to be sold to carry out the terms of the orders.

Judge Costigan ruled that the wife had not provided a valid reason for setting aside the interim orders made in July 2021. The husband was entitled to the benefit of those orders, and the property should be sold. The court was satisfied that an occasion for the appointment of a trustee to carry out the sale had been established, and the parties had demonstrated their inability to do so together. Given the small asset pool, it would be an unreasonable expense to appoint a professional trustee. Therefore, the husband was appointed as the trustee for the sale of the property. The court also granted leave to the husband to re-list the matter in the event of the wife's non-compliance with the sale process and reserved the question of costs.

The final orders made by the court appointed Mr Gaines as trustee for the sale of the property, authorised him to perform all necessary acts and sign all documents required for the sale, and provided for the appointment of an alternative party to execute deeds and documents in the event of non-compliance by either party.

Orders