GASPALDI & GASPALDI - [2009] FamCA 1121

FAMILY COURT OF AUSTRALIA

GASPALDI & GASPALDI

[2009] FamCA 1121

FAMILY LAW – PROPERTY – Enforcement under the Family Law Rules 2004 (Cth)

FAMILY LAW – COSTS – Discussion of indemnity costs

Child Support (Assessment) Act 1989 (Cth) s 117(1)
Family Law Act 1975 (Cth) ss 80(1), 117(2), 117(2A)
Family Law Rules 2004 (Cth) Rule 20.01, Rule 20.04, Rule 20.05, Rule 20.07

Gyselman & Gyselman (1992) FLC 92-279

APPLICANT:

Ms Gaspaldi

RESPONDENT:

Mr Gaspaldi

FILE NUMBER:

CA F

2004

DATE DELIVERED:

15 October 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

15 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Gesini, Consensus Family Lawyers

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

Within 28 days, the husband vacate the property contained in Deposited Plan …, Block …, Section …, known as H Street in the Australian Capital Territory (“the Property”), leaving it in an empty, clean and tidy condition.
Pursuant to Rule 20.05 of the Family Law Rules 2004, the wife be appointed as trustee for the sale of the Property with authority to conduct the sale of the property, such authority to include but not be limited to:
a.      Appointment of a Real Estate Agent and/or Auctioneer to sell same;
b.      Appointment of a firm of solicitors to act on the sale;
c.      Signing the contract for sale;
d.      Doing all acts and things to ensure that the Property is ready for sale and inspection prior to sale;
e.      Determining the terms and conditions of sale provided that the wife give the husband seven days notice of the terms and conditions prior to the wife signing the Contract for Sale;
f.      Transfer of the Property to the Purchaser or Purchasers;
g.      Disbursement of the proceeds of the sale of the Property pursuant to these Orders.
The wife pay the following amounts from the proceeds of the sale of the Property in the following priority:
a.      The costs, expenses and commission of the Real Estate Agent and/or Auctioneer acting on the sale of the property;
b.      The costs and disbursements of the solicitor acting for the wife on the sale of the Property;
c.      The usual rates and adjustments as between buyer and seller;
d.      The whole of any principal and interest outstanding to the Westpac Banking Corporation in respect of mortgage number … registered against the title of the Property;
e.      Such amounts as are necessary to reimburse the wife for any other costs incurred by the wife in relation to effecting these Orders for sale of the Property including but not limited to:
i.Costs and expenses of any necessary maintenance, repairs and/or painting;
ii.Costs of engaging a Cleaner or similar Contractor to make the Property ready for sale, including the costs set out in Order 2(d) above;
f.      Advertising expenses.
g.      $55,000 to Consensus Family Lawyers in satisfaction of the Orders dated 21 July 2009;
h.      Interest on the $55,000 from the due dates outlined in the Orders of 21 July 2009;

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 GASPALDI & GASPALDI

Details

AGLC: GASPALDI & GASPALDI [2009] FamCA 1121
Case: [2009] FamCA 1121
Decision Date: 15 October 2009

CaseChat Overview and Summary

In the matter of *Gaspaldi & Gaspaldi*, his Honour Deputy Chief Judge Faulks considered an application concerning the enforcement of property settlement orders. The dispute involved the husband and wife regarding the sale of a property located in the Australian Capital Territory.

The court was required to determine the appropriate mechanism for enforcing the sale of the property and the priority of payments from the sale proceeds. This included considering the wife's role in managing the sale and the distribution of funds to various parties, including creditors and legal representatives.

His Honour applied Rule 20.05 of the *Family Law Rules 2004* (Cth) to appoint the wife as trustee for the sale of the property. This appointment granted her broad authority to appoint agents and solicitors, determine sale terms (subject to notice to the husband), and execute necessary documents. The court then established a clear order of priority for the disbursement of sale proceeds, commencing with sale-related expenses, mortgage payments, reimbursement for costs incurred by the wife in preparing the property for sale, and finally, satisfaction of prior court orders and legal costs, with any balance to be paid to the husband.

The court made specific orders for the husband to vacate the property and for the wife to manage its sale. The operation of these orders was stayed to allow the husband an opportunity to apply to set them aside, provided he filed an affidavit explaining his absence from court and outlining the orders he sought. The matter was to be relisted promptly if the husband pursued this avenue.

Orders

Orders of the court

Within 28 days, the husband vacate the property contained in Deposited Plan …, Block …, Section …, known as H Street in the Australian Capital Territory (“the Property”), leaving it in an empty, clean and tidy condition.

Pursuant to Rule 20.05 of the Family Law Rules 2004, the wife be appointed as trustee for the sale of the Property with authority to conduct the sale of the property, such authority to include but not be limited to:

a. Appointment of a Real Estate Agent and/or Auctioneer to sell same;

b. Appointment of a firm of solicitors to act on the sale;

c. Signing the contract for sale;

d. Doing all acts and things to ensure that the Property is ready for sale and inspection prior to sale;

e. Determining the terms and conditions of sale provided that the wife give the husband seven days notice of the terms and conditions prior to the wife signing the Contract for Sale;

f. Transfer of the Property to the Purchaser or Purchasers;

g. Disbursement of the proceeds of the sale of the Property pursuant to these Orders.

The wife pay the following amounts from the proceeds of the sale of the Property in the following priority:

a. The costs, expenses and commission of the Real Estate Agent and/or Auctioneer acting on the sale of the property;

b. The costs and disbursements of the solicitor acting for the wife on the sale of the Property;

c. The usual rates and adjustments as between buyer and seller;

d. The whole of any principal and interest outstanding to the Westpac Banking Corporation in respect of mortgage number … registered against the title of the Property;

e. Such amounts as are necessary to reimburse the wife for any other costs incurred by the wife in relation to effecting these Orders for sale of the Property including but not limited to:

i. Costs and expenses of any necessary maintenance, repairs and/or painting;

ii. Costs of engaging a Cleaner or similar Contractor to make the Property ready for sale, including the costs set out in Order 2(d) above;

f. Advertising expenses.

g. $55,000 to Consensus Family Lawyers in satisfaction of the Orders dated 21 July 2009;

h. Interest on the $55,000 from the due dates outlined in the Orders of 21 July 2009;

i. The wife’s costs of and incidental to this application in the sum of $6,000;

j. The balance (if any) to the husband.

IT IS FURTHER ORDERED:

Given that the husband has not been in Court this day that he may apply to set aside these orders upon filing an affidavit setting out and explaining his absence from Court this day and explaining precisely what orders he does seek from the Court on or before 4pm on Friday 23 October 2009.

The operation of orders 1, 2 and 3 above are stayed until 26 October 2009 or, if the husband has filed an affidavit in accordance with Order 4 above within the time stipulated, until the matter is next before this Court.

IT IS DIRECTED THAT:

Any application for a re-listing of the matter and for the setting aside of the orders should be listed before me as promptly as it might reasonably be.

This application in the matter generally is removed from the pending cases inventory.

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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