GERSON & GERSON

[2014] FamCA 732

FAMILY COURT OF AUSTRALIA

GERSON & GERSON [2014] FamCA 732

FAMILY LAW – PRACTICE AND PROCEDURE – Mention to ascertain that interim applications will be ready to proceed in Judicial Duty List

APPLICANT: Ms Gerson

RESPONDENT: Mr Gerson

FILE NUMBER: MLC 4952 of 2013

DATE DELIVERED: 8 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1. The wife’s further amended application filed 30 June 2014 as it pertains to Unit A, B Street, Suburb K and the husband’s response filed 1 August 2014 be fixed for interim hearing in the Judicial Duty List on 3 October 2014 (“the adjourned date”).

2. Until the adjourned date, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena(s).

3. In anticipation of the adjourned date each party file and serve any further amended application or response and all further affidavit material or proofs of evidence (including expert evidence) in support of his/her case as follows:-

   (a)       The applicant wife by not later than 26 September 2014; and

   (b)       The respondent husband by not later than 30 September 2014.

4. By not later than 4.00 pm on Wednesday 1 October 2014 the parties each provide to the Associate to Justice Thornton (email …) a minute of the Order which he/she seeks be made on the adjourned date and, if the matter is to be defended, the name of counsel who will appear.

5. My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and be made available to the parties.

6. I reserve the costs of and incidental to this day.

IT IS DIRECTED:

1. That any party wishing to cross-examine on a document or tender a document into evidence on the adjourned date, ensure that his or her counsel has a minimum of 4 copies of any such document available at the time of cross- examination, evidence or proposed tender (being a copy for counsel for each party, a copy for the witness and a copy for the Court).

2. That the letter from the husband’s solicitors, Lewenberg & Lewenberg dated 5 September 2014 be marked Exhibit “H1” and remain on the Court file.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerson & Gerson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4952 of 2013

Ms Gerson

Applicant

And

Mr Gerson

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me having been adjourned from the Judicial Duty List on 5 August 2014. 

2. The proceedings were initiated by the wife’s application in a case filed on 17 April 2014 which was amended on 30 June 2014.

3. The husband filed a response on 1 August 2014.

4. The nature of the proceedings is essentially an enforcement application in which the wife sought that two properties be sold.  Both properties are at B Street, Suburb K and they are Units C and A respectively. 

5. The auction of the property at Unit C was scheduled to occur shortly after the last hearing and the parties sought a further adjournment as to deal with any matters that may still remain in issue between the parties. I granted that subject to being assured by the appearance of lawyers today that the matter would be ready to proceed. It is not appropriate that this matter be adjourned from one Judicial Duty List to the next unless it can be concluded or constructively dealt with on the next occasion.

6. Today Mr Fildes appears on behalf of the wife.  There is no appearance by or on behalf of the husband.  The husband’s practitioners were not excused from attending this day by me or otherwise.  Mr Fildes has handed to the Court, which I have marked as Exhibit “H1”, a letter dated 5 September 2014 from the husband’s solicitors in which, omitting formal and irrelevant parts, they say “We refer to your correspondence of this day and confirm our consent to an order adjourning the matter to late September/early October.  We otherwise confirm that is the only order that we consent to. We note that you shall arrange for the adjournment and we await confirmation of the further hearing date”.

7. In circumstances whereby the husband’s practitioners were not excused from attending this day they failed to appear at their peril. 

8. I have heard from Mr Fildes who has informed me that Unit C was sold for $1.265 million, which was approximately the reserve price, on 23 August 2014.  The proceeds were paid in reduction of encumbrances affecting the property.

9. There is a forthcoming auction of Unit A which is listed for 20 September 2014.  The estate agent is D Real Estate.  There is no agreement on reserve price yet. Mr Fildes says that the real estate agent is recommending $2.5 to $2.6 million but there is no evidence before the Court at this stage.  It is from the proceeds of sale of this property that the wife’s entitlement under the final property orders can be met. 

10. I am concerned that the parties have not arranged for the matter to proceed to an agreement of the reserve price today or to seek an order from the Court as to what the reserve price will be ahead of the auction on 20 September 2014.  I am told by Mr Fildes that the wife is “confident that commercial common sense will prevail” and that the husband will agree to a reasonable reserve price.  Mr Fildes has mentioned $2.55 million.  In any event the main mortgagee of the property has served a Notice to Pay on the husband.

11. Turning to the order to which the husband’s practitioners purport to consent, I note that there is no provision for filing of documents.  Accordingly I have put in place a timetable for the filing of documents and the parties notify the Associate to The Honourable Justice Thornton, who will be presiding in the Judicial Duty List on 3 October 2014, as to precisely the orders they seek on that day and counsel who will appear on that day if the matter is to be contested.  If there is agreement as to what ought happen on that day then they will seek orders in the same terms.  If not, their communications to the Asssociate to Thornton J will indicate the perameters to the dispute and what sort of provision needs to be made for the matter to proceed on that day.

12. I have enquired of Mr Fildes as to whether he wished to contact Lewenberg & Lewenberg before I pronounce these orders, in regard to the fact that the orders exceed the scope of orders to which that firm indicated they consented on behalf of the husband.  He said he did not.

13. Mr Fildes also sought a reservation of the wife’s costs of and incidental to this day. As the wife was the only party who is represented at court that appears appropriate in the circumstances of the case.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 September 2014.

Associate: 

Date:  8 September 2014