FAMILY COURT OF AUSTRALIA
Gillies & Crandall [2021] FamCA 504
File number(s): SYC 3159 of 2021 Judgment of: REES J Date of judgment: 13 July 2021 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Application to enforce a section 90UC financial agreement – Opposed by the respondent – Where the Court found the provisions of section 90UF do not change the terms of the agreement – Where the Court found the applicant gave valid notice of intention to purchase the property but that it could not be enforced until the agreement became effective on the making of the separation declaration. Legislation: Family Law Act 1975 (Cth) ss 90UC, 90UF, 90UN(c) Cases cited: Tranh & Long (No. 2) [2008] FamCAFC 194 Number of paragraphs: 37 Date of hearing: 12 July 2021 Place: Sydney Counsel for the Applicant: Mr Campton SC Solicitor for the Applicant: Dimocks Family Lawyers Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Eleanor Murphy & Company ORDERS
SYC 3159 of 2021 BETWEEN: MR GILLIES
Applicant
AND: MR CRANDALL
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
13 JULY 2021
THE COURT ORDERS:
1.That orders be made pursuant to section 90UN(c) of the Family Law Act 1975 (Cth) (“the Act”) that the Financial Agreement dated 24 June 2019 between Mr Gillies (“the applicant”) and Mr Crandall (“the respondent”) be enforced as if it were an order of the Court.
2.That it be declared that, for the purpose of these orders, the value of the B Town property is $725,000.
3.That within seven days of the date of making this order:
(a)The applicant shall pay to the respondent, or as he may otherwise direct, the sum of $136,763.80; and
(b)Both parties shall do all acts and things and sign all such documents as may be necessary to procure the discharge in registerable form of the mortgage with Westpac Banking Corporation that is secured on the title of the property known as and situate at C Street, B Town in the State of New South Wales, being the whole of the land comprised in Folio Identifier ... (“the B Town property”).
4.That within seven days of the date of making this order, the respondent pay to the applicant one-half of the net rental income received by the respondent, during the period from 30 April 2021 to the date of making this order.
5.That simultaneously with the applicant complying with his obligations pursuant to order 3 above, the respondent shall do all such acts and things and sign all such documents as may be necessary to transfer into the sole name of the applicant the whole of his right, title and interest in and to the B Town property.
6.That pursuant to section 106A of the Act, in the event that the respondent refuses or neglects to execute any document in order to give effect to the above orders within 48 (forty-eight) hours of being provided with such document to sign, the Court appoint the applicant to sign such document…
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- Gillies & Crandall [2021] FamCA 504
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- [2021] FamCA 504
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CaseChat Overview and Summary
The central legal issues before the Court were whether the provisions of section 90UF of the Act altered the terms of the financial agreement, and whether the applicant had provided valid notice of his intention to purchase the B Town property, and if so, when such an intention could be enforced.
Rees J reasoned that the provisions of section 90UF did not alter the terms of the financial agreement itself. The Court found that while the applicant had given valid notice of his intention to purchase the B Town property, this intention could not be enforced until the agreement became effective, which was contingent upon the making of a separation declaration. The Court ultimately ordered the enforcement of the financial agreement as if it were an order of the Court, declaring the value of the B Town property and setting out specific payment and transfer obligations for both parties within seven days. The Court also made provision for the applicant to sign necessary documents in place of the respondent should he fail to do so, and restrained the applicant from dealing with the property other than in accordance with the orders or the agreement.
Orders
Orders of the court
SYC 3159 of 2021
BETWEEN:
MR GILLIES
Applicant
AND:
MR CRANDALL
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
13 JULY 2021
THE COURT ORDERS:
1. That orders be made pursuant to section 90UN(c) of the Family Law Act 1975 (Cth) (“the Act”) that the Financial Agreement dated 24 June 2019 between Mr Gillies (“the applicant”) and Mr Crandall (“the respondent”) be enforced as if it were an order of the Court.
2. That it be declared that, for the purpose of these orders, the value of the B Town property is $725,000.
3. That within seven days of the date of making this order:
(a) The applicant shall pay to the respondent, or as he may otherwise direct, the sum of $136,763.80; and
(b) Both parties shall do all acts and things and sign all such documents as may be necessary to procure the discharge in registerable form of the mortgage with Westpac Banking Corporation that is secured on the title of the property known as and situate at C Street, B Town in the State of New South Wales, being the whole of the land comprised in Folio Identifier ... (“the B Town property”).
4. That within seven days of the date of making this order, the respondent pay to the applicant one-half of the net rental income received by the respondent, during the period from 30 April 2021 to the date of making this order.
5. That simultaneously with the applicant complying with his obligations pursuant to order 3 above, the respondent shall do all such acts and things and sign all such documents as may be necessary to transfer into the sole name of the applicant the whole of his right, title and interest in and to the B Town property.
6. That pursuant to section 106A of the Act, in the event that the respondent refuses or neglects to execute any document in order to give effect to the above orders within 48 (forty-eight) hours of being provided with such document to sign, the Court appoint the applicant to sign such document in his place and authorise to give validity and operation to such document.
7. That until such time as the application of the respondent contained in his Amended Initiating Application filed 8 July 2021 has been heard and determined, or as otherwise agreed in writing, the applicant is restrained from encumbering, dealing with or disposing of the property at C Street, B Town being the land in Folio Identifier ..., other than in accordance with these orders or in accordance with Clause 12 of the Part VIIIAB Financial Agreement entered into by the parties on 24 June 2019.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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