Gillim & Gillim - [2019] FamCA 897

FAMILY COURT OF AUSTRALIA

GILLIM & GILLIM

[2019] FamCA 897

FAMILY LAW – PROPERTY – Where Application for Interim Property orders – Where consideration of applicable principles – Where appropriate to make orders for sale of investment and discharge of mortgages with remaining funds to be held pending further order.

FAMILY LAW – INJUNCTIONS – SOLE USE AND OCCUPATION – Where consideration of applicable principles – Where proper for wife to have sole use and occupation of the former matrimonial home pending further order.

Family Law Act 1975 (Cth) s 114

Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Harris & Harris (1993) FLC 92-378
Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
Mikele & Mikele [2008] FamCA 651
Plowmanv Plowman (1970) 16 FLR 447
S & S [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-627
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Mr Gillim

RESPONDENT:

Ms Gillim

FILE NUMBER:

PAC

2655

2014

DATE DELIVERED:

28 November 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

21 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Belgrave Lawyers Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Farah Lawyers, Solicitors & Barristers

Orders

That the husband vacate the former matrimonial home at 1 B Street, Suburb C within seven days from this date and thereafter remain away from and not enter upon the said property without the written consent of the wife.
That the husband be restrained from removing from the property any items of personalty, furniture and furnishings save for his personal effects and clothing without the written consent of the wife.
That the husband and wife forthwith do all things necessary and sign all necessary documents to cause D Pty Ltd to sell by public auction the property at 2 B Street, Suburb C for the best price reasonably obtainable and to apply the proceeds of sale in the following manner and priority:
(a)      In payment of agent’s commission and auction expenses;
(b)      In payment of any contract adjustments payable on settlement;
(c)      In payment of legal expenses on sale;
(d)In discharge of any E Pty Limited mortgage Loan Numbers …79 and …87 secured on the said property;
(e)In discharge of the E Pty Limited mortgages Loan Numbers …79 and ..87 secured over the property at 1 B Street, Suburb C;
(f)In payment of any arrears of council and water rates in relation to the property at 1 B Street, Suburb C; and
(g)In payment of the balance then remaining to a controlled monies account held by the parties’ solicitors on trust for the parties, pending further order.
That the husband and wife do all things necessary to:
(a)Place the property on the market for sale by auction as soon as practical and in any event within six weeks of listing;
(b)The wife shall within seven days nominate three real estate agents and the husband shall within two days of such nomination select one as the selling…

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 Gillim & Gillim

Details

AGLC: Gillim & Gillim [2019] FamCA 897
Case: [2019] FamCA 897
Decision Date: 28 November 2019

CaseChat Overview and Summary

In the matter of *Gillim & Gillim*, Foster J considered applications for interim property orders and injunctions concerning the former matrimonial home and an investment property. The dispute involved the husband and wife's respective rights and obligations regarding these assets pending final resolution of their property settlement.

The court was required to determine the principles applicable to interim property orders, specifically whether it was appropriate to order the sale of an investment property and the discharge of associated mortgages, with the remaining proceeds to be held pending further order. Additionally, the court had to consider the principles governing injunctions for the sole use and occupation of the former matrimonial home.

Foster J reasoned that it was appropriate to grant the wife sole use and occupation of the former matrimonial home and to order the sale of the investment property. The proceeds of the sale were to be applied first to sale expenses, then to discharge mortgages on both properties, followed by council and water rates for the former matrimonial home, with any balance to be held in a controlled monies account. The court also made orders regarding the sale process of the investment property, including the nomination of agents and solicitors, and the husband's responsibility for maintaining the former matrimonial home.

Orders

Orders of the court

That the husband vacate the former matrimonial home at 1 B Street, Suburb C within seven days from this date and thereafter remain away from and not enter upon the said property without the written consent of the wife.

That the husband be restrained from removing from the property any items of personalty, furniture and furnishings save for his personal effects and clothing without the written consent of the wife.

That the husband and wife forthwith do all things necessary and sign all necessary documents to cause D Pty Ltd to sell by public auction the property at 2 B Street, Suburb C for the best price reasonably obtainable and to apply the proceeds of sale in the following manner and priority:

(a) In payment of agent’s commission and auction expenses;

(b) In payment of any contract adjustments payable on settlement;

(d) In discharge of any E Pty Limited mortgage Loan Numbers …79 and …87 secured on the said property;

(e) In discharge of the E Pty Limited mortgages Loan Numbers …79 and ..87 secured over the property at 1 B Street, Suburb C;

(f) In payment of any arrears of council and water rates in relation to the property at 1 B Street, Suburb C; and

(g) In payment of the balance then remaining to a controlled monies account held by the parties’ solicitors on trust for the parties, pending further order.

That the husband and wife do all things necessary to:

(a) Place the property on the market for sale by auction as soon as practical and in any event within six weeks of listing;

(b) The wife shall within seven days nominate three real estate agents and the husband shall within two days of such nomination select one as the selling agent;

(c) The reserve price to be as agreed between the parties and failing agreement, is to be as recommended by the selling agent;

(d) The husband to keep the property in a good state of repair and condition having regard to its current condition;

(e) The husband and wife to co-operate with the selling agent in making the said property available for inspection and otherwise;

(f) The parties are to agree on a solicitor or conveyancer to act on the sale of the property, and failing agreement, the wife within seven days from this date nominate a list of three solicitors to act and the husband shall within two days of such nomination select one as the solicitor having carriage of the sale;

(g) That in the event that the selling agent requires the payment of costs in advance of the sale, such costs shall be met by the husband, he to be reimbursed from the proceeds of the sale.

Liberty to apply on short notice as to implementation or enforcement of these orders including any application for the appointment of a trustee for sale.

That the wife be at liberty to provide a copy of these orders to E Pty Limited.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.