Gordon and Gordon (No.2) - [2018] FCCA 1617

FEDERAL CIRCUIT COURT OF AUSTRALIA

GORDON & GORDON (No.2)

[2018] FCCA 1617

Catchwords:
FAMILY LAW – Property – respondent failing to do as he was ordered – applicant seeking increased amount – application granted with indemnity costs.

Legislation:

Family Law Act 1975, ss.79A(1)(c), 117(2A)

Family Law Rules 2004, r.17.03

Cases cited:

Gordon & Gordon [2017] FCCA 2899

In the marriage of Jones (1990) 14 Fam LR 19

Applicant:

MS GORDON

Respondent:

MR GORDON

File Number:

MLC 6075 of 2016

Judgment of:

His Honour Judge Wilson

Hearing date:

11 April 2018

Date of Last Submission:

4 May 2018

Delivered at:

Melbourne

Delivered on:

19 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr P Crofts

Solicitors for the Applicant:

Juliana Smith

Respondent:

In person

Solicitors for the Respondent:

None

ORDERS

Order 3 of the orders made on 4 October 2017 is varied to read as follows –
The applicant and the respondent shall do all acts and things and sign all necessary documents to effect the sale of the property known as Property A in the State of Victoria (“the property”) and more particularly described in Certificate of Title volume folio and for that purpose the following shall apply –
a.the property shall be listed for sale with Real Estate Town A, Victoria (the agent);
b.the list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these orders the list price will be as nominated by the agent;
c.the sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price;
d.the parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
e.the parties shall appoint Conveyancing to act as conveyancer for the sale of the property and the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent;
f.the contract of sale shall provide for completion within 30 days after the date of the contract or as agreed in writing between the parties (the settlement date);
g.the proceeds of sale of the property shall be paid in the following manner and priority –
i.payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
ii.payment of the legal costs and outlays relating to the sale;
iii.paying the applicant the sum of $14,493.32 by way…

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 Gordon and Gordon (No.2)

Details

AGLC: Gordon and Gordon (No.2) [2018] FCCA 1617
Case: [2018] FCCA 1617
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the matter of *Gordon and Gordon (No.2)*, His Honour Judge Wilson considered an application to vary previous orders concerning the sale of a property and the distribution of proceeds. The dispute involved the applicant and the respondent, who were parties to prior proceedings that had resulted in orders regarding property division and financial settlements.

The court was required to determine how to vary existing orders to facilitate the sale of a specific property, Property A, in Victoria. This included establishing the process for listing, pricing, and accepting offers for the property. Furthermore, the court needed to determine the priority and distribution of the sale proceeds, including the payment of expenses, legal costs, and specific sums to each party, as well as the transfer of stock, plant, and equipment from the applicant to the respondent.

His Honour Judge Wilson varied the previous orders to mandate the sale of Property A. The parties were directed to cooperate in listing the property with a nominated agent, with provisions for agreeing on a list price or accepting the agent's nomination if agreement was not reached. The sale price was to be agreed upon, or any offer at least 90% of the list price was to be accepted. The court also detailed the cooperative steps required for inspections and the appointment of a conveyancer. The proceeds of sale were to be applied in a specific order of priority: firstly, to cover sale expenses and commission; secondly, to legal costs; thirdly, to the applicant for anticipated tax obligations on the transfer of farming stock and plant; fourthly, to the respondent for any amount paid to the wife under a prior order; fifthly, one half of the remainder to the applicant; sixthly, $34,000 to the applicant in respect of property retained by the respondent; and finally, any balance to the respondent, with a provision for the applicant to recover any shortfall. Additionally, the applicant was ordered to transfer her interest in specified stock, plant, and equipment to the respondent at his expense, with the respondent indemnifying the applicant against any associated costs or taxes. The respondent was also ordered to pay the applicant a specific sum, comprising interest on the value of retained stock and plant, a sum pursuant to a prior order, and the applicant's indemnity costs of the proceeding. All other extant applications were dismissed.

Orders

Orders of the court

Order 3 of the orders made on 4 October 2017 is varied to read as follows –

The applicant and the respondent shall do all acts and things and sign all necessary documents to effect the sale of the property known as Property A in the State of Victoria (“the property”) and more particularly described in Certificate of Title volume folio and for that purpose the following shall apply –

a. the property shall be listed for sale with Real Estate Town A, Victoria (the agent);

b. the list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these orders the list price will be as nominated by the agent;

c. the sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price;

d. the parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;

e. the parties shall appoint Conveyancing to act as conveyancer for the sale of the property and the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent;

f. the contract of sale shall provide for completion within 30 days after the date of the contract or as agreed in writing between the parties (the settlement date);

g. the proceeds of sale of the property shall be paid in the following manner and priority –

i. payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

ii. payment of the legal costs and outlays relating to the sale;

iii. paying the applicant the sum of $14,493.32 by way of the applicant’s anticipated tax obligations on the transfer to the respondent of certain farming stock and plan pursuant to order 4 hereof;

iv. paying to the respondent a sum equal to any amount paid to the wife pursuant to order 2(c) hereof;

v. paying to the applicant one half of any amount remaining;

vi. paying from the remaining funds $34,000 to the applicant in respect of property retained by the respondent pursuant to order 4 hereof;

vii. any balance to the respondent; and

viii. nothing in these orders shall prevent the applicant from seeking to recover from the respondent any shortfall between the amounts then remaining and the sum payable to her pursuant to order 3(g)(vi) hereof.

Order 4 of the orders made on 4 October 2017 is varied to read as follows –

Following the sale of the property known as Property A the applicant transfer to the respondent at his expense all her right, title and interest in the stock, plant and equipment including but not limited to cattle and John Deere tractor and the respondent indemnify the applicant and keep her indemnified in respect of any cost, impost, levy, tax, penalty or charge that may arise from such transfer or any dealing with the stock, plant and equipment by him.

The respondent pay to the applicant out of the proceeds of sale of the property known as Property A in the State of Victoria, the amount of $16 635.76, comprising –

(a) the fixed amount of $1 050.02 in interest on the amount of $34 000 (being the value of stock and plant retained by the respondent) calculated from 16 February 2018 until 26 July 2018;

(b) the fixed amount of $3 000 pursuant to order 3 of the orders made on 11 April 2018; and

All extant applications are otherwise dismissed.

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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