Green & Anor and Kettle

[2014] FamCA 187

FAMILY COURT OF AUSTRALIA

GREEN AND ANOR & KETTLE [2014] FamCA 187

FAMILY LAW – ORDERS – Discharge of orders – Where an order was make appointing a trustee for sale – Where the trustee has carried out his obligation pursuant to the order – Where the trustee seeks to be discharged of his appointment.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) Schedule 3
Child Support (Assessment) Act 1989 (Cth) s 141
Land Title Act 1994 (Qld) s 110A
Trusts Act 1973 (Qld) s 101

Norton & Locke [2013] FamCAFC 202.

APPLICANTS: Ms Green and Ms Baker

RESPONDENT: Mr Kettle

FILE NUMBERS: BRC BRC 6527 6532 of of 2009 2009

DATE DELIVERED: 28 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 January 2014 & 7 February 2014

REPRESENTATION

FOR THE APPLICANTS:

No appearance by either Applicant

ON BEHALF OF THE 

TRUSTEE:

Mr P

FOR THE RESPONDENT:  Mr Kettle in person

Orders

IT IS ORDERED THAT

1. Clause 4 of the Order made by Federal Magistrate Jarrett made on 4 November 2011 is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green and Anor & Kettle 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 BRISBANE

FILE NUMBER: BRC 6527 of 2009; BRC 6532 of 2009

Ms Green and Ms Baker

Applicants

And

Mr Kettle

Respondent

REASONS FOR JUDGMENT

1. On 7 November 2013 Mr P (“the Trustee for Sale”) filed an Application in a Case seeking that Clause 4 of the Orders made 4 November 2011 be discharged in so far as it relates to particularised lots of real property and that, thereby, his role as trustee for sale pursuant to the Order be brought to an end.

2. Despite the fact that the making of the Order sought by the trustee for sale would see the title to real property previously owned by Mr Kettle returned to him, Mr Kettle opposes the application.

How did the trustee for sale come to be appointed?

1. On 4 November 2011 Federal Magistrate Jarrett (as His Honour then was) delivered Reasons for Judgment and made Orders in relation to child support departure applications which related to Mr Kettle’s children (“the November 2011 Order”).

2. Mr Kettle was ordered to pay particularised lump sums by 3 February 2012, in default of which the trustee for sale was appointed in relation to the particularised lots of property. Mr Kettle failed to pay the sums as ordered. 

3. His Honour also ordered that:

   a)the property vest in the trustee for sale to be held on trust to sell the same and stand possessed of the net proceeds of sale (after payment of costs, expenses and outgoings, rates, taxes, mortgages, legal costs of parties and costs of the trustees associated with enforcement and sale, costs of insurance and repairs properly payable out of the proceeds of sale or income);[1]

   b)costs of the trustee be paid out of the proceeds of sale;[2]

   c)after the sale, proceeds of the properties be disbursed as follows:

   i)to pay the costs of and incidental to the sale of the property including transfer duty and real estate commissions and, further, including any expenses incurred by the trustee;

   ii)to discharge Mr Kettle’s outstanding child support liability for any period before the making of the order;

   iii)an amount of capitalised child support as ordered by the Order be paid to the child support Registrar to be held and distributed to each applicant the child support in discharge of Mr Kettle’s child support liability each month;

   iv)to discharge Mr Kettle’s outstanding costs liabilities pursuant to Orders made 30 August 2005, 5 July 2006 and the costs outstanding pursuant to Orders of the Full Court made 6 November 2007; and

   v)the remainder paid to Mr Kettle.

   [1]          Clause (5).

   [2]          Clause (7).

4. The November 2011 Order, which remains the operative Order, is silent as to the manner in which the appointment of the trustee for sale shall come to an end. No provision is made specifically to permit an application by the trustee for sale for discharge of the operative Order and/or release him from the obligation imposed by the terms of the Order. No specific provision discharges the trustee for sale upon the completion of his role.

5. Following his appointment as trustee for sale and upon registration at the Titles Registry of the Department of Natural Resources and Mines of his name as registered proprietor as trustee for sale, legal title in the property vested in Mr P in that capacity: s 110A of the Land Title Act 1994 (Qld).

6. The trustee for sale has now sold sufficient real property to satisfy the terms of the November 2011 Order. As a consequence, the purpose for which the trustee for sale was appointed has come to an end. There is no basis upon which the trustee for sale should remain the registered proprietor (in his capacity as trustee for sale) of the remaining unsold lots. There is no ongoing basis upon which Mr Kettle should continue to be deprived of title to real property in respect of which he was previously the registered proprietor.

7. The trustee for sale says that, in order to divest himself (in his capacity as trustee for sale) of ownership in the remaining real property and have Mr Kettle again registered as the registered proprietor of the same, he needs to lodge appropriate documentation, supported by an Order of this Court, in the Queensland Land Registry.

8. The trustee for sale has provided an accounting to the Court as to his conduct as trustee for sale. In accordance with the terms of the November 2011 Order he has:

   a)paid monies owing to the Child Support Agency, in the amounts notified, to that Agency;

   b)has paid monies owing by Mr Kettle, as a consequence of costs Orders made previously by the Court, to Ms Baker and Ms Green;

   c)paid to himself professional fees arising out of the discharge of his obligations under the November 2011 Order and has provided details as to the basis upon which such fees were charged.

Why does Mr Kettle oppose the making of the Order sought by the Trustee for Sale?

1. Mr Kettle opposes the discharge of the Trustee for Sale on a number of bases.

2. Mr Kettle submits that, because the trustee for sale is not a party to the proceedings between him and Ms Baker and him and Ms Green, he does not have “standing” to bring the application.

3. I do not accept this submission. The trustee for sale was properly appointed following Mr Kettle’s non-compliance with the requirement that he pay specified monies as directed by the terms of the November 2011 Order. The Court has power[3] to discharge the trustee for sale in circumstances such as these where he has discharged the obligations imposed upon him by the November 2011 Order.

   [3]Child Support (Assessment) Act 1989 (Cth) s 141; Alternatively, the inherent power to control its own process: see, for example, Norton & Locke [2013] FamCAFC 202.

4. Mr Kettle opposes the making of an order in the terms sought by the trustee for sale on the basis that he should be entitled to challenge the quantum of the trustee for sale’s costs.

5. It is clear that the November 2011 Order specifically provides for the payment to the trustee for sale of those costs incurred and fees associated with the discharge of his duties.[4] He has provided an accounting of those costs and an explanation for some of the circumstances in which they were incurred, including an occasion on which Mr Kettle’s actions in attempting to lodge a caveat over one of the lots resulted in the proposed sale of the same failing to complete.

   [4] In a manner consistent with s 101 Trusts Act 1973 (Qld).

6. There is nothing unreasonable in the quantum of the costs incurred by the trustee for sale particularly given the matter referred to above and those outlined in paragraphs 27, 28 and 29 of Mr P’s affidavit filed 3 February 2014. In addition, I note that a number of items particularised appear to have been charged at amounts less than those allowed pursuant to Schedule 3 of the Family Law Rules 2004 (Cth): namely, photocopying, and the drafting of letters.

7. Mr Kettle also asserts that the trustee for sale improperly avoided paying stamp duty on the transfer of title into his name in his capacity as trustee for sale of the same. I accept the contents of paragraph 18(o) of Mr P’s affidavit filed 3 February 2014 in which he outlines the basis upon which the Office of State Revenue has determined that the registration of a trustee for sale is not dutiable.

8. It is, of course, trite to remark that had stamp duty been levied on the transfers of title into the name of the trustee for sale (a matter ordered so as to enforce and ensure compliance with the November 2011 Order to pay the sums determined), this would have resulted in an additional cost to Mr Kettle and a resultant diminution in the value of the property to be returned to him.

9. I am not persuaded that Mr Kettle has established any basis for a refusal of the orders sought by the trustee for sale. Given that the purpose for which the trustee for sale was appointed – as a consequence of Mr Kettle’s failure to comply with an Order directing the payment of monies by a specified date – has now been achieved, I am persuaded that it is entirely proper to make the orders sought.

10. I order accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 March  2014.

Associate:                 

Date:    28 March 2014