GREEN & WALL

[2015] FamCA 922

FAMILY COURT OF AUSTRALIA

GREEN & WALL [2015] FamCA 922

FAMILY LAW – PROPERTY – Application for injunction with respect to property held overseas and with respect to the sale of a motor vehicle – oral application by the husband for payment or access to funds dismissed – interim orders made for the sale of property and the distribution of its proceeds

Family Law Act 1975 (Cth)

APPLICANT: Ms Green

RESPONDENT: Ms Wall

FILE NUMBER: MLC 9764 of 2014

DATE DELIVERED: 6 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 6 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale

Orders

BY CONSENT IT IS ORDERED

1. That, upon receipt of the joint valuation by the B Group (joint valuation) of the real property situate at C Street, D Town, E State, US (US property), the husband and the wife thereafter sign all documents and do all acts and things necessary to jointly sell the US property (sale), as follows:

   (a)the sale be conducted by Ms F (selling agent) jointly appointed and instructed by the husband and the wife (upon written agreement as to commission and sale costs) or such other selling agent as may be agreed in writing;

   (b)the sale price be not less than the joint valuation unless otherwise agreed in writing by each of the husband and the wife, which agreement shall not be unreasonably withheld by either of them and any disagreement communicated to the other party in writing within 48 hours of receipt of any offer;

   (c)each party be at liberty to communicate with and to receive from the selling agent all information and copies of all documents relating to the sale.

2. That upon settlement of the sale, the proceeds of the sale be disbursed as follows:

   (a)       first, to pay all costs and commissions of the sale;

   (b)secondly, to discharge the loan from Wells Fargo Bank secured by the US property (in the sum of approximately US$615,407);

   (c)thirdly, to pay or make provision for any tax incurred as a consequence of the sale.

3. That the husband, personally and/or in his capacity as director or shareholder of G LLC (company), provide to the wife, by their respective solicitors, not less than 30 days’ notice  in writing prior to encumbering, selling, transferring, assigning or otherwise alienating:

   (a)       his shares or interest in the company; or

   (b)       the aircraft owned by the company.

4. That the husband and the wife forthwith sign all documents and do all acts and things necessary to jointly sell the German motor vehicle registered in the name of the wife:

   (a)       apply the proceeds of sale as follows:

   (i)first, to pay all costs and commissions of the said sale;

   (ii)secondly, to discharge the finance liability in relation to the said motor vehicle; and

   (iii)thirdly, the balance thereafter remaining be substantiated to the wife and paid to the husband by way of partial property settlement.

5. That the wife's amended Application in a Case filed 4 May 2015 and the husband's Response to Application in a Case filed 21 May 2015 be dismissed.

IT IS ORDERED

1. That contemporaneously with settlement of the sale, the wife remove the Lis Pendens.

2. That after compliance with paragraphs 2 (a) to (c) herein the balance thereafter remaining be held in an interest bearing trust account in the joint names of the husband and the wife, such account to require the signatures of both parties for any withdrawal pending written agreement between them (by their respective solicitors) or further order of the Court first had and received.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green & Wall 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 9764 of 2014

Ms Green

Applicant

And

Ms Wall

Respondent

REASONS

1. This application comes before me in a Judicial Duty List.  The background to the matter is as follows.  The wife filed an Application in a Case in April 2015.  That application was subsequently amended by an Amended Application in a Case filed 4 May 2015.  That application is supported by two affidavits of the wife, they being affidavits filed on 2 April 2015 and 4 May 2015.  In her amended application, the wife sought orders to provide injunctive relief in relation to the terms of sale with respect to a property held by the parties in the US.  She also sought various injunctions to restrain the husband from dealing with a company which is known is G LLC.  There were also orders sought with respect to the sale of German motor vehicle.

2. The husband filed a Response to Application in a Case on 21 April 2015.  That response was supported by an affidavit of the husband filed the same day. 

3. The matter was called on before me at approximately 11.30 am.  When the matter was called on, I invited counsel for each of the parties to identify the parts of their application which they sought to press at the hearing before me.  I was informed by counsel for the wife that the matters in issue were those set out at paragraphs 2 to 6 inclusive of her Amended Application in a Case.  With respect to the husband’s case, I was informed by counsel for the husband that the only order sought by him was that the wife’s application be dismissed.

4. Shortly prior to the luncheon period I returned to Court, having had the opportunity of reading and considering the parties’ respective applications and affidavits in support.  At that time, I made some observations to the parties that the matters in dispute, in reality, seemed to be around the mechanism for the sale of certain of their assets, particularly the mechanism for sale of the property in the US as well as the German motor vehicle.  Counsel representing the parties agreed that it would be appropriate to stand the matter down further to continue discussions around those issues. 

5. At approximately 2.30 pm, I was informed that those discussions were progressing.  Indeed, later in the afternoon, I was provided with a minute of proposed orders and was informed through counsel that there were two issues in relation to those issues that would require a ruling.

6. The first issue related to the timing for the removal by the wife of a lis pendens registered by her against the title to the US property.  The issue between the parties with respect to that issue relates to whether or not the lis pendens should be removed immediately, as is sought by the husband, or whether the timing for removal should coincide with the settlement of the sale of that property, it being agreed between the parties that the property should be sold.

7. The second issue identified in the minute provided was as to the arrangements for the sale of the German motor vehicle, particularly with respect to the application of the proceeds of sale of that motor vehicle.  The husband raised concerns that the wife would potentially unreasonably withhold consent to a sale.  I was referred to previous offers made with respect to the sale of that vehicle.  I was informed, and indeed material filed in the husband’s affidavit would indicate, that there was an offer received with respect to the sale, that offer being that the car be sold for $24,000.  The wife, in the proposed minute, seeks that the reserve price for the sale of the motor vehicle be twenty-seven and a half thousand dollars.

8. I observed that the preferable course may well be for the husband to retain control of the sale of the motor vehicle and for the proceeds retained from that sale by him to be part of his property settlement.  Counsel for the wife sought the opportunity to have the matter stood down to discuss that issue, and ultimately that was an agreed position.  The wife conceded that that was an appropriate means of dealing with the sale of the motor vehicle.

9. A third issue emerged during the course of submissions on behalf of the husband.  Essentially, an oral application was made that, from the proceeds of sale of the property in the US, the sum of $100,000 be released to the husband for his use.  The basis for that application was essentially a concern that he not be restrained from dealing with this capital, particularly in circumstances where the wife has had the opportunity to and has, in fact, had access to a sum in the order of approximately $800,000. 

10. Counsel for the wife has strenuously opposed the making of that oral application.  The complaint made is that the application has been made very late in the day.  There is no basis for the application.  There has been no opportunity to respond.  It is an application that is made notwithstanding the orders sought by the husband in his Response to Application in a Case wherein it was conceded by him or sought by him that the proceeds of sale of the property be held upon trust pending a final determination of the issues before the Court.

11. Given the late hour at which this issue has been raised, I am not inclined to entertain an oral application for the husband to seek a payment or access to funds.  I have regard to the fact that the husband has a substantial income.  He is employed with Exxon and has an income in excess of $5,500 per week.  He has access to savings.  He has access to a superannuation plan and, indeed, based on the material before me, it would seem that he has, after the parties have separated, accessed funds from that superannuation plan.  I am not satisfied, in those circumstances, that it is appropriate for me to entertain an oral application. 

12. The only other issue remaining for determination is as to the timing of the removal of the lis pendens.  The lis pendens is a notification to the Titles Office, I presume, in the United States indicating that the wife has an interest in the property.  It is a form of a registration of an interest akin to a caveat.  I am not persuaded that there is any basis for a removal of the lis pendens prior to a settlement of the sale of the home.  I note that the parties have agreed as to a mechanism for sale.  There has been an assertion made on behalf of the husband that the existence of the notice of the wife’s interest could potentially impact upon the sale of the property.  There is no evidence before me that would confirm that position or otherwise. 

13. The matter comes before the Court in circumstances where a representation has been made by the husband through his lawyers that he not dealt with certain assets, in particular, a sum of money that had been withdrawn by him from the Bank of Melbourne.  Notwithstanding the undertaking that those moneys not be dealt with by the husband, he, after that undertaking had been given, withdrew the sum of $10,000 from that account.  That has created distrust and uncertainty in the mind of the wife as to the husband’s conduct.  It is appropriate that I make orders in the terms of the minutes which will provide for both parties to be involved in the sale process of the US property.  I will also make an order requiring the wife to remove the lis pendens at settlement of sale. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 May 2015.

Associate:

Date:  6 May 2015