GUDAITIS & MANCASTER

[2012] FamCA 326

FAMILY COURT OF AUSTRALIA

GUDAITIS & MANCASTER [2012] FamCA 326

FAMILY LAW - ORDERS – Ex parte orders for sale of real property

Family Law Act 1975 (Cth)

APPLICANT: Ms Gudaitis

RESPONDENT: Mr Mancaster

FILE NUMBER: MLC 1151 of 2012

DATE DELIVERED: 23 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 23 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Benjamin

SOLICITOR FOR THE APPLICANT: Maeve O'Brien & Associates

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. The Orders made on 26 March 2012 be discharged.

2. The real property situate at and known as … J Street, Suburb S, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (hereinafter, ‘the Suburb S property’) be placed forthwith on the market for sale by auction.

3. Mr D of H Real Estate Agents of … be appointed as selling agent (hereinafter, ‘the Selling Agent’) and P Conveyancers of … be appointed to handle the conveyance of the sale.

4. The terms and conditions of the sale shall be as agreed by the parties and failing agreement, as recommended by the selling agent.

5. The Applicant sign on behalf of both parties all documents required to facilitate the sale, including any sales authority, discharge authority, contract of sale and transfer of land.

6. The Applicant and Selling Agent be at liberty to attend the Suburb S property at all reasonable times to facilitate the sale, including to prepare the property for sale, and show the property to prospective purchasers.

7. Upon settlement of the sale, the proceeds of sale be applied in the following order and priority:

   (a)      First, in payment of all selling costs, agent’s fees and commissions;

   (b)      Secondly, in payment of all reasonable costs of the conveyance;

   (c)      Thirdly, to discharge the mortgage to the Bank of Western Australia; and

   (d)In the event the property sells at a loss, that the loss be borne by the parties equally;

OR

(e)In the event the property sells at a profit, that the profit be divided between the parties equally.

1. Pending completion of the sale:

   (a)The Respondent forthwith pay all arrears owed on the mortgage and be solely responsible for payment of all rates, taxes and outgoings, and ongoing mortgage repayments when and as they fall due;

   (b)The parties hold their respective interests in the Suburb S property upon trust pursuant to these Orders; and

   (c)Neither party shall further encumber the Suburb S property without the prior consent of the other party.

2. Unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these orders:

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the date of the orders (all chattels in the former home being deemed to be in the possession of the Applicant, save for the couches, bed and Respondent’s personal effects, to be retained by the Respondent);

   (b)      insurance policies remain the sole property of the named owner;

   (c)each party be solely liable for and indemnify the other against any liability encumbering any items of property to which that party is entitled pursuant to these orders; and

   (d)any joint tenancy of the parties in any real or personal property is hereby expressly severed.

3. The Respondent be responsible for the costs of and incidental to this application.

4. As soon as practicable the applicant cause sealed copies of this order to be served on the respondent by pre-paid post to:

   (a)      … J Street, Suburb S, Victoria 3752; and

   (b)      the respondent’s parents at … G Street, Suburb M, Victoria.

5. The engrossment of this order by the Court be expedited forthwith.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gudaitis & Mancaster 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 1151 of 2012

Ms Gudaitis

Applicant

And

Mr Mancaster

Respondent

REASONS FOR JUDGMENT

1. I have before me today an Initiating Application filed by the applicant on 13 February 2012.  In that application, she seeks, generally, final orders that there be such adjustment of the property interests and financial resources of the parties as may be required to effect a just and equitable settlement of property between them, and sought to be excused from further particularising her claim until such time as the parties had made full and frank disclosure of their financial positions.  I now have a detailed minute of final orders sought by the applicant today. 

2. There were a number of unsuccessful attempts to serve the documents personally upon the respondent and on 28 February 2012 the applicant’s solicitor forwarded a copy of the applicant’s Initiating Application, her affidavit in support and financial statement, all filed on 13 February 2012, to the respondent at his residential address at J Street, Suburb S.  He was also notified at that time that the applicant’s application had been listed for a Case Assessment Conference at 2.15pm on 2 March 2012 and that his attendance at that conference was required.

3. The respondent did not respond to that letter, nor did he appear on 2 March 2012.  On that date, Registrar Mestrovic made orders dispensing with the requirements for personal service of the applicant’s documents upon the respondent, on condition that, within seven days of the date of those orders, the applicant post by pre-paid post to the respondent in a sealed envelope, care of his parents at G Street, Suburb M, sealed copies of the orders made on 2 March 2012, the applicant’s Initiating Application filed 13 February 2012, the applicant’s affidavit sworn 10 February 2012 and filed 13 February 2012 and her further affidavit sworn 2 March 2012 and filed that day, and a letter asking the respondent’s parents to give or bring the sealed envelope and its contents to the attention of the respondent.

4. A further order was made that in the event that the applicant were to seek different interim orders to those contained in her application of 13 February 2012 that she serve upon the respondent a precise minute of orders on the same terms and conditions.

5. On 8 March the applicant’s solicitor forwarded to the respondent, care of his parents, the documents required to be served pursuant to the order of 2 March 2012 and a minute of the interim orders sought by the applicant.

6. The matter was listed for hearing before me in the Judicial Duty List on 26 March 2012.  The respondent did not appear on that date, and I made orders in terms of the interim minute of orders sought by the applicant, which included an order for the sale of the Suburb S property, and orders for service of that order upon the respondent.

7. The order of 26 March 2012 also required that in the event that the applicant sought to proceed on an undefended basis, that she cause a copy of the precise orders sought to be served on the respondent by pre-paid post to his parents’ address on or before 18 April 2012. 

8. A minute of the final orders sought by the applicant was forwarded to the respondent by his parents, and to the property at J Street, Suburb S on 18 April 2012, as required by the orders.  There is no appearance by the respondent today. 

9. The parties commenced a de facto relationship in or about 2008 and moved in with the applicant’s grandmother at Y Street, Suburb W.  They lived rent free at that address until October 2010.  They became engaged in April 2010 and moved into rented accommodation at the property at J Street, Suburb S in October 2010.  They later purchased that property from their landlord for $385,000 which was financed by way of the respondent’s savings of $10,000, $10,000 from the applicant’s grandparents and $12,000 from their joint savings.  They borrowed the balance from Bankwest.  It was agreed by them that the respondent would pay the mortgage and the applicant would attend to all other household expenses.

10. The relationship broke down in April 2010, essentially on the day upon which settlement of the purchase of the property was to be completed.  The parties attempted a reconciliation in June 2011, when the applicant returned to the Suburb S property, and final separation occurred in August 2011.

11. In or about June 2011 the applicant discovered that the mortgage was in arrears in the sum of approximately $2000.  She paid those arrears.  By December 2011 the mortgage was in arrears by approximately $6000 and requests were made to the respondent that he bring the mortgage up to date and pay all arrears.  He did not respond to any correspondence forwarded to him with respect to those matters.  It was on that basis that in February 2012 the applicant issued these proceedings. 

12. Pursuant to the orders on 26 March 2012, the applicant has attended at the Suburb S property in the company of a police officer and a locksmith for inspection of the property.  Whilst the respondent has taken no part in these proceedings, he advised the applicant on that date that he would be vacating the property on 24 April 2012.  He provided spare keys for the replacement front door lock and indicated that he wanted to retain the couches, his bed and personal possessions, and that he would leave the washing machine and the fridge in the property.  The applicant agreed.

13. On 18 April 2012 a letter was forwarded to the respondent detailing the necessary repairs needed to prepare the property for sale.  No response has been received to that correspondence. 

14. The mortgage arrears are now some $14,000.  It is estimated that the property at J Street, Suburb S will achieve a sale price of approximately $375,000.  The mortgage, including the arrears, is currently approximately $385,000, leaving a shortfall, not taking into account the costs of the sale, of approximately $10,500. 

15. The orders proposed by the applicant are that the property be sold, that Mr D of H Real Estate Agents be appointed as agents for the sale, that the terms and conditions of the sale shall be agreed by the parties and, failing agreement, as recommended by the selling agent, and that she have the authority to sign on behalf of them both any documents required to facilitate the sale.  The orders propose that, in the event the property sells at a loss, the loss be borne by the parties equally, or in the event the property sells at a profit, that the profit be divided between them equally.  They also provide that the respondent pay all arrears owed on the mortgage and that he be solely responsible for payment of all rates, taxes and outgoings and ongoing mortgage repayments as and when they fall due. 

16. However, the applicant is cognisant of the fact that the respondent is unlikely to make any of the payments pursuant to these orders and that, whilst she could take proceedings to enforce the orders, it will not be cost effective to do so and that she is likely to have to pay any shortfall that may remain after the sale of the property.

17. I am satisfied that in all the circumstances of this matter the orders sought by the applicant are not only appropriate but are just and equitable and I propose making orders in the terms sought by the applicant.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 23 April 2012.

Associate: 

Date:  9 May 2012