Hester and Hester

This matter concerned the division of property between the parties, Mr and Mrs Hester, following their separation. The court was required to make orders concerning the sale of the former matrimonial home and the distribution of its proceeds, as well as addressing superannuation entitlements and other assets and debts.

The primary legal issues before the court were how to facilitate the sale of the former matrimonial home, including the method of sale, the appointment of agents, and the setting of a sale price or reserve price. The court also needed to determine the priority of payments from the sale proceeds, including the repayment of a loan to Mr and Mrs Hester, and the distribution of the balance between the husband and wife. Furthermore, the court was required to make orders regarding the wife's entitlement to a portion of the husband's superannuation.

The court ordered that the former matrimonial home be listed for sale by private treaty within 14 days, with an agent to be agreed upon or appointed by the President of the Real Estate Institute of New South Wales. The listing price was also to be mutually agreed or determined by the Real Estate Institute. If the property was not sold within three months, it was to be listed for public auction with a reserve price to be agreed or determined by the agent. The court detailed procedures for negotiation if the reserve price was not met at auction and for subsequent relisting if the property remained unsold. The court also made specific orders regarding the cooperation of the parties with the agent, the conduct of the sale by a solicitor or conveyancer, and the prohibition of exclusive agency rights. The proceeds of sale were to be applied first to rates, then agent fees and legal costs, followed by repayment of a loan to Mr and Mrs Hester, with the remaining balance to be split 43% to the husband and the remainder to the wife. Additionally, orders were made pursuant to section 90MT(1)(a) of the Family Law Act 1975, entitling the wife to a base amount of $94,000 from the husband's superannuation, with a corresponding reduction in his entitlement. The court also clarified that each party would retain sole title to chattels and assets in their possession and would be solely responsible for their respective debts, with a right of indemnity against the other party for liabilities encumbering property awarded to them. A Registrar was appointed to execute documents if a party failed to do so.