Hillman and Hillman (No 2)

[2020] FamCA 893

FAMILY COURT OF AUSTRALIA

HILLMAN & HILLMAN (NO. 2) [2020] FamCA 893

FAMILY LAW – PROPERTY – where further submissions were invited before final property orders were pronounced – where the Court received brief submissions on the form of order – final property orders made consistent with the Reasons for Judgment delivered.

Hillman& Hillman [2020] FamCA 630

APPLICANT: Ms Hillman

RESPONDENT: Mr Hillman

FILE NUMBER: BRC 1750 of 2016

DATE DELIVERED: 23 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 14 October 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr L Brandon
Evans Brandon Family Lawyers

THE RESPONDENT: Self-represented

Orders

1. That by 22 January 2021:

   (a)       the husband pay to the wife the sum of $160,000; and

   (b)the husband discharge the mortgage secured against the property situated at UU Street, Suburb VV, in the State of Queensland, more particularly described as Lot … on SP … (“the Suburb VV property”) or otherwise (if refinancing with the same Mortgagee) extinguishing completely the wife’s liability.

2. That contemporaneously with compliance with Orders 1(a) and 1(b), the wife transfer all of her right, title and interest in the Suburb VV property and provide a withdrawal of caveat (at her expense) PROVIDED THAT the husband indemnify the wife and keep her indemnified for and in respect of any and all costs of ownership in relation to the Suburb VV property including but not limited to local government rates, water levies and insurance.

3. That in default of compliance with Orders 1(a) and/or 1(b), the parties will forthwith do all acts and things and sign all documents necessary to procure a sale of the Suburb VV property, in accordance with the following sale protocol (unless otherwise agreed in writing between the parties):

   (a)       The listing price shall be $750,000;

   (b)The Suburb VV property shall be listed for sale by private treaty with a registered real estate agent decided as follows:

   (i)Within seven (7) days the husband shall nominate three (3) agents;

   (ii)Within seven (7) days of the husband’s nomination the wife shall choose one (1) agent; and

   (iii)In the event the wife fails to choose an agent by the deadline, the husband shall choose.

   (c)In the event that the Suburb VV property has not been sold by private treaty by 31 March 2021, the Suburb VV property shall be sold by public auction, with the parties to do all acts and things including by signing documents to give effect to the following:

   (i)The auctioneer shall be as appointed by the selling agent;

   (ii)The auction shall be held on a date after four (4) months from the date of these Orders but before five (5) months from the date of these Orders as determined by the auctioneer;

   (iii)The reserve price for the purpose of such auction will be as determined by the auctioneer;

   (iv)In the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the Suburb VV property at a price which is at least 95% of the reserve price; and

   (v)If the Suburb VV property is not sold within one (1) month of the auction, then the parties shall cause a further auction of the property every six (6) weeks thereafter until such time as a sale has been achieved and for that purpose the preceding auction sale provisions shall apply save that the sale price of the property shall be reduced by 5% for each successive auction.

   (d)Pending compliance with Orders 1(a) and (b) or the sale of the Suburb VV property:

   (i)neither party shall further encumber the Suburb VV property including by drawing down on the mortgage; and

   (ii)the husband shall ensure that the property is insured for a replacement value of $750,000.

4. That upon completion of the sale of the Suburb VV property the proceeds of sale to be paid as follows:

   (a)       To discharge any loan secured by mortgage against the property;

   (b)       To pay the Agent’s commission;

   (c)       To pay the conveyancing solicitor’s fees;

   (d)       To pay any adjustment of local rates and water levies; and

   (e)To pay the wife the amount provided for at Order 1(a) plus interest at the Family Law rate calculated from 22 January 2021 until the date of payment.

5. That the parties shall do all acts and things and sign such documents and this Order shall be deemed an authority directed to ZZ Organisation to pay:

   (a)all monies due for the child, X born … 2003 to be paid to the husband; and

   (b)all monies due for the child, Y born … 2006 to be paid to the wife.

6. That the wife shall retain free from any and all claims of the husband the following:

   (a)       Her shares in WW Company;

   (b)       Her furniture and contents;

   (c)       Her superannuation entitlements;

   (d)       Her bank accounts; and

   (e)       Her motor vehicle.

7. That the husband shall retain free from any and all claims of the wife the following:

   (a)       His motor vehicle;

   (b)       His bank accounts and cash; and

   (c)       His furniture and contents.

8. That the husband pay the costs of the liquidator of MM Pty Ltd ACN … pursuant to Order 1.7 of the Orders made by Justice Austin on 17 November 2016 (amended 22 September 2017).

9. That the wife bear responsibility for the debt to Suburb XX.

10. That save or as otherwise specifically provided for in these Orders, the wife and husband shall do all acts and things as are necessary, including but not limited to signing documents, to cause the balance of any bank accounts held in their joint names to be divided equally and thereafter cause the closure of such accounts.

11. That save and except for the property and financial resources dealt with pursuant to the terms of these Orders, each party retain, without claim from the other, as his or her own property absolutely, all assets and/or all financial resources of whatsoever description and wheresoever situated of which that party is the legal owner or which is/are in the possession and/or control of that party as and from the date of these Orders.

12. That save as otherwise provided by these Orders, each party shall solely bear responsibility for and indemnify the other for and in respect of any debt in their name or attached to any asset which they are to retain pursuant to these Orders.

13. That unless otherwise provided by these Orders, each party shall bear responsibility for any capital gains tax and/or any other tax and/or costs incurred as a consequence of the disposal by that party of any assets or resources either being transferred to and/or retained by him or her pursuant to the provision herein and each party shall indemnify the other and keep the other indemnified in respect of any taxation liability arising from the disposal of such assets and/or resources.

14. That the party receiving the benefit of any transaction shall prepare the legal documentation necessary to give effect to the provisions of these Orders at their cost and further be responsible for payment of all registration fees, stamp duty and/or other outgoings in relation to the transfer of the property into their name.

15. That the parties shall each do all acts and procure the doing of all things and/or procure the signing of all documents necessary to give full force and effect to the provisions of these Orders and IN THE EVENT THAT either party refuses or neglects to comply with any provision of these Orders within fourteen (14) days of a written request to do so, then a Registrar of this Court at Brisbane is appointed, pursuant to s 106A of the Family Law Act 1975, to execute all documents in the name of that party and to do all acts and things necessary to give validity and operation to this Order.

16. That the parties promptly comply with all requisitions issued by the Office of State Revenue, Land Titles, Main Roads Department and any other government department in relation to any document executed or transacted pursuant to or put into effect the terms and conditions of these Orders.

17. That either party have liberty to apply to the Court on the giving of seven (7) days’ notice in writing to the other for the interpretation and/or enforcement of these Orders and for consequential Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillman & Hillman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1750 of 2016

Ms Hillman

Applicant

And

Mr Hillman

Respondent

REASONS FOR JUDGMENT

1. On 18 September 2020 I delivered Reasons in respect of contested property proceedings between the Applicant wife and Respondent husband (see Hillman & Hillman [2020] FamCA 630) but indicated, at paragraphs 139 and 140, why further submissions would be invited before final Orders are pronounced.

2. On 7 October 2020, the solicitors for the wife filed a proposed minute of order that included, as directed, Orders for sale of the Suburb VV property if the husband was unwilling or unable to pay to the wife the sum of $160,000.

3. On 12 October 2020, the Court received some brief oral submissions on the form of Order, and in particular, also had received a written “Response to the wife’s request for Orders”. The Orders I now make and which appear at the commencement of these brief Reasons are shaped by the findings below. I find the Orders achieve justice and equity for both parties.

4. The additional findings I now make are as follows:

   a)the wife seeks payment within 30 days or as soon thereafter as possible. The husband who wishes to retain the Suburb VV home, says he will pay the sum of $160,000 in two tranches of $80,000 – one within 60 days and the second payment within 120 days. I regard it as preferable and proper that the payment be paid at one time, contemporaneously with the current mortgage being discharged (or if the same lender continues then where the wife’s obligations are fully extinguished) and the wife transferring her legal interest in the property to the husband and withdrawing her caveat (at her expense);

   b)allowing for probable delays over the Christmas period, I will allow the husband until 22 January 2021 to make the payment of $160,000. Of course if the husband wishes to effect settlement early I see no basis for the wife not doing so;

   c)if the husband fails to make the payment as ordered (and when raised with the husband he dismissed that event as highly unlikely), then a sale will be required. In that regard I regard the Orders proposed by the wife as appropriate as to sale, with the following amendments (by reference to the wife’s proposed Orders) namely:

   i)I see no basis, if the husband is unable to pay the sum of $160,000 as ordered, that the sale that follows should be at the husband’s expense. It is a jointly owned property and they should meet the costs of sale jointly;

   ii)it was the wife’s original proposal that if a sale of the property was required, that the wife be appointed as Trustee for the Sale so as to “control” the sale process. In circumstances where the husband, the husband’s elderly mother and the parties’ eldest child live in the home, I regard in the context of the hostility in this matter, that appointing only one of the parties (be it the husband or the wife) as problematic. However I agree with the husband nominating three agents and the wife selecting one. In my view, considering the need for inspections and the like, appointing an agent against the husband’s choice will simply create unnecessary difficulties;

   iii)if the property is not sold by private treaty (being a contract having been entered into by the parties not a settlement) by 31 March 2021, then the property shall be sold by public auction to take place by 31 May 2021. I regard two months as a suitable time for marketing the property where it has already been exposed to the local market from January 2021;

   iv)I agree with proposed Order 3(d);

   v)as to proposed Order 4(e) interest payable to the wife should only accrue from 22 January 2021 to the date of payment to the wife after sale;

   vi)as to Order 4(f), it will be a matter for the liquidators to seek to enforce payment of any fees against the husband pursuant to Order 1.7 of the Court made 17 November 2016. There is no evidence they have sought to do so; and

   vii)I agree to make proposed Orders 5, 6, 7, 8, 9 (amended to provide the wife is solely responsible for the debt to Suburb XX), 10, 11, 12, 13, 14, 15, 16 and 17 of the wife’s proposed Orders.

5. For completeness, I purposely do not engage with the husband’s submissions at paragraphs 1 to 7, which make little sense.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered 23 October 2020.

Associate: 

Date:  23 October 2020