Holland and Holland

[2014] FamCA 1124

FAMILY COURT OF AUSTRALIA

HOLLAND & HOLLAND [2014] FamCA 1124

FAMILY LAW – PROPERTY – Application for enforcement of consent orders.

APPLICANT: Ms Holland

RESPONDENT: Mr Holland

FILE NUMBER: MLC 7019 of 2014

DATE DELIVERED: 3 December 2014

PLACE DELIVERED: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kiernan

SOLICITOR FOR THE APPLICANT: Carew Counsel Pty Ltd

COUNSEL FOR THE RESPONDENT: In Person

Orders

1. That the applicant wife have the sole control and conduct of the sale by auction of the former matrimonial home situate at H Street Suburb V, more particularly described in Certificate of Title Volume … Folio … (“the property”).

2. That upon no less than 48 hours’ notice to the respondent husband by the selling agent, the respondent husband allow the applicant wife access at reasonable times to the property to enable her to conduct any works requested by the selling agent to improve the property for sale.

3. That the property be listed for sale by auction as soon as practicable as follows:

   (a)That the selling agent be D Real Estate of Suburb V;

   (b)That the reserve price of the property be such amount as is agreed between the parties and failing agreement being reached between the parties 7 days prior to the auction, then the reserve price shall be that nominated by the selling agent and the applicant wife;

   (c)That the marketing schedule be as recommended by the selling agent;

   (d)That the conveyancer or solicitor to be engaged for the preparation of all documents and the conduct of the sale be that nominated by the applicant wife;

   (e)That the respondent husband cooperate in every way with the selling agent in relation to the marketing of the property including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;

   (f)That the parties each pay to the selling agent one half of any sums requested for advertising or auction expenses within 7 days of request for same;

   (g)That the parties execute all documents requested by the auctioneer for sale of the property by auction within 24 hours of request for same;

   (h)That the parties attend at the auction and the applicant wife negotiate with the highest bidder or any other interested party in the event that the reserve price has not been reached, for the purpose of executing a contract of sale;

   (i)That upon a sale of the property at auction or at some later date, the parties execute a contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the selling agent or the solicitor;

   (j)That the sale price of the property be any amount in excess of the reserve price but in the event of the reserve price not being reached, the sale price of the property be such amount as agreed between the parties, or failing agreement each party have liberty to apply to the Court regarding the price at which the property is to be sold;

   (k)That the parties sign all documentation necessary to request the ANZ Bank to prepare discharge of Mortgages …35A and …96G for the purposes of the settlement of the sale;

   (l)That the proceeds of sale of the property be paid in the following manner and priority:

   (i)     To discharge mortgage numbers …35A and …96G to ANZ Bank;

   (ii)    In payment of any other encumbrance affecting the property including rates, taxes and other reasonable expenses;

   (iii)     In payment of the agent’s commission and advertising or other expenses;

   (iv)   In payment of the legal costs associated with preparing the property for sale and relating to the sale;

   (v)    The balance to be placed in the trust account of the solicitors for the applicant wife in the joint names of the parties pending order of the Court or agreement of both parties with respect to distribution of same.

4. That pending the sale of the property pursuant to these Orders:

   (a)The respondent husband be responsible for the day-to-day maintenance and care of the property;

   (b)The respondent husband be liable for all payments due in relation to Mortgages …35A and …96G with the ANZ Bank registered over the property and all rates, taxes, insurances and utilities over the property;

   (c)The respondent husband be responsible for and cause to be repaired at his own expense, any damage to the property caused by him or persons attending at or occupying the property with his knowledge, consent or invitation.

5. That the applicant wife have the sole control and conduct of the sale of investments registered in the name of the respondent husband including but not limited to the following:

   (a)Investments with Ausbil Investment Trust;

   (b)Investments with Australian Active Equity Fund;

   (c)Investments with Cromwell Property Fund;

   (d)Investments with Opus Income and Capital Fund No. 21;

   (e)Any investments arranged through Premium Wealth Management;

   (f)Any investments in the name of the respondent with ITC Project Management Limited.

6. That the respondent husband do all acts and things and sign all documents to give effect to Order 5 within two business days of the request for same.

7. That the proceeds of sale or redemption of any of the investments referred to in paragraph 5 hereof be placed in the trust account of the solicitors for the applicant wife in the joint names of the parties pending order of the Court or agreement of both parties as to the distribution of same.

8. That pursuant to s 106A of the Family Law Act (1975), in the event that the respondent husband fails to execute documents necessary to effect a sale of the property (including but not limited to an Agent’s Authority, Section 32 Statement and Contract of Sale) or the investments pursuant to Order 5 hereof, a Registrar of the Family Court of Australia at Melbourne be hereby appointed to execute such documents in the name of the husband.

9. For the purpose of Order 8 hereof, an affidavit setting out the defaulting party’s failure to comply with the Orders shall be sufficient evidence of neglect and default.

10. That all interim applications be otherwise dismissed.

11. That all applications for final orders be placed in the List of Cases Awaiting Docket Allocation.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holland & Holland 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 7019 of 2014

Ms Holland

Applicant

And

Mr Holland

Respondent

REASONS FOR JUDGMENT

1. These are my oral reasons for judgment.  I am asked today to make orders by the wife, the effect of which will essentially be to enforce orders previously made by the court on 30 September 2014.  On that date, before Registrar Moser, orders were made by consent.  At the time those orders were made the wife was represented by counsel and the husband was represented by his former solicitor, Mr Crabtree.  The orders that were made that day provided as follows:

   (1)That the husband and the wife do all such acts and things to sell the former matrimonial home at [H] Street, [Suburb V] upon such terms as agreed or in default of agreement as determined by the President of the Real Estate Institute of Victoria or his nominee, whose cost shall be a selling expense.

   …

   (3)That the husband do all acts and things and sign all necessary documents to sell and dispose of the Macquarie investment on the best terms possible, including any hardship application, if of assistance to reduce any liability in respect thereto.

   …

   (6)That the proceeds of sale of the Macquarie investment be wholly applied to the reduction of debt against the former matrimonial home and any surplus be invested in the names of the parties pending further order or written agreement.

2. The matter comes before the court today in a judicial duty list upon he amended initiating application of the wife filed 21 November 2014.  The interim orders sought by the wife are set out in that application.  The orders sought by the wife seek to give effect to the orders made by consent with respect to the sale of the home and the Macquarie investment.  In support of that application, the wife relies upon two affidavits.  First, her affidavit filed 21 November 2014.  And, second, an affidavit of her solicitor, Ms Elizabeth Date, which is an affidavit filed 13 November 2014.

3. The wife details in her affidavit the difficulties she has had in giving effect to or implementing the orders of 30 September 2014 regarding the sale of the investment and the former matrimonial home.  She details that real estate agents have been engaged on behalf of the parties.  She annexes to her affidavit a letter from Mr A of D Real Estate, which is a letter dated 19 November 2014.  That letter details the efforts of Mr A to contact the husband, who resides in the home with the parties’ two children.  Seemingly, the husband has not responded to the messages left by Mr A regarding arrangements for his attendance upon the property so as to organise an orderly sale of the home.

4. The orders of 30 September 2014 required that the husband meet payment of mortgages and other outgoings in respect of the property.  The wife deposes at paragraph 26 of her affidavit that, notwithstanding that order, the payments under the mortgage are in arrears.  She deposes at paragraph 26 of her affidavit that she has been served with a default notice from the ANZ Bank through their solicitors, Gadens Lawyer.  She also deposes at paragraph 25 of her affidavit that the husband has failed to maintain insurance cover over the property and, as a result, she has been required to insure the property herself in order to protect the parties’ interests in that property.

5. The affidavit of Ms Date details the efforts made by her on behalf of the wife in relation to trying to organise an orderly sale of the home.  She details the circumstances leading up to the making of the orders.  She sets out the history of what she says is the husband’s failure to comply with certain orders.  At paragraph 15 of her affidavit she deposes that since 30 September 2014 the husband has made only two mortgage payments.  She deposes that she wrote to the then solicitors for the husband on 17 October 2014 requesting documents from the husband in compliance with the orders made 30 September 2014.  She says that she wrote a further letter to the husband’s solicitors on 22 October 2014.

6. In response to that correspondence it was indicated on behalf of the husband through those solicitors, Fitzroy Legal Service, that he sought to retain the property.  In light of that proposal, the wife sought that there be a joint valuation of the property in order to explore the possibility of the husband retaining the property.  The wife offered to meet one-half of the costs of the valuation.  That offer was met with silence from the husband. 

7. I am informed that the property has now been valued although the husband has now determined that he does not wish to retain the property, notwithstanding the representations made by his former lawyers. 

8. At paragraph 28 of Ms Date’s affidavit she refers to the fact that the ANZ have sought to recover arrears under the mortgage from the wife.  Annexed to Ms Date’s affidavit is a letter from Gadens Lawyers on behalf of ANZ Bank regarding the arrears outstanding and enforcement expenses related thereto. 

9. It is submitted on behalf of the wife that, in circumstances where the parties have consented to a sale of the property, where the husband has failed to meet his mortgage obligations pursuant to court orders and the mortgage is in arrears, where the wife is liable for that mortgage and where her credit rating is being adversely affected as a result of the husband’s failure to meet his obligations pursuant to orders of this Court as well as his obligations under the mortgage, that orders should be made to ensure the expeditious sale of the property in an orderly fashion. 

10. The husband comes to Court today representing himself. 

11. He has, as I have noted earlier in these reasons, previously had legal representation, including at the time that the orders were made on 30 September 2014.  The husband has not filed a response to the wife’s application before the Court today. 

12. On 13 November 2014 he did file a response to initiating application.  That document is significant as it is clear that the husband does not seek, as part of his final relief, any order other than an adjustment of the parties’ assets and superannuation.  He seeks that those interests be divided on a 70/30 basis in his favour.  At the time that document was prepared the husband was represented by Fitzroy Legal Service. 

13. In my view, it is significant that the husband does not now, nor did he, at the time that response was filed, seek an order that he retain the property or the investments. 

14. Much of the material filed by the husband in opposition to the wife’s application listed before me is irrelevant to the issues that are today before the court. 

15. The husband made detailed submissions and referred to one of the annexures to his affidavit filed 28 November. 2014 which is an unsigned initiating application wherein he sets out interim or procedural orders sought. 

16. The husband indicates through that document that what is sought by him today is that the wife join with him in approaching the ANZ Bank to seek a consolidation of the parties’ investment loan and home loan.  He seeks that the parties join to apply to the bank to obtain what he describes as a “mortgage holiday”.  He seeks that upon the sale of the Macquarie investment that the proceeds of sale from that investment be applied towards the reduction of the outstanding mortgage secured against the home. 

17. That application is misconceived; there are already in place orders which he has consented to on 30 September, 2014 which provide for the proceeds of sale from the Macquarie investment to be applied to the reduction of the home loan. 

18. The other orders sought by the husband relate to his superannuation.  He seeks to be permitted to invoke the hardship provisions under those policies and to access his superannuation. 

19. These matters regarding his superannuation are trial issues and will be considered by the trial judge at a final determination of the proceedings.  There is no factual basis set out in the husband’s material which would support the making of orders for the release of his superannuation at this time. 

20. In paragraph 4 of the interim orders sought by the husband, as set out in the annexure to his affidavit, he seeks time to be able to consult with the ANZ Bank to explore the possibility of retaining the home.  However, in his oral submissions before me today the husband conceded that it was his view that the home should be sold.  I conclude therefore that he does not seek to press that part of his application before me. 

21. The husband does not challenge the evidence that he has not met the mortgage payments nor co-operated with respect to the sale of the home.

22. I am satisfied, on the basis of the material presented by the wife, that it is proper that orders be made to enforce the orders with respect to the sale of the former matrimonial home and the Macquarie investments.  I am satisfied that, in light of the manner in which the husband has failed to engage in the sale process or to communicate with the wife or her solicitors in relation to those matters, that it is appropriate that the wife have the control and conduct of the sale of both the former matrimonial home and the Macquarie investment. 

23. I am satisfied that it is appropriate that the wife or her agent be permitted access to the property to enable an assessment as to what, if any, works are required to prepare the property for sale.  I propose to make orders as sought by the wife in paragraphs 1 to 7 of her application with amendments at paragraph – subparagraph (3)(f), to delete the word, “24 hours,” and insert, “seven days of request,” for the same and further that there be an amendment to subparagraph (3)(j) to delete the words, “Or failing agreement,”  and as follows thereafter and to insert the words, “Or failing agreement, each party have liberty to apply to the Court regarding the sale price.” 

24. In relation to the application that a registrar be appointed to sign documents in the event of the husband’s failure to sign such documents, I am satisfied that it is appropriate that such order be made to ensure the orderly conduct of the sale. It is evident that there are going to be many documents required in preparation for the sale, including agent’s authorities, section 32 statements and hopefully for the parties, at the conclusion of an auction, a contract. In light of the manner in which the husband has conducted himself since the time the orders were made on 30 September 2014 in failing to undertake the tasks necessary to sell the property and investments that I am satisfied it is appropriate that an order be made pursuant to s 106A of the Act for the registrar to sign such documents.

25. What I propose to do is to amend paragraph 8 so that it will read “That, pursuant to section 106A of the Family Law Act, in the event that the husband fails or refuses to execute documents necessary to effect a sale of the property, (including but not limited to an agent’s authority, section 32 statement and contract of sale), or the Macquarie investment pursuant to these orders, then a registrar of the Court be hereby appointed to execute such documents in the name of the husband.  I will also make an order in the terms of paragraph 9 of the minute.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 December 2014.

Associate: 

Date:  3 December 2014