James and James - [2016] FamCA 1105

FAMILY COURT OF AUSTRALIA

JAMES & JAMES

[2016] FamCA 1105

FAMILY LAW – PROPERTY – Application for interim sale of property – dispute as to which property should be sold to discharge a debt owing to the bank – interim orders made for the sale of an investment property of the parties

Family Law Act 1975 (Cth)

APPLICANT:

Ms James

RESPONDENT:

Mr James

FILE NUMBER:

MLC

10243

2012

DATE DELIVERED:

12 December 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Johns J

JUDGMENT OF:

Johns J

HEARING DATE:

12 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wheeler

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Ms Vohra

SOLICITOR FOR THE RESPONDENT:

Schetzer Constantinou

Orders

That the Husband and the Wife do all acts and things and sign all documents as may be required in their capacity as Directors of Q Pty Ltd (as trustee of the Q trust) in order to immediately sell by auction the real property situate at and known as R Street, Suburb S in the state of Victoria being the whole of the land more particularly described in the certificate of title Volume … Folio … (“R Street”) and for the purposes of effecting the sale:-
(a)       the sale be conducted by T Real Estate Suburb S;
(b)       the method of sale be by way of public auction;
(c)       R Street be sold with vacant possession;
(d)       the reserve price be $550,000 “five hundred and fifty thousand dollars”;
(e)       the conveyancers for the sale be U Lawyers.
That upon settlement of the sale the proceeds be applied as follows:-
(a)       first to pay all costs, commissions and expenses of the sale;
(b)       second, to be applied to the discharge of the following liabilities secured by way of mortgages registered number … and registered number … to the National Australia Bank being loan numbers ending in:
(i)4218;
(ii)1658;
secured against the property situate at and known as 2 R Street being the whole of land described in certificate of title Vol 09557 Folio 405 (“2 R Street”) and secured against R Street;
(c)       third, the balance if any then remaining to be placed into an interest bearing account in the joint names of the parties to be held upon trust for them by the wife’s solicitor until further order.
That each party have liberty to apply with respect to the terms and conditions of the sale.
That the wife’s application in a case filed 28 October 2016 and the husband’s response to application in a case filed 25 November 2016 be otherwise dismissed.
That each party’s costs of this day be reserved.
That pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.
That the matter be listed for mention before Justice Johns at 9.30 am on 20 March 2017.

IT IS NOTED that publication of this judgment by this Court under the pseudonym James & James has been approved by the Chief Justice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading James and James

Details

AGLC: James and James [2016] FamCA 1105
Case: [2016] FamCA 1105
Decision Date: 12 December 2016

CaseChat Overview and Summary

In the matter of *James and James*, Johns J of the Family Court of Australia was required to determine the disposition of real property held by the parties, who were also directors of Q Pty Ltd, the trustee of the Q trust. The dispute concerned the sale of a property located at R Street, Suburb S, Victoria, and the application of the proceeds from that sale.

The primary legal issues before the court were how the R Street property should be sold and how the proceeds of that sale should be distributed. Specifically, the court needed to determine the method of sale, the reserve price, the parties responsible for conducting the sale and conveyancing, and the order in which secured liabilities and other expenses would be discharged from the sale proceeds. The court also had to consider the wife's application filed on 28 October 2016 and the husband's response filed on 25 November 2016.

Johns J ordered that the husband and wife, in their capacities as directors of Q Pty Ltd, must take all necessary steps to immediately sell the R Street property by public auction. The sale was to be conducted by T Real Estate Suburb S, with vacant possession, and a reserve price of $550,000 was set. U Lawyers were appointed as the conveyancers. Upon settlement, the proceeds were to be applied first to the costs of the sale, then to discharge specified mortgages held by the National Australia Bank against both the R Street property and another property at 2 R Street, and any remaining balance was to be placed in an interest-bearing account pending further order. The wife's and husband's applications were otherwise dismissed, and costs were reserved.

Orders

Orders of the court

That the Husband and the Wife do all acts and things and sign all documents as may be required in their capacity as Directors of Q Pty Ltd (as trustee of the Q trust) in order to immediately sell by auction the real property situate at and known as R Street, Suburb S in the state of Victoria being the whole of the land more particularly described in the certificate of title Volume … Folio … (“R Street”) and for the purposes of effecting the sale:-

(a) the sale be conducted by T Real Estate Suburb S;

(b) the method of sale be by way of public auction;

(d) the reserve price be $550,000 “five hundred and fifty thousand dollars”;

(e) the conveyancers for the sale be U Lawyers.

That upon settlement of the sale the proceeds be applied as follows:-

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

(b) second, to be applied to the discharge of the following liabilities secured by way of mortgages registered number … and registered number … to the National Australia Bank being loan numbers ending in:

(i) 4218;

(ii) 1658;

secured against the property situate at and known as 2 R Street being the whole of land described in certificate of title Vol 09557 Folio 405 (“2 R Street”) and secured against R Street;

(c) third, the balance if any then remaining to be placed into an interest bearing account in the joint names of the parties to be held upon trust for them by the wife’s solicitor until further order.

That each party have liberty to apply with respect to the terms and conditions of the sale.

That the wife’s application in a case filed 28 October 2016 and the husband’s response to application in a case filed 25 November 2016 be otherwise dismissed.

That each party’s costs of this day be reserved.

That pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.

That the matter be listed for mention before Justice Johns at 9.30 am on 20 March 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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