JAMES & JAMES

This matter came before Johns J concerning a dispute between a husband and wife. The central issue involved the variation of a lease for a property known as D Street and the subsequent sale of that property. The court was required to make orders regarding the terms of the lease variation, the conduct of the sale, and the distribution of the sale proceeds.

The court was tasked with determining the specific terms for varying the lease to include an additional three-year term. Furthermore, it needed to establish the procedure for selling the D Street property, including the appointment of a selling agent, the method of sale, whether the sale should be subject to the existing lease, and how the reserve price would be determined. The court also had to specify the order in which the proceeds of the sale would be applied, including the payment of sale costs, the discharge of specified liabilities secured by mortgage to the National Australia Bank, and the disposition of any remaining balance.

Johns J made detailed orders addressing these matters. The husband was directed to vary the lease to include an additional three-year term. The sale of the property was to be conducted by an agreed agent or, failing agreement, one nominated by the President of the Real Estate Institute of Victoria, by public auction, subject to the varied lease, and with a reserve price determined by agreement or a nominated valuer. Upon settlement, sale costs were to be paid first, followed by the discharge of specified National Australia Bank loan liabilities. Any remaining balance was to be placed in an interest-bearing account in the parties' joint names, held by the wife's solicitor until further order. The court also made directions regarding the filing of amended applications, affidavits, financial statements, and outlines of case, and set a future hearing date for final orders.