Jamine and Jamine

[2012] FamCA 316

FAMILY COURT OF AUSTRALIA

JAMINE & JAMINE [2012] FamCA 316

FAMILY LAW – INJUNCTIONS - Stay pending appeal

Family Law Act 1975 (Cth)

APPLICANT: Ms Jamine

RESPONDENT: Mr Jamine

FILE NUMBER: MLC 3286 of 2008

DATE DELIVERED: 23 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Forster

SOLICITOR FOR THE APPLICANT: Slater and Gordon

COUNSEL FOR THE RESPONDENT: Mr Moisidis

SOLICITOR FOR THE RESPONDENT: Bowlen Dunstant & Associates

Orders

1. That for the purposes of paragraph 7 of the orders made on 3 November 2011, the husband and the wife do all things necessary to sell the real property at I Street, Suburb A on the terms and conditions that for a period of six weeks, the property be placed on the market for private sale with agent Mr U and in the event that a buyer is introduced with an offer of $370,000 or  more, the parties do all things to sell the property.

2. That in the event that after six weeks, the said property has not been sold, it be placed on the auction market with a reserve price of $370,000 with the same agent.

3. That for the purposes of paragraph 7 of the orders made on 3 November 2011 and by way of variation to the said orders, provided that the husband pays to the wife’s solicitors by 4.00pm on 23 June 2012, the sum of $131,000, the wife transfer to the husband all of her interest in the property at J Street, Suburb K and the husband thereafter indemnify the wife in respect of all liabilities arising out of the ownership of that property.

4. If the husband fails to pay the said sum referred to in paragraph 3 of these orders by the due date, the said property be sold on the basis that Mr T be the nominated agent and the property be sold by auction with a reserve price of $400,000.

5. That pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”), a registrar be appointed to sign any necessary document required by these orders in the name of the husband and sufficient warrant therefore be accepted by the registrar upon receipt of an affidavit signed by the solicitor for the wife indicating that the husband has not complied with the terms and conditions of the said order.

6. That Slater and Gordon be appointed for the purposes of the conveyancing of any of the relevant sales.

7. That paragraph 18 of the orders made on 3 November 2011 relating to s 106A of the Act is confirmed.

8. That the husband pay the wife one-third of the wife’s costs of this proceeding in such sum as may be agreed and failing agreement as assessed pursuant to the schedule to the Family Law Rules 2004.

9. That the wife’s application filed 15 March 2012 and the husband’s response thereto filed 10 April 2012 are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamine & Jamine 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 3286 of 2008

Ms Jamine

Applicant

And

Mr Jamine

Respondent

REASONS FOR JUDGMENT

1. This is an application in the judicial duty list initially by the wife.  Her application was filed on 15 March 2012, supported by an affidavit of her solicitor.  There are two other affidavits upon which she relies.  The husband, by way of a response filed 10 April 2012, sought a stay of two specific orders that I made on 3 November 2011 in final property proceedings on the basis that he has an undetermined appeal against those orders.  Despite the surrounding issues in dispute there were really only two issues that required determination. 

2. The first concerns the question of what is to be done in relation to the sale of one of two investment properties, and the second relates to the question of a stay of paragraph 3 of the orders I made on 3 November 2011 requiring the husband to resign as the trustee of a trust.  Dealing with the first of those issues.  In the orders I made in November 2011 I determined that both investment properties which were in Suburb K and Suburb A, respectively, be sold, and there were machinery provisions that in the event the parties could not agree on what was to happen in respect of those sales there was a right of application to the court to have those issues determined.

3. That is what the wife has done as the parties have been unable to reach agreement.  The issue is much simpler than what it was when it began, because one of the two properties is now to be bought by the husband from the wife subject to him making a payment of a $131,000 by 23 June, and in the event that he does not make the payment by that stage then the property will be sold along with the other property in Suburb A.

4. The issue that requires a determination today is the question of whether or not the Suburb A property should be put on the market for private sale for 6 weeks, and thereafter sold by auction, or whether it should be sold immediately by auction.  There is no evidence from the husband that would indicate whether or not the market has changed since the trial.  His application was really directed to the question of what his entitlement was, and why he wanted to retain the Suburb K property.  The proposal by the wife is the more sensible one because it gives the parties an opportunity to test the market and both are confined to having to sell it if there is an offer of $370,000 or more.

5. I suggested as a compromise for the assistance of the parties that perhaps it could be on the sale market at $400,000 and any offer of $370,000 or more be accepted, but that was not acceptable to the husband.  There is little evidence upon which I can make any determination other than that the wife wants to test the market.  Knowing what I know about the matter from the hearing in November last year where I fixed the price for the purposes of the pool at $370,000, there is no evidence of an increase in the value in the market.  On that basis the wife’s proposal seems to be the sensible one.  In the event that for the next 6 weeks someone comes up with an offer of $370,000 or more, the parties have to take it. 

6. I propose to make other orders in respect of the sale of Suburb K in the event that the husband does not come up with the money. 

7. The second issue relates to the trust.  This is an unusual situation in that the property which was best described as the former matrimonial home at D Street, Suburb B was bought a long time ago by the parties, and the title reflects that the husband and wife owned a one half share and the other one half, pursuant to a declaration of trust, was held by the parties as trustee for their now adult daughter, Ms E.  Ms E has a number of physical and mental health difficulties.  In the trial I determined that it was appropriate to make an order that the husband no longer be a trustee, and that the wife be the sole trustee for the purposes of the interest of Ms E in that home.

8. The husband has appealed against the order that I have made.  There has been a suggestion today that the husband’s argument is that the wife is in a conflict of interest position.  That will be an interesting argument to run on appeal having regard to the way in which the trial was conducted.  It seems to me that any order that I made could be undone if in fact the Full Court decided that I was wrong. 

9. A second argument today has been that the wife is saying she proposes to renovate the property on the basis that it is more suitable for both she and Ms E to live in in the future.  That, as I recall it, was always the argument in the trial, and there is nothing new about that situation.  It does not seem to me to be a case in which the wife is likely to do anything untoward, because apart from anything else she has to house Ms E.  As I recall the evidence in the trial, Ms E was a person who relished regularity.  There is no evidence upon which I could stay the order I made in November 2011 in relation to that trust.  Any order that I then made which if carried out would not render the husband’s appeal nugatory, the Full Court could certainly rectify any order I made, including putting the husband back in the position of a joint trustee. 

10. I make the observation, however, that if the husband and the wife as joint trustees of that trust cannot work together, and that certainly seemed to be the impression I had from the trial, one would curiously ask how the trust could be properly administered in any event.  No doubt if this court does not have power to sort that matter out the parties can go to another jurisdiction, and try and argue that point.  On the basis that there is no evidence that would enable me to say that the orders I made, if not stayed, would render the appeal nugatory, the husband’s application in respect of that part must be dismissed. 

ORDERS DELIVERED

RECORDED   :   NOT TRANSCRIBED

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party shall bear their own costs unless there are circumstances that justify the court departing from that principle, and in contemplating whether to depart from that principle, the court must take into account the matters set out in s 117(2A) of the Act.

2. The starting point therefore is whether there is a circumstance that justifies a departure from the principle that each party bears their own costs.  This is a case where in November 2011 I provided for the parties to try and work out some arrangement for the disposal of property to avoid litigation and on the evidence before me and what seems to be common ground up until 14 March this year, there had been silence by the husband as to how at least one of the properties had to be marketed and/or sold.

3. In those circumstances at least to some extent the wife had little choice in taking the litigation path she did as provided in the orders of November because otherwise the case would never have come to an end.  The husband countered by filing an application which sought orders staying the operation of orders and I have dealt with those matters in the substantive reasons.

4. The wife also sought orders that would allow a registrar under s 106A of the Act to deal with issues such as the resignation as trustee and the transfer of the former matrimonial home but as I pointed out, paragraph 18 of the orders of November already provided for that anyway.

5. This is a case where, if I look at the financial circumstances of the parties, the wife clearly has more known assets than the husband, but I refer back to some of the reasons that I gave in November last year about the uncertainties about the husband’s true financial position.  What is interesting today is that the husband has made an offer which has effectively been accepted by the wife that he will pay her $131,000 if he can borrow it.  On any view of the facts, I would therefore have to conclude that the husband is not impecunious.  Whilst the wife has far greater assets, she has had to go to the trouble, because of what the husband did, to get this matter resolved.

6. One of the other considerations is whether or not either of the parties, and in this case the husband, has been wholly unsuccessful.  He certainly hasn’t been wholly unsuccessful, but it is only one of the factors to be taken into account when determining a costs application and it could not be said in this case that either party has failed to comply with court orders in respect of the procedural side of things.

7. One of the final matters that the court is entitled to take into account is any other matter that the court considers to be relevant.  In this case this proceeding probably could have been avoided by some serious negotiations which appear to have only taken place at the last minute and on that basis, the wife has been put in a position where she has had little choice but to resolve the matter by application, even though there is an appeal pending.

8. It has been put on behalf of the husband that a notice of appeal was effectively given to the wife and therefore she knew that what she had been entitled to under the November orders was in dispute. As I have pointed out, the Family Law Rules make it quite clear that a notice of appeal does not stay the operation of orders.

9. Accordingly, the wife has had no choice but to force the pace and the husband ultimately brought the application for the stay at the last minute.  On that basis it seems to me there is a justifiable circumstance for saying the husband should pay some of the costs of the wife.  As to the exact amount, it is an imprecise science and a very discretionary issue, but it seems to me that at least one-third of the wife’s costs determined according to the scale has been money that she did not necessarily have to spend in the circumstances.

ORDER DELIVERED

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 April 2012.

Associate: 

Date:  7 May 2012