Jarrott and Jarrott

[2008] FamCA 187

FAMILY COURT OF AUSTRALIA

JARROTT & JARROTT [2008] FamCA 187

FAMILY LAW – PROPERTY – Orders for wife to sign documents

Family Law Act1975 (Cth)

APPLICANT: MR JARROTT

RESPONDENT: MRS JARROTT

FILE NUMBER: AYC 93 of 2007

DATE DELIVERED: 17 March 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Robb

SOLICITOR FOR THE APPLICANT: Robb & Associates Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the matter proceed this day as a matter of urgency.

2. That pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar of the Family Court of Australia, Melbourne Registry sign in the name of the wife the following documents:

   (a)Transfer of property for title reference …;

   (b)Seller Notice to Tenant and Managing agent;

   (c)Change of Lessor or Lessor’s Agent;

   (d)Discharge Authority directed to Loan Services.

3. That the solicitors for the husband forthwith advise Delany Lawyers that they are to provide all such information and copy documents to the wife as might otherwise be received by the husband and the husband or the wife.

4. That the reasons for judgment this day be transcribed and be placed on the file.

5. That the orders be expedited.

6. That the wife pay to the husband $600 towards the costs of the husband arising out of these proceedings, such costs be paid from the wife’s share of the sale proceeds.

IT IS NOTED that publication of this judgment under the pseudonym Jarrott & Jarrott is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: AYC 93 OF 2007

MR JARROTT

Applicant

And

MRS JARROTT

Respondent

REASONS FOR JUDGMENT 

1. This is an application that was brought on at very short notice as a result of a pending settlement of the sale of a property that is owned by the husband and wife. 

2. I made orders in the Albury circuit on 31 August 2007, after a contested hearing.  One of the orders was that forthwith the husband and the wife do all acts and things and sign any necessary document to place the property at B, Queensland, on the market for sale on terms and conditions to be agreed and in default of agreement then on terms and conditions determined by an agreed estate agent. 

3. The order then went on to say that if the parties did not agree on an agent a default clause was to apply.  Six months or more has now gone by and it appears that the property has now only got to the stage where there is a potential purchaser. 

4. I have before me today an application filed by the husband which presumably was filed on 11 March, it having all been done by facsimile transmission.  The wife, who has participated today by telephone, has not filed any documents, she having been served on Thursday of last week which was 13 March.  Normally more time than that would be given but having regard to the urgency of the circumstances of the settlement, particularly having regard to Easter intervening, I have decided to proceed with the matter today. 

5. The application is supported by an affidavit by the husband in which he says that on 20 February he attended at the respondent's home with the contract of sale that he had received, presumably from the conveyancing solicitors in Queensland.  He says, in the affidavit, that he saw the wife read it through prior to signing.  The wife has told me today that that was in fact what happened. 

6. The contract of sale became unconditional on 5 March 2008, there has been a somewhat sterile debate this morning about 14 days being the settlement date mentioned in the contract, but it would appear that the settlement date is either 14 days from the date of exchange or, more importantly, at the point in time when the parties are ready to settle.

7. The settlement date, according to the affidavit of the husband, has been fixed for 25 March 2008 and there are four documents that now need to be signed.  It goes without saying that the contact of sale has been exchanged and the parties who have anticipated buying the property are expecting that the settlement will proceed. 

8. To effect a proper settlement of the sale a transfer of land needs to be executed and exchanged at settlement, but there are also a number of other documents.  One of the four documents that is required to be signed is a document that needs to be given to the mortgagee to enable the discharge of the mortgage to be prepared. 

9. The other two documents relate to the service of notice on the tenant and the managing agent and the change of the lessor or the lessor's agent.  Those are probably not as important as getting the mortgagee ready because otherwise the settlement cannot take place.

10. I am told by the affidavit, and that has been reinforced today by Ms Robb on behalf of the husband, that the wife has refused to sign those documents.  The exact reason is unclear but in discussions this morning the wife has conceded that she did agree to the sale but then something has happened since then that has made her change her mind.  Her view is that she has not had enough time to digest all of this; apart from anything else she feels that the property is being undersold.

11. Having regard to the fact that an unconditional contract of sale is now floating around and settlement has actually been fixed, the question about whether that is the appropriate sale price becomes irrelevant.  In the intervening period there appears to have been a problem in which the wife was considered mentally unstable by the husband as a result of which there was some intervention by the relevant mental health authorities, but that has not gone anywhere because the wife was released from any care that might have followed.

12. The wife interrupts to say that there was also an application in relation to the children being removed from her and that is also evident from the documents that I have read. 

13. All of those matters, be as they may, the real problem here is that the purchasers are expecting an unconditional contract to be fulfilled and the settlement is immediately after Easter, and with the Easter period intervening it means that something has to happen today, particularly having regard to the matters that I raised about the mortgagee.

14. I could not be confident, having regard to the nature of the relationship between the parties, that the wife would, in fact, sign any documents and on that basis I think it is appropriate that I exercise the powers under s 106A of the Family Law Act 1975 (Cth) (“the Act”).

15. I am, however, a little troubled about the fact that the conveyancing solicitors in Queensland have been sending all of the documents and all of the correspondence through the husband, directed to the husband and wife, and I propose to make a specific order that the solicitor for the husband forthwith advise the solicitors to provide all information to the wife directly as that might otherwise have been provided to either the husband and the husband or the wife.

16. I have an application now by the husband for costs. Ms Robb tells me that based on the scale the costs would pan out at $1650. Section 117 of the Act says that each party to proceedings shall bear his or her own costs, sub-s 2 of that says that a court in circumstances where it may be justified may depart from that rule providing it takes into account the matters set out in sub-s 2A. The matters set out in sub-s 2A relate to a variety of things that I have already considered in the proceedings back in August last year. Those include the financial circumstances of each of the parties.

17. It is quite clear from my recollection of the proceedings that each party was going to end up with a reasonable amount of money from those proceedings.  As I understand it neither party is in receipt of legal aid. 

18. It is important in this case to take into account the conduct of the parties, albeit that these proceedings were brought on very quickly.  The question of the application having to be made to enforce what was effectively an agreement between the parties, having regard to the fact that the wife signed an unconditional contract of sale must mean that she has been wholly unsuccessful. 

19. In the circumstances I think it is appropriate to make an order for costs,.  However, this is one situation which I would exercise my discretion and depart from the finite rules of the court.  It seems to me that this is the sort of application that could be dealt with within three hours, or thereabouts, of a solicitor's time and in the circumstances I propose to make an order for $600 costs.

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  25 March 2008