Jepson and Jepson and Ors - [2017] FamCA 1013

FAMILY COURT OF AUSTRALIA

JEPSON & JEPSON AND ORS

[2017] FamCA 1013

FAMILY LAW – PROPERTY – Interim proceedings – Where the wife previously commenced proceedings in the Supreme Court of New South Wales – Where receivers were previously appointed by the Supreme Court to facilitate the sale of former matrimonial property – Where the matter was transferred to the Family Court of Australia – Where the receivers seek orders to complete the sale of the property pursuant to a contract of sale – Where caveats have been registered on the property by a company, the husband’s mother and the wife’s former solicitors – Where the value of the property is not agreed between the parties – Where the receivers argue that the property should be sold for $4.2 million as they have been unable to sell the property at a higher price for 18 months – Where the husband, wife and third and fourth respondents seek orders that the property not be sold without the prior consent of the husband and the wife – Where the Court is not in a position to approve a sale at $4.2 million as the property has been previously valued and subject to significantly greater offers – Where the sale may have been influenced by public knowledge of the matrimonial dispute – Where valuers estimated a property value of approximately $6.1 million – Where orders are made for the property to be sold by the husband and wife with a listing price of $6.1 million.

Conveyancing Act 1919 (NSW) s 66G Family Law Act 1975 (Cth) ss 31, 34, 106A
APPLICANT (FIRST DEFENDANT):	Mr Jepson

RESPONDENT (PLAINTIFF):

Ms Jepson

SECOND RESPONDENTS (RECEIVERS):

Mr Oakley and Mr Haight

THIRD RESPONDENT:

K Pty Limited

FOURTH RESPONDENT:

Ms B Jepson

FIFTH RESPONDENT:

C Firm

FILE NUMBER:

SYC

2100

2016

DATE DELIVERED:

14 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

13 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Pritchard SC

SOLICITOR FOR THE APPLICANT:

Allsop Glover Lawyers

RESPONDENT IN PERSON:

Ms Jepson

COUNSEL FOR THE SECOND RESPONDENTS:

Mr Marshall SC

SOLICITOR FOR THE INTERVENOR:

Gillis Delaney Lawyers

COUNSEL FOR THE THIRD AND FOURTH RESPONDENTS:

Mr Pritchard SC

SOLICITOR FOR THE THIRD AND FOURTH RESPONDENTS:

Allsop Glover Lawyers

COUNSEL FOR THE FIFTH RESPONDENT:

Mr Hill

SOLICITOR FOR THE FIFTH RESPONDENT:

C Firm

Orders

Orders are made in respect of a property at L Street, Suburb P in the State of New South Wales (“Suburb P”), by way of variation of orders made by the Supreme Court of NSW on 18 April 2016 as varied by that Court on 7 June 2016, in accordance with the orders sought at paragraph 1 of the Application in a Case of the husband filed 10 November 2017, as amended and as set out hereunder:
“11 For the purpose of the receivership, the Receivers have the power to do all things necessary to effect the sale of the Properties, subject to orders 12A and…

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 Jepson and Jepson and Ors

Details

AGLC: Jepson and Jepson and Ors [2017] FamCA 1013
Case: [2017] FamCA 1013
Decision Date: 14 November 2017

CaseChat Overview and Summary

The parties involved were the Plaintiff (husband) and the First Defendant (wife), along with additional respondents K Pty Limited, Ms B Jepson, and C Firm. The dispute concerned the sale of a property located at L Street, Suburb P, New South Wales. The court was required to determine the terms and conditions under which the property would be sold, varying previous orders made by the Supreme Court of NSW.

The central legal issues before the court were how to facilitate the sale of the Suburb P property, including the appointment of a real estate agent, the listing price, the acceptance of offers, and the process for auctioning the property if it did not sell by private treaty. The court also considered the powers and limitations of the Receivers appointed to manage the sale, and the co-operation required from the Plaintiff and First Defendant.

Loughnan J reasoned that the Receivers should have broad powers to effect the sale, akin to those of a registered proprietor, subject to specific limitations. The court applied principles of co-operation between the parties, outlining a detailed process for selecting an agent and setting prices. It established a mechanism for accepting offers within a certain percentage of the listing price, and a structured approach to auctioning the property if it remained unsold, including provisions for reserve prices and successive auctions. The court also addressed the scenario where a party refused to sign necessary documents, empowering the Receivers to act or allowing for an application under section 106A of the *Family Law Act 1975* (Cth).

The court made orders varying the previous Supreme Court orders, granting the Receivers power to sell the Suburb P property. These orders included specific provisions for the appointment of a real estate agent, a listing price of $6.1 million, and conditions for accepting offers and proceeding to auction. The court also noted an undertaking by Ms B Jepson to cover insurance costs for the property and excused the Receivers from paying outgoings and marketing expenses, based on this undertaking. The application by the Receivers filed on 19 October 2017 was dismissed, and no orders were made regarding the wife's separate orders, except as already provided. Leave was granted for any party affected by the orders to apply on seven days' notice.

Orders

Orders of the court

Orders are made in respect of a property at L Street, Suburb P in the State of New South Wales (“Suburb P”), by way of variation of orders made by the Supreme Court of NSW on 18 April 2016 as varied by that Court on 7 June 2016, in accordance with the orders sought at paragraph 1 of the Application in a Case of the husband filed 10 November 2017, as amended and as set out hereunder:

“11 For the purpose of the receivership, the Receivers have the power to do all things necessary to effect the sale of the Properties, subject to orders 12A and 17 herein, as if they were the registered proprietor of each of the Properties, including but not limited to the power to execute a contract for sale or each of the Properties in the name of the Plaintiff.

12A. Notwithstanding any other order, with the exception of order 17 herein, no settlement of any sale of [Suburb P] by the Receivers shall be permitted without the prior written consent of the Plaintiff and the First Defendant.

17. The Plaintiff and the First Defendant shall co-operate and do all acts and things and sign all necessary documents to effect the sale of the Properties and for that purpose the following shall apply:

(a) The Properties shall be listed for sale by private treaty with a real estate agent to be chosen by the Plaintiff and the First Defendant;

(b) The list price of the Properties shall be such amounts as is instructed by the Plaintiff and the First Defendant;

…

(d) With respect to the appointment of a real estate agent:

(i) The First Defendant shall within 7 days from the date of these orders provide to the Plaintiff in writing the names of three real estate agents;

(ii) The Plaintiff shall within 14 days from the date of these orders respond to the First Defendant in writing nominating one of the real estate agents as the agent for the sale of the [Suburb P] Property;

(iii) In the event the wife fails to nominate with the time afforded her under these orders, the First Defendant shall appoint a real estate agent of his choosing to be the agent for the sale of [Suburb P].

(e) With respect to the listing price for [Suburb P], the listing price shall be the figure of $6.1 million.

(f) In the event that an offer is made by a purchaser, and the offer is not less than 2.5 percent below the listing price (“the first listing price”), the parties must accept the offer.

(g) If within 6 months there are no offers equal to or above the first listing price, then [Suburb P] must be put up for Auction, with a marketing campaign lasting no less than 2 months. The reserve price shall be set at no less than 5 percent below the listing price (“the second listing price”). In the event a final bid is made at Auction that is equal to or above the second listing price, then the parties are to cause the real estate agent for [Suburb P] to accept the bid.

(h) In the event that [Suburb P] is passed in at Auction, then { Suburb P] is to be put to Auction every 6 weeks until it is sold. The second reserve price is to reduce by 1.5 percent at each successive auction of [Suburb P] (“the successive listing prices”). If a final bid is equal to or over the successive listing reserve price for each successive auction the parties must accept that bid.

(i) In the event that one party refuses to sign any document to give effect to the provisions of this order, then the Receivers have the right to sign those documents on their behalf or any party can make an application pursuant to s. 106A of the Family Law Act 1975 (Cth) to the registrar, who is authorised to sign any documents required to give effect to these orders.

(j) The Receivers are restrained from making any representation whatsoever that the sale of [Suburb P] is subject to any Court Order or that the sale of [Suburb P] is a forced sale.

The Court notes the undertaking of Ms B Jepson to pay as and when they fall due any insurance costs associated with the Suburb P property until further order.

That Undertaking shall be reduced to writing, filed in the Court and served on the other parties within fourteen days from the date of these orders.

Order 1 is made on the basis of that undertaking and on the basis that until further order, the receivers are excused from making any payments by way of outgoings on the Suburb P property or for the purpose of marketing or preparing the property for sale.

The company, K Pty Limited, Ms B Jepson and C Firm are joined as the third, fourth and fifth respondents respectively.

The Application in a Case filed on 19 October 2017 by the Receivers is dismissed.

Except as already provided for in these orders, no orders are made in respect of the orders sought by the wife in her document titled “Orders by Ms Jepson” (Exhibit 4 dated 14 November 2017).

Leave is granted to any party or any person affected by these orders to apply on giving seven days’ notice to the Court and to each other party. That leave is to be exercised by the filing of an Application in a Case, supported by an affidavit.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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