Kanas & Kanas

[2021] FamCA 17

FAMILY COURT OF AUSTRALIA

Kanas & Kanas [2021] FamCA 17  

File number(s):

PAC 118 of 2017

Judgment of:

FOSTER J

Date of judgment:

19 January 2021

Catchwords:

FAMILY LAW – ENFORCEMENT OF ORDERS – Where determination of sum payable – Where order made for payment – Where costs of and incidental to application to be as agreed or as assessed.

FAMILY LAW – ENFORCEMENT OF ORDERS – Where orders made by consent under section 79 of the Act by way of property adjustment – Where husband in breach for a period of 3 years of orders 4, 5 and 6 in failing to pay to the wife the capital sum set out in those orders – Where wife filed an Application in a Case seeking enforcement of orders and/or the appointment of a trustee for sale of property – Where order made for the appointment of a trustee for sale of a property – Where proceeds to be distributed as to payment discharging the mortgage and all outgoings in relation to the sale of the property, payment to the wife of the capital sums previously ordered plus interest, payment to be placed in interest in respect of the wife’s costs of the enforcement application and payment of excess to the husband

Legislation:

Family Law Act 1975 (Cth)

Number of paragraphs:

9

Date of hearing:

19 January 2021

Place:

Parramatta

Solicitor for the Applicant:

Mr Horsburgh of McIntosh McPhillamy & Co

Respondent – Self-represented litigant:

Mr Kanas in person

ORDERS

PAC 118 of 2017

BETWEEN:

MS KANAS

Applicant

AND:

MR KANAS
Respondent

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	19 JANUARY 2021

THE COURT ORDERS THAT:

1.Orders 4, 5 and 6 made on 29 September 2017 being orders by way of default provisions in default of the Respondent paying the capital sums as provided in those orders be discharged.

2.Andrew Neale Bird solicitor of McIntosh McPhillamy & Co be appointed as trustee for sale of the real estate property situate at B Street, C Town NSW for the best price reasonably obtainable and in such manner as the trustee considers appropriate and that for that purpose the said property vest in the trustee.

3.The Respondent Mr Kanas vacate the property and cause any other occupants of the property to vacate the said property no later than 28 days prior to settlement of the sale of the said property and upon vacating cause his and the occupants’ chattels and possessions in that property to be removed therefrom and to deliver up vacant possession of the said property to the trustee and that thereafter the trustee shall have sole possession of the said property for the purposes of sale.

4.Upon the Respondent vacating the said property pursuant to these orders he be restrained by injunction from entering on the said property or causing any other person acting upon his behalf or upon his instruction to enter upon the property without the written consent of the trustee.

5.Leave is granted to the trustee to apply as to implementation or enforcement of these orders.

6.Upon sale of the said property the trustee shall apply the proceeds of such sale in the following order and priority:

(a)In discharge of any secured mortgage encumbrance and outstanding outgoings;

(b)In payment of the costs of sale including selling agent’s costs, commissions and auctioneer’s costs, if any;

(c)Cost of the trustee in acting in his capacity as trustee for sale;

(d)The cost of any cleaning and necessary repairs to reasonably present the property for sale;

(e)Legal costs on sale;

(f)The sum of $25,000.00 to be held in the trust account of McIntosh McPhillamy & Co solicitors as security for costs of the present application pending assessment or agreement as to such costs.

(g)In payment of any sum outstanding to the wife pursuant to orders made on 29 September 2017 together with interest accrued thereon to date of payment noting that the Respondent paid in reduction of his liability to the Applicant the sum of $100,000.00 on 21 December 2020.

(h)In payment of the balance, if any, to the husband.

7.The Respondent pay the Applicant’s costs of and incidental to the present application as agreed within one month from this date or in default of agreement as assessed on a solicitor/client basis.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kanas & Kanas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

FOSTER J:

1. This is an application for enforcement in relation to orders made by consent under section 79 of the Act by way of property adjustment, those orders having been made on 29 September 2017.  In part those orders provided that on or before 20 October 2017 the respondent husband pay to the applicant wife the sum of $17,000 and, further, that on or before 30 September 2019 the respondent pay to the applicant wife a further sum of $198,000.

2. It is common ground that the respondent husband is in significant breach of his obligations under those orders.  That breach has now continued for more than three years, as a consequence of which significant interest has accrued on the outstanding balance. 

3. The application for enforcement commenced by way of an Application in a Case filed on 7 August 2020.  The application was supported by an affidavit of the wife sworn on 18 January 2021 that deposed as to the respondent’s breach of his obligations under those orders.

4. The application for enforcement came before this Court on 17 September 2020 before the registrar.  At that stage, the outstanding primary sum owed by the respondent was the sum of $198,000 due and payable on 30 September 2019.  The matter appears to have been, for some reason, transferred to the Federal Circuit Court of Australia but was then, otherwise, remitted back to this Court and came before a registrar again on 10 December 2020. 

5. The matter was then listed before the Court on 15 December 2020 by way of judicial case management.  On that date, orders were made, in summary, as follows: 

   (a)That, by way of enforcement of orders made on 29 September 2017, the husband pay, in partial satisfaction of his obligation the sum of $100,000 to the trust account of McIntosh, McPhillamy & Co Legal Services by no later than the close of business on 18 December 2020.

   (b)The applicant was further ordered to file an Amended Application in a Case seeking the appointment of a third-party trustee to facilitate a sale of the property at B Street, C Town, New South Wales by way of further enforcement of the balance of funds outstanding by the respondent husband.

6. The proceedings were adjourned for enforcement hearing to today, Tuesday 19 January 2021 at 2.15pm.

7. Subsequently, the applicant filed an Amended Application in a Case of 18 January 2021 seeking the appointment of Mr Andrew Neale Bird solicitor as a trustee for sale of the subject property.  In support of that appointment, Andrew Neale Bird has sworn an affidavit evidencing his current practicing certificate being admitted as a solicitor of the New South Wales Supreme Court on 23 August 2002.  He has predominantly worked in the areas of commercial law and conveyancing and attests as to his suitability to be appointed trustee for sale of the subject property.  In all of the circumstances, bearing in mind that the question of enforcement is always a matter of discretion, it is appropriate to make orders as sought by the applicant. 

8. It is noted that Mr Kanas has informed the Court again today that he has continued to make inquiries in relation to his prospects of refinancing the subject property with a view to meeting his obligations under the orders.  Notwithstanding that position, it is appropriate that these proceedings be finalised and he be in a position, should he be able to do so, to deal with the trustee in terms of discharging his obligations under the orders and discharging the obligations of the trustee prior to sale if he can arrange refinance of the property.

9. In all of the circumstances, it is appropriate to make orders in terms of the Application in a Case filed on 18 January 2021, slightly amended.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster.

Associate:       

Dated:       19 January 2021