Kanas & Kanas

In *Kanas & Kanas*, Foster J of the Family Court of Australia considered an application by a wife seeking enforcement of property adjustment orders made by consent on 29 September 2017. The husband had been in breach of these orders for approximately three years by failing to pay the capital sum stipulated. The wife sought enforcement of the original orders and, alternatively, the appointment of a trustee for the sale of a property.

The central legal issues before the court were the enforcement of the outstanding property settlement obligations and the appropriate mechanism for achieving this. Specifically, the court had to determine whether to discharge the original default provisions and, if so, how to best facilitate the payment of the wife's entitlements from the sale of a jointly owned property.

Foster J reasoned that the husband's persistent non-compliance necessitated a more direct approach to ensure the wife received her due. The court ordered the discharge of the original default provisions and appointed a solicitor as a trustee for the sale of the real estate. The trustee was empowered to sell the property for the best price reasonably obtainable, with the proceeds to be applied in a specific order of priority. This included discharging the mortgage and sale expenses, covering the trustee's costs, and then satisfying the wife's capital sum entitlement with accrued interest. A sum was to be held as security for the wife's costs of the enforcement application, with any remaining balance to be paid to the husband. The husband was also ordered to vacate the property and was restrained from re-entering it without the trustee's consent.