Kappas and Kappas (No.4)

[2018] FCCA 1795

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPPAS & KAPPAS (No.4) [2018] FCCA 1795

Catchwords:
FAMILY LAW – Enforcement of financial orders made after contested hearing in 2017 – respondent unsuccessfully appealed the property orders – conduct of sale property – vacant possession.

Legislation:

Federal Circuit Court Rules 2001, rr16.05(2)(e), 25B.62(2)

Applicant: MS KAPPAS

Respondent: MR KAPPAS

File Number: MLC 7430 of 2015

Judgment of: Judge Harland

Hearing date: 2 July 2018

Date of Last Submission: 2 July 2018

Delivered at: Melbourne

Delivered on: 2 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Fisken

Solicitors for the Applicant: Kennedy Guy

The Respondent: In person

ORDERS

1. The real property at Property A, Victoria being the whole of the land described in Certificate of Title Volume (“Property A”) be forthwith listed for sale (“the sale”) with an agent solely appointed by the Wife and at a reserve price of $1,500,000.00 with the Wife to determine in her sole discretion whether the property is sold by Private Treaty or at Auction.

2. The Wife have sole conduct of the sale including with respect the to the following matters:

   (a)Determining the appropriate selling agent and conveyance;

   (b)Determining the sale price upon offers being received;

   (c)Being solely responsible for the signing of the Contract of Sale; and

   (d)Being solely responsible for the signing of the necessary Transfer of Land and other conveyancing documents required to complete the sale.

3. The Husband within seven (7) days vacate the property at Property A and the Wife have sole possession of the property at Property A for the purposes of the sale.

4. The Husband be solely liable for all legal fees and interest charges added to the loan to Bank A being loan number (“the Bank A loan”) for the period 24 March 2017 until the date of completion of the sale or until the date the Bank A loan is otherwise discharged.

5. The Husband be solely liable for the outstanding Council rates, water rates and land tax with respect to the property at Property A.

6. The Husband be solely liable for the outstanding Council rates, water rates and land tax with respect to the property at Property A, being the whole of the land more particularly described in the Certificate of Title (“Property A”).

7. The Husband pay to the Wife the amount of $8,307, being an amount equal to half the net rental income from the property at Property A for the period of March 2017 to December 2017 less the rental income for the month of October 2017.

8. At the time of the completion of the sale, any monies owing to the Wife pursuant to order 3 of the Orders of the Honourable Justice Strickland made 6 April 2018 in proceeding SOA 36 of 2017 be met from the Husband’s entitlement pursuant to order 3(e) of the Court Orders dated 24 March 2017.

9. The Husband pay to the Wife’s costs of and incidental to this application fixed in the amount of $2,578 with such sum to be deducted from the husband’s entitlement pursuant to order 3(e) of the Court orders dated 24 March 2017.

10. In default of the husband vacating the property at Property A pursuant to order 3 herein, and upon proof by affidavit emailed to chambers of the husband’s failure to vacate, the Court issue a warrant pursuant to rule 25B.62(2) of the Federal Circuit Court Rules 2001 (Cth) for the possession of the property and authorising an enforcement officer to enter the property described in the warrant and give possession of the property to the wife.

11. Liberty to apply be granted to the wife.

IT IS NOTED that publication of this judgment under the pseudonym Kappas & Kappas (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7430 of 2015

MS KAPPAS

Applicant

And

MR KAPPAS

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case by the wife filed on 3 May 2018 seeking enforcement of various property orders which were made by the Court on 24 March 2017[1] after a contested hearing.  The history of the proceedings are outlined in detail in the primary reasons for judgment that were given, and also in the subsequent appeal decision, and I am not going to recite that background here.

   [1] Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001on 12 April 2017

2. The appeal by the husband was dismissed on 6 April 2018 and the orders that were made by this Court remain in force.  The husband filed his appeal out of time and did not seek a stay of the orders, therefore they have continued to be in full operation and effect since the date they were pronounced.  The wife relies on the affidavits that she has filed in support on 3 May 2018.  The husband has not filed an affidavit in response but has made submissions opposing the order sought today.

3. The wife also successfully applied for the registrar to sign the VicRoads transfer of motor vehicle certificate, a VicRoads certificate and also an authority with respect to closing the parties’ joint Bank B account, and the registrar has executed those documents. 

4. The wife seeks an order that she be given sole authority to act on the sale of the property at Property A, and for the purposes of having that sole conduct determining the selling agent, the conveyancer, the sale price upon the offers received, be solely responsible for signing the contract of sale and for any necessary transfer of land and other documents that may be required.  To further assist her she seeks an order that the husband vacate the property within seven days of today so that she has sole possession for the purposes of conducting the sale.

5. In addition, she seeks other orders which address arrears of the mortgage as well as outstanding arrears of council rates, water rates and land tax with respect to Property A (“Property A”) and also with respect to Property A (“Property A”).  The basis for seeking those orders is found in the orders made on 24 March 2017. It was apparent from the husband’s submissions today that he misunderstands what some of the effect of those orders are, because the orders are clear on its face what responsibilities the husband has given he has occupation and control of those two properties.  The wife annexes documents to her affidavit showing defaults with respect to those payments, which included the bank taking Supreme Court proceedings with respect to possession of Property A.

6. In her affidavit in support the wife outlines the attempts to sell Property A at auction and details difficulties encountered in that respect.  It is certainly clear from her own evidence that Property A has been listed with two agents for sale and that the property did go to auction on 12 August where it was unsuccessful.  The issue is the complaints the wife raises with respect to the husband’s unrealistic expectations as to the achievable sale price of Property A and difficulties that the agents experienced in dealing with him which is reflected in annexures provided by the agents.

7. Annexure A is an email from the husband to the wife’s lawyer, together with a third agency agreement that the husband signed on 6 June 2018, with an estimated selling price of between 1.75 million and 1.9 million.  The issue of the value of the property was an issue that was the subject of much controversy at the trial before me and was addressed in particular at [66] of my primary reasons. 

8. Property A was valued at $1.350 million shortly before the trial.  The wife says that the two agents who have listed the property since advised that a listing price of $1.5 million is realistic but that the listing price that the husband has sought of 1.7 to 1.9 is not and has affected interest in the sales of the property. 

9. The wife’s counsel also points to [128] and [129] of my reasons for decision on 24 March 2017 which raised the issue of the conduct of the sale and the fact that at that stage I was not prepared to make the orders that the wife sought for sole conduct of the sale of the properties.  It is well settled in case law that the person who has received the benefit of court orders is entitled to receive those benefits, and the fact is that the wife has not received the funds that she is entitled to pursuant to the orders made by the Court and will only be able to receive those entitlements upon the sale of Property A.

10. It is clear from the operative orders and the reasons for decision that the husband is to be given an opportunity to retain Property A, but that requires him to make a payment to the wife as set out in those reasons, and if not then that property too will be sold.  The husband has been on notice for some time now of the wife’s application to seek vacant possession of the property at Property A and that she have sole authority to act on the sale of the property, and it is clear that the prospects of the parties being able to conduct the sale of the property jointly are slim to none.

11. The husband says that he is keen for Property A to be sold because it is the only way that he can move on and continue in his livelihood in property development.  The wife’s submission is that the husband only wants the property to be sold on his terms which are unrealistic and unachievable.  It is also of note the husband has occupation of Property A and control of Property A.

12. She points to the husband being on notice of her application since early May by way of formal court application and refers to the fact that Property A is available to the husband, having been untenanted since January of this year.  The husband said in submissions before me that he has placed that property with real estate agents and has lined up a tenant for that property.  That is not in evidence before me.

13. There is no evidence before the Court to support the property at Property A being worth anything close to 1.7 to 1.9 million dollars.  I am satisfied that the wife has made out her case for her to have sole conduct of the property for Property A for sale and that, in order for her to be able to conduct that sale unimpeded, she will need vacant possession of the property.  In her minute of orders sought the wife seeks that the husband vacate the property within seven days of today’s date. 

14. I propose to make orders in accordance with the minute sought by the wife with regards to with some amendments. I will order that the husband vacate Property A within 7 days. If the husband does not comply with the order to vacate, on proof of the wife filing an affidavit of the husband’s failure to vacate the Court will issue a warrant pursuant to rule 25B.62(2), of the Federal Circuit Court Rules2001 for possession of the property and authorising an enforcement officer to enter the property described in the warrant and give possession of the property to the wife, and such application for such warrant may be made directly to chambers by emailing that affidavit to chambers.

15. The wife seeks further orders for the enforcement and payment of the orders that were made on 24 March 2017.  The wife has provided evidence in support of seeking those orders and I will make them. 

16. I am not prepared to make the order the wife seeks with respect to interest applying to her payment from 1 August 2017 as it seems to me that that is a date that is somewhat arbitrary in these proceedings. It is unclear to me as to what date would be appropriate given the history of this matter and given the fact that the enforcement proceedings have not been brought earlier.

17. I will make the orders as sought by the wife with regards to dealing with implementation of the other orders she seeks and the order with respect to the costs order of appeal. The husband makes the point that he needs funds to be able to move out of the property.  As pointed out by the wife, if the husband provides his bank details to the wife’s solicitor today then the proceeds of the joint account of the parties can be divided in accordance with the orders which will see him receiving approximately $11,000 in short order. 

18. The wife seeks is that the husband pay her costs of the enforcement proceedings in the scale amount of $2578.  I am satisfied that it is appropriate to order costs in this case.  Given that these are enforcement proceedings, it has been necessary to bring them before the Court in order to have the orders I previously made implemented.  I will continue the order that there be liberty to apply in the event that it is necessary to seek further orders.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 6 July 2018