Keats and Reeves

[2009] FamCA 558

FAMILY COURT OF AUSTRALIA

KEATS & REEVES [2009] FamCA 558

FAMILY LAW – PROPERTY – Interim property – sale of property

Family Law Act 1975 (Cth)

APPLICANT: Mr Keats

RESPONDENT: Ms Reeves

FILE NUMBER: SYC 4789 of 2008

DATE DELIVERED: 15 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 15 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Somerville & Co Solicitors

COUNSEL FOR THE RESPONDENT: Self Represented

SOLICITOR FOR THE RESPONDENT: Self Represented

Orders

1. I make orders pursuant to paragraphs 9, 10, 11, 12 and 14 of the Application in a Case filed by the husband in Court today as set out hereunder:

   9.That within 14 days of the date of making of these orders the parties do all acts and things and sign all documents necessary to cause [T] Pty Limited (“[T Pty Ltd]”) as trustee of the [Keats] Family Trust (“the Trust”) to list the whole of the land in Certificate of Title Folio Identifier […] (“the [N] property”) and Certificate of Title Folio Identifier […] (“the [Y] property”) upon the market for sale and in respect of which the following provisions shall apply:

   a.Each of the properties shall be listed for sale with a real estate agent and at a price to be agreed by the parties within 14 days of the date of these orders and failing agreement as to either then with a real estate agent and at a price nominated by the President for the time being of the Real Estate Institute of NSW or his nominee and the costs of such nomination shall be borne equally by the parties.

   b.The parties shall cooperate in every way with the real estate agent including but not limited to:

   i.         Making a key available to the agent;

   ii.Allowing inspection of the properties by prospective purchasers at all times;

   iii.Signing all agency agreements required to implement the listing of the [S] properties for sale;

   iv.The parties shall instruct the husband’s solicitors to act for the parties upon the sale of the properties.

   c.The parties shall execute the Contracts for Sale of Land, transfers and any other necessary documents for the conveyances and give all necessary instructions to answer requisitions and in relation to all other relevant and necessary matters during the course of the conveyances.

   10.In the event that the properties, or either of them, have not been sold by private treaty within 3 months of their date of first listing for sale then the following provisions shall apply:

   a.The parties shall list the properties which have not so sold for sale by public auction at a reserve price and with an auctioneer and agent agreed by the parties and failing agreement within 7 days in relation to either, at a reserve price and with an auctioneer and agent nominated by the President of the Real Estate Institute of NSW for the time being or his nominee and the costs of such nomination shall be borne equally by the parties.          

   b.The provisions of order 9 shall apply mutatis mutandis to that auction.

   11.In the event that the auction of the properties, or either of them, are unsuccessful then the still unsold properties shall be reoffered for sale by successive public auction at 3 monthly intervals until sold and the provisions of orders 9 and 10 shall apply mutatis mutandis to those sales.

   12.      The proceeds of sale of the properties shall be distributed as follows:

   a.Payment of real estate agent’s commission and advertising expenses and the legal costs and disbursements of the husband’s solicitors on the sale;

   b.Payment of the amounts required to discharge the mortgages registered against the titles of those properties by National Australia Bank.

   c.Payment of the amount required to discharge the wife’s marina loan.

   d.Payment of the balance into the husband’s solicitor’s trust account to be distributed in accordance with order 13 hereof.

   …

   14.That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then a Registrar of the Court is appointed pursuant to Section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all things necessary to give validity and operation to the deed or instrument.

2. I adjourn the balance of the application to 22 May 2009 at 9.00am at the Parramatta Registry of the Family Court of Australia.

3. I grant leave to the wife to apply to the Court at any time to vary or discharge the Orders made today.

4. The husband is to file and serve any further Application in relation to the property described as vacant land at S and the appointment of himself as trustee for the sale of any property referred to in the Application in a Case filed 15 May 2009. Such Application is to be filed and  served by 20 May 2009 and be returnable before me Justice Le Poer Trench on 22 May 2009 at 9.00am at the Parramatta Registry of the Family Court of Australia.

5. I reserve the husband’s costs of today.

6. The Court notes the wife wishes documents to be sent to PO Box ….

7. Any documents to be served upon the wife may be served upon her by ordinary mail addressed to her at PO Box ….

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4789 of 2008

MR KEATS

Applicant

And

MS REEVES

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application in a Case filed by the husband in Court on 15 May 2009.  This application has been provided to the wife at Court who has refused to read the application or the affidavit which supports it (also filed 15 May 2009) and/or the Amended Financial Statement filed 15 May 2009. 

2. The wife, who prefers to be called by the surname of Reeves, informed me that she had left the documents in a room on this floor of the Court and that she refused to take them with her.  She told me that she was relying on legal advice that she could not be served with any documents in the precincts of a Court.

3. These proceedings commenced with the filing of an Application for Final Orders by the husband on 19 August 2008.  On no occasion since that time has the wife filed any document in the Court.  The matter was listed today for the purposes of an undefended hearing.  The wife attended before me today when that matter was called on.

4. The parties own a number of pieces of real estate.  Those properties are variously owned either in their names or by an entity which is a family trust.  The husband and wife effectively control the family trust. There is also a block of vacant land held by a third party for the benefit of the parties jointly.  The evidence from the husband is that collectively the property is very heavily charged with debt to the National Australia Bank. As at 14 May 2009 the total indebtedness to the bank was $2.7 million.  $1.4 million of debt or thereabouts arose as a result of the wife purchasing a marina following the separation for some $14 million.  Following that purchase, she requested the husband join in the borrowing of funds to enable her to pay the deposit. The property had been purchased at auction where she had been the successful bidder.  The husband at that time had a line of credit for $500,000.  He had capacity in that line of credit to meet mortgage payments required in relation to the advance of $1.4 million, or thereabouts, to the wife following the purchase of her marina property.  The husband says that the wife undertook to him to meet the interest payments on that loan. The husband's evidence is that the wife has failed to meet the payments in respect of that loan. He has had to draw on his line of credit to make those payments and that line of credit now is very close to being exhausted.  Other properties owned by the parties are subject to mortgage and also need to have payments made as required by the mortgagee.  The husband's capacity to meet those mortgage commitments and support himself is strained to a point where he is unable to continue to do so without further borrowings. 

5. In the absence of any response filed by the wife in respect of these property proceedings, there is no reason why the husband should not have the orders which he seeks, as final orders, made by the Court, subject only to the requirement that the Court is satisfied the orders sought would be just and equitable in the circumstances. 

6. The Application in a Case filed today (15 May 2009) is required as a precursor to the determination by the Court of the Application for Final Orders filed by the husband.  Accordingly, it is appropriate to make the orders which deal with the sale of the properties owned by the Keats Family Trust at N and Y.  Neither of those properties is occupied by the parties. 

7. The husband seeks to move today for an order which causes the wife to vacate the E property at S (being the former matrimonial home).  He seeks to move on an order for the immediate sale of that property.  The evidence the husband puts before the Court, which includes communications from the wife, is sufficient for the Court to draw a conclusion that the wife has abandoned occupation of the E property.  In those circumstances, there ought not to be any reason to refuse the order for the husband to have exclusive occupation.  Given the wife's apparent refusal to participate in any way in the proceedings up until today, it seems that the husband should have all the necessary orders to ensure that he can have unfettered access to the property and be able to prepare the property for sale without any interference by the wife.  The evidence filed and relied upon by the husband, particularly in annexures, gives every indication that in the absence of injunctions against the wife the husband can anticipate a high level of interference by her in his seeking to execute an order of this Court which might require the sale of the E home.

8. The wife denied today, in a submission to the Court, that she lives at the marina. The husband says she did appear to be living at the marina owned by her. Given that there are still some substantial matters of law to be determined in relation to the orders sought by the husband for possession of and sale of the vacant land at S (the property said by the husband to be held upon trust for the parties by a third party), I do not propose at this stage to move to make the orders sought in relation to either the sale of or the possession of the E property.  However, the wife should clearly understand that in the absence of the filing of any documentation by her or the obtaining of representation in this most serious matter, she can expect that when this matter is before the Court on 22 May there is every likelihood that the orders sought by the husband in his application filed on 15 May 2009 and those orders foreshadowed today, which will be the subject of a further application, will be granted.  

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  30 June 2009