KELLOGG & FORTUNE

[2019] FamCA 232

FAMILY COURT OF AUSTRALIA

KELLOGG & FORTUNE [2019] FamCA 232

FAMILY LAW – INJUNCTIVE RELIEF – an order to preserve assets – an order for the wife to have sole conduct of sale of real property – registrar to sign documents in place of father (if necessary)

FAMILY LAW – PROPERTY – just and equitable and otherwise proper to make interim order for alteration of property interests in favour of wife.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kellogg

RESPONDENT: Mr Fortune

FILE NUMBER: MLC 14161 of 2018

DATE DELIVERED: 1 April 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ian Robertson Legal

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the applicant be and is hereby solely responsible for conduct of the sale of the property situate at and known as B Street, Suburb C in the State of Victoria, being more particularly described in Certificate of Title Volume… Folio …(“the property”).

2. To the extent that the husband is required as a registered proprietor of the property to execute any documents in relation to the property, those documents be executed by a Registrar of this Court pursuant to s 106A at the request in writing of the applicant’s solicitors.

3. Until further order, the husband be and is hereby restrained by injunction from interfering with the orderly sale of the property.

4. The wife do all acts and things necessary to instruct the conveyancing solicitor for the property, being Ms D of E Company of Suburb G in the State of Victoria, to keep the respondent husband informed of the progress of the sale including when an unconditional contract of sale has been signed and when settlement is due to take place and the selling price.

5. Upon settlement of sale of the property the wife do all acts and things necessary to ensure that the nett proceeds of sale less conveyancing costs, adjustments and the amount outstanding pursuant to any mortgages and the conveyancers fees and agents commission be distributed as follows:

   a)     $10,000 to the wife by way of interim property settlement to be taken into account on a dollar for dollar basis against the wife’s ultimate entitlement to an alteration of property interests; and

   b)     the balance to be placed in an interest bearing trust account of the wife’s solicitors not to be released without the prior written consent of both the wife and the husband or further order of the Court.

6. That the wife’s costs of and incidental to this application be and are hereby reserved to the learned trial judge.

7. The wife’s solicitors send a sealed copy of this Order to the husband as a matter of courtesy NOTING THAT the documents are available for inspection by the husband on the Court Portal.

8. The wife’s Application in a Case file 13 March 2019 be and is hereby otherwise dismissed.

9. That my reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

   AND IT IS NOTED that the application in the substantive proceedings is listed in the Registrar’s Directions List on 12 April 2019 at 10.00 am.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 14161 of 2018

KELLOGG

Applicant

And

FORTUNE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

REVISED

1. This matter comes before me in the duty list.  It is the application of the wife filed on 13 March 2019, seeking that she have sole responsibility and authority to sell a property at B Street, Suburb C in Victoria, the husband be restrained by injunction from taking any active part in the sale or necessarily interfering with it, that her conveyancer inform the respondent from time to time of progress of the sale and when an unconditional contract of sale has been signed and when settlement is due to take place, and that save for the order that I will discuss in a moment, the proceeds of settlement be invested in an interest-bearing trust account pending further order of the Court or prior written consent of both the wife and the husband.  From the net proceeds of sale, the wife also seeks an amount of $10,000 to be paid to her as an interim property settlement.

2. The husband was called at the door of the Court and there was no response.  The information relied upon by the wife is that set out in her affidavit sworn on 12 March 2019, augmented by her affidavit sworn yesterday, 31 March 2019.  The principal property proceedings are those initiated by the applicant wife on 7 December 2018.  To date, the husband has not filed or served a response to that application. 

3. On 28 February 2019, the matter was returnable before Deputy Registrar Russell.  Mr Robertson, solicitor, appeared for the wife as he does indeed today.  There was no appearance by or on behalf of the respondent.  Registrar Russell ordered that the substantive property proceedings be adjourned to 12 April 2019 at 9.30 am in the Registrar’s directions list, and an order for substituted service on the husband.

4. The respondent husband is required, pursuant to paragraph 4 of orders made on 28 February 2019, to file and serve a response to the initiating application and a financial statement by 4 April 2019.  The date for that has not yet passed.

5. On 13 March 2019 the wife filed the urgent application which is returnable today.  Mr Robertson attends court today and says that he has proof of service on the husband, but that has been somewhat overtaken by a text message which the wife describes in her affidavit sworn 31 March 2019, and which I have seen on her mobile phone, which purports to be from the husband and says, in effect, that he does not know why the wife wants sole authority to sell the property or to, in particular, complete a section 32 settlement preliminary to the sale “…when I’ve signed the section 32 that they sent me on 10 January.” He says “I’ve got it on email when I sent it to them … it’s in unnecessary coast[sic], Ms Kellog.”  I take the husband’s message to say that he does not know why the wife has found it necessary to take the proceedings returnable before me today, which has represented unnecessary cost to her. 

6. The major asset of the parties is this property at H Road, Suburb J.  I am informed by Mr Robertson that it is a bush block with some access difficulties. 

7. The wife has told me from the witness box today that she knows the purchaser as someone who has purchased equipment from her or plant and machinery from her, when she was trying to raise money to service the mortgage on the property.  However, she assures me that she has no relationship with this person, commercial or personal, and that the current offer to purchase the property is an entirely arms-length transaction.  The offer is to purchase the property for something in the vicinity of $650,000, although there is no concluded contract to that. 

8. I am satisfied that it is appropriate to make orders in the terms of the wife’s application.  I do so principally to preserve the asset of the parties.  It is a bush block, as I previously said, not producing any income in its own right.  It is subject to a mortgage in respect of which the interest is running at approximately $2200 per month and the wife has no moneys, she deposes, with which to pay those instalments.  There is also another mortgage relating to another property, which is not directly secured on this property, which presumably is attracting interest for which the parties, I assume, will be jointly responsible in the end.

9. The wife has deposed convincingly, in my view, to the husband’s unpreparedness to make any contribution to the mortgage or to the holding costs of the property.  The principal outstanding under the mortgage is some $390,000.  Therefore with the current market value somewhere in the vicinity of $650,000 (although there is no formal valuation) there is a modest amount of property which, in my view, it is appropriate to make orders to preserve. 

10. The wife also seeks an interim property settlement to herself of $10,000.  I don’t know the full history of the relationship and the financial dealings, although the wife has told me from the witness box that the property was acquired with a contribution of some $40,000 equity from her mother, with no corresponding payment made by the husband or the husband’s family.  In addition to this, funds were contributed to the property from the sale of another property in Town K that was jointly owned by the parties.  However, the proceeds of sale from the Town K property only covered the transaction costs, I am told from the bar table. 

11. I have read in the affidavit sworn 12 March 2019 by the wife that the wife has borrowed further sums from her mother and brother of some $25,000 or thereabouts to pay the mortgage payments to the Commonwealth Bank.  Those payments are detailed at paragraphs 18, 19, 20 and 21 of the affidavit of 12 March 2019.  The wife gave evidence from the witness box that the parties had also received money from a class action but did not specify how much.  The wife’s income otherwise is approximately $2000 a month as an essential oils sales person. 

12. In the midst of the evidence set out in the wife’s affidavit of 12 March 2019 as to the husband’s refusal or indications that he will not pay any further bills on mortgage statements, she refers to a text message received from the husband’s mobile telephone on 2 January 2019 with words to the effect, “You can go and sell your body to get the money and pay the mortgages.”  I have looked at the annexures which were available in Court and find that annexure as “[K-30]”. 

13. Based on the wife’s evidence and affidavit material, and the fact that the husband has not opposed the wife’s application, it would not be inappropriate for me to make this order.  I also consider that the preservation of the property, being the only major asset of the parties, is significant as the bank has already issued a notice to vacate on or about June 2018 and penalty rates will continue to increase if the mortgage is not paid.  

14. The wife seeks that she have sole conduct of the sale to the exclusion of the husband.  It does appear to me on the material, which is not contested by the husband, that the parties are going to be unable to make the transaction jointly. 

15. I have asked specifically about the section 32 statement which the husband says he returned on 10 January 2019.  There is, annexed to the wife’s affidavit, “…, which is an email from one Ms D of E Company of Suburb G in Victoria, being the conveyancer working jointly for both parties, saying that the husband, “has now signed the section 32 statement and emailed a copy of this to me.” 

16. It appears from the correspondence that the husband returned the document to the conveyancer on or about 14 March 2019 and not on 10 January 2019 as he has indicated in correspondence.  I am satisfied that there is not sufficient cooperation between the husband and the wife for them to jointly conduct the sale, and I am concerned, given the need to preserve assets, that the wife should be free to conclude the sale as quickly and effortlessly as possible.  I therefore make the orders more or less sought by the wife in her application. 

17. I will accede to the wife’s application for $10,000 on account of her eventual entitlement in this proceeding.  It is a small amount but will be a significant help.  She has struggled with mortgage payments.  It appears that her ultimate entitlement will be appreciably more than $10,000.  I am satisfied that it is just and equitable to make an order effecting an interim property distribution in the wife’s favour.  The $10,000 sought by her is proper.

18. For case management purposes, there is a Registrar’s hearing on 12 April.  If the property is sold by then, hopefully the matter could be allocated a final hearing in the near future.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 April 2019.

Associate: 

Date:  16 April 2019