Kelso and Aldrin - [2017] FCCA 2219

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELSO & ALDRIN

[2017] FCCA 2219

Catchwords:
FAMILY LAW – Competing applications with respect to final consent orders – enforcement application – application to set aside.

Legislation:

Family Law Act 1975, ss.79A, 79A(1)(a), 79A(1)(b), 79A(1)(c)

Federal Circuit Court of Australia Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Cases cited:
In the Marriage of Gerbert (1990) 14 FamLR 62
Prior v Prior (2002) 30 Fam LR 72
In the Marriage of La Rocca, (1991) 14 Fam LR 715
In the Marriage of Franklin & McLeod (1993) 17 Fam LR 793
Cawthorn & Cawthorn (1998) Fam LR 86
Jacobs & Vale [2008] FMCAfam 641

Applicant:

MR KELSO

Respondent:

MS ALDRIN

File Number:

MLC 6535 of 2014

Judgment of:

Judge Harland

Hearing date:

4 September 2017

Date of Last Submission:

4 September 2017

Delivered at:

Melbourne

Delivered on:

4 September 2017

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Brooks

Solicitors for the Respondent:

Maharaj Lawyers

ORDERS

The husband’s amended initiating application filed 14 August 2017 be dismissed.
The Final Orders remain in full force and effect AND for the purposes of enforcing said orders:
(a)The Registrar of this Court be directed, pursuant to the s.106A appointment in paragraph 7 of the Final Orders, to forthwith execute a transfer of land in registrable form to give effect to paragraph 4 of the Final Orders (namely the orders in relation to the trust transfer and sale by the wife of the property of Property A, Certificate of Title Volume (omitted) Folio (omitted) (“Property A property”) in default of the payment due to the wife pursuant to paragraph 2 of the Final Orders).
(b)For the purposes of executing the said default sale of the Property A property (“Default Sale”) the Wife be and is hereby unilaterally authorised to forthwith do all acts and things, give all instructions and sign all authorities, contacts and documents as may be required to achieve a completed sale of the Property A property and thereafter apply the sale proceeds in accordance with paragraph 4 of the Final Orders, including but not limited to:
(i)The wife appointing a selling real estate agent (“Selling agent”) on such terms and conditions as recommended by the selling agent in consultation with the wife;
(ii)The wife appointing a lawyer and/or conveyancer to handle the sale (“Conveyancer”) on such terms and conditions as recommended by the conveyancer in consultation with the wife;
(iii)The wife liaising with the selling agent to arrange inspections of the Property A property by prospective purchasers; and
(iv)The wife signing a contact of sale and doing all acts and sign all documents as may be necessary to achieve a completed sale.
(c)For the purposes of the Default Sale the husband must co-operate with all reasonable requests of the selling agent so as to facilitate the marketing of the Property A property for sale, including but not limited to:
(i)Forthwith providing the agent with a key to the Property A property…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelso and Aldrin

Details

AGLC: Kelso and Aldrin [2017] FCCA 2219
Case: [2017] FCCA 2219
Decision Date: 4 September 2017

CaseChat Overview and Summary

In the matter of Kelso and Aldrin, heard by Judge Harland, the husband sought to amend his initiating application filed on 14 August 2017. The wife sought to enforce final orders previously made in relation to the division of property, specifically concerning a property identified as Property A.

The central legal issues before the court were whether the husband's amended application should be dismissed and, if so, how the existing final orders, particularly those relating to the transfer and sale of Property A, should be enforced. This included determining the extent of the wife's authority to manage the sale and the husband's obligations to facilitate it.

Judge Harland dismissed the husband's amended application. The court found that the final orders should remain in full force and effect. To ensure enforcement, the Registrar was directed to execute a transfer of land to give effect to the orders concerning the trust transfer and the wife's sale of Property A, in default of payment due to the wife. The wife was unilaterally authorised to take all necessary steps to complete the sale, including appointing agents and conveyancers, arranging inspections, and signing sale contracts. The husband was ordered to cooperate with the sale process, including providing access to the property and removing encumbrances, with the Registrar empowered to act on his behalf if he failed to comply. The husband was also ordered to vacate the property prior to settlement.

Orders

Orders of the court

The husband’s amended initiating application filed 14 August 2017 be dismissed.

The Final Orders remain in full force and effect AND for the purposes of enforcing said orders:

(a) The Registrar of this Court be directed, pursuant to the s.106A appointment in paragraph 7 of the Final Orders, to forthwith execute a transfer of land in registrable form to give effect to paragraph 4 of the Final Orders (namely the orders in relation to the trust transfer and sale by the wife of the property of Property A, Certificate of Title Volume (omitted) Folio (omitted) (“Property A property”) in default of the payment due to the wife pursuant to paragraph 2 of the Final Orders).

(b) For the purposes of executing the said default sale of the Property A property (“Default Sale”) the Wife be and is hereby unilaterally authorised to forthwith do all acts and things, give all instructions and sign all authorities, contacts and documents as may be required to achieve a completed sale of the Property A property and thereafter apply the sale proceeds in accordance with paragraph 4 of the Final Orders, including but not limited to:

(i) The wife appointing a selling real estate agent (“Selling agent”) on such terms and conditions as recommended by the selling agent in consultation with the wife;

(ii) The wife appointing a lawyer and/or conveyancer to handle the sale (“Conveyancer”) on such terms and conditions as recommended by the conveyancer in consultation with the wife;

(iii) The wife liaising with the selling agent to arrange inspections of the Property A property by prospective purchasers; and

(iv) The wife signing a contact of sale and doing all acts and sign all documents as may be necessary to achieve a completed sale.

(c) For the purposes of the Default Sale the husband must co-operate with all reasonable requests of the selling agent so as to facilitate the marketing of the Property A property for sale, including but not limited to:

(i) Forthwith providing the agent with a key to the Property A property and allowing access to the agent and/or prospective purchasers upon 24 hours’ notice to the Husband;

(ii) Maintaining the property in a neat and suitable condition for inspection by prospective purchasers;

(iii) Removing and/or authorising removal or discharge (at his expense, from the Property A property sale proceeds if necessary) of any encumbrance over the title of the Property A property (including but not limited to a caveat or mortgage) as may be necessary to enable the default sale to occur in a timely manner, including doing all acts and signing all such documents as may be required to discharge and/or authorise the discharge of the mortgage over the Property A property and any other encumbrance AND in default of such obligation (upon 7 days’ written notice from the wife) the Registrar of the Court be and is hereby appointed to sign such document on behalf of the husband.

(d) In the event the husband does not comply with this order, the Wife have liberty to apply to have the matter re-listed at short notice, for the purpose of seeking further orders and directions in relation to the default sale and enforcement of the Final orders.

The Husband provide vacate the Property A property in a clean condition 24 hours prior to the settlement of sale.

The wife provide written submissions in support of her application for indemnity costs on or before 11 September 2017.

The husband provide written submissions in response on or before 25 September 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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