KILMER-SUTTON & SUTTON

In the matter of Kilmer-Sutton & Sutton, Cohen J of the Family Court of Australia was required to make orders concerning the implementation of a property settlement in relation to a marriage. The dispute centred on the sale of a specific property and the distribution of its proceeds, as well as the management of that property pending sale and the administration of a children's scholarship fund.

The court was tasked with determining the precise mechanism for the sale of the property, including the timeframe for listing, the appointment of an agent in the event of disagreement, and the process for establishing a sale price if the parties could not agree. Further issues included the obtaining of a building/occupation certificate for the property and the order of priority for the distribution of sale proceeds, encompassing sale costs, outstanding rates, bank loans, and a mortgage. The court also needed to formalise arrangements for the management of the property by the wife pending sale, including the handling of rental income and expenses, and to appoint the wife as trustee of a scholarship fund for the parties' children.

Cohen J ordered that the property be sold by private treaty within fourteen days, with an agent to be agreed upon or appointed by the President of the Real Estate Institute of NSW. If the parties could not agree on a sale price within fourteen days, a valuer appointed by the President of the Australian Property Institute (NSW Division) would determine the fair market value. The costs associated with appointing the agent and valuer were to be borne equally by the parties. The court also ordered that steps be taken to obtain a final building/occupation certificate, with costs to be paid from a specified ANZ account. Upon sale, proceeds were to be applied first to sale costs, then outstanding rates, ANZ bank loans, the mortgage on another property, and any balance was to be invested in a controlled monies account pending further order. By consent, the wife was to manage the property pending sale, including paying expenses from rental income paid into a specific ANZ account, and was to provide monthly written accounts to the husband. Furthermore, by consent, the husband was to execute documents to appoint the wife as trustee of the Australian Scholarships Group Fund for the purpose of paying the children's school costs.