KOSTAS & KOSTAS - [2017] FamCA 479

FAMILY COURT OF AUSTRALIA

KOSTAS & KOSTAS

[2017] FamCA 479

FAMILY LAW - PROPERTY – Interim proceedings – Whether it is appropriate to make interim orders – Where the asset pool reasonably well identified – Where no identifiable cash pool from which provision could be made – Where discussion of general principles – Where appropriate to make order for interim distribution of property.

Family Law Act 1975 (Cth) ss 75(2), 79, 79(4)

Harris & Harris (1993) FLC 92-378
Osferatu (No 3) [2013] FamCA 1035
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Kostas

RESPONDENT:

Mr Kostas

FILE NUMBER:

PAC

971

2015

DATE DELIVERED:

16 June 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

5 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Satkunanathan of Michael Vassili Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Murphy

SOLICITOR FOR THE RESPONDENT:

K R Lawyers & Consultants

Orders

That within seven days from this date the parties agree in writing on the appointment of an appropriately qualified solicitor to act as Trustee for Sale of the property at B Street, Suburb C being Lot … in Deposited Plan … and in default of agreement as provided the wife appoint a Trustee in writing within a further seven days.
That upon appointment the said property vest in the said Trustee for Sale and be sold by the trustee for sale at the best price reasonably obtainable by public auction within three months from this date.
That the husband pay as they fall due and payable all outgoings on the said property including council and water rates and insurances.
That the husband pending sale maintain the property in good order and condition having regard to the condition of the property when inspected by the selling agent appointed by the Trustee for Sale.
That upon sale of the property the proceeds of sale be paid in the following order and priority:
(a)In payment of agent’s commission and selling costs;
(b)In payment of legal costs of sale;
(c)In payment of any contract adjustments;
(d)In payment of $150,000.00 to the wife or as she may otherwise direct the Trustee in writing;
(e)In payment of the balance to an interest bearing account in the name of the Trustee as Trustee for both parties pending further order.
That the Trustee have liberty to apply on short notice for directions or further or other orders.
That any application for costs of the application be made by way of written submissions within 28 days from this date with any submissions in reply within a further 14 days.

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 Kostas & Kostas 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…

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 KOSTAS & KOSTAS

Details

AGLC: KOSTAS & KOSTAS [2017] FamCA 479
Case: [2017] FamCA 479
Decision Date: 16 June 2017

CaseChat Overview and Summary

In the matter of *Kostas & Kostas*, Foster J of the Supreme Court of New South Wales was required to make orders concerning the sale of a property and the distribution of its proceeds. The dispute involved a husband and wife, and the court's intervention was sought to facilitate the sale and determine the financial arrangements surrounding it.

The primary legal issues before the court were the appointment of a trustee for the sale of the property, the timeframe and method of sale, the husband's ongoing responsibilities regarding the property's outgoings and maintenance, and the order of priority for the distribution of the sale proceeds. The court also needed to consider the ultimate disposition of any remaining balance after specified payments.

Foster J ordered that within seven days, the parties were to agree in writing on the appointment of a solicitor to act as Trustee for Sale for the property. If agreement was not reached, the wife was to appoint a trustee within a further seven days. Upon appointment, the property was to vest in the trustee and be sold by public auction within three months. The husband was ordered to pay all outgoings and maintain the property in good order pending sale. The proceeds of sale were to be applied first to selling costs, then legal costs, contract adjustments, a payment of $150,000 to the wife, and finally, any balance was to be held in an interest-bearing account by the trustee pending further order. The trustee was granted liberty to apply for directions, and applications for costs were to be made by written submissions.

Orders

Orders of the court

That within seven days from this date the parties agree in writing on the appointment of an appropriately qualified solicitor to act as Trustee for Sale of the property at B Street, Suburb C being Lot … in Deposited Plan … and in default of agreement as provided the wife appoint a Trustee in writing within a further seven days.

That upon appointment the said property vest in the said Trustee for Sale and be sold by the trustee for sale at the best price reasonably obtainable by public auction within three months from this date.

That the husband pay as they fall due and payable all outgoings on the said property including council and water rates and insurances.

That the husband pending sale maintain the property in good order and condition having regard to the condition of the property when inspected by the selling agent appointed by the Trustee for Sale.

That upon sale of the property the proceeds of sale be paid in the following order and priority:

(a) In payment of agent’s commission and selling costs;

(b) In payment of legal costs of sale;

(d) In payment of $150,000.00 to the wife or as she may otherwise direct the Trustee in writing;

(e) In payment of the balance to an interest bearing account in the name of the Trustee as Trustee for both parties pending further order.

That the Trustee have liberty to apply on short notice for directions or further or other orders.

That any application for costs of the application be made by way of written submissions within 28 days from this date with any submissions in reply within a further 14 days.

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

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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