Krugar and Krugar - [2010] FamCA 17

FAMILY COURT OF AUSTRALIA

KRUGAR & KRUGAR

[2010] FamCA 17

FAMILY LAW – PROPERTY – Alteration of property interests – application of s 79(4) of the Family Law Act 1975 (Cth) – orders that are just and equitable

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) s 79(4)

Kennon & Kennon (1997) FLC 92-757

APPLICANT:

Ms Krugar

RESPONDENT:

Mr Krugar

FILE NUMBER:

SYC

524

2007

DATE DELIVERED:

21 January 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

9 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nash

SOLICITOR FOR THE APPLICANT:

De Luca-Leonard

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

An order is made, pursuant to section 79, in terms sets out in paragraphs 2 to 14 below.
Within seventy (70) days the Husband pay to the Wife the sum of $369,737.00.
In the event that the Husband fails to make the payment referred to in paragraph 2 within the time referred to in paragraph 2 the Husband and Wife shall forthwith do all acts and things necessary including appointing Ray White Real Estate Agents and Auctioneers as selling agents (selling agents) to effect a sale of the former matrimonial home known as B property in the State of New South Wales and more formally described as Certificate of Title Folio Identifier … (matrimonial home) for the best price reasonable obtainable.
For the purposes of sale of the matrimonial home:-
4.1.it be listed at a price of $730,000 or such other sum as may be recommended from time to time by the selling agent;
4.2.for sale by private treaty for 3 months if recommended by the selling agent and otherwise by auction in accordance with the balance of paragraph 4 below;
4.3.the parties will each cooperate in every way with the agents including but not limited to:
4.3.1.making the key available to the agents;
4.3.2.allowing inspection of the matrimonial home at all reasonable times requested by the agents;
4.3.3.doing or saying nothing to hinder or prevent a sale being effected and absenting themselves from any and all inspections including private and open house inspections and building, pest and survey reporters;
4.3.4.ensuring that the matrimonial home including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers;
4.3.5.signing all documents requested by the agents in relation to the listing for sale of the matrimonial home except a contract or agreement for sale which has not been authorised by the parties’ solicitors;
4.3.6.the husband shall provide vacant possession of the matrimonial home two weeks prior to any proposed date for the settlement of the sale of the matrimonial home.
4.4.the parties will each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price of $730,000.00 or else the price nominated by the agent pursuant to paragraph 4.1;
4.5.the Wife’ solicitor will have the primary conduct of the sale on behalf of…

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 Krugar and Krugar

Details

AGLC: Krugar and Krugar [2010] FamCA 17
Case: [2010] FamCA 17
Decision Date: 21 January 2010

CaseChat Overview and Summary

This matter concerned proceedings between the Husband and Wife, brought before Watts J. The dispute involved the division of property, specifically the former matrimonial home and other real estate holdings. The court was required to make orders for the sale of these properties and the distribution of the proceeds.

The primary legal issues before the court were how to effect a fair and equitable distribution of the parties' assets, particularly the matrimonial home and other listed properties. This involved determining the terms of sale, including listing prices, sale methods (private treaty or auction), the roles of real estate agents and solicitors, and the allocation of sale costs. The court also had to address the husband's financial responsibilities concerning the matrimonial home pending its sale, including mortgage payments, rates, and maintenance, and how any failure to meet these obligations would impact his share of the sale proceeds.

Watts J made detailed orders pursuant to section 79 of the relevant Act. The Husband was ordered to pay a specific sum to the Wife within 70 days. If this payment was not made, the matrimonial home was to be sold, with specific provisions for listing, sale by private treaty or auction, and cooperation between the parties and agents. The proceeds of the matrimonial home sale were to be applied first to sale costs, then to discharge the mortgage and outstanding rates, with 50.6% of the remaining net amount to be paid to the Wife and the balance to the Husband. Similar detailed orders were made for the sale of properties listed in Schedule A, with proceeds to be distributed one-third to each party and C Krugar where C Krugar was a named owner, and otherwise one-half to the Wife and the balance to the Husband. The Husband was also ordered to retain certain personal property and superannuation, while the Wife was to retain other personal property. Provisions were included for the appointment of a person to execute documents if a party failed to do so, and liberty was granted to seek further orders for implementation.

Orders

Orders of the court

An order is made, pursuant to section 79, in terms sets out in paragraphs 2 to 14 below.

Within seventy (70) days the Husband pay to the Wife the sum of $369,737.00.

In the event that the Husband fails to make the payment referred to in paragraph 2 within the time referred to in paragraph 2 the Husband and Wife shall forthwith do all acts and things necessary including appointing Ray White Real Estate Agents and Auctioneers as selling agents (selling agents) to effect a sale of the former matrimonial home known as B property in the State of New South Wales and more formally described as Certificate of Title Folio Identifier … (matrimonial home) for the best price reasonable obtainable.

For the purposes of sale of the matrimonial home:-

4.1. it be listed at a price of $730,000 or such other sum as may be recommended from time to time by the selling agent;

4.2. for sale by private treaty for 3 months if recommended by the selling agent and otherwise by auction in accordance with the balance of paragraph 4 below;

4.3. the parties will each cooperate in every way with the agents including but not limited to:

4.3.1. making the key available to the agents;

4.3.2. allowing inspection of the matrimonial home at all reasonable times requested by the agents;

4.3.3. doing or saying nothing to hinder or prevent a sale being effected and absenting themselves from any and all inspections including private and open house inspections and building, pest and survey reporters;

4.3.4. ensuring that the matrimonial home including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers;

4.3.5. signing all documents requested by the agents in relation to the listing for sale of the matrimonial home except a contract or agreement for sale which has not been authorised by the parties’ solicitors;

4.3.6. the husband shall provide vacant possession of the matrimonial home two weeks prior to any proposed date for the settlement of the sale of the matrimonial home.

4.4. the parties will each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price of $730,000.00 or else the price nominated by the agent pursuant to paragraph 4.1;

4.5. the Wife’ solicitor will have the primary conduct of the sale on behalf of both parties provided that the Husband’s solicitor, if any, will be entitled to independently advise and represent the Husband in respect of the sale and all matters arising thereon at the Husband’s sole cost;

4.6. the Wife will be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the matrimonial home and for the purposes of this paragraph the Husband shall, in the event that the payment referred to in paragraph 2 is not made within the period referred to in paragraph 2, do all things necessary to deliver a full set of keys to the matrimonial home to the Wife's solicitor;

4.7. subject to the agent's nomination set out in paragraph 4.2 above in the event that the matrimonial home remains unsold for a period of 3 months from the date upon which it was first listed for sale, the solicitor for the Wife will list the matrimonial home for sale by public auction with the selling agent; the costs of and incidental to such appointment (including advertising expenses) to be borne equally by the parties but in the event that the Husband fails to comply with this order the Wife will be at liberty to make the payment and receive a reimbursement for that payment (together with interest from the date of the payment at the rate prescribed in the Family Law Rules) from the Husband’s share of the net proceeds of the sale of the matrimonial home;

4.8. the reserve price for the purpose of such auction will be such as the selling agent nominates provided that if both (but not one only) of the parties disagree with the nominated price it will be the price nominated as a fair market value by a licensed valuer appointed by the President of the Australian Institute of Valuers. The costs of such valuation will be borne by the parties equally but in the event that the Husband fails to comply with this order the Wife will be at liberty to make the payment and receive a reimbursement for that payment (together with interest from the date of the payment at the rate prescribed in the Family Law Rules) from the Husband’s share of the net proceeds of the sale of the matrimonial home;

4.9. in the event that the bidding at the auction does not reach the reserve price the parties shall negotiate with the highest bidders or any other interested person and effect a sale of the matrimonial home at a price which is not more than 10% below the reserve price;

4.10. if the matrimonial home remains unsold, the Wife (or upon her nomination the Wife’s solicitor) will do all acts and things and sign all documents necessary to immediately re-list the matrimonial home for sale by public auction again, on a date nominated by the selling agent and at such auction there will be no reserve price;

4.11. the Husband keep the home in good repair and clean and tidy pending sale and make the home reasonably available for inspection by agents and prospective buyers and be solely liable for all and any costs of cleaning, rectification and repairs incurred by the selling agents in presenting the property for sale such costs to be taken from the Husband’s share of the net proceeds of sale; and

4.12. until the Husband vacates the matrimonial home, the Husband will pay all regular payments, if any, in respect of the mortgage to St George Bank Limited No … (the subsisting loan), Council rates, water rates, insurance, land tax and other fees associated with the matrimonial home, including any arrears owing on regular instalments, and will indemnify the Wife in relation to same. In the event that the Husband does not meet the liabilities under this paragraph then such amounts be deducted from the Husband’ share of the proceeds of sale.

On settlement of the sale of the matrimonial home the proceeds of sale be paid in the following manner and priority:

5.1. all costs and expenses of sale including legal costs and disbursements, agent’s commission, valuer’s fees and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);

5.2. the amounts (if any) required to discharge the mortgage to St George Bank Limited Number …;

5.3. the amounts required to pay all municipal and water rates outstanding with respect to the matrimonial home;

5.4. 50.6 percentage of the net amount then remaining (as adjusted in accordance with any other provision in these orders) to the Wife; and

5.5. the balance (as adjusted by any other provision in these orders) then remaining to the Husband.

From the date of this Order the Husband shall not further encumber the matrimonial home, nor increase the amount of the subsisting loan and shall be responsible solely for paying out any fresh loan on the matrimonial home which does not appear as at 9 February 2009 on a title search of the matrimonial home and the costs associated with this, failing which the full value of such loan and costs shall be deducted from the Husband’s share of the net sale proceeds.

Within 7 days from the making of these Orders the parties do all acts and things and sign all documents necessary to effect the sale of the properties identified in Schedule A for the best price reasonably attainable.

For the purposes of the sale of all real property identified in Schedule A:

8.1. the Wife, or at her request, the solicitor for the Wife will immediately list the land for sale by private treaty with CH Real Estate in respect of the properties in South Australia and RT Real Estate in respect of the Tasmanian property, the costs of and incidental to such appointments to be born equally by the parties as and when they fall due;

8.2. the parties will each co-operate in every way with the agents including but not limited to:-

8.2.1. doing or saying nothing to hinder or prevent a sale being effected;

8.2.2. signing all documents requested by the agents in relation to the listing for sale of the properties except a contract or agreement for sale which has not been authorised by the Wife;

8.2.3. accepting the Wife's signature as attorney for C Krugar, having regard to Order 10 below except a contract or agreement for sale which has not been authorised by the Wife;

8.3. the parties will each execute a Contract for Sale on the form prepared by the solicitors or conveyancers having the conduct of the sale being in the case of the South Australian properties, Hendry conveyancers and in the case of the Tasmanian properties a solicitor or conveyancer nominated by the Wife's solicitor at a price agreed upon by the parties or in the absence of any agreement, at or above the price nominated by the agent appointed in paragraph 8.1;

8.4. for the purposes of sale, the costs of and incidental to such appointment of conveyancers is to be born equally by the parties as and when same fall due;

8.5. in the event that any of the land identified in Schedule A remains unsold for a period of 3 months from the date upon which it was first listed for sale the parties will list that land or lands for sale by public auction with the appointed selling agent; the costs of and incidental to such appointment (including advertising expenses) to be born equally by the parties but in the event that the Husband fails to comply with this order the Wife will be at liberty to make the payment and receive a reimbursement for that payment (together with interest from the date of the payment at the rate prescribed in the Family Law Rules) from the Husband’s share of the net proceeds of the sale of the matrimonial home;

8.6. the reserve price for the purpose for such auction will be such as the appointed selling agents propose provided that if both (but not one) of the parties disagree with reserve then it will be the price nominated as a fair market value by a licensed valuer appointed by the president of the Australian Institute of Valuers. The costs of such valuation will be born by the parties equally but in the event that the Husband fails to comply with this order the Wife will be at liberty to make the payment and receive a reimbursement for that payment (together with interest from the date of the payment at the rate prescribed in the Family Law Rules) from the Husband’s share of the net proceeds of the sale of the matrimonial home;

8.7. in the event that the bidding at the auction does not reach the reserve price the parties shall negotiate with the highest bidders or any other interested person and effect a sale of that land at a price which is not more than 10% below the reserve price;

8.8. if the subject land remains unsold the Wife, or upon her nomination, the Wife’s solicitor will do all acts and things and sign all documents necessary to immediately re-list the property for sale by public auction again, on a date nominated by the agent and at such auction there will be no reserve price.

On settlement of the sale of each of the properties in Schedule A the proceeds of sale be paid in the following manner and priority:-

9.1. all costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees and auction expenses (including payment of any such expenses as have been paid by either or both of the parties);

9.2. the amounts required to pay all municipal and water rates outstanding with respect to the subject property;

9.3. in the each case where C Krugar is a named owner then one third of the net sale proceeds to each of the parties and C Krugar; and

9.4. in all other cases one half of the net sale proceeds to the Wife and the balance then remaining to the Husband.

10.

Within 7 days of the date of these Orders the Wife do all acts and things necessary and sign all documents to secure from C Krugar an enduring Joint Power of Attorney to operate in connection with the listing for sale, sale and completion of sale of all and any property identified in Schedule A at a cost to be born equally by the parties.

11.

From the date of this order the Husband shall not further encumber the properties nor any of them, nor increase the value of any loans subsisting over the properties or any of them and shall be responsible solely for paying out any fresh loan which does not appear as at 9 February 2009 on a title search of any of the properties and the costs associated with this, failing which the full value of such loan and costs shall be deducted from the Husband's share of the net sale proceeds.

12.

The Husband retain to the exclusion of the Wife the items of personal property, superannuation, savings, motor vehicle, furnishings, furniture and household affects, chattels and personalty including any jewellery and stamps in his possession as at the date of the making of these Orders.

13.

The Wife retain to the exclusion of the Husband the items of personal property, superannuation, savings, motor vehicle, furnishings, furniture and household affects chattels and items of personalty in her possession as at the date of the making of these Orders.

Schedule A:

Lot 4 … South Australia, (Folio Identifier …)

Lot 3 … South Australia, (Folio Identifier …)

Lot 1 … South Australia, (Folio Identifier …)

Lot 106 … Tasmania, Certificate of Title Volume … Folio …

Lot 411 … Tasmania, Certificate of Title Volume … Folio …; Property Number: …

14.

In the event the husband has not done so, he shall pay the K rates referred to at item 24 in the balance sheet referred to in the Reasons for Judgment and in the event he fails to do so, that payment is to be made from monies the husband would otherwise receive from the proceeds of the sale of the K properties.

15.

In the event that any of these Orders directs a party to these proceedings to execute or sign an instrument, document or deed and that person refuses or neglects to comply with that direction within 7 days of a written request to do so or for any other reason the court considers it necessary to exercise its powers under s 106A of the Family Law Act 1975 (Act) then the court may appoint one of its officers or another person to execute the instrument, document or deed in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the instrument, document or deed.

16.

Liberty be granted to any party on 7 days notice to seek further orders in order to implement these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.