Kuay-Hoa and Hoa

[2007] FamCA 1278

FAMILY COURT OF AUSTRALIA

KUAY-HOA & HOA [2007] FamCA 1278

FAMILY LAW – PROPERTY – Sale of property

Family Law Act 1975 (Cth)

APPLICANT: Ms Kuay-Hoa

RESPONDENT: Mr Hoa

FILE NUMBER: MLC 931 of 2007

DATE DELIVERED: 3 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 3 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.G.A. Deckker

SOLICITOR FOR THE APPLICANT: Oakfair Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the husband shall within 48 hours of a written request by the wife’s solicitor sign a sale note, contract of sale and any other document required by the wife’s solicitor to effect the sale of the property at R, New South Wales (“the property”) at a sale price of $430,000.

2. That in the event that the husband fails to sign any document referred to in paragraph 1 of these orders, a Registrar of the Family Court of Australia shall sign such document or documents on his behalf pursuant to s 106A of the Family Law Act 1975 (as amended).

3. That the Real Estate Agent LJ Hooker shall remain as the exclusive agent for the sale of the property unless the parties agree in writing to the appointment of another agent.

4. That the Reasons for Judgment given this day shall be transcribed and retained on the court file.

5. That the preparation of these orders shall be expedited.

6. That the wife’s Form 2 application filed 28 September 2007 shall otherwise be dismissed.

7. That the husband shall pay the wife’s costs of this application fixed at $2,000, such sum to be deducted from the husband’s share of $30,000 to be received from the sale of the property.

IT IS NOTED that publication of this judgment under the pseudonym Kuay-Hoa & Hoa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 931 of 2007

MS KUAY-HOA

Applicant

And

MR HOA  

Respondent

REASONS FOR JUDGMENT

1. This is a case in which I made orders on 14 June this year.  The interim application before me that day in the course of the parties' contested property proceedings was primarily for injunctions to ensure that the husband in no way interfered with various properties, and a Barro order or an order that the husband pay the wife's solicitors $30,000 to meet legal fees in the course of the case.  Today’s proceedings relate to that Barro order.

2. The husband was to make the $30,000 payment by 29 June 2007.  Failing that, the parties were to place on the market for sale by auction a property in R, New South Wales.  The husband did not make the payment.  The property was placed on the market.  The parties were to agree on the selling agent and in the event that there was no agreement, the president of the Real Institute of New South Wales was to select the agent. 

3. The orders provided that the parties were to agree on the terms and conditions of auction, including a reserve price, and in default of agreement, the reserve price was to be fixed by the selling agent.  The orders then provided for the payment of $30,000 to the wife from the proceeds from the sale, and that in due course, the trial Judge would decide how the sum was to be characterised.

4. The wife's current Application in a Case was filed on 29 September 2007.  It seeks an order that the real estate agent, Mr S, of the firm L.J. Hooker be permitted to sign documents on the husband's behalf for the R property to be sold at a price not less than $430,000.  The application is supported by an affidavit filed 29 September 2007.  The husband filed an affidavit on 1 October 2007. 

5. I have read the material and I have heard submissions from Mr Deckker for the wife and from the husband, assisted by a Mandarin interpreter.  The husband has represented himself.  This morning at my invitation, he saw a duty lawyer from Legal Aid but after that, he advised that he wished to proceed, representing himself.

6. Although the case appeared to be complex as the husband was describing the intricacies to me, in fact it is very simple. The parties did agree that L.J. Hooker would be the selling agents.  They did agree that the auction would go ahead on 17 September 2007. They received an offer of $430,000.  The husband says that he was not agreeable to that as the appropriate selling price.  The wife, through her solicitor, speaking with the agent by telephone, was agreeable.  The court orders are clear.  If there was no agreement as to the reserve price, the agent was to decide. 

7. The husband has raised a number of matters that when properly analysed are in my view “red herrings”.  They are not directly relevant to the issues.  He says that L.J. Hooker was "unsuccessful" in selling the property.  That is not the case.  They conducted an auction at the behest of the parties and took the view that the highest bid received was an appropriate offer.  The husband tried to argue that the agency period stopped on 14 September 2007 and that thereafter, he dealt with another real estate agent, M Company, who suggested a much higher reserve amount.  He also said at one point that the wife agreed to the use of that other agent. 

8. I reject both those assertions.  He agreed to the auction proceeding on 17 September 2007 and I am therefore satisfied that L.J. Hooker was the agent at that time.  He could not support his claim that the wife had agreed to M Company acting.  He had to concede that she had signed no documents in that regard.  He had no direct evidence to refute the wife's claim that she never agreed to M Company acting.  Although he says that some-one called “[Mr N]” from M Company contacted the wife, there is no independent material to that effect.  Moreover, I am not satisfied that the husbnad has been acting in good faith in terms of many of these claims in his affidavit and here today. 

9. At paragraph 9 of the wife's affidavit, she swore that:

   Immediately after the auction, Mr [S] advised my solicitors that the husband refused to sign the contract of sale to the highest bidder at $430,000 because he wanted an agreement that the deposit moneys would be released to him to enable him to pay a large Centrelink debt owed by him.  This was the first time the husband raised such an issue.

10. When that was put to the husband at the bar table, he agreed that was the case.  That adds significant weight to the submissions of Mr Deckker, that the husband is trying to delay the sale only because he could not have moneys directed in a way that he wanted that was different from the previous orders. 

11. I will grant the wife's application for a Registrar of this Court to sign the contract documents on the husband's behalf.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  3 October 2007