Kusno and Kusno (No. 2)

[2018] FamCA 242

FAMILY COURT OF AUSTRALIA

KUSNO & KUSNO (NO. 2) [2018] FamCA 242

FAMILY LAW – ENFORCEMENT OF ORDERS – Where orders providing for the sale of the former matrimonial home were made almost 12 months ago – Where the parties are not capable of giving effect to those orders – Where the wife now seeks that a trustee be appointed for the purposes of sale of the property – Orders made appointing a trustee for sale. 

Family Law Act 1975 (Cth) ss 80, 80(1)(k)

Kusno & Kusno [2018] FamCA 63

APPLICANT: Ms Kusno

RESPONDENT: Mr Kusno

FILE NUMBER: PAC 5051 of 2016

DATE DELIVERED: 28 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 21 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gilbert

SOLICITOR FOR THE APPLICANT: David Legal

SOLICITOR FOR THE RESPONDENT: Mr Bryett of A R Walmsley & Co

Orders

1. That by way of enforcement of the Orders made on 10 April 2017 and for the purposes of facilitating the sale of the former matrimonial home known as and situate at L Street, Suburb C (“the Suburb C property”) Mr M, Solicitor, shall be appointed to act as Trustee for the Husband and Wife (“the Trustee”) and for this purpose the Suburb C property shall vest in the Trustee for sale.

2. That for the purposes of Order (1) above, the Trustee shall:

   (a)Cause the Suburb C property to be listed for sale by public auction with such real estate agent/s as appointed by the Trustee (“the Listing Agent”);

   (b)Cause the listing/reserve price of the Suburb C property to be set at an amount nominated by the Trustee in conjunction with the Listing Agent with the intent of maximising the sale price for the benefit of the parties;

   (c)Cooperate in every way with the Listing Agent in relation to the marketing of the Suburb C property for sale including making the key readily available, allowing inspection of the Suburb C property at all times reasonably requested by the Listing Agent and ensuring that the Suburb C property is clean, neat and in good condition at the time of inspection by any prospective buyer;

   (d)Upon agreement being reached for the sale of the Suburb C property the Trustee shall execute the contract of sale and all other documents necessary to complete the sale of the Suburb C property including all transfer documents forthwith upon its submission to them by the agent or their solicitor; and

   (e)Cause the proceeds of sale to be paid in the following manner and priority:

   (i)To discharge any mortgage/s secured over the said property;

   (ii)Payment of the Listing Agent’s commission and advertising and other expenses, if any, payable on the sale;

   (iii)Payment of legal costs relating to the sale;

   (iv)Payment of outstanding utilities and rates;

   (v)Payment of the Trustee’s reasonable costs;

   (vi)Payment of such sums to the parties in compliance with the Orders made on 10 April 2017; and

   (vii)Payment of the balance of the funds in accordance with Orders made on 10 April 2017.

3. Any application for costs arising out of the present Application shall be made by way of written submission forwarded to the Associate in Chambers within 28 days with any response to be by way of written submission within a further 14 days and thereafter judgment as to costs will be reserved to Chambers.  

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 Kusno & Kusno (No. 2) 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 remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5051  of 2016

Ms Kusno

Applicant

And

Mr Kusno

Respondent

REASONS FOR JUDGMENT  

1. These are ongoing proceedings in relation to property adjustment as between the applicant wife and respondent husband.

2. On 10 April 2017 interim orders were made by consent that in substance provided for the parties to obtain a valuation of their real estate holdings and for the sale of the parties’ property at L Street, Suburb C, New South Wales, being the whole of the land in folio identifier … (“the Suburb C property”).

3. The agreed sale orders provided for the appointment of a real estate agent for the purposes of the sale, that the Suburb C property be sold by private treaty within 42 days from the date of its listing for sale and in default the property be offered for sale by public auction no later than 30 September 2017.

4. Orders, otherwise, provided for an orderly disposition of part of the proceeds of sale with the balance after various payments to be divided equally between the parties.

5. This further application comes before the Court in circumstances where the sale has not taken place and the wife complains that the husband has by his own inaction continued to frustrate the sale process.

6. In an earlier interim application and by reason of the failure to sell the Suburb C property pursuant to orders made 10 April 2017, the wife sought further or other provision by way of interim property adjustment. The parties’ respective applications in the context of this earlier interim application were both dismissed on 9 February 2018: Kusno & Kusno [2018] FamCA 63. These reasons for judgment assume familiarity with reasons delivered on 9 February 2018.

7. The wife now seeks orders to give effect to the sale orders for the Suburb C property made by consent in April 2017.

8. In her Application in a Case filed 8 March 2018, the wife seeks orders that, in summary, provide:

   a)for the appointment of Mr M, solicitor, as Trustee for the husband and wife to give effect to the sale orders in relation to the Suburb C property made on 10 April 2017;

   b)that the Trustee cause the sale of the Suburb C property and a distribution of the proceeds of sale in accordance with orders made on 10 April 2017.

9. The wife relied upon her affidavit filed 8 March 2018 and the affidavit of the proposed Trustee as to his qualifications and consent to his appointment.

10. The wife asserts that the Suburb C property has not been sold, despite clear orders facilitating that sale made on 10 April 2017. She complains that the husband has been inactive in relation to implementation of the sale orders and seeks orders taking the sale out of the hands of her and the husband and placing that responsibility in the hands of the proposed Trustee.

11. The husband relies upon his Response to the wife’s Application in a Case filed 20 March 2018 in which he seeks an order that the wife’s Application in a Case be dismissed.

12. The husband relies upon his affidavit filed 20 March 2018. Relevantly he asserts in his affidavit that he is concerned that if a trustee is appointed that such appointment will become public knowledge and the property sale may not obtain the best price reasonably obtainable.

13. Otherwise, the husband offers no evidence as to circumstances that have precluded the property being sold in accordance with consent orders made almost 12 months ago.

Discussion

1. The power of enforcement is a discretionary one, but in most circumstances should be exercised to give efficacy to the orders made by the Court as appropriate.

2. The sale of the Suburb C property was ordered in circumstances where certain liabilities of the parties secured over the property were to be discharged from the proceeds of sale, there being a concern that the husband whilst continuing in occupation of the property was not meeting those ongoing liabilities. The sum of $300,000.00 was to be held in a controlled monies account on behalf of the parties and the balance after payment of selling costs was to be divided equally between the parties.

3. The realisation of funds from the sale would provide to the parties funds so as to continue the present litigation and for other purposes.

4. In the context of property orders, whether interim or otherwise, the Court may exercise its powers under s 80 of the Family Law Act 1975 (Cth) that provides, inter-alia, that the Court may make any order which it thinks is necessary to do justice in the circumstances: s 80(1)(k).

5. Clearly, it is the intention of the parties that the subject property be sold and it is just as clear that the parties are incapable of bringing the orders made in April 2017 to fruition.

6. In such circumstances it is appropriate that orders be made as sought by the wife. Orders will be made accordingly.

7. Any application for costs arising out of the present application shall be made by way of written submissions and an order will be made accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 March 2018.

Associate:   

Date:  28 March 2018