Lahlou & Mansouri

[2021] FamCA 479

FAMILY COURT OF AUSTRALIA

Lahlou & Mansouri [2021] FamCA 479

File number(s):	SYC 6105 of 2019
Judgment of:	REES J
Date of judgment:	5 July 2021
Catchwords:	FAMILY LAW – INTERIM PROPERTY – Application by the wife to be appointed trustee for sale – Application dismissed.
Number of paragraphs:	13
Date of hearing:	5 July 2021
Place:	Sydney
Counsel for the Applicant:	Mr Blank
Solicitor for the Applicant:	M R Barber & Associates Solicitors & Conveyancers
Respondent:	Self-Represented
Counsel for the Interested Party:	Mr Afshar

ORDERS

SYC 6105 of 2019
BETWEEN:	MS LAHLOU Applicant
AND:	MR MANSOURI Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	5 JULY 2021

THE COURT ORDERS:

1.That the application of Ms Lahlou to be appointed trustee for sale of the property at B Street, Suburb C is dismissed.

2.That the balance of the application filed on 2 June 2021 is referred to the Docket Registrar for directions.

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lahlou & Mansouri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

REES J:

1. Ms Lahlou (“the wife”) seeks an order that she be appointed trustee for sale of a property which she owns jointly with Mr Mansouri (“the husband”).

2. Orders were made on 27 February 2020 which required the husband to pay to the wife the sum of $700,000 by 30 June 2020. In default of payment, the property at Suburb C was to be sold.

3. The husband has not paid the amount due and has taken no steps to sell the property.

4. On 15 May 2021, the mortgagee issued a notice pursuant to section 57 of the Real Property Act 1900 (NSW) and in late May 2021, the mortgagee commenced proceedings in the Supreme Court of New South Wales (“the Supreme Court”) seeking the issue of a writ of possession to enable the sale of the property. That application has been served on the wife but not upon the husband who, I infer, is avoiding service.

5. The application before the Court was filed by the wife on 3 June 2021. She seeks to be appointed trustee for sale of the property and an order that the husband “has contravened this Court’s order” in that he has failed to take the steps required to sell the property.

6. Before me, the husband appeared unrepresented. Although the mortgagee had not been joined as a party to the proceedings, Counsel appeared for the mortgagee to oppose the wife’s application.

7. Both the wife and the mortgagee want the sale of the property to proceed swiftly so that both can receive the funds due to them. There is sufficient equity in the property to satisfy the debt to the mortgagee and the debt to the wife and to leave a substantial balance for the husband.

8. In order for the sale to proceed, it will be necessary to have possession of the property where, at the present time, the husband is in occupation.

9. No application has been filed by the wife for the sole occupation of the property.

10. The wife’s application will be dismissed.

11. The procedures and facilities available to the mortgagee in the Supreme Court are more likely to expeditiously achieve the purpose desired by the wife and the mortgagee. This is particularly so where the wife would be obliged to file an amended application in the Family Court seeking occupation of the property and the husband must be allowed an appropriate time to respond.

12. The wife has not demonstrated any advantage to her of being appointed trustee in circumstances where she will receive a sum certain and the husband will bear any disadvantage of the property’s being sold by the mortgagee.

13. The proceedings in the Supreme Court were instituted first in time and will most appropriately achieve the sale of the property.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       5 July 2021