FAMILY COURT OF AUSTRALIA
| LOTTA & LOTTA | [2017] FamCA 916 |
| FAMILY LAW – PROPERTY – Enforcement of Orders – Where application for enforcement warrant to sell real property – Where husband in default of final property orders providing for payment to wife – Where appropriate to order warrant. FAMILY LAW – COSTS – Where application for costs of enforcement application – where consideration of applicable principles – Where application necessitated by husbands default – Where proper for costs order to be made. |
| Family Law Act 1975 (Cth) ss 105, 117, Family Law Rules 2004 (Cth) rr 19.08, 19.18, 20.05, 20.16 |
| Bele & Vaughan (Costs) [2012] FamCAFC 198 Hawkins & Roe [2012] FamCAFC 77 Kohan & Kohan (1993) FLC 92-340 Lotta & Lotta [2017] FamCA 50 Penfold v Penfold (1980) 144 CLR 311 Prantage & Prantage [2013] FamCAFC 105 Ramsey & Ramsey (1983) FLC 91-301 Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 |
| APPLICANT: | Ms Lotta |
| RESPONDENT: | Mr Lotta |
| FILE NUMBER: | PAC | 3435 | of | 2013 |
| DATE DELIVERED: | 14 November 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 5 September 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Hazim of Thurlows Family Lawyers |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
Orders
That an Enforcement Warrant issue forthwith pursuant to Part 20.3 of the Family Law Rules directing the Marshal of the Family Court of Australia or his nominee, as enforcement officer, to do acts reasonably required to seize and sell the property at Y Street, Suburb B NSW being the land in Folio Identifier 12/DP1015402 with such assistance and force as is necessary and apply the proceeds of sale in the following order and priority:
(a)all fees and expenses of the Marshall associated with the seizure and sale;
(b)the reasonable costs of sale;
(c)discharge of the secured debt to Westpac Banking Corporation;
(d)discharge of the debt to the Chief Commissioner of State Revenue;
(e)in payment to the wife Ms Lotta the amount payable including interest under the order of this Court made at Parramatta on 6 February 2017;
(f)in satisfaction of any costs order due and payable by the husband;
(g)any remaining balance to the husband Mr Lotta.
That the husband vacate the said property within one month from the date of these orders and deliver up all keys and security pass words to the said property to the enforcement officer or his nominee and thereafter the husband is restrained from entering upon the said property by himself, his servants or agents save with the written consent of the enforcement officer or his nominee.
That the Marshall is appointed to sign all documents on behalf of Mr Lotta necessary to effect the seizure and sale.
That the wife or the enforcement officer have liberty to apply to the Court for further or other orders on short notice.
That the Marshall must report to the Registry manager in writing concerning the outcome of these enforcement orders.
These enforcement orders remain in force for 12 months…
Continue reading LOTTA & LOTTA
Sign in free to access the full text
- AGLC
- LOTTA & LOTTA [2017] FamCA 916
- Case
- [2017] FamCA 916
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it was appropriate to issue an enforcement warrant to seize and sell real property owned by Mr Lotta to satisfy the debt owed to Ms Lotta. Additionally, the court considered the wife's application for the costs of these enforcement proceedings.
Foster J reasoned that the issuance of an enforcement warrant was necessary and appropriate given Mr Lotta's default. The court applied the principles governing the enforcement of family law property orders, concluding that a warrant to seize and sell the property at Y Street, Suburb B NSW was the most suitable course of action. The proceeds of sale were to be applied in a specific order of priority, commencing with the fees and expenses of the Marshal, followed by costs of sale, secured debts, and then the payment to Ms Lotta, any costs owed by the husband, and finally any remaining balance to Mr Lotta. The court also ordered that Mr Lotta vacate the property within one month and appointed the Marshal to sign all necessary documents for the sale.
The court ordered that an Enforcement Warrant issue forthwith, directing the seizure and sale of the specified real property. Mr Lotta was ordered to vacate the property within one month and was restrained from entering it thereafter, except with the consent of the enforcement officer. The Marshal was appointed to sign all necessary documents on Mr Lotta's behalf. Furthermore, the husband was ordered to pay the wife's costs of the enforcement proceedings in the sum of $7,500.00 within one month. These enforcement orders were to remain in force for 12 months.
Orders
Orders of the court
1.
That an Enforcement Warrant issue forthwith pursuant to Part 20.3 of the Family Law Rules directing the Marshal of the Family Court of Australia or his nominee, as enforcement officer, to do acts reasonably required to seize and sell the property at Y Street, Suburb B NSW being the land in Folio Identifier 12/DP1015402 with such assistance and force as is necessary and apply the proceeds of sale in the following order and priority:
(a) all fees and expenses of the Marshall associated with the seizure and sale;
(b) the reasonable costs of sale;
(c) discharge of the secured debt to Westpac Banking Corporation;
(d) discharge of the debt to the Chief Commissioner of State Revenue;
(e) in payment to the wife Ms Lotta the amount payable including interest under the order of this Court made at Parramatta on 6 February 2017;
(f) in satisfaction of any costs order due and payable by the husband;
(g) any remaining balance to the husband Mr Lotta.
2.
That the husband vacate the said property within one month from the date of these orders and deliver up all keys and security pass words to the said property to the enforcement officer or his nominee and thereafter the husband is restrained from entering upon the said property by himself, his servants or agents save with the written consent of the enforcement officer or his nominee.
3.
That the Marshall is appointed to sign all documents on behalf of Mr Lotta necessary to effect the seizure and sale.
4.
That the wife or the enforcement officer have liberty to apply to the Court for further or other orders on short notice.
5.
That the Marshall must report to the Registry manager in writing concerning the outcome of these enforcement orders.
6.
These enforcement orders remain in force for 12 months from this date.
Costs
7.
That the husband pay the wife’s costs of and incidental to these enforcement proceedings assessed in the sum of $7,500.00 within one month from this date.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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.