MACFARLANE & HURLEY

[2012] FamCA 507

FAMILY COURT OF AUSTRALIA

MACFARLANE & HURLEY [2012] FamCA 507

FAMILY LAW - PROPERTY – interim orders for the sale of premises at which the parties conduct a business

APPLICANT: Ms MacFarlane

RESPONDENT: Mr Hurley

FILE NUMBER: SYC 4810 of 2009

DATE DELIVERED: 29 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 29 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Streeter Law

COUNSEL FOR THE APPLICANT: Ms Eldershaw

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls Partners

Orders

1. That the husband in his capacity as sole director of C Investments Pty Ltd as trustee for the C Trust (“Business C”) and as sole director of T Pty Ltd (“Business T”) do all acts and things and execute all documents necessary to:

   (a)Obtain consent from the lender for Business C and Business T to enter into a lease on the terms set out at subparagraph (b) below;

   (b)Cause Business C to offer and for Business T to accept such offer to enter into a lease on the following terms:

   (i)The term of the lease to be five years with one five year option to renew;

   (ii)The rental for the first year to be $192,600 gross per annum with annual CPI review;

   (iii)The rental for each option term to be calculated at market rate.

2. That the wife shall do all things and execute all such documents as may be required of her to facilitate the provisions of order 1(a) above.

3. That the husband in his capacity as sole director of Business C do all such things and execute all documents necessary to cause Business C to list the Suburb A property for sale on the following terms:

   (a)       The agent on the sale be S Agents;

   (b)       The solicitor acting on the sale be Mr J;

   (c)The property be listed for sale by public auction with such auction to be held no later than 1 September 2012;

   (d)The parties pay in equal shares the marketing and advertising costs in respect of the sale as and when they fall due;

   (e)The husband be authorised to negotiate with any prospective purchaser to achieve a sale at the best price reasonably obtainable;

   (f)The husband shall conduct the sale on behalf of Business C and shall keep the wife informed of all offers and developments in respect of the sale but shall not be entitled to agree to sell the property without the consent of the wife.

4. That in the event that either party fails to execute any document required to give effect to these orders that pursuant to Section 106A of the Family Law Act the Registrar of the Family Court of Australia at Sydney be authorised to execute such document instead of the defaulting party.

5. That the costs of the parties in respect of the appearance today be reserved.

6. That the parties have liberty to apply by arrangement with the Associate to the Honourable Justice Rees in the event that it is necessary urgently to relist the matter in relation to the sale of the Suburb A property.

7. That the balance of the applications be stood over to 12 July 2012 at 10.00 am before the Honourable Justice Rees.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Ms MacFarlane

Applicant

And

Mr Hurley

Respondent

REASONS FOR JUDGMENT

1. There is an application before the Court, filed in Court by the wife on 6 March 2012, in relation to the sale of premises at Suburb A (“the Suburb A property”), from which the parties conduct a business, through the medium of a company of which they each own shares.  The company trades under the name of “[Business T]”.

2. By a response the husband seeks orders for the sale of the property which are different from those sought by the wife.  The matter came before the court this morning and there was no appearance by the wife.  The matter was stood in the list and at 2.15 pm this afternoon Ms Green appeared for the wife.  Ms Green is instructed to consent to some of the orders which have been pressed on behalf of the husband, and not instructed to agree in relation to other orders, which are pressed.

3. It is agreed between the parties that they have been served with a notice, pursuant to section 572B of the Real Property Act 1900 (NSW), by the mortgagee, and that the mortgagee will be entitled to take possession of the Suburb A property on 28 August 2012. The property is the premises from which Business T conducts its business. The value of the property is a matter of dispute between the parties but it is accepted by both of them that it would be preferable for the parties to market the property in an orderly fashion rather than to allow the mortgagee to take possession.

4. The parties have consented to a number of orders, which include seeking consent from the lender for the business Business T to enter into a lease of the property; offering the property for sale; the name of the solicitor to act on the sale; and machinery orders for the conduct of the auction. 

5. The matters in relation to which the parties disagree are the agent to be instructed on the sale; and terms of the husband’s authority to negotiate.

6. Having regard to the submissions that have been made on behalf of the wife in relation to the latter matter, that is no longer in dispute, provided that the husband does not have the final authority to agree to a final sale price and must consult the wife, and have her consent, before the property is sold.

7. I am therefore required to determine who the agent in relation to the property should be. 

8. On 23 March 2012 the solicitors for the husband sent a letter to the solicitors for the wife proposing two agents to market the property. The agents were S Agents and N Agents.  On 26 March 2012 solicitors for the wife wrote to the solicitors for the husband, indicating that they did not agree with the proposed agents, but suggesting no other agent. 

9. I pause here to note that, in the wife’s application filed on 6 March 2012, although she sought the sale of the property, she did not nominate an agent.

10. On 6 May 2012 a further letter was sent to the solicitors for the wife. That letter annexed detailed marketing proposals prepared by each of S Agents and N Agents. On 15 May 2012 a letter was received by the solicitors for the husband from the solicitors for the wife, rejecting the proposals for marketing and particularly the nominated agents, but suggesting no alternatives. 

11. No further correspondence has been received from the wife, and she has not, at any time, proposed any other agent.  In those circumstances the husband chooses S Agents to be the agents who market the property on the basis of a slightly more favourable financial arrangement.

12. In circumstances where there is no evidence before me of any agent proposed by the wife, and no indication of any mechanism to resolve this matter other than by the appointment of S Agents, I propose to make the order that S Agents be instructed as the agent for the sale.

13. In relation to the husband’s authority to negotiate with any prospective purchaser I will make an order as sought by the wife that that authority be confined to negotiation.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 June 2012.

Associate: 

Date:  5 July 2012