Mackerith and Mackerith

This matter concerned the orders of Judge B Smith regarding the sale of two properties, the "home" and the "factory," owned by the parties, identified as the Husband and Wife. The dispute centred on the terms and conditions under which these properties were to be placed on the market and sold, including the appointment of agents and solicitors, the setting of sale prices and reserve prices, and the procedures for auction and negotiation if private treaty sales were unsuccessful. The court was also required to determine the distribution of the proceeds from the sale of both properties.

The court was tasked with determining the specific mechanisms for the sale of the home and the factory, including the timelines for listing, the process for agreeing on or appointing agents, solicitors, and valuers, and the conditions for private treaty sales versus public auctions. Further issues included the establishment of reserve prices for auctions, the negotiation process if reserve prices were not met, and the procedures for subsequent auctions if the properties remained unsold. The court also had to order the distribution of sale proceeds, including the discharge of mortgages and payment of expenses, and the division of any remaining balance between the parties.

In its reasoning, the court established a detailed framework for the sale of both properties. For the home, it mandated that within fourteen days, the parties must take all necessary steps to list it for sale. This included agreeing on or having appointed by the Australian Property Institute (NSW) Division, a real estate agent and a solicitor to conduct the sale. The sale price was to be agreed upon or determined by a valuer. If private treaty sales did not conclude within three months, the property was to be auctioned within four months. Specific provisions were made for setting reserve prices, negotiating with bidders if the reserve was not met, and conducting subsequent auctions with progressively reduced reserve prices until sold. Similar detailed provisions were made for the sale of the factory, with the exception that proceeds from the factory sale were to also cover capital gains tax and any outstanding GST before distribution.

Upon completion of the sale of the home, the proceeds were to be used first to discharge the mortgage to Westpac Banking Corporation and pay all sale expenses, with the remainder to be held in trust. For the factory, sale proceeds were to cover sale expenses, capital gains tax, and GST, with the balance also held in trust. Ultimately, each party was to receive an equal sum from the residue of the proceeds of both sales up to $50,000. Each party was ordered to bear their own costs of the application.