Markell and Markell (No 2)

[2019] FamCA 411

FAMILY COURT OF AUSTRALIA

MARKELL & MARKELL (NO. 2) [2019] FamCA 411

FAMILY LAW – PROPERTY – Where Orders were made by consent on a final basis between these parties in respect of property adjustment proceedings – Where the Orders were amended to allow the husband a further period of time to refinance debt secured over two real properties – Where the husband is imprisoned – Where the husband did not sell one particular property by auction in the further time allowed as required by the amended Orders – Where the wife has filed an application for enforcement of the final Orders as amended and seeks to be appointed as trustee for sale of the real property to sell the property – Where the husband opposes the application and asserts that the wife is not fit to be appointed as trustee – Where the assertions raised by the husband are not good enough grounds to not appoint the wife as trustee for sale and the wife is so appointed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Markell

RESPONDENT: Mr Markell

FILE NUMBER: BRC 6823 of 2012

DATE DELIVERED: 3 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 June 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Evans

Evans Brandon Family Lawyers

THE RESPONDENT: Self-represented (appearing by telephone)

Orders

1. That by way of enforcement of the orders made by consent on 7 August 2018, as amended by the Orders of the Court on 14 March 2019, (“the Orders”) the wife shall be appointed Trustee for Sale of the property at I Street, G Town, more particularly known as Lot … on Registered Plan … and under Title Reference … (“the G Town Property”).

2. That for the purposes of her appointment, the wife shall:

   (a)carry out the terms of the Orders relating to the sale in place of the husband;

   (b)be and is hereby authorised to effect a transfer of the property into her name by signing as Transferor and Transferee on such transfer whilst noting that she is appointed as Trustee for Sale;

   (c)for the purpose of her appointment, the wife shall have all the powers of a Trustee for Sale of real estate appointed pursuant to the laws of the State of Queensland, including or in addition thereto, to effect a sale of the G Town Property by:

   (i)instructing the current agent, or if he will not act, then T Group G Town, to conduct the sale;

   (ii)arranging an auction to occur within thirty (30) days;

   (iii)instructing the firm of solicitors, W Firm, to act for her in her capacity as trustee on the conveyance of the sale

   (iv)paying the proceeds out and disbursing same pursuant to the Orders;

   (v)dealing with the mortgagee/lenders to whom funds must be paid pursuant to the Orders;

   (vi)calculating and remitting to herself, the funds owed to her by force of the Orders; and

   (vii)upon completion of the settlement of the sales of the G Town Property, the wife shall file and serve an Affidavit of account in respect of the sale and disposition of the proceeds of the sale.

3. That the parties have liberty to apply to the Court for the making of any orders or the giving of any directions in relation to the trusts created by these Orders.

4. That in event that the proceeds of sale of the property are insufficient to satisfy payment of the amounts referred to in the Orders then the wife has liberty to re-list the matter for such further enforcement orders as may be necessary.

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 Markell & Markell 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 BRISBANE

FILE NUMBER: BRC 6823 of 2012

Ms Markell

Applicant

And

Mr Markell

Respondent

REASONS FOR JUDGMENT

1. On 14 March 2019 I pronounced orders that amended final property adjustment Orders I had made on 7 August 2018. Those 2018 final Orders had been made by consent. The Orders I made on 14 March this year were made after the hearing of competing applications of the parties in which each was seeking amendments to the August 2018 final orders. I published written Reasons for Judgment that same day.

2. The amendments made to the final Orders essentially gave the husband an indulgence, consented to by the wife, of a further 30 days to refinance debt secured over two real properties, most particularly over one registered in his name that he wanted to retain if he could. He had not achieved that refinancing within the six months originally provided for in the August 2018 final Orders. In default of his refinancing, the amendments I made on 14 March 2019 required him to sell the property by auction within a further 30 days.

3. The husband has not refinanced the debt and he has not yet sold the property by auction.

4. In the meantime, he has filed an application for leave to file out of time an appeal against my March 2019 orders. That has been listed for hearing on Wednesday, 10 July 2019.

5. Though the husband has also asked the Full Court for an order that a “stay” be placed on my Orders, he has not applied to me for an order staying my previous orders pending the determination of his application for leave to appeal out of time or pending the determination of any appeal he may be given leave to prosecute.

6. At the same time, the wife has filed an application for enforcement of the final Orders as amended. She seeks to be appointed as trustee for sale of the real property that is registered in the husband’s sole name so that she can ensure that the property is sold as quickly as possible so that she receives the payments she is entitled to receive under the final Orders as amended. The husband opposes her application.

7. The wife’s application and two supporting affidavits (one from her and one from her solicitor) were filed on 17 June 2019 and the matter was listed for hearing on Thursday, 27 June 2019. When the matter was called on, the wife’s solicitor appeared and the husband, who is serving a very lengthy prison sentence for murder, appeared by telephone from prison without representation.

8. The husband told the Court that he had only received the Court documents from the wife late last week and had only posted his Response and his supporting affidavit to the Court yesterday and that I should not proceed to hear the matter without that material before me. I understood that to be an application for an adjournment based on the fact, solely, that I did not have his affidavit and Response before me.

9. He told me that he opposed the wife’s application and did not agree that she be appointed trustee to sell the property. He told the Court that the property was currently listed for sale by auction on Saturday, … 2019 at the offices of the real estate firm that is handling the sale. I asked him to tell me as much as he could remember about what was in the affidavit that he had posted to the Court the day before the hearing. He did do that.

10. The husband also made an oral application to cross-examine the wife on her affidavit. I dismissed that application and gave oral reasons for that at the time.

11. I proceeded to hear the submissions of the wife’s solicitor and then I heard oral submissions from the husband. At the conclusion of those submissions, I made the following Orders:

    IT IS ORDERED UNTIL FURTHER ORDER

    2.That the respondent husband is restrained from entering into any contract for the sale of the property situated at … without the written consent of the wife.

    IT IS FURTHER ORDERED

    3.That the decision on the disposition of the application being considered today be reserved for further consideration after receipt of the Response and Affidavit of the respondent husband that he informed the Court he posted to the Court on Wednesday, 26 June 2019.

    4. That should such Affidavit and Response said to have been posted by the respondent to the Court on Wednesday, 26 June 2019 not be received by the Court by close of business on Thursday, 4 July 2019, the Judge shall proceed to disposition of the application heard today in any event.

12. I made those Orders so that the husband could be satisfied that I would not determine the application without at least reading and considering the evidence he included in the affidavit that he said he had posted to the Court the day before the hearing. I was satisfied that eight days was a reasonable period of time within which to expect documents posted to the Court from prison would be received by the Court. The husband made no submission to the contrary.

13. The solicitor for the wife also made a submission to me that it would be appropriate for the Orders the wife sought to be made in any event before Saturday, … 2019 as that was the day the subject property was said to be currently listed for auction.

14. The husband’s Response and affidavit supporting it were received by the Court on Monday, 1 July 2019. I have now read those documents.

15. The evidence filed and relied upon by the wife persuades me that the husband has not refinanced within the period provided for in the final Orders as amended in March this year and that he did not take steps to ensure that the property was sold at auction within a further 37 days as required by the final Orders as amended. Indeed, he appears to have openly and wilfully defied the Orders that required that and simply listed the property for sale by private treaty in the first instance. It seems that he considers that was his entitlement, regardless of what the Orders stated. There was also evidence that the husband had demonstrated an apparent willingness to enter into a contract for the sale of the property on terms that were prejudicial to the wife’s interests and quite contrary to the final Orders as amended. In my view, all of that evidence prima facie supported the need to impose the interim restraint on the husband that I did in the first of the Orders I made at the conclusion of the hearing last week and also supports the need to determine this immediate application before the auction takes place.

16. The husband made it clear to the Court in his oral submissions at the hearing that he does not really want the property to be sold. I am satisfied that his actions to date and, more particularly, his inactions, are consistent with a determination not to sell the property. I am particularly concerned that he wishes to tie his former wife up in litigation in this Court for as long as he possibly can.

17. The husband did tell the Court that the subject property was included in a list of properties that were to be auctioned on 15 June but that, for some unexplained reason, had been postponed to Saturday, … 2019. He effectively urged the Court to accept that is consistent with an intent to sell it as obliged. It appears though that he has begun to assert that the property has been listed for sale by auction only after the wife’s solicitor informed him that application would be made by the wife to be appointed trustee for sale of the property given his inaction to auction the property to date.

18. Notwithstanding that the property may be listed for sale by auction on …, given the husband’s Application for Leave to file a Notice of Appeal out of time is listed for Wednesday, 10 July 2019 and he apparently seeks a stay order from the Full Court, I am not satisfied that the husband will actually ensure that the property goes to auction on that date. I am satisfied that the husband, if left in charge of the sale of the subject property, would likely instruct the listing agent not to sell the property at auction that day given his application to the Full Court is not to be heard until the following week.

19. Further, at the hearing of the application on Thursday, 14 June 2019, the husband also told the Court that he is still desperately trying to achieve refinancing and is now ready to make the wife an offer to resolve the matter by way of some process of refinancing that involves one of their adult daughters. That is his right, as is the right of the wife to accept any such offer, negotiate further with him about such offer or to reject such offer. I am not moved to dismiss the wife’s application by the husband’s assertions about this matter of refinancing. However, his assertions actually reinforce my satisfaction that, absent any agreement reached between him and the wife, the husband will not ensure that the property is sold at auction on Saturday, … 2019 if left in charge of that process.

20. My views about that are further reinforced by a reading of the Response he filed. In that, he actually sought orders that he and the wife instruct Westpac to use the subject property as security for one of the loans and that the caveat the wife has caused to be registered over the property be removed. He also sought orders that he continue his attempts to sell the subject property and that the wife’s application to be appointed trustee for the sale of the property be adjourned until his matters pending in the Full Court of this Court are “finalised”.

21. I certainly understood, as I have said, that the husband does not want the property to be sold by the wife as trustee. I understood that he does not really want to sell it and would prefer to retain it if he could, though that would necessitate a refinancing in accordance with the final Orders he consented to last year. At the moment, I am not persuaded that the matter he has commenced in the Full Court is anything other than a step taken to stop the subject property from being sold in accordance with the final Orders as amended by me earlier this year.

22. In all the circumstances, should I appoint the wife as trustee for sale of the property at this time? The husband based his opposition to the wife’s application to be appointed trustee, principally, on an assertion that she is “not fit to be trustee”. In support of that assertion, he made a number of factual assertions. I do not accept that any of his bald assertions of fact are correct or that even if they were, they are grounds for not making the wife trustee for sale of the subject property now. One of those assertions, about her withdrawing funds from a joint account in 2012, was, I consider, not relevant at all, even if true.

23. He went on to assert that the wife “has never bought and sold property in her life” and also that when she had previously sought to sell a property at auction she “didn’t attract a bid”. He said these things orally and he said them in his affidavit that the Court received.

24. With respect to the husband, none of those assertions persuade me that the wife is not fit to be appointed trustee for sale of this particular property. The Orders that are in place and the orders that the wife seeks see the agent who was appointed by the husband (and through him the proposed auctioneer) remain in place unless that agent refuses to continue to act on instructions from the wife. The husband was at pains to tell the Court that this particular agent is very capable and, indeed, is the “best on the Coast”. If that is correct, then any assertion that the wife has not sold property before has little weight if she is being advised on matters of sale and marketing by this very competent agent. At the same time, she is being advised on matters of law by her current solicitor who is a very senior, accredited family law specialist. Accordingly, I am confident that the wife is being and will be very well advised on the sale process and the fundamental obligations that attach to her role as trustee for sale. She cannot simply sell the property for whatever amount she can get for it as the husband asserts she will.

25. The orders that are sought by the wife do not seek to interfere with the means by which the reserve price at auction is to be determined. That process is already set out in the existing final Orders as amended. The husband’s expressed concern that the wife will sell the property at a gross undervalue is, therefore, without foundation. If the auctioneer resets the reserve price and the husband is not happy with that then the course he can take in response is already provided for in the Orders. The wife’s solicitor made it totally clear to the Court at the hearing that he and the wife understand that and will act in accordance with the requirements and obligations of the existing Orders.

26. I am not persuaded that there are good grounds not to appoint the wife as trustee for sale of the property in any of the grounds advanced by the husband orally or in his affidavit.

27. Finally, I turn to consideration of a couple more matters that I consider relevant to the exercise of the discretion required in the determination of the wife’s application. As I have already observed, the husband seeks leave to file, out of time, an appeal against my Orders of 14 March 2019. He also asks the Full Court to stay those Orders of 14 March 2019. He does not seek leave to file, out of time, an appeal against the Orders of 7 August 2019. Nor does he ask the Full Court to stay those Orders.

28. As I pointed out to the husband during the hearing on Thursday, 27 June 2019, any application to stay Orders made by me should be made to me in the first instance. He did not indicate any desire or intention to apply to me for such a stay. In any event, the principles by which the exercise of a discretion to grant a stay are well established. Matters to be considered and weighed up include whether or not the applicant for the stay has a reasonably arguable case on appeal. They also include the question of whether failure to grant a stay would render his appeal nugatory.

29. I consider these same matters relevant now to whether or not I should accede to the wife’s application to be appointed trustee for sale.

30. I have read the husband’s Application for Leave to file an appeal against my March 2019 Orders out of time. I have read his draft Notice of Appeal. I have read his affidavits filed in support of his application. Whilst I accept he may have reasonable prospects of obtaining leave to file a Notice of Appeal out of time having regard to the explanation for his failure to have done that within the required time, I consider his prospects of succeeding on his appeal, as currently cast, are negligible.

31. Further, as his application to the Full Court is being heard on 10 July and he is asking the Full Court to stay my Orders, I do not consider that any appeal he may be given leave to file out of time and to prosecute will be rendered nugatory if my Orders are not stayed before 10 July. If the wife is appointed trustee for sale before the auction and the agent and auctioneer continue to act on her instructions, with the reserve price being fixed as it already is, the worst that could happen from the husband’s point of view is that the property could be sold at a price determined pursuant to a reserve that the husband has already approved. Settlement of any such sale would not be expected to take place before the hearing in the Full Court on 10 July and no money would be paid out in accordance with the existing final Orders as amended. The husband would not have suffered prejudice beyond the sale of the property that he says he wants to retain in circumstances where he has had more than reasonable opportunity to retain it in accordance with a time frame and scheme that he consented to as long ago as August last year. The real substance of the appeal he seeks to prosecute, namely the seeking of significant changes to the sums of money that are to be paid to the wife on the sale of the property, will not have been rendered nugatory. His right to seek to have my Orders stayed in circumstances where the property may have sold before 10 June will still endure on 10 June or thereafter, depending on whether he is given leave to file his Appeal out of time. If he is not given leave to file his Notice of Appeal out of time, the argument will be moot in any event.

1. If the property has sold or if it has not, and the husband is granted leave to appeal out of time, he can press his application to the Full Court for a stay of my Orders at that time or, subsequently, at any time prior to any distribution of the money from the proceeds of sale of the property made in accordance with the existing Orders.

2. Further, the husband maintained his assertions that he simply has not been able to refinance because of the caveat the wife has lodged over the title to the property. He maintains that his financier, Westpac, has flatly told him that they will not refinance whilst the caveat remains registered. He provides no evidence corroborating that bald assertion.

3. In my written Reasons for Judgment published on 14 March 2019, I set out my views about this claim. I rejected it then and explained why. The Orders I made provided what I consider to be suitable provisions to satisfy any prospective financier that the caveat would be removed before the settlement of a refinancing. The fact that the husband has not managed to persuade Westpac to provide him with the necessary refinancing, if that is true, is a matter between him and the bank. As I said in my March reasons, I deliberately will not order the wife to remove the caveat in any circumstances that would expose her to risk of prejudice by unilateral action of the husband that would increase debt secured against the property she seeks to retain.

4. I reject the husband’s assertions in this respect.

5. Ultimately, I am not persuaded by anything said by the husband at the hearing, or advanced by him in the affidavit received by the Court from him, that the wife should not immediately be appointed as trustee for sale of the property on the terms proposed by her.

6. I make the Orders set out at the commencement of these written reasons by way of enforcement of the final Orders in this matter. 

7. The husband included in his Response an order that he seeks for the enforcement of an April 2017 parenting Order made in the parenting proceedings between him and the wife. The parenting proceedings have been finalised. If the father contends, as it appears he does, that the mother has contravened an Order, I do not consider it appropriate for him to simply seek such an Order by including it in a Response to her application to be appointed as trustee for sale in the property proceedings. Such an application is more appropriately dealt with via an Application – Contravention. It is a matter for the husband as to whether he wishes to file such an application. It may be that he has a case and he may succeed in obtaining enforcement. However, if the mother successfully defended such proceedings by proving that she did not contravene existing Orders or that she had a reasonable excuse for contravening, if she did, the provisions of Division 13A of Part VII of the Family Law Act 1975 (Cth) provide for costs orders to be to be made against unsuccessful applicants. The husband should be aware of that when considering his options.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 July 2019.

Associate: 

Date:  3 July 2019