Marley and Ormonde and Ors - [2019] FamCA 455

FAMILY COURT OF AUSTRALIA

MARLEY & ORMONDE AND ORS

[2019] FamCA 455

FAMILY LAW – PROPERTY – Interim distribution.

Family Law Act 1975 (Cth) s 75(2), 79, 80, 117(2)

Medlow & Medlow [2014] FamCA 530
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Marley

FIRST RESPONDENT:

Mr Ormonde

SECOND RESPONDENT:

Ms Ormonde

THIRD RESPONDENT:

Mr B Ormonde

FILE NUMBER:

SYC

3012

2018

DATE DELIVERED:

3 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

24 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Apelbaum

SOLICITOR FOR THE APPLICANT:

Reid Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Ms Youssef

SOLICITOR FOR THE FIRST RESPONDENT:

Harper James Law Group

COUNSEL FOR THE SECOND RESPONDENT:

Self-Represented Litigant

COUNSEL FOR THE THIRD RESPONDENT:

No appearance

Orders

Within 42 days, the de-facto husband do all acts and things and sign all documents necessary so as to place property located at E Street, Suburb F NSW being the whole of the land contained in Folio Identifier … (“the Suburb F property”) on the market for sale on the following conditions:
(a)       List the Suburb F property for sale forthwith with such agent as the de-facto husband may appoint and if the de-facto husband does not appoint any agent within fourteen (14) days of the date of these Orders, the de-facto wife shall nominate any agent within seven (7) days thereafter;
(b)       The Suburb F property shall be sold on such terms and conditions as may be agreed between the parties and failing agreement as determined by the agent;
(c)       The reserve price shall be as determined by the parties jointly in writing and in the absence of such determination it shall be the price nominated by the agent;
(d)       The de-facto husband shall cooperate in every way with the agent including (without limiting the generality of the foregoing):
(i)        Making the key available to the agent;
(ii)Allowing inspection of the Suburb F property as all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)Ensuring the Suburb F property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchaser; and
(v)Signing all documents requested by the agent in relation to the listing for sale of the Suburb F property except a contract or agreement for sale which has not been authorised by the conveyancer have conduct of the sale.
(e)For the purposes of the sale, the de-facto husband shall appoint a conveyancer within fourteen (14) days of the date of these Orders and if the de-facto husband does not appoint a conveyancer within fourteen (14) days of the date of these Orders, the de-facto wife shall nominate a conveyancer within seven (7) days thereafter and the de-facto husband shall appoint that conveyancer to act with respect to the sale;
(f)The de-facto husband shall authorise the agent and conveyancer to liaise with the de-facto wife and to provide copies of all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marley and Ormonde and Ors

Details

AGLC: Marley and Ormonde and Ors [2019] FamCA 455
Case: [2019] FamCA 455
Decision Date: 3 July 2019

CaseChat Overview and Summary

In the matter of *Marley and Ormonde and Ors*, Henderson J made orders concerning the sale of a property located at E Street, Suburb F NSW. The dispute involved a de-facto husband and wife, and the orders addressed the process of listing, selling, and distributing the proceeds from the Suburb F property.

The court was required to determine the terms and conditions under which the Suburb F property should be placed on the market for sale, including the appointment of agents and conveyancers, and the conditions of sale. Furthermore, the court had to establish the priority and manner of distribution of the sale proceeds, including the payment of sale costs, mortgage discharge, tax liabilities of both parties, an interim property distribution to the de-facto wife, and the allocation of the remaining balance. The court also made orders regarding the notification of the Australian Tax Office concerning tax payments and any potential credits or overpayments.

Henderson J ordered that the de-facto husband was to take all necessary steps to list the Suburb F property for sale within 42 days, with provisions for the appointment of an agent and conveyancer if the husband failed to do so. The sale was to proceed on terms agreed by the parties or determined by the agent, with a reserve price set by agreement or by the agent. The de-facto husband was mandated to cooperate fully with the agent and conveyancer, and to ensure the property was presented in a neat and clean condition for inspections. The court also ordered that the costs of the conveyancer be paid initially by the de-facto husband, with sale costs to be shared equally upon settlement. The proceeds of sale were to be applied in a specific order of priority, commencing with sale costs, followed by the mortgage discharge, the de-facto wife's tax liability, the de-facto husband's tax liability, an interim distribution to the de-facto wife, other outgoings, and finally, the balance to be held in a controlled monies trust account for the parties. The orders also included provisions for the de-facto husband to authorise the de-facto wife to liaise with the Australian Tax Office regarding any tax payments and potential credits.

Orders

Orders of the court

Within 42 days, the de-facto husband do all acts and things and sign all documents necessary so as to place property located at E Street, Suburb F NSW being the whole of the land contained in Folio Identifier … (“the Suburb F property”) on the market for sale on the following conditions:

(a) List the Suburb F property for sale forthwith with such agent as the de-facto husband may appoint and if the de-facto husband does not appoint any agent within fourteen (14) days of the date of these Orders, the de-facto wife shall nominate any agent within seven (7) days thereafter;

(b) The Suburb F property shall be sold on such terms and conditions as may be agreed between the parties and failing agreement as determined by the agent;

(c) The reserve price shall be as determined by the parties jointly in writing and in the absence of such determination it shall be the price nominated by the agent;

(d) The de-facto husband shall cooperate in every way with the agent including (without limiting the generality of the foregoing):

(i) Making the key available to the agent;

(ii) Allowing inspection of the Suburb F property as all reasonable times requested by the agent;

(iii) Doing or saying nothing to hinder or prevent a sale being effected;

(iv) Ensuring the Suburb F property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchaser; and

(v) Signing all documents requested by the agent in relation to the listing for sale of the Suburb F property except a contract or agreement for sale which has not been authorised by the conveyancer have conduct of the sale.

(e) For the purposes of the sale, the de-facto husband shall appoint a conveyancer within fourteen (14) days of the date of these Orders and if the de-facto husband does not appoint a conveyancer within fourteen (14) days of the date of these Orders, the de-facto wife shall nominate a conveyancer within seven (7) days thereafter and the de-facto husband shall appoint that conveyancer to act with respect to the sale;

(f) The de-facto husband shall authorise the agent and conveyancer to liaise with the de-facto wife and to provide copies of all documents in relation to the sale to the de-facto wife at her request.

The costs of the conveyancer’s fees shall be paid at first instance by the de-facto husband and the parties will equally share the costs of sale upon settlement.

On settlement of the sale of the Suburb F property, the proceeds of sale to be paid in the following manner and priority:

(a) All costs and expenses of the sale including legal costs and disbursements, agents’ commission, advertising expenses and auction expenses;

(b) The amount required to discharge the mortgage over the Suburb F property;

(d) The de-facto husband’s current tax liability;

(e) $100,000 to be paid to the de-facto wife by way of interim property distribution pursuant to section 90SM;

(f) Outstanding water, electricity, telephone, municipal rates and other outgoings and utilities in respect of the Suburb F property;

(g) The balance held in a controlled monies trust account on behalf of all four parties by the de-facto wife’s solicitor with $1,117,000 for the second and third respondents and the balance to be held for the de-facto husband and wife.

Within fourteen (14) days after the Suburb F property has been listed for sale, the de-facto husband shall do all acts and sign all documents necessary to give written authority to the de-facto wife to notify the Australian Tax Office (“ATO”) that any payment received by the ATO in accordance with Order 3.d is subject to the following.

If following the payment of the amount in Order 3.d there is a credit in the husband’s name or an overpayment to the ATO as at and from the date the payment is made (“credit”), the husband shall within seven (7) business days of receiving written notice of the credit do all acts necessary to provide written notice to the de-facto wife specifying the amount of the credit.

The de-facto husband shall give written authority to the de-facto wife to liaise with the ATO as regards any credit that may arise in favour of the de-facto husband as referred to in Order 5.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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