Marriott & Marriott
[2024] FedCFamC1F 884
•16 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Marriott & Marriott [2024] FedCFamC1F 884
File number: SYC 7506 of 2024 Judgment of: CAMPTON J Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – ENFORCEMENT – Where the wife seeks to enforce orders made on an undefended basis for the sale of three real properties in her capacity as trustee for sale – Where the husband opposes the sale of the properties – Where the parties are in a precarious circumstance – Orders made broadly as sought by the wife. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 16 December 2024 Place: Sydney Solicitor for the Applicant: Ms Norman, Pigdon Norgate Family Lawyers The Respondent: Litigant in person ORDERS
SYC 7506 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MARRIOTT
Applicant
AND: MR MARRIOTT
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
16 DECEMBER 2024
THE COURT NOTES THAT:
A.In these Orders, unless the context otherwise requires:
(i)“B Property” means the property at 1 C Street, Town D in the State of New South Wales and being the whole of the land in Folio Identifier … and registered in the names of the parties as joint tenants;
(ii)“E Property” means the property at 1 F Street, Town D (also known as C Street, Town D) in the State of New South Wales and being the whole of the land in Folio Identifier … and registered in the Respondent’s name;
(iii)“G Pty Ltd” means G Pty Ltd of which the Applicant and the Respondent are the sole directors and shareholders;
(iv)“Properties” means the B Property, the E Property and the H Property;
(v)“Securities” means the securities whereby J Pty Ltd is the secured party and the Respondent, Applicant and/or G Pty Ltd are the borrowers and/or guarantors;
(vi)“J Pty Ltd” means J Pty Ltd; and
(vii)“H Property” means the property at 1 F Street, Town D (also known as C Street, Town D) in the State of New South Wales and being the whole of the land in Folio Identifier … and registered in the name of the Respondent.
THE COURT ORDERS THAT:
1.Pursuant to s 106A of the Family Law Act 1975 (Cth), the applicant be appointed to execute all documents on behalf of the respondent including in the respondent’s capacity as director of G Pty Ltd for the purposes of effecting the sale of the B Property, the E Property and the H Property pursuant to Order 5 made on 17 October 2024 including but not limited to:
(a)Any requisite discharge of mortgage forms, including Authorities to Release;
(b)All documents necessary to discharge the Securities;
(c)All documents necessary to effect the transfer of the Properties; and
(d)Any requisite State Revenue Office forms required to be completed by the Respondent including the Respondent’s capacity as director of G Pty Ltd to effect the sale of the Properties.
2.Both the applicant and the respondents costs of the Amended Application in a Proceeding are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marriott & Marriott has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an Application in a Proceeding filed by Ms Marriott (“the wife”) on 12 December 2024, as amended on 13 December 2024, listed with short notice seeking orders to facilitate orders made by a senior judicial registrar on 17 October 2024 appointing the wife the trustee for sale of real properties forming part of an agricultural business of the wife and Mr Marriott (“the husband”).
The husband was born in 1945 and is 79 years of age. The wife was born in 1951 and is 73 years of age. The parties married in 1975 and separated on or about 11 October 2023. There are three adult children of the marriage. Over the period of the marriage, the parties engaged in agricultural activities in New South Wales. They have aggregated a number of real properties conducting their agricultural business.
The parties obtained loan funding by way of mortgages and overdrafts from J Bank. They personally entered general security documents supporting those loan facilities with J Pty Ltd, as did the Marriott Family Trust and G Pty Ltd, a corporation of which the parties are the sole directors and shareholders. The husband remained in occupation of the property aggregation, continuing business activities. The wife is currently living in Sydney. The husband at the hearing today has expressed significant dissatisfaction with the conduct of J Pty Ltd in recent years.
In mid-2023 J Pty Ltd issued default notices pursuant to the loan agreements entered by the parties and corporations. The loan facilities with J Pty Ltd expired in mid-2023. In early 2024, the parties engaged in a mediation with J Pty Ltd. Agreement was reached to repay the J Pty Ltd facilities by late 2024. That has not occurred.
On 24 September 2024, the wife commenced proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) seeking property adjustment between she and the husband in the Federal Circuit and Family Court of Australia (Division 2).
On 17 October 2024 the matter was listed for interim hearing before a senior judicial registrar. It proceeded on an undefended basis as against the husband. The following orders were made, as amended on 18 October 2024:
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1. In these Orders, unless the context otherwise requires:
1.1.“[B Property] Mortgage” means the mortgage in favour of [J Pty Ltd] secured by the [B Property], being mortgage registered number […];
1.2.“[B Property]” means the property at [1 C Street, Town D] in the State of New South Wales and being the whole of the land in Folio Identifier […] and registered in the names of the parties as joint tenants;
1.3.“[K Property] Mortgage” means the mortgage in favour of [J Pty Ltd] secured by the [K Property], being mortgage registered number […];
1.4.“[K Property]” means the property at [L Street, Town D] in the State of New South Wales and being the whole of the land in Folio Identifier […] and registered in the names of the parties as joint tenants;
1.5.“[E Property]Mortgage” means the mortgage in favour of [J Pty Ltd] secured by the [E Property], being mortgage registered number […];
1.6.“[E Property]” means the property at [1 F Street, Town D] (also known as [C Street, Town D]) in the State of New South Wales and being the whole of the land in Folio Identifier […] and registered in the Respondent’s name;
1.7.“[M Property] Mortgage” means the mortgage in favour of [J Pty Ltd] secured by the [M Property], being mortgage registered number […];
1.8.“[M Property]” means the property at [2 F Street, Town D] in the State of New South Wales and being the whole of the land in Folio Identifier […] and registered in the names of the parties as joint tenants;
1.9.“Sale Proceeds Account” means the interest-bearing account established in the name of the Applicant Wife which will hold the proceeds of sale of the properties sold pursuant to Orders 4 and 5;
1.10.“[H Property]” means the mortgage in favour of [J Pty Ltd] secured by the [H Property], being mortgage registered number […];
1.11.“[H Property]” means the property at [1 F Street, Town D] (also known as [C Street, Town D]) in the State of New South Wales and being the whole of the land in Folio Identifier […] and registered in the name of the Respondent;
1.12.“[N Properties] Mortgages” means the mortgage in favour of [J Pty Ltd] secured by the [N Properties], being mortgage registered number […];
1.13.“[N Properties]” means the property known as [N Properties] which is located at 1 F Street, Town D in the State of New South Wales and being the whole of the land in Folio Identifiers […] and […] and registered in the name of the Respondent;
1.14.“[O Property] Mortgage” means the mortgage in favour of [J Pty Ltd] secured by the [O Property], being mortgage registered number […];
1.15.“[O Property]” means the property at [1 F Street, Town D] (also known as [2 C Street, Town D]) in the State of New South Wales and being the whole of the land in Folio Identifier […] and registered in the name of the Respondent;
2.The matter has been dealt with on an urgent basis by way of interim hearing IT BEING NOTED that [J Pty Ltd] intends to take enforcement action against the parties from [late] 2024.
3.Pursuant to section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1).
4.Pursuant to section 80(1)(e) of the Family Law Act 1975, the Applicant Wife be appointed as trustee of the sale of the [B Property], the [E Property] and the [H Property] and, for the purpose of this Order, the Respondent Husband co‑operate with respect to the sale of the properties, including but not limited to:
4.1.allowing access to the properties at all reasonable times to prospective purchasers, valuers and licensed real estate agents as may have been appointed by the Applicant;
4.2.doing or saying nothing to hinder or prevent a sale of the properties being effected;
4.3.signing all documents in relation to the sale approved by the agent, auctioneer and/or conveyancer as the case may be; and
4.4.maintaining the properties in reasonable condition and repair having regard to their present condition and the state thereof, pending completion of the sale of the properties.
5.Simultaneously with settlement of the sale of the [B Property], the [E Property] and the [H Property], as they each occur, the parties do all acts and things and sign all documents necessary to cause the payment of the proceeds of sale to be paid, in the following order and priority:
5.1.to pay all amounts necessary to discharge the [B Property] Mortgage, the [E Property] Mortgage and the [H Property];
5.2.to pay all costs and expenses of the sale of the [B Property], the [E Property] and the [H Property] including legal costs and disbursements, agents’ commission, valuer’s fees, advertising and sale expenses;
5.3.to pay all amounts necessary to discharge all outstanding rates, electricity or other service accounts in respect of any service provided to the [B Property], the [E Property] and the [H Property] outstanding as at the date of the completion of the sale of the properties, as they occur;
5.4.to pay all amounts necessary to discharge the [K Property] Mortgage, the [M Property] Mortgage, the [N Properties] Mortgages and the [O Property] Mortgage;
5.5.to pay all amounts necessary to discharge all outstanding council rates owed to [S Council] in respect of the [K Property], the [M Property], the [N Properties] and the [O Property];
5.6.to pay the remaining proceeds of sale, into the Sale Proceeds Accounts.
6.Pending the sale of the [B Property], the [E Property] and the [H Property], the parties each be restrained from further charging, encumbering, creating, or increasing any liability secured against those properties.
7. The Applicant Wife pay from the Sale Proceeds Account:
7.1.the council rates, water rates and utilities of the [K Property], the [M Property], the [N Properties] and the [O Property];
7.2.the costs of any general maintenance and upkeep of the parties’ properties, as determined by the Applicant Wife in consultation with the Respondent Husband;
7.3. the Respondent Husband’s private health insurance premiums;
7.4. an amount of $900 per week to the Respondent Husband;
7.5.any other reasonable living expenses of the Respondent Husband including medical treatment which is not covered by 7.3;
7.6. the Applicant Wife’s reasonable living expenses; and
7.7. each party’s legal costs associated with these proceedings.
8.The Respondent Husband be restrained from selling, transferring, charging, encumbering, creating any liability against the [K Property], the [M Property], [N Properties] and the [O Property].
9.Each party be at liberty to re-list the matter on 7 days written notice to the other in respect of the implementation of these Orders.
10.If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then a Judicial Registrar or Senior Judicial Registrar of the Federal Circuit and Family Court of Australia is hereby appointed under Section 106A of the Act to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
11. The Respondent Husband pay the Applicant Wife’s costs of, and incidental to, these proceedings.12.11. Leave is granted to the Applicant for the matter to proceed on an Undefended basis.13.12. The costs of the Applicant of and incidental to the Interim Defended Hearing on 17 October 2024 are reserved.14.13. No later than 4.30pm on 24 October 2024, the Husband is to be personally served a sealed copy of these Orders.15.14. No later than 4.30pm on 21 October 2024, the Applicant is to serve upon the Husband a sealed copy of these Orders by way of email to the Respondent’s last known email address being […@…].16.15. The wife is granted leave (if she so chooses) to provide a copy of these orders to [J Bank].THE COURT FURTHER ORDERS IN CHAMBERS:
17.16. The Wife’s Application in a Proceeding filed on 24 September 2024 is hereby dismissed.THE COURT NOTES THAT:
A. The matter has been transferred to Division 1 for the following reasons:
a. The complexity of the factual issues involved and;
b.The Court is informed that the asset pool is appropriately 30 million dollars.
B.The parties will be contacted directly by the National Assessment Team confirming the transfer of proceedings and the next listing date.
The husband was served with a sealed copy of those orders on 17 October 2024. The husband has not sought to review the orders made by the senior judicial registrar or to otherwise challenge the orders by way of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Pursuant to the orders made by the senior judicial registrar, a contract was exchanged by the wife in her capacity as trustee for she and the husband in late 2024 as to the sale of the properties at 1 C Street, Town D (“ B Property”), 1 F Street, Town D, Folio Identifier … (“E Property”), and 1 F Street, Town D, Folio Identifier … (“H Property”) for $12,163,800. Settlement of that exchanged contract is scheduled to occur in late December 2024. The purchaser of the properties is uncontroversially a bona fide third-party purchaser at value.
The value of the J Pty Ltd debt is in the range of $9.6 million. Interest is accruing on the J Pty Ltd debt. The wife contends that the value of the property of the parties after payment of the J Pty Ltd debt is in the range of $33 million.
The husband opposes the sale of the properties. He has advised the Court today that the wife had no authority to sell the properties and that the properties must be withdrawn from the sale. He has made it unequivocal that, in his view, the exchanged contract is "null and void" and he will "not relinquish title to" the properties.
The husband has advised the Court today that he has arranged funding of about USD$10 million, or about AUD$15.7 million, that can be used to pay the outstanding J Pty Ltd liability. A sum of USD$6000 or about AUD$9000 must be paid to access the USD$10 million from the P Bank in City R, Country Q. He has not adduced any documentation verifying the fact of the availability of these moneys, or as to the process whereby the moneys can be received in Australia.
He has made it clear today that he will not execute any documents in "any shape or form" to facilitate the completion of the exchanged contract for the sale of the properties, firmly asserting that the business aggregation must be retained at its current size to remain a viable business.
The wife has placed into evidence documents from J Pty Ltd as to the necessary documents, such as authorities to discharge mortgages, to be executed by both she and the husband in their personal capacities and in their capacities as directors of G Pty Ltd in order to permit the sale to complete. The wife gives evidence that the orders she seeks in her Amended Application in a Proceeding have been approved by J Pty Ltd and, if made, will enable the facilitation of the settlement of the sale of the properties in late 2024 by way of both the purchaser and J Pty Ltd as the secured mortgagee. She identifies that a failure to complete the contract exchanged in late 2024 may give rise to substantial damages not only payable to J Pty Ltd but also to the purchaser of the properties.
The parties are in a precarious position. The husband's position, while understood by the Court, does not engage with the reality of the exchanged contract entered on his behalf by the wife as trustee in late 2024. He has not adduced any evidence, or made any submissions today, as to how that contract for sale can be rescinded, or as to how, if any application was made by the purchaser for specific performance of the exchanged contract, it could be resisted.
In the circumstances, notwithstanding the submissions that have been made by the husband, the Court has an obligation to facilitate enforcement of its own orders.
For all of the above reasons, I make the orders as set out herein.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 December 2024
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