MARSHALL & MARSHALL - [2015] FamCA 712

FAMILY COURT OF AUSTRALIA

MARSHALL & MARSHALL

[2015] FamCA 712

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks a sale of an investment property and in turn a partial property settlement of $30 000 from the proceeds of sale – Where the wife is residing in the home of the maternal grandparents with the children and seeks alternate accommodation – Consideration of sections 75(2) and 79 –Where the release of funds can be readily accounted for in the final distribution of property – Where the Court finds it just and equitable to make the orders sought by the applicant.

Family Law Act 1975 (Cth) ss 75, 79, 80

Felice v Felice [2011] FamCA 162
Harris & Harris (1993) FLC 92-378
Sresbodan & Sresbodan and Ors [2013] FamCA 480
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Wenz v Archer (2008) 40 FamLR 212

APPLICANT:

Ms Marshall

RESPONDENT:

Mr Marshall

FILE NUMBER:

SYC

1221

2015

DATE DELIVERED:

28 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

29 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

H A Miedzinski Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Guterres

SOLICITOR FOR THE RESPONDENT:

MCW Lawyers

Orders

That within twenty-eight (28) days, the parties do all acts and things and sign and/or execute all necessary documents, authorities and writings to list for sale the real property situate at and known as B Street, C Town in the State of Victoria, being the property more particularly described as the whole of the land comprising Folio Identifier … (“the Victoria property”) with a licensed Real Estate Agent (“the Agent”) trading in the relevant area and selected by the parties by agreement or failing agreement nominated by the President for the time being of the Real Estate Institute of Victoria at the best price reasonably obtainable and in the following manner:
(a) By listing the Victoria property for sale by private treaty with the Agent;
(b) By listing the Victoria property at a sale price to be agreed upon by the parties or failing agreement then at a price nominated as the fair market value by a licensed valuer nominated by the President for the time being of the Valuers’ Institute of Victoria (“the Valuer”);
In the event that the Victoria property is not sold on or before a date three (3) months from the date of these orders, then the parties shall procure a sale by public auction upon the following terms:
(a) The auctioneer shall be as agreed between the parties, and
(b)In the event that there is no agreement within three (3) months from the date of the orders as to the name of an auctioneer, an auctioneer shall be as appointed by a nominee of the President of the Real Estate Institute of Victoria.
The auction shall take place within five (5) weeks after the deadline for the sale by private treaty; and
The reserve price shall, unless…

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 MARSHALL & MARSHALL

Details

AGLC: MARSHALL & MARSHALL [2015] FamCA 712
Case: [2015] FamCA 712
Decision Date: 28 August 2015

CaseChat Overview and Summary

The decision in *Marshall & Marshall* concerned the sale of real property located at B Street, C Town, Victoria. The parties, a husband and wife, were in dispute regarding the disposition of this property. The matter came before McClelland J.

The court was required to determine the terms and conditions under which the Victoria property should be listed for sale, including the method of sale, the appointment of agents and auctioneers, and the setting of a sale price or reserve price. Furthermore, the court needed to establish the priority of payments from the proceeds of sale and to define the ongoing responsibilities of the parties concerning the property's outgoings pending its sale.

McClelland J ordered that the Victoria property be listed for sale by private treaty with a licensed real estate agent within twenty-eight days. If the property was not sold within three months, it was to be sold by public auction. The court specified the process for selecting the agent and auctioneer, including mechanisms for nomination by professional bodies if the parties could not agree. The proceeds of sale were to be applied in a defined order of priority, commencing with legal costs and commissions, followed by rates and levies, mortgage discharge, a sum of up to $30,000 to the wife, and any remaining balance to the husband. The husband was made responsible for mortgage repayments, rates, and other outgoings pending sale, with provisions for adjustment of the proceeds distribution if he failed to meet these obligations.

Orders

Orders of the court

That within twenty-eight (28) days, the parties do all acts and things and sign and/or execute all necessary documents, authorities and writings to list for sale the real property situate at and known as B Street, C Town in the State of Victoria, being the property more particularly described as the whole of the land comprising Folio Identifier … (“the Victoria property”) with a licensed Real Estate Agent (“the Agent”) trading in the relevant area and selected by the parties by agreement or failing agreement nominated by the President for the time being of the Real Estate Institute of Victoria at the best price reasonably obtainable and in the following manner:

(a) By listing the Victoria property for sale by private treaty with the Agent;

(b) By listing the Victoria property at a sale price to be agreed upon by the parties or failing agreement then at a price nominated as the fair market value by a licensed valuer nominated by the President for the time being of the Valuers’ Institute of Victoria (“the Valuer”);

In the event that the Victoria property is not sold on or before a date three (3) months from the date of these orders, then the parties shall procure a sale by public auction upon the following terms:

(a) The auctioneer shall be as agreed between the parties, and

(b) In the event that there is no agreement within three (3) months from the date of the orders as to the name of an auctioneer, an auctioneer shall be as appointed by a nominee of the President of the Real Estate Institute of Victoria.

The auction shall take place within five (5) weeks after the deadline for the sale by private treaty; and

The reserve price shall, unless otherwise agreed upon between the parties, be as proposed by the auctioneer.

That upon the sale of the Victoria property, the proceeds of sale are to be applied in order of priority:

(a) all outstanding legal costs owed by the parties, including legal costs on the sale;

(b) all real estate agent commissions relating to the sale;

(d) the implementation of a discharge of the mortgage currently charged to the Victoria property;

(e) the balance to the wife of an amount up to $30 000; and

(f) should there be any remaining balance after payment to the wife as set out in Order 5(e) above, then that remaining balance to the husband.

The parties shall co-operate at all times with the Agent and meet the Agent’s requests including, but not limited to:

(a) Making keys to the Victoria property available to the Agent;

(b) Allowing inspections of the Victoria property at all reasonable times as requested by the Agent;

(d) Ensuring that the Victoria property including the grounds are in a neat, clean and presentable condition at the time of inspection by the Agent and prospective purchasers introduced by the Agent;

(e) The signing of all documents requested by the Agent (including a Selling Agency Agreement) in relation to the listing for sale of the Victoria property with the exception of a Contract or Agreement for Sale which has not been advised upon and approved by the solicitors for each of the parties.

That pending the sale of the Victoria property, the husband is to be responsible for the payment of:

(a) Any mortgage repayments charged to the Victoria property as and when they become due for payment on a periodic basis, and;

(b) Any rates, charges, maintenance costs and any other outgoings in relation to the Victoria property.

In the event that, the husband fails to make the required payments referred to in Order 7, and at the time of completion of the finalisation of the sale of the Victoria property, there is monies outstanding in relation to Order 7, and should there be any remaining balance of the proceeds of sale after payment to the wife as set out in Order 5(e), then the parties shall adjust the payments referred to in Order 5(e) and 5(f) above, by deducting from the amount of the proceeds of sale payable to the husband an amount equal to the amount unpaid by him as stated in Order 7, and that amount will be paid to the wife by way of an adjustment.

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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