FAMILY COURT OF AUSTRALIA
| MASSALSKI & RILEY | [2016] FamCA 144 |
| FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where there is a dispute between parties as to the date of cessation of the de facto relationship – Where, if necessary, consent was given for leave to be granted to the applicant to proceed pursuant to section 44(6) –Where there is agreement between the parties for orders to be made facilitating the subdivision of two properties – Where the applicant seeks injunctive relief in respect to properties jointly owned with third parties or solely owned by the respondent – Orders made for the respondent to provide the applicant with written notice of his intention to deal with those properties – Where the respondent seeks the title of a property owned with the applicant be altered following completion of its subdivision, to allocate one lot to each party – Application dismissed – Orders made for the property to remain in the joint names of the parties – Orders made restraining either party from dealing with the property other than in compliance with Orders. |
| Family Law Act 1975 (Cth) ss 44(6), 79, 80(1), 90SB, 90SK, 114(3) Family Law Rules 2004 (Cth) r 13.07, 13.22 |
Beacham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Blue Seas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Davidson & Davidson (No. 2) (1994) FLC 92-469
Felice & Felice [2011] FamCA 162
G and T (2004) FLC 93-176
Giumelli v Giumelli (1999) 196 CLR 101
Harris & Harris (1993) FLC 92-378
K & K [2008] FamCA 957
Kelleher & Anderson [2007] FamCA 137
Lawson & Crawford and Ors [2014] FamCA 1012
Medlow & Medlow [2016] FamCAFC 34
Mullen & De Bry (2006) FLC 93-293
Norton & Locke (2013) 284 FLR 51
Sresbodan & Sresbodan and Ors [2013] FamCA 480
Stanford & Stanford (2012) FLC 93-518
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Yunghanns & Ors v Yunghanns & Ors (1999) FLC 92-836
Zschokke & Zschokke (1996) FLC 92-693
| APPLICANT: | Ms Massalski |
| RESPONDENT: | Mr Riley |
| FILE NUMBER: | SYC | 496 | of | 2015 |
| DATE DELIVERED: | 11 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 16 December 2015 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Massalski in person |
| COUNSEL FOR THE RESPONDENT: | Mr Fowler |
| SOLICITOR FOR THE RESPONDENT: | Russell Byrnes Solicitor |
Orders
THE COURT ORDERS BY CONSENT THAT:
Pursuant to section 44(6) of the Family Law Act 1975 (Cth), leave is granted to the applicant to apply out of time.
THE COURT ORDERS THAT:
The question of costs incurred by the parties in respect to the hearing dates of 20 July 2015 and 22 July 2015 is reserved to be dealt with at the final hearing.
Orders 2 and 3 of the applicant’s Minute of Proposed Orders dated 15 December 2015 are dismissed.
Order 9 of the applicant’s Application in a Case filed 22 September 2015 is dismissed.
THE COURT FURTHER…
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- AGLC
- Massalski and Riley [2016] FamCA 144
- Case
- [2016] FamCA 144
- Decision Date
CaseChat Overview and Summary
The court's reasoning involved a detailed consideration of the parties' financial circumstances and property interests, leading to a series of orders designed to preserve assets and facilitate their division. Key legal principles applied included the court's power to make interim and final orders concerning property, the appointment of a registrar to execute documents in default, and the management of rental income and property expenses. The court also ordered disclosure of financial information relevant to the proceedings.
The court ordered that the respondent be restrained from selling, transferring, or encumbering certain properties without providing the applicant with fourteen days' written notice. It further ordered the parties to complete the registration of a plan of subdivision for the F Street property, with specific directions for the applicant to execute necessary documents. Following registration, the parties were to arrange for the discharge of an existing mortgage and secure a new mortgage over one of the subdivided lots, with both lots to be registered in their joint names as tenants in common. The court also made orders regarding the exclusive occupation of one lot by the applicant, the payment of associated expenses, and the leasing and management of the other lot, including the establishment of a joint bank account for rental income. Finally, the court ordered the completion of subdivision for other properties and directed the respondent to provide specific financial disclosures.
Orders
Orders of the court
THE COURT ORDERS BY CONSENT THAT:
1.
Pursuant to section 44(6) of the Family Law Act 1975 (Cth), leave is granted to the applicant to apply out of time.
THE COURT ORDERS THAT:
2.
The question of costs incurred by the parties in respect to the hearing dates of 20 July 2015 and 22 July 2015 is reserved to be dealt with at the final hearing.
3.
Orders 2 and 3 of the applicant’s Minute of Proposed Orders dated 15 December 2015 are dismissed.
4.
Order 9 of the applicant’s Application in a Case filed 22 September 2015 is dismissed.
THE COURT FURTHER ORDERS PENDING FURTHER ORDER THAT:
5.
The respondent is restrained from selling, transferring, further charging or otherwise encumbering the properties known as and situated at:
a. B Street, Suburb A, VIC …;
b. C Street, Suburb A, VIC …;
c. D Street, Suburb E, NSW …;
or creating or increasing any liability secured against those properties, either individually or collectively, without providing the applicant with fourteen (14) days written notice.
6.
The parties are to expeditiously do all acts and things and sign all documents required to complete the registration of the plan of subdivision and associated dealings of the property known as and situated at F Street, Suburb G, being the land in folio identifier (“the F Street property”).
7.
For the purposes of Order 6 above, the applicant is to execute the following documents and return those documents properly executed and witnessed as is required by each document, to the solicitors for the respondent, within fourteen (14) days of the date of delivery of those documents to the applicant at F Street, Suburb G, NSW:
a. any application form(s) required by Suburb H City Council to effect the subdivision of the F Street property;
b. the Positive Covenant for the benefit of Suburb H City Council;
c. the Restriction on the Use of the Land by a Prescribed Authority, for the benefit of Suburb H City Council;
d. the Strata Plan Administration Sheet and Strata Plan;
e. any authority required by the Commonwealth Bank of Australia to produce the Folio Identifier at the LPI NSW; and,
f. such other document or documents as may be provided by the respondent to the applicant which is, or are, reasonably required to enable the registration of the subdivision.
8.
For the purpose of Order 7 above, the respondent is to deliver the documents to the applicant at F Street, Suburb G, NSW, by registered post.
9.
Within twenty-eight (28) days of registration of the subdivision of the F Street property, the parties are to do all acts and things and sign all documents required to effect the following:
a. cause the Title Deeds for the two lots created by the subdivision to be delivered to the solicitors for the respondent and the solicitors for the respondent are to hold the Title Deeds on the behalf of the parties pending the parties agreeing on an alternative means of retaining the Title Deeds or further order of the Court.
b. authorise the Commonwealth Bank of Australia to discharge the mortgage, registration number …, secured over Lot 1 as shown on the Strata Plan, being the Lot at the front of the property (“Lot 1”), and to secure the debt then owing to the Commonwealth Bank of Australia by a mortgage secured over Lot 2 as shown on the Strata Plan, being the lot at the rear of the property (“Lot 2”);
c. sign all documents necessary to register Lot 1 and Lot 2 of the F Street property in the joint names of the parties as tenants in common in equal shares.
d. After the preceding subparagraphs have been carried out, authorise any relevant person to deliver the original Title Deeds for Lot 1 and Lot 2 of the F Street property, to the solicitors for the respondent, and the solicitors for the respondent are to hold the Title Deeds pending further order of the Court.
10.
The parties are to each pay one half of the costs and fees payable in respect to the preparation of the registration of the Strata Plan and associated documents, except for, any fees payable to the Commonwealth Bank of Australia which shall be the sole responsibility of the respondent.
11.
Other than in compliance with these Orders, the parties are each restrained from disposing, further encumbering and otherwise dealing with Lot 1 and/or Lot 2 of the F Street property until further order of the Court.
12.
Within fourteen (14) days of these Orders, the parties are to do all acts and things and sign all documents as are necessary to find a tenant and to execute a lease for a period of six (6) months, with a month to month periodic lease thereafter, for Lot 2 of the F Street property at an agreed weekly rental price, and failing agreement, at a price as determined by the President of the Real Estate Institute of Australia (NSW Division).
13.
The parties are restrained from interfering with the tenant’s quiet enjoyment of Lot 2 of the F Street property.
14.
Upon Lot 2 being tenanted in accordance with Order 12 above, the parties are to do all acts and things and sign all documents necessary to establish a bank account in joint names for the rental income received from Lot 2 of the F Street property to be collected into accordance with Order 12 above. Such rental income is to be deposited on a weekly basis, or such other time period as the parties may agree.
15.
The parties are restrained from utilising, disposing or otherwise transferring the rental income received from Lot 2 of the F Street property other than to make mortgage payments on the Commonwealth Bank mortgage in the name of both parties which is secured over the F Street property.
16.
The applicant is to have exclusive occupation of Lot 1 of the F Street property.
17.
The applicant is responsible for the following payments in respect to Lot 1 of the F Street property:
a. all rates, outgoings and strata levies payable in respect to Lot 1 of the F Street property;
b. maintenance in respect to Lot 1 of the F Street property as agreed and upon the production of tax invoices and receipts; and
c. all building insurance and public liability insurance premiums for Lot 1 of the F Street property.
18.
The respondent be responsible for the following payments in respect to Lot 2 of the F Street property:
a. all rates, outgoings and strata levies payable in respect to Lot 2 of the F Street property;
b. maintenance in respect to Lot 2 of the F Street property as agreed and upon the production of tax invoices and receipts; and
c. all building insurance and public liability insurance premiums for Lot 2 of the F Street property.
19.
Within twenty-eight (28) days of the date of these Orders, the parties are to do all acts and things and sign all documents necessary to complete the registration of the plan of subdivision for the property known and situated at B Street, Suburb A, VIC and the property known and situated at C Street, Suburb A, VIC.
20.
In so far as it has not already occurred, pursuant to Part 13 of the Family Law Rules 2004 (Cth), the respondent is to, by way of disclosure, provide to the applicant:
a. details of monies received by the respondent from the respondent’s late father, or from the estate of the respondent’s late father, as a result of the sale of the property located at I Street, Suburb J; and
b. copies of documents relating to the source of funds used to pay for the property located at D Street, Suburb E.
21.
All outstanding orders contained in the applicant’s Application in a Case filed 22 September 2015 and Minute of Proposed Orders dated 15 December 2015, and the respondent’s Minute of Order dated 15 December 2015, are otherwise dismissed.
22.
In default of either party doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to said Orders.
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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