May & Jonas

[2011] FamCA 163

FAMILY COURT OF AUSTRALIA

MAY & JONAS AND ANOR [2011] FamCA 163

FAMILY LAW - PROPERTY - Interim relief - Compliance with orders

Family Law Act 1975 (Cth)
APPLICANT:	Ms May

1st RESPONDENT: Mr Jonas

2nd RESPONDENT: Mr Reece

FILE NUMBER: MLC 2485 of 2010

DATE DELIVERED: 24 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 24 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE 1ST RESPONDENT: In person

SOLICITOR FOR THE 2ND RESPONDENT: In person

IT IS ORDERED THAT

1. No later than 4:00pm on 9 March 2011 the second respondent file and serve any application on which he proposes to rely at the trial of these proceedings.

2. In the event that the second respondent does not comply with paragraph 1 hereof, paragraph 1 of the order made on 28 June 2010 be thereupon discharged without further application.

IT IS ORDERED BY CONSENT THAT

1. The applicant be and is hereby authorised to do all things and sign all documents necessary to cause the property at K in the State of Victoria to be rented out on a short term basis pending its sale, the agent thereof to be Mr N of S Real Estate, at L in the said State.

2. All net rental monies from that rental be applied in accordance with previous orders of the Court.

3. Notwithstanding any order to the contrary the reserve price for the sale of the said property be as may be agreed between the parties thereto and failing such agreement be fixed by the President of the Real Estate Institute of Victoria or his or her nominee.

4. The respondent forthwith transfer all his right title and interest in the Nissan motor vehicle registration number … to the applicant at the applicant’s expense.

IT IS FURTHER ORDERED THAT

1. All interim applications be otherwise dismissed.

2. All final applications including any application filed pursuant to paragraph 1 hereof be transferred to the Docket Registrar for the making of all orders and directions to prepare it for trial with such priority as may be given thereto at 10:00am on 10 March 2011.

3. All questions of costs be reserved.

10.General liberty be reserved to both parties to apply.

IT IS NOTED that publication of this judgment under the pseudonym May & Jonas and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2485 of 2010

Ms May

Applicant

And

Mr Jonas

Respondent

And

Mr Reece

Second named Respondent

REASONS FOR JUDGMENT

1. The applications before me today seek interim relief in proceedings which involve competing claims for alteration of property interests between the parties who were in a de facto relationship, in accordance with the meaning of that term in the Family Law Act 1975.  The primary application is by the respondent to the substantive applications seeking the transfer of a property at K to Mr Reece, together with consequential orders for the discharge of encumbrances on the title to that property.

2. On 28 June 2010, an order was made joining Mr Reece as the second respondent in these proceedings.  Paragraph 5 of that order required Mr Reece to make, file and serve an affidavit giving certain particulars of moneys advanced to a relevant corporate entity as well as each of the parties.  On 28 July 2010, Mr Reece filed and served such an affidavit, which is extensive and contains many exhibits.  However, he has not made any claim.  From submissions made by the parties from the bar table, it appears that Mr Reece is the second mortgagee of the property at K. 

3. It also appears that his claim pursuant to that mortgage is very extensive, and either on its own or together with the first mortgage would not be able to be satisfied by the proceeds of sale at a price which might be reasonable for this particular property.  It is suggested by the first respondent that there is then no other relevant property, so that financial disaster appears to be ahead for all three parties.  The first thing that needs to be done is that Mr Reece needs to make a claim.  I will require him to do that no later than 9 March and if he fails to do that, paragraph 1 of the order to which I have referred joining him as a respondent to these proceedings will be discharged without further application.  I will dismiss interim applications, and refer the proceedings to the Docket Registrar for the making of orders and directions to prepare it for trial, with such priority as may be given to it. 

4. Before dismissing those interim applications, I must deal with their claims.  First, on the part of the respondent who is the applicant in the interim application, his application for a transfer of the property to Mr Reece will undoubtedly be one of the central issues on the trial of the final applications.  Accordingly, it is not appropriate for it to be dealt with on an interim basis, but rather for it to be dealt with at what I would hope would be a prioritised hearing of the final applications. 

5. As well as that, it appears that the first mortgagee has an interest in that transaction.  I have not been addressed on what protection there might be for the first mortgagee.  Accordingly, that interim application will be dismissed. 

6. Turning to the application which is effectively a response to it by the applicant in the substantive proceedings, there is general agreement on some aspects of it.  The first of the applications seeks compliance with paragraph 6 of an order made by the Senior Registrar on 12 April 2010 for the provision by the respondent of certain documents to the applicant.  The applicant claims that to the extent that he has been able, he has complied with that order and has no further document.  That may well be an issue at the trial.  I cannot take that matter further here. 

7. The applicant then seeks that the property at K be rented out on a short-term basis with the rent to be paid to the mortgagor, by which he means the mortgagee.  The respondent agrees to that rental.  The order made on 5 July 2010 provides for the respondent to pay the applicant maintenance in the sum of $400 per week, and that any rental from the property at K be paid in part satisfaction of that maintenance.  Those orders remain in force and it appears to me inappropriate and unnecessary for me to make any further pronouncement on that.

8. There is already an order for the sale of the property at K.  The applicant has raised the issue today of the fixing of the reserve price on that property to be reduced from the previous order for its sale.  The parties have agreed that it is appropriate for me to make the usual order that failing their agreement with respect to the reserve price, the president of the Real Estate Institute of Victoria or his or her nominee should fix that price.

9. The applicant seeks outstanding arrears of spousal maintenance pursuant to the order of 5 July to which I have referred, which she calculates to the sum of $15,666.  The respondent says he does not have the money, and again in my view that will be a matter for the final trial. 

10. An earlier order of the Court provided for the respondent to deliver to the applicant a motor vehicle for her possession.  It now needs to be re-registered and the respondent has consented to its transfer to the applicant at her cost to enable her to undertake the re-registration.  I have pointed out that given what appears to be the age of the motor vehicle, there may be significant expense in that it will require a roadworthy certificate, but that is something for the parties. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 24 February 2011.

Associate: 

Date:  10 March 2011