MB v PK (No. 3)

[2009] QSC 74

SUPREME COURT OF QUEENSLAND

CITATION:

MB v PK (No. 3) [2009] QSC 74

PARTIES:

MB

(applicant)

V

PK

(respondent)

FILE NO/S:

2291 of 2007

DIVISION:

Trial

PROCEEDING:

Application Heard on the Papers

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 April 2009

DELIVERED AT:

Brisbane

JUDGE:

Atkinson J

CATCHWORDS:

FAMILY LAW AND CHILD WELAFRE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – where judgment regarding division of property was delivered – where court requested submissions as to further orders to be made to facilitate the prompt sale of property – what order was appropriate in the circumstances  

COUNSEL:

TF Jordan for the applicant

Respondent appeared in person

SOLICITORS:

Schultz Toomey O’Brien Solicitors for the applicant
Respondent appeared in person

1. An application for property division at the end of a de facto relationship was heard on 22 July 2008 with judgment delivered on 21 November 2008.  On that occasion the orders were:

1. Upon sale of the property at 34 Coast View Parade, Doonan, more particularly described as Lot 3 SP 103493 in the County of Canning, Parish of Maroochy (the “Doonan property”), the net monies be distributed as     follows: 60% to the applicant and 40% to the           respondent. Any arrears owing on the mortgage at sale are to be paid from the respondent’s share.

2. Except as otherwise provided by this order, each of the applicant and the respondent to retain for their benefit absolutely all assets, chattels or financial resources in their respective possession, power or control, including but not limited to, motor vehicles, personal effects or superannuation held in their names.

1. The court asked for further submissions as to further orders to be made to facilitate the prompt sale of the Doonan property and as to costs.  The parties requested the court to defer the receipt of submissions pending negotiations between the applicant and the respondent.  Those negotiations were unsuccessful in reaching agreement and on 17 December 2008 submissions were made by the applicant’s solicitors on her behalf as to the appropriate orders to facilitate the sale of the property.  No submissions were made as to costs.  The submissions made by the applicant were for orders that were entirely appropriate. 

1. Submissions were subsequently received by the respondent.  There was some measure of agreement between the submissions made by the applicant and the respondent as to the appropriate orders to be made but the respondent’s submissions also contained some proposed orders that were not apt to give effect to the decision already made by the court.

1. In the circumstances I propose to make the orders in accordance with the submissions made by the applicant.  Those orders are:

1. That the Trustee and/or the Applicant do all acts and things and sign all necessary documents to effect a sale of the property situated at 34 Coast View Parade, Doonan and more particularly described as Lot 3 on SP 103493 County of Canning Parish of Maroochydore in the State of Queensland (the home) and by way of consequential arrangement that shall be made for the purpose of effecting a sale:

(a)The listing price for the home shall be nominated by the Trustee and/or the Applicant and if there is no agreement the listing price shall be as advised by the nominee of the Chief Executive Officer of the Real Estate Institute of Queensland (“REIQ”).

(b)The home shall be listed for sale by private treaty with any real estate agent or agents, nominated by either party, in the area in which the home is located.

(c)In the event that the home has not been sold within one (1) month from the date of listing, the Applicant and/or Trustee shall then make all such arrangements and do all such acts and sign all documents and pay equally all moneys necessary to procure a sale by public auction of the home upon the following terms:

(i)The auctioneer shall be an auctioneer as nominated by the Trustee and/or Applicant and if there is no agreement as nominated by the nominee of the REIQ

(ii)The auction shall take place within two (2) months of the deadline date for sale by private treaty;

(iii)The reserve price shall, unless agreed in writing between the Applicant and the Trustee, be as proposed by the auctioneer;

(iv)The Applicant and Respondent shall be equally responsible for payment of the auction expenses.

(d)That Respondent and Applicant shall co-operate in every way with the real estate agent and/or auctioneers in relation to the sale and auction of the property including making a key available for allowing inspection of the property at the times requested by the real estate agents and/or auctioneers.

(e)The Respondent shall ensure that the property is in a neat and clean condition at the time of inspection by the prospective purchasers and in the event the Respondent is in any way obstructive or fails to co-operate with the agents in relation to sale of the home then the Respondent is required to vacate the premises upon the giving of seven (7) days notice by the Applicant and/or Trustee.

(f)That the Respondent be responsible for all outgoings associated with the home including the mortgage indebtedness, rates and amenities up to and including the date of settlement of the home and in the event the Respondent fails to meet his obligations in relation to the mortgage indebtedness, rates and amenities and they fall into arrears at any time then the Respondent will be required to vacate the property within seven (7) days of receiving notice of same.

1. In the event that the home is not so sold by auction or by private negotiation within fourteen (14) days after the auction then the Trustee and Applicant shall do all acts and sign all necessary documents and the Applicant and Respondent shall pay equally all moneys necessary to procure a second auction within five (5) weeks of the date of the first auction and otherwise upon the same terms and conditions as applied to the first auction.

1. Upon completion of the sale the proceeds of the sale be applied as follows:

(a)Firstly, to pay all costs, commissions and expenses of the sale and to pay any rates and levies outstanding in respect of the home;

(b)Secondly, to discharge the mortgage and any other encumbrances affecting the home;

(c)Thirdly, that the balance net proceeds of sale be distributed by way of the Applicant receiving 60% thereof and the Respondent receiving 40% thereof but in the event there are arrears owing on the mortgage at date of sale then the Respondent shall pay to the Applicant from his 40% share a reimbursement of any arrears owing on the mortgage.