Melounis & Melounis (No 3)
[2023] FedCFamC1F 849
•27 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Melounis & Melounis (No 3) [2023] FedCFamC1F 849
File number: SYC 7199 of 2019 Judgment of: HENDERSON J Date of judgment: 27 September 2023 Catchwords: FAMILY LAW – ENFORCEMENT – Application by wife to be appointed trustee for sale of parties home in accordance with existing Court orders and for exclusive occupation of the home pending sale – orders made as sought by the wife – both parties agree the existing orders in respect of the distribution of proceeds of sale require variation. Legislation: Family Law Act 1975 (Cth) ss. 79, 79A, 114, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.11.26
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 26 September 2023 Place: Sydney Solicitor Advocate for the Applicant: Mr Layson Solicitor for the Applicant: Coleman Greig Lawyers The Respondent: Litigant in person ORDERS
SYC 7199 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MELOUNIS
Applicant
AND: MR MELOUNIS
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
27 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Wife shall forthwith be appointed as trustee for sale of the property situated at and known as F Street, Suburb D NSW (“the Suburb D property”) and the Suburb D property shall vest in the Wife.
2.For the purposes of order 1 above, the following shall apply:
2.1.The Husband shall vacate the Suburb D property within twenty-one (21) days of the date of these orders and for the purpose of this order:
2.1.1.The Husband shall be and is hereby restrained by way of injunction from removing any furniture items, chattels or fixtures from the Suburb D property except for:
2.1.1.1.Personal items belonging to the Husband (being clothing, toiletries, personal IT equipment (such as phones and laptop);
2.1.1.2.Personal items belonging to the children (being clothing, toys, books, toiletries, school items etc.).
2.1.2.The Husband shall make available to the Wife all keys providing access to the Suburb D property, including the garage remote by providing same to the Wife’s solicitors office via express post including providing the tracking number to the Wife’s solicitor;
2.1.3.Thereafter, the Wife shall have exclusive occupation of the Suburb D property to fulfill her role as trustee and pursuant to section 114 of the Family Law Act, the Husband shall be restrained by way of injunction from:
2.1.3.1.Attending at the Suburb D property without the express written consent of the Wife; and
2.1.3.2.Instructing or authorising any other person, including but not limited to Ms T and Mr G, from attending at the Suburb D property.
2.2.The Wife shall be at liberty to appoint the real estate agent to act on the sale (“the agent”);
2.3.The Wife shall be at liberty to appoint the conveyancer/solicitor to act on the sale (“the conveyancer”);
2.4.The Wife shall be at liberty to give such instructions as are necessary to the conveyancer to prepare a Contract of Sale for the Suburb D property and for the purposes of this order:
2.4.1.The Wife shall instruct the conveyancer to include in the Contract the following as inclusions to be sold with the Suburb D property:
2.4.2.Staircase together with any incidental fixtures including but not limited to bolts, screws, rails, stairs, landing pad, landing rails and any other items removed and necessary to reinstall;
2.4.3.Second kitchen removed from the 2nd level of the Suburb D property including but not limited to the complete side of kitchen removed, cupboards, screws, hinges, granite benchtops, granite splashbacks, toe kicks, built in oven, microwave and stovetop.
2.4.4.Desk, hinges and screws for the desk previously affixed to the wall. (“the inclusions”)
2.4.5.The Wife shall instruct the conveyancer to prepare any special conditions required to effect this order;
2.4.6.The Husband shall make the inclusions available to the Wife within seven (7) days of the date of these orders by delivering the inclusions to the Suburb D property;
2.5.For the purposes of order 2.4 above, the Wife shall instruct the agent to disclose the inclusions referred to at order 2.4.1 above to potential purchasers including by showing photographs/videos of the Suburb D property in its previous condition;
2.6.Within seven (7) days of appointing the agent, the Wife shall instruct the agent to attend at the Suburb D property and compile a list of recommendations, having regard to the terms of these Orders, for the parties to achieve the best sale price possible and:
2.6.1.The Wife shall then implement those recommendations;
2.6.2.The maximum cost for the purposes of this order shall be $15,000;
2.6.3.If the cost to implement the entirety of the agent’s recommendations exceed $15,000, then the Wife shall attend to the works which the agent recommends are of greater priority;
2.6.4.The Husband shall be responsible for the costs at first instance (and shall pay any invoice directly to the service provider within seven (7) days of same being issued and provided to the Husband by the Wife and/or the agent) with the Wife’s half share to be deducted from her entitlement pursuant to orders.
2.7.In addition to any recommendations of the agent as per order 2.6 above, to prepare the Suburb D property for sale the Wife shall, at the Husband’s cost, do all acts and things necessary to:
2.7.1.Reinstall the staircase to gain easy access to the third-floor located at the Suburb D property – access of which was restricted by the Husband;
2.7.2.Widen the opening to the access point of the third-floor to its previous size and replaster - which was restricted by the Husband;
2.7.3.Reattach the passage door to bedroom 4 (as referred to in the valuation report of Mr BV dated 5 October 2022) which was removed by the Husband;
2.7.4.Reattach the door to the laundry which was removed by the Husband;
2.7.5.Reattach the door to the stairwell which was removed by the Husband;
2.7.6.Reattach the desk that was previously affixed to the wall;
2.7.7.Repair any further damage to the Suburb D property including damage to flooring.
2.8.For the purpose of order 2.7 above:
2.8.1.If the items referred to at order 2.7.3 to 2.7.6, or any other items removed by the Husband, do not remain in the Suburb D property, then the Husband shall return them prior to the date that he vacates pursuant to order 2.1;
2.8.2.The Wife shall provide the Husband with any applicable invoice within twenty-four (24) hours of receipt;
2.8.3.The Husband shall pay such invoice, directly to the service provider, within seven (7) days of receiving same from the Wife and shall confirm same with the Wife within (24) hours of payment being made;
2.8.4.The total costs shall not exceed $15,000;
2.8.5.In the event that the Husband defaults on his obligations pursuant to this order, the Wife shall be reimbursed those funds upon settlement.
2.9.The Wife, as trustee, shall co-operate in every way in relation to the marketing and sale of the Suburb D property, including, but not limited to:
2.9.1.Allowing inspection at all times reasonably requested by the agent;
2.9.2.Making the key readily available to the agent;
2.9.3.Ensuring that the Suburb D property is clean, neat and in good order at the time of any inspection or is being photographed for marketing purposes including by clearing any boxes and/or clutter and leaving the area in a clean, neat and good state.
2.10.The Wife shall otherwise:
2.10.1.Do all things necessary to facilitate a sale at the earliest possible time and shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the Suburb D property being effected; and
2.10.2.Determine the method of sale with regard to the recommendation of the agent;
2.10.3.Sell the property at fair market value with regard to the recommendations of the agent;
2.11.The Wife shall attend at the auction (if that is the method of sale) and negotiate with the highest bidder or bidders in the event of the reserve price not being reached;
2.12.Upon the Wife accepting a sale price for the Suburb D property, the Wife shall within seven (7) days execute the Contract of Sale and all other documents necessary to complete the sale, including all transfer documentation forthwith upon its submission to them by the agent or the conveyancer;
2.13.The Wife shall notify the Husband of the agent appointed, solicitor/conveyancer appointed, the sale price and provide a copy of the executed Contract of Sale within twenty-four (24) hours of executing same.
2.14.The Wife will provide a copy of the settlement sheet to the Husband upon settlement of the sale.
3.Upon settlement, the proceeds of sale, less any money the Wife has expended in preparing the property for sale, shall be placed in an interest bearing account in both parties names pending determination of the application to vary that part of the orders made 14 May 2022 dealing with the distributions of sale proceeds or by agreement of the parties.
4.All outstanding interim applications be dismissed.
AND THE COURT NOTES THAT:
A.In the event this matter proceeds to final hearing the Court may consider the requirement of an Order under section 102NA(1) of the Family Law Act 1975 (Cth).
B.In the event the Husband fails to vacate the house as ordered the Court will entertain any Enforcement Warrant for ejection.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Melounis & Melounis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
HENDERSON J:
This was an application in a case filed by the wife on 8 February 2023 for enforcement of orders for sale of the parties’ home, which orders were made on 14 May 2022 by Judge Morley. The wife also sought multiple additional orders in her enforcement application. After much discussion, the position of the parties was as follows:
(1)Each agreed the home must be sold and work needed to be carried out to get it ready for sale. Clearly the parties are desirous of maximising the sale price of their home.
(2)Secondly, that the wife’s application under section 79A of the Act filed on 29 June 2022, for variation or setting aside of the final orders, was now a variation of that part of the final orders that dealt with the distribution of the net proceeds of sale. Both the husband and wife say the orders will now not be appropriate for at least the following two reasons, but there may be more:
(a)The home should have been sold some 18 months ago and it has not been and that is a substantial period of time; and
(b)Secondly, the wife contends that the husband’s actions have diminished the value or potential sale price of the home and costs will be incurred in rectifying the damage he has caused to the home - in his sole occupation since separation.
Therefore, the distribution set out in his Honour’s judgment will need to be varied because these events had not occurred at the time, naturally.
Where the dispute before me lies is who should have sole occupation of the home and carriage of the sale. I note the husband has been in occupation of the home since separation in October 2019 and he was granted sole occupation of the home by his Honour’s orders of May 2022. I note he has continued to pay the mortgage and other outgoings on the home. There is a mortgage of some $1 million on the property.
The wife says the husband has, at every stage, failed to cooperate with her in a sale, has carried out unauthorised and unilateral work on the home, damaged the home, has not conserved or maintained the outside of the home such as the garden and the interior of the home, that it is in a messy state and the only way it will be sold, sooner rather than later and for the best price the parties can obtain, is if she has carriage of the sale of the home as a trustee. Further that she have occupation of the home so she can carry out getting the home into the proper condition, have it inspected without interruption and the husband moves out and leaves the home permanently. The wife seeks to maximise the home’s appeal by getting it into a neat and tidy condition and rectifying what she says are problems caused by the husband’s conduct.
The husband now says he will sell the home and wants to retain his sole occupation of the home pending the sale. That he will continue to pay the mortgage and outgoings on the home as he has. He says he will, in accordance with the valuer’s report of 22 August 2022 and 7 June 2022 of Mr BV within two or three weeks: install a new staircase in the place where there was a staircase that he unilaterally removed from an upstairs room. This was the only access to an upstairs area. That he will restore the second kitchen wet room area to make it a wet room or bar area rather than a kitchen, he having partially removed part of the kitchen that had been installed; that he will present the home in a clean and tidy state for sale both internally and externally. That he too wants to maximise the sale price of his property; he will abide by the agent who the parties engage to sell the property, in terms of what the selling price is to be; inspection times; when parties are to be at the home/not be at the home and will comply with all the agent’s requests.
Mr Layson, solicitor, acted for the wife and the husband was self-represented. The material presented was voluminous, not indexed and was well over 800 pages, ultimately, only on the wife’s case. Little of that material was relevant to me or this application.
The wife initially sought to set the orders of 14 May 2022 aside, yet, also, to enforce them, which caused me some difficulty. That conundrum was cleared up and both parties agree the home must be sold. It is the distribution of the net proceeds that is an issue, yet, not an issue before me and was never to be an issue before me today.
The husband’s evidence was conflated with parenting issues, which are also not before me today and, quite frankly, there is no reason to re-agitate any parenting issue. That is a matter for the husband, and he should obtain some proper legal advice in this regard. However, I accept he is unrepresented, and he is not a lawyer and does not necessarily know the legal processes.
The salient chronology - and it is only a short chronology - is as follows.
There were AVO proceedings in late 2019 and the wife was convicted of an AVO in late 2019.
There had been very poor behaviour, witnessed by the children, between their parents during the marriage, a matter noted by Judge Morley.
On 24 May 2022, after a final hearing almost 12 months prior, final orders were made for the division of the property and sale of the home. The orders are not appealed.
In June 2022, the wife filed an application seeking to set aside or vary the property orders under section 79A.
On 1 July 2022, the wife is granted ex parte orders to inspect the home, given her concerns at that time as to what the husband was doing at the home when she says it should have been being prepared for sale.
In November 2022, the proceedings were transferred to Division 1 of this Court.
The husband files a response to the wife’s application on 17 February 2023, some seven months later. He seeks to reopen parenting. That is a matter yet to be determined by a Court and the husband really should take some legal advice on that issue as there is little reason presented to vary the orders.
The wife files this urgent application for the sale of the home on 7 August 2023 with an affidavit, seeking vacation by the husband of the home, orders for sale and she be appointed trustee, distribution of sale proceeds. The last order is not a matter a Court can deal with on an interim basis, giving that it may well require setting the orders aside and re-exercising the discretion under section 79 concerning entitlements and the like.
The husband files a response to the interim application on 4 September 2023 with an affidavit. The parties engaged in a conference, however, there was no resolution, and the matter comes before me.
Evidence
Now, there is no doubt the wife’s application filed 28 June 2022 to set orders aside or have them varied under section 79A caused a substantial delay in progressing the sale, given the matter was ultimately transferred to this Court on 29 November 2022. However, the orders of 14 May 2022 remain extant and both parties agree the home should be sold. Yet, nothing has occurred in that regard.
Even before the filing of the wife’s application the husband’s conduct as deposed to by the wife in her material was obstructive of carrying out the 14 May 2022 orders. They were that the home was to be placed on the market for sale within two weeks of those orders. Nothing like that occurred, despite the wife’s best efforts. The husband failed to respond to the wife’s lawyers’ letters of 31 May, 1 June 2022, concerning appointment of a conveyancer and a real estate agent in respect of proposals they put forward.
On 16 June 2023, the husband put forward his own agents and conveyancers. The wife accepted the husband’s real estate agent and put forward her own conveyancers on 10 June 2023. The husband responded with a multitude of unnecessary, inappropriate conditions for the sale, such as: wife could not attend the property unsupervised, nor could her parents or family members attend any inspection; if he saw her family members or her at the home the inspection would be cancelled; that he would call the police if the wife attended the property, that neither he or the wife could speak to the real estate agent that were engaged by the parties, a non-sensical order. These matters simply were inappropriate for a real estate to have included in conditions for sale. Further they were unnecessary to affect a sale of the property, given the husband had sole occupation of the home.
This is the parties’ home. They must be able to deal with the real estate agent. Certainly, they each must know what the other is saying. Such an order would make sale of the home untenable and still, the home is not sold and very little has been done.
A nasty altercation occurred in front of the children in the home in early 2023 when the wife, again, was permitted to enter the home to see its condition and state. The parties clearly have an acrimonious, damaging for their children, relationship and appear unable to cooperate at any level even for their own best interests, let alone the best interests of their children and this was noted by his Honour at paragraph 393 of his judgment where he said:
The parents have a poor interpersonal relationship, and this poor interpersonal relationship continues and is the basis of why this matter is before a Court for sale of a property - a matter a Court really cannot achieve. The parties have to sell the property, not the Court and they have not abided by the orders.
The husband engaged in conduct that is inexplicable in respect of the home. Unbeknown to the wife, he removed a staircase to an upstairs area and then plastered the hole over to make it smaller. The only way to access that room now, which is, apparently, a storage room, is by an ordinary ladder and this is very dangerous. He began to remove part of an upstairs kitchen, but he didn’t complete it or carry it out fully. He removed various doors from various rooms. From photographs the wife had attached to her material, had many boxes stacked in the home all over the place. The outside of the home appeared unkempt.
The husband’s reasons for the, removal of the staircase and part removal of an upstairs kitchen were that they were illegal additions or building works, according to the building expert’s report of Mr BV in 2022 and had to be removed prior to sale. The husband was wrong in that regard in at least two respects.
He was wrong that this is what the report said and, secondly, he was wrong to carry out such major works to the home without the wife’s knowledge or consent. This not telling the wife, or her legal team has caused this major difficulty.
When I go to the report, which appears at page 268 of the wife’s tender bundle, Mr BV does not say the staircase is non-compliant, rather, that the room it accesses, if used for a rumpus room/playroom/study, would be non-compliant, not the staircase. People are entitled to have a staircase to an upstairs room for storage. I accept the report also says that having removed the staircase was an enhancement, because there was a better view of the surrounding area. That it would be an enhancement of the room if a hidden ladder be installed and the hole which had been plastered over by the husband, enlarged to allow this to happen.
When the husband was asked to explain why he took the staircase out and didn’t put in the hidden ladder as Mr BV suggested, he repeated he would now do this. He removed the staircase over a year ago and he has taken not one action to effect Mr BV’s recommendation.
The husband said he was injuncted and restrained from doing anything in the house by Judge Morley. He was not. He was injuncted and restrained from damaging the home, or carrying out actions that the wife did not agree to. Again, not seeking legal advice on the meaning of orders has in part caused these problems to occur. As the only way one can access this space now is by a regular ordinary ladder something must be done before sale to return it to safe and proper access.
As to the kitchen, the upstairs kitchen, I accept it was partially dismantled to appease the council. This property cannot be used as a dual occupancy home, that would offend Council zoning and if so used would be a non-compliant kitchen. However, Mr BV really is not someone who is an expert in zoning laws, and I am not so certain that parties are unable to have more than one kitchen in their home. The mere existence of an additional kitchen does not mean it is a dual-occupancy home. I am left in somewhat of a mystery in this regard. I accept that kitchen was not part of the original plans of the property which only showed one kitchen. However, parties can have wet rooms, bars, other areas to prepare food and meals and it not be a kitchen, and that would not offend.
So perhaps the husband’s idea that he was going to turn the kitchen into a wet room and a bar was reasonable. However, he has not done that either. He has just pulled apart a kitchen and left it standing there in a half-finished state. In partially removing the kitchen, as he removed the staircase, has certainly caused damage to the home, and not made it as visually appealing as it might have been, and he has turned the space into usable space, and it presents as a bit of a shambolic mess from the photographs attached to the wife’s affidavit. The husband denied the photographs were accurate and were not taken at times that she said they were however, I cannot make any findings today about that.
The husband complained the wife wanted to market the home as a dual-occupancy home and as they cannot have a dual occupancy property because of Council zoning, he undertook his unilateral attempts to have the home Council compliant to prevent false advertising.
I accept the home cannot be marketed as a dual occupancy home, but clearly it has two separate areas for distinct family members to live in, including separate entrances and exits to those distinct areas. It is a two-storey property and the wife deposed in her affidavit that the parties specifically designed it this way and were renting out part of the home during the marriage and that the husband continued to do this up to 2021. Thus, the husband’s sudden pang of conscience or guilt causes me concern. Further there has never been a suggestion that the home would be marketed as a dual occupancy in terms of Council regulations, rather, a home that has separated living spaces.
Such marketing is vastly different to marketing a home as dual occupancy, which no respectable real estate agent would do. Marketing a home with separated living and dining areas, for example, separate entrances and exits is permissible. This is a marketing strategy which would likely increase the pool of available purchasers. Mr BV’s report is not the report to rely upon for those matters and the husband really needed to take legal advice on this issue before he jumped to these conclusions.
The wife’s evidence is that the staircase removal and the kitchen pull-out occurred after February 2022. That she saw the property then and it was intact. That it was after the judgment was delivered by Judge Morley in May 2022 and the husband’s application to retain ownership of the home was refused and dismissed by his Honour that the “work” came about. That is a matter for a final hearing if the parties get to that stage, but the timing is noted by the Court.
The wife accessed the home again on 3 July 2022 and discovered this damage and what was happening. Her evidence was that she had an inkling of it before and thus filed her application. That on 3 July, she saw what he had done.
That there was damage to the floor where the staircase was removed, and she sets out at paragraph 102 of her affidavit other damage. The wife says the husband has cut down trees, which had made what was an aesthetically pleasing back yard, shielding the back yard from overlooking neighbours, no longer available. However, that can be rectified by planting other trees.
That he removed a desk from an office which had been attached to a wall and damaged the wall and the floor in the process. Removed a laundry door so that the laundry is visible from the main entranceway, when it had been concealed. That this door was stored in a bedroom downstairs. Removed a door from Y’s room, which means she has no door on her room. Took a track off a door, which she found in the storeroom downstairs. Removed outdoor speakers and outdoor setting from the balcony so it is now bare. Put single beds in all bedrooms on the second level, making the rooms look cluttered. Filled two of the three downstairs bedrooms with stacked furniture so you cannot gain easy access to see the size and amenity of the room. Placed a fridge that was previously in the kitchen on the second level in the lounge room downstairs, which makes it appear that the downstairs kitchen is too small to accommodate a fridge. That the outside area was generally run-down, and attached photographs of bits and pieces lying around, showing an ill maintained yard and or lawn. That the husband has generally not physically maintained the home.
The wife is in a parlous financial position, as opposed to the husband, who is working and, from the wife’s exhibit 1, has received income or money into his bank account, his Westpac bank account, from August to early September this year of something like $25,000. The wife does not work.
Further that he is in arrears of child support of some $10,000. He has changed the spelling of his surname from what is in the Court record. This made it difficult for the wife to determine his income, and his bank records from issuing subpoena to various employers she believed he might be engaged in employment, such as Westpac Bank, NAB Bank, he having been working in the financial sector at the time and during the marriage. That the husband may well have a job in the financial sector now with a bank again despite telling Judge Morley he was not intending to do so. That he has or appears to have a bank email account in his new surname.
The wife is without work, rents her property for $850 and has been living on money she had. The wife shares the care of the two children with the husband. She was required to obtain her own furniture as the husband would not provide the same to her at separation. That she has an exorbitant debt with Company BS Litigation Funding, which was, at 31 July 2022, standing at $519,000, is accruing interest at a rate of $7,800 per month and still has outstanding legal fees to her lawyers of some $200,000. There will be nothing that this wife will obtain from this matter, even at a sale of 2.4 million. It is a travesty and tragic that this matter has come to this stage.
The wife expected to receive her property settlement 12 months ago, home on the market two weeks after the judgment, sold, all dealt with by the end of July, hence no doubt why she took out this exorbitant Company BS litigation lending loan which is a disgrace. She has negotiated with them not to increase the interest rate until October 2023, hoping she would have some $530,000 to pay their fee, and it will go up yet again if she does not pay.
Contra the husband who is self-represented, has no legal fees, and not having a lawyer has caused significant problem for the wife being his lack of understanding of the meaning of orders, obligations, and requirements. He is able to meet the mortgage payments on the home. There is little or no impellor for him to act at all let alone quickly and this delay suits him well. He seems to have a job, and he has engaged in a degree of perhaps subterfuge with the wife in relation to what and who his current employment is and from where he receives his income, has not cooperated with the wife or her lawyer at any time, in fact, to the contrary and has changed the spelling of his surname for no good reason.
The husband’s attitude and behaviour to the wife’s lawyers is almost scandalous. He has created a new email address for himself and will only accept email communication from them if they send it to his new email address. Coleman & Greig own that domain name, not the husband, and they have asked him to desist from using it. He has not responded. This bespeaks of a passive-aggressive approach and behaviour, which was evident before me at Court. The husband has filed two contravention applications, each of which were dismissed, and there is a third one, and has been told that is likely to be dismissed but seeks to pursue it. He has no legal fees, and he represents himself and does so poorly and at a cost to the wife.
The husband and wife cannot cooperate at all with each other, and it is likely both are at fault for that behaviour. However, matters are now coming to a point where it is an absolute financial disaster for both of them. The husband had the opportunity to sell the home in accordance with the orders of this Court of May 2022 and has done nothing. He now tells me he will do it, and he will sell the home and he will carry out all these things, yet he has not taken one positive step in the meantime to do this. He has not even put the ladder in, as suggested by Mr BV, someone whose expertise he seems to rely upon. It is imperative a Court enforces its own orders, and particularly where there is agreement to do so, as here, that is, the home is to be sold. The wife is in a parlous financial position; the husband is not.
The wife has the greatest incentive to sell the home, and she has made out her case that it is proper in order for this Court to enforce its orders, that she be appointed as trustee for sale and the husband leave the home. This is the only way this home will be sold quickly and efficiently for the maximum price, at which time, after it is sold, it is hoped the parties can come to some agreement about what is to happen to the net proceeds of sale, given they will know how much they obtain from the sale, because, really, at this stage, it is somewhat unknown.
The husband said he needed 60 days to vacate the home. Well, he has lived in there for about 20 months now, and his proposal is unacceptable given his sole occupation of that property. He has family; he has income; he has means to establish himself, and he can rehouse himself, as the wife has done. I will give him 21 days to vacate the property, and if he does not do so, the Court will entertain an application for a warrant of ejectment. The wife will have sole possession of the home from that date and the wife is appointed trustee for sale pursuant to Rule 11.26 of the Act. I will make the following orders as sought by the wife in her application as appear at the commencement of this judgement.
I certify that the preceding forty-seven (47) numbered paragraph is a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 13 October 2023
2
0
2