Melville & Dent (No.2)

Case [2009] FamCA 81


FAMILY COURT OF AUSTRALIA

MELVILLE & DENT (NO. 2) [2009] FamCA 81
FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Adjournment with costs – Indemnity costs – Determination of costs thrown away as a result of the adjournment – Order for the sale of a real property on the basis of husband being unlikely to be able to make mortgage payments at a time of impecuniosity – Payments to be made as a condition of an adjournment
Family Law Act 1975 (Cth)
Black and Kellner (1992) FLC 92-287
Brown & Brown (2004) FamCA 1067
Colgate-Palmolive Company and Anor v. Cussons Pty. Limited (1993) 46 FCR 225
LGM and CAM (Contempt) [2008] FamCAFC 1
Penfold v Penfold (1980) FLC 90-800
Tate v Tate (2000) FLC 93-047
Weir and Weir (1993) FLC 92-338
Yunghanns (2000) FLC 93-029
APPLICANT: Ms Melville
RESPONDENT: Mr Dent
FILE NUMBER: MLF 3157 of 2006
DATE DELIVERED: 12 February 2008
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN
HEARING DATE: 2 & 3 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STRUM
SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT
COUNSEL FOR THE RESPONDENT: MR HOULT
SOLICITOR FOR THE RESPONDENT: FORTE FAMILY LAWYERS

Orders

  1. That by 4.00pm on 10 March 2009, the husband pay the wife’s costs thrown away fixed in the sum of $31,025.

  2. That by 4.00pm on 10 April 2009, the husband pay the arrears of mortgage payments to National Australia Bank (Asia) Ltd up to the payments due immediately before that date and provide evidence to the wife that that has been done.

  3. That the husband forthwith do all things necessary and sign any necessary document to consent to the sale of the real property at H in the United States of America.

  4. That in default of agreement between the parties as to the terms and conditions of the sale, these proceedings be relisted before me on short notice by application supported by affidavit setting out what orders are sought.

  5. That there be general liberty to apply.

  6. That if the husband:

    (a)fails to make proper disclosure of all documents in his power, possession or control; or

    (b)fails to comply with the provisions of any of paragraph (1), (2) or (3) hereof,

    the wife have liberty to seek to have the case relisted prior to 6 May 2009 and to have it proceed on an undefended basis on such terms as may then be determined.

  7. I certify for the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Melville & Dent is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3157  of 2006

MS MELVILLE

Applicant

And

MR DENT

Respondent

REASONS FOR JUDGMENT

  1. The final hearing of this matter was adjourned on its second day for reasons which I gave ex tempore.  Unashamedly, the husband was given a significant indulgence. 

  2. The wife sought that any adjournment be conditional or at least closely allied…

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Details
AGLC
Melville & Dent (No.2) [2009] FamCA 81
Case
[2009] FamCA 81
Decision Date

CaseChat Overview and Summary

In *Melville & Dent (No.2)*, the Honourable Justice Cronin considered orders relating to costs, mortgage arrears, and the sale of real property in the United States. The dispute concerned the financial and property settlement between the husband and wife.

The court was required to determine the terms of the orders concerning the husband's financial obligations, including the payment of costs, the discharge of mortgage arrears, and the facilitation of the sale of a specific property. The court also had to consider the consequences of the husband's potential non-compliance with these orders.

Justice Cronin ordered that the husband pay the wife's costs thrown away by a specified date. Further, the husband was ordered to pay outstanding mortgage arrears on a property and provide evidence of this payment to the wife. The husband was also directed to take all necessary steps to consent to the sale of a property located in the United States, with provisions made for relisting the proceedings if the parties could not agree on the sale terms. Liberty to apply was granted generally, and specific liberty was given to the wife to relist the case on an undefended basis if the husband failed to make proper disclosure or comply with the orders regarding costs, arrears, or the property sale. The court also certified for the attendance of counsel.

Orders

Orders of the court

1.

That by 4.00pm on 10 March 2009, the husband pay the wife’s costs thrown away fixed in the sum of $31,025.

2.

That by 4.00pm on 10 April 2009, the husband pay the arrears of mortgage payments to National Australia Bank (Asia) Ltd up to the payments due immediately before that date and provide evidence to the wife that that has been done.

3.

That the husband forthwith do all things necessary and sign any necessary document to consent to the sale of the real property at H in the United States of America.

4.

That in default of agreement between the parties as to the terms and conditions of the sale, these proceedings be relisted before me on short notice by application supported by affidavit setting out what orders are sought.

5.

That there be general liberty to apply.

6.

That if the husband:

(a) fails to make proper disclosure of all documents in his power, possession or control; or

(b) fails to comply with the provisions of any of paragraph (1), (2) or (3) hereof,

the wife have liberty to seek to have the case relisted prior to 6 May 2009 and to have it proceed on an undefended basis on such terms as may then be determined.

7.

I certify for the attendance of counsel.

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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