Merrick and Merrick - [2018] FamCA 56

FAMILY COURT OF AUSTRALIA

MERRICK & MERRICK

[2018] FamCA 56

FAMILY LAW – PROPERTY SETTLEMENT –Where there are two children of the marriage – Where the husband is 65 years of age – Where the wife is 45 years of age – where the duration of the relationship is 10 years – where the husband made overwhelming financial contributions – where the wife made overwhelming parenting contributions – where the value of the real property is unlikely to exceed the loan secured by mortgage over it – where the bank has commenced proceedings to repossess the property due to mortgage default – where the real property is to be sold – where the wife resides in the property – where it is ordered that the wife vacates the property – where the husband is appointed as the trustee for the sale of the property

Family Law Act 1975 (Cth)

Bevan v Bevan [2013] FLC 93-545
Hepworth v Hepworth (1963) 110 CLR 309
Mallet and Mallet (1984) 156 CLR 605
Stanford and Stanford (2012) 247 CLR 108

APPLICANT:

Ms Merrick

RESPONDENT:

Mr Merrick

FILE NUMBER:

PAC

1983

2008

DATE DELIVERED:

9 February 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

29 and 30 November 2017 and 1 December 2017

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

SOLICITOR FOR RESPONDENT:

Ms Simone Barbour, Anthony Black Family Law Services

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous orders are discharged.
The Respondent, Mr Merrick, is hereby appointed trustee for sale of real property situated at B Street, Suburb C in the State of Queensland (the Suburb C property) and, by this Order, is authorised to:
(a)take reasonable steps for the purpose of preparing the Suburb C property for sale and facilitating the sale of the Suburb C property; and
(b)obtain quotes for the work nominated by Mr D in writing as being the minimum required to prepare the Suburb C property for re-listing for sale; and
(c)to accept such quotes, up to the amount of $5,000.00 in total, for the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale; and
(d)sell the Suburb C property on such terms and conditions as recommended in writing by Mr D, subject to the consent of the mortgagee as required to obtain the release of the mortgage.
Mr D of E Real Estate Agency, F Town is appointed as the agent for the sale of the Suburb C property.
The Suburb C property shall be listed for sale with Mr D as soon as practicable and upon Mr D’s advice that it is in a state which is suitable for showing to prospective buyers.
If necessary, the parties sign any Listing Authority within seven (7) days of receiving it from E Real Estate Agency.
The Applicant, Ms Merrick, and all of her invitees vacate the Suburb C property within twenty-one (21) days from the date of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Merrick and Merrick

Details

AGLC: Merrick and Merrick [2018] FamCA 56
Case: [2018] FamCA 56
Decision Date: 9 February 2018

CaseChat Overview and Summary

This matter concerned orders made by Hogan J in the Federal Circuit and Family Court of Australia between Ms Merrick (the Applicant) and Mr Merrick (the Respondent). The dispute centred on the sale of real property located at B Street, Suburb C, Queensland. The court was required to make final orders regarding the management and sale of this property, as well as the occupation of the premises.

The legal issues before the court included the appointment of a trustee for sale, the authorisation of steps to prepare the property for sale, the appointment of a real estate agent, the vacating of the property by the Applicant, and the distribution of sale proceeds. The court also considered the disposal of any chattels left by the Applicant and the facilitation of access for inspections, quotes, and tradespeople.

Hogan J appointed the Respondent, Mr Merrick, as trustee for sale of the Suburb C property. He was authorised to take reasonable steps to prepare the property for sale, obtain quotes for necessary work up to $5,000, and accept such quotes. The sale was to be conducted on terms recommended by Mr D of E Real Estate Agency, who was appointed as the agent. The Applicant, Ms Merrick, and her invitees were ordered to vacate the property within 21 days and were restrained from returning to live there pending sale. The Applicant was also required to provide all keys and access codes to Mr D and leave the property in a clean and tidy condition, removing any non-working vehicles.

The proceeds of the sale were to be applied first to discharge the mortgage, then to agent commissions and expenses, conveyancing costs, reimbursement of the Respondent for preparation costs up to $5,000, and finally, any remaining balance to the Applicant. The order also provided for the appointment of a Registrar to sign documents if a party failed to do so within 14 days of a written request, with the defaulting party bearing the costs associated with this process. All previous applications were dismissed.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous orders are discharged.

The Respondent, Mr Merrick, is hereby appointed trustee for sale of real property situated at B Street, Suburb C in the State of Queensland (the Suburb C property) and, by this Order, is authorised to:

(a) take reasonable steps for the purpose of preparing the Suburb C property for sale and facilitating the sale of the Suburb C property; and

(b) obtain quotes for the work nominated by Mr D in writing as being the minimum required to prepare the Suburb C property for re-listing for sale; and

(c) to accept such quotes, up to the amount of $5,000.00 in total, for the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale; and

(d) sell the Suburb C property on such terms and conditions as recommended in writing by Mr D, subject to the consent of the mortgagee as required to obtain the release of the mortgage.

Mr D of E Real Estate Agency, F Town is appointed as the agent for the sale of the Suburb C property.

The Suburb C property shall be listed for sale with Mr D as soon as practicable and upon Mr D’s advice that it is in a state which is suitable for showing to prospective buyers.

If necessary, the parties sign any Listing Authority within seven (7) days of receiving it from E Real Estate Agency.

The Applicant, Ms Merrick, and all of her invitees vacate the Suburb C property within twenty-one (21) days from the date of this Order and, thereafter, the Applicant is restrained and an injunction issue restraining her from returning to live in the Suburb C property pending its sale.

Upon vacating the Suburb C property the Applicant, Ms Merrick, shall:

(a) provide all copies of all keys relating to the Suburb C property (whether in respect of doors or gates) to Mr D; and

(b) provide any access code for the Suburb C property to Mr D; and

(d) remove or cause to be removed from the Suburb C property any unregistered motor vehicles or vehicles that are not in working order.

After the Applicant, Ms Merrick, vacates the Suburb C property, the Respondent, Mr Merrick, is authorised to dispose of any property or chattels left by her at the Suburb C property in a manner he considers reasonable and, in the event that any such property or chattels are sold, the Respondent is at liberty to apply the sale proceeds obtained toward the costs of preparing the Suburb C property for sale.

During the time before she and her invitees vacate the Suburb C property, the Applicant, Ms Merrick, shall:

(a) upon receiving no less than 12 hours’ notice, facilitate an inspection of the Suburb C property by Mr D so as to enable him to identify those works which are the minimum required to be done to prepare the Suburb C property for re-listing for sale; and

(b) within 24 hours of receiving a request for access by the same, facilitate entry to the Suburb C property by any tradesman, organised to provide a quote for the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale; and

(c) within 24 hours of receiving a request for access by the same, facilitate entry to the Suburb C property by any tradesman authorised to complete the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale.

10.

Unless a different agreement is reached between the Respondent (in his capacity as trustee for sale of the Suburb C property) and the Commonwealth Bank of Australia (whose loan facility is secured by mortgage registered on the title to the Suburb C property) as to the payment of the costs associated with the sale of the Suburb C property, the proceeds of the sale of the Suburb C property shall be paid in the following manner and priority:

(a) to discharge the mortgage secured over the Suburb C property; and then

(b) to pay the agent’s commission and advertising or other expenses, if any, payable on the sale; and then

(d) to reimburse the Respondent, Mr Merrick, for the costs of the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale provided that such reimbursement will only occur in an amount of up to $5,000.00 in total; and then

(e) to pay any monies remaining to the Applicant, Ms Merrick.

11.

Save as is otherwise provided for in this Order, the parties have the sole right, title and interest to and in all other property which, at the date of this Order, is in their possession, title or name and each party shall be solely liable for and indemnity the other against any personal liabilities in their sole name.

12.

The Respondent, either personally or by his legal representative, has leave to provide the Commonwealth Bank of Australia with a copy of this Order.

13.

In the event that either party fails to sign the Listing Authority or any other document necessary to implement the terms of this Order within 14 days of a written request to do so, then, upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal, a Registrar of the Court is appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to sign any such document in lieu of the non-signing party.

14.

The costs of and incidental to a request and production of documents to the Registrar, as provided for in paragraph (13), shall be borne by the defaulting party without further order and may be fixed by the Registrar or Deputy Registrar and, thereafter, shall be recoverable from the defaulting party by the other party as a debt.

15.

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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