Morton and Morton

[2007] FamCA 1068

FAMILY COURT OF AUSTRALIA

MORTON & MORTON [2007] FamCA 1068

FAMILY LAW – PROPERTY – Insolvency – Orders for proceeds of sale to be held on trust for wife and the Insolvency Trustee pending final judgment

Family Law Act 1975 (Cth)

APPLICANT: MRS MORTON

RESPONDENT: MR MORTON

INTERESTED PARTY: THE OFFICIAL TRUSTEE, INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA

FILE NUMBER: MLC 9885 of 2007

DATE DELIVERED: 6 SEPTEMBER 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 6 SEPTEMBER 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON BY TELEPHONE

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERESTED PARTY: NO APPEARANCE

SOLICITOR FOR THE INTERESTED PARTY:

ORDERS

1. THAT the wife be excused from attendance at this hearing.

2. THAT until the adjourned hearing date of Wednesday 3 October 2007, or further order made by the Court the balance of monies retained on settlement of the sale of vacant land at D be held in an interest bearing trust account by an agreed firm or individual for and on behalf of the wife and the Interested Party.

3. THAT at settlement of the sale of the D property the proper mortgage sum then owing be discharged and such other conveyancing fees and agent’s fees as have been properly incurred be paid to facilitate settlement.

4. THAT the husband, or the Interested Party, be permitted to file and serve any further response or affidavits upon which they intend to rely no later than Thursday 27 September 2007.

5. THAT the wife ensure that a sealed copy of this Order and all documents upon which she intends to rely are served as soon as possible upon the husband and the Interested Party.

6. RESERVE liberty to apply upon short notice and proper documentation filed and served.

IT IS NOTED:

A.THAT the Insolvency Case Manager, Estate Administration, for the Interested Party was contacted by the Court and confirmed that the Official Trustee does not intend to become a party in the case but will abide by whatever Order the Court pronounces.

B.THAT the wife was not at Court and was therefore not available to make any undertaking as to damages, costs or other financial issues as may have been considered appropriate and the interim orders are pronounced in the context that such an undertaking may hereafter be required of the wife.

C.THAT the purpose of these Orders is to ensure settlement of the sale of the D property with all available monies after settlement being held pending further order.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Morton & Morton

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9885 of 2007

MRS MORTON

Applicant

And

MR MORTON

Respondent

And

THE OFFICIAL TRUSTEE, INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA
Interested Party

REASONS FOR JUDGMENT

1. The matter of Moron and Morton and the Official Trustee, Insolvency and Trustee Service Australia is before the court in the following manner.  The wife filed on 4 August 2007 a handwritten application wherein she sought orders in respect of moneys that will arise from the sale of a property at D, Victoria to be held for her or, pursuant to her Form 2 application in a case, for the Trustee in bankruptcy of the husband to be restrained from distributing those proceeds until further order. 

2. The wife filed a Form 13 financial statement and a form of affidavit which gave the briefest of background history.  The essence of the wife's application is she wishes to retain some moneys from the marriage for herself and it would seem that the only available moneys are to be those from the settlement of sale and after payment of mortgage and all costs of and incidental to sale.  The following day, 5 September, there was faxed to the court by the wife, after some level of discussions with the court a document which set out additional financial facts and circumstances and which estimated the balance of moneys available on settlement to be $18,000.  That settlement is to occur on 7 September.  That is tomorrow.

3. Of more significance is the fact that the wife is not here today, and those circumstances are dealt with in paragraph 17 of this most recent document.  The wife is urgently flying to Wales to be with her sister, whose two children aged 17 and 19 years were recently, yesterday afternoon, killed in a motor vehicle accident.  The wife has disclosed those facts to the court and it would seem by way of telephone discussion with the Official Trustee. 

4. In these circumstances there is no‑one before the court.  I do not know if the husband has any knowledge of this application but will require service in due course.  In any event, he is now a bankrupt.  The Official Trustee has clearly been advised of the proceedings and during the course of this day has been contacted by my associate.  Mr H has responded in discussion to the court that the Official Trustee does not intend to become a party in the case but will abide by whatever order the court makes. 

5. In circumstances where the parties, or at least the applicant appears consideration would be given to the necessity of an undertaking being made as to damages, or otherwise generally.  That is not possible in the circumstances of this case today and is a matter which will need to be considered, if appropriate, on the return hearing date.

6. In the circumstances of this case and merely to preserve and protect assets and to facilitate a further hearing when the wife returns from the United Kingdom, and I do not know the date of her return, I propose to pronounce an interim order.  I will adjourn her application to this list on 3 October 2007.  I will not treat the Official Trustee as a party but will adopt a more neutral terminology and identify them as an interested party, though with the caveat that currently they are not and do not wish to intervene or otherwise be joined as a party.

7. For those very brief reasons and to preserve the matter before the court I propose to make those orders which I have indicated as to the balance of moneys, though I stress that the sale of the D property is to be settled and all proper mortgage debt and other fees and expenses paid.  The court can then readdress all issues on the adjourned hearing date, with an obligation upon the wife to ensure that all parties know of the adjourned hearing date.  I will, however, have my associate send a sealed copy of these orders to both the husband and wife and to the Official Trustee.

8. I will now pronounce orders.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 13 September 2007