Mulroy and Percell

[2016] FamCA 1175

FAMILY COURT OF AUSTRALIA

MULROY & PERCELL [2016] FamCA 1175

FAMILY LAW – PROPERTY – ENFORCEMENT – Implementation of final orders – Where final property orders provide for the payment of a capital sum to the applicant by the respondent and in default for the sale of a property – Where the sum has not been paid – Where there is a dispute about the mechanics of selling the property – Order made to appoint the applicant as Trustee for Sale in default of payment being made by the respondent.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mulroy

RESPONDENT: Mr Percell

FILE NUMBER: SYC 1379 of 2013

DATE DELIVERED: 18 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 18 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner

SOLICITOR FOR THE APPLICANT: Central Coast Family Law

FOR THE RESPONDENT: Mr Percell appeared in person

Orders 

1. That Order 2 of the orders made on 15 June 2016 is varied by including at the end thereof the words “other than for the purpose of complying with the orders made on 18 July 2016” so that the order shall now read:

   2.The applicant Mr Percell is restrained, pending further order, from permitting any other person or entity to act for him on the sale of the property specified in Order 1 hereof other than D Lawyers located at E Street, Suburb F, NSW other than for the purpose of complying with the orders made on 18 July 2016.

2. That Order 3 of the orders of 15 June 2016 is discharged.

3. That orders are made in accordance with the Minute of Orders filed in Court today signed by Johnston J and placed with the Court papers as set out hereunder:-

   1.THAT within 10 days of the date of these orders, the respondent shall pay to the applicant’s solicitors on behalf of the applicant the sum of $140,000 (“the capital sum”) together with interest calculated in accordance with the Family Law Rules from 6 February 2016 to the date of payment.

   2.THAT should the respondent fail to make payment to the applicant in accordance with 1 (above) it is declared that the applicant is appointed Trustee for Sale in relation to the property B Street, C Town, New South Wales being Lot  in Deposited Plan … (“the property”) and is authorised to do all things, sign all documents, give all necessary authorisations on behalf of the respondent in respect to the sale and the sale proceeds are to be disbursed in accordance with order 2.8.1 – 2.8.5 and that Mr Percell forthwith do all things to rescind any contract for sale entered into by him in respect of the said property.

3.THAT contemporaneously with the payment of the capital sum together with interest, the applicant shall:

3.1do all things, sign all documents and give all necessary authorities to cause a withdrawal of caveats registered on the properties:

-    G Street, Suburb H, NSW;

-    B Street Road, C Town, NSW;

-    2 B Street Road, C Town, NSW.

4.THAT if the capital sum and interest is paid in accordance with 1 above, the applicant will surrender vacant possession of the property within 28 days of the date of payment.

1. That all costs are reserved.

IT IS NOTED:

A.That the father has filed an Amended Application in a Case on 29 June 2016 for a declaration that the child J born on … 2001 is not a child in relation to whom a child support assessment could lawfully have been made.

IT IS FURTHER ORDERED:

1. That such application is adjourned for hearing at 10.00 am on 7 October 2016.

2. That the father file and serve all affidavits in support of such application not later than 2 September 2016.

3. That the mother file and serve a Response and all affidavits in response not later than 30 September 2016.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mulroy & Percell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1379 of 2013

Ms Mulroy

Applicant

And

Mr Percell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings to implement final property orders which were made on 22 December 2015 by consent.  The orders brought to finality the property dispute between Ms Mulroy, Mr Percell, Ms Percell and K Pty Limited.

2. Ms Mulroy (“the applicant”) now seeks orders to the effect of declaring that by operation of the orders made on 22 December 2015 she is appointed Trustee for Sale of the property at B Street, C Town NSW and certain other orders which would bring about a sale by her of that property.

3. The application is opposed by Mr Percell (“the respondent”) for reasons which will soon become clear.

4. The orders of 22 December 2015 provide at paragraph 2.1 as follows:

   2.Pursuant to section 90SM of the Family Law Act 1975 (Cth) the Court orders:

   2.1That within 45 days of the date of these Orders, the 1^st Respondent [Mr Percell] pay to the Applicant’s solicitors on behalf of the Applicant the sum of $140,000 (“The Capital Sum”);

5. Paragraph 2.3 provides relevantly as follows:

   2.3That contemporaneously with the payment of the Capital Sum, the Applicant to:

   2.3.1Do all things, sign all documents and give all necessary authorities to cause a withdrawal of caveats registered on the properties:

   2.3.1.1…

   2.3.1.2[B Street, C Town] in the state of New South Wales;

   2.3.2...

6. The difficulty is that the respondent has been unable to pay that capital sum of $140,000.  However, paragraph 2.4 of the orders of 22 December 2015 provides for this eventuality.  It provides as follows:

   2.4That should the 1^st Respondent fail to pay the Capital Sum in accordance with Order 2.1, and/or fail to provide the Deed of Release pursuant to Order 2.2.2, then the 1^st Respondent is to provide to the Applicant forthwith upon default, the names of three local real estate agents for the [C Town] area for the purpose of Orders 2.5 – 2.6 herein and within 7 days of the receipt of the Respondents list of three names, the Applicant shall choose one and for the purpose of Orders 2.5 – 2.6 herein they shall be appointed as the selling agent.

7. There has been a real dispute about this.  Clearly the respondent accepted that he was in breach of the order for payment of the capital sum of $140,000.  He provided three names to the applicant who chose one of the names.  But the respondent disputes that she did that within time.  It is unnecessary to go into the details of that.  On the evidence as I see it, the applicant chose the agent at the appropriate time.

8. In any event, the respondent did not accept that.  He has gone ahead and had L Real Estate present the property for sale. 

9. That process has resulted in a purchaser being found through the efforts of the respondent.  He has signed what I would describe as a conditional contract for sale of the property to a purchaser for the sum of $825,000.  The contract has expressed completion to be conditional upon the purchaser granting the registered proprietor of an adjoining property a right of way over the subject property at B Street.  The sale has not been completed apparently because of some administrative difficulties associated with the granting of the right of way.  To complicate matters, the applicant has found different purchasers who are ready, willing and able to purchase the property for $786,500. 

10. The latter purchasers were found through the agent M Real Estate who was the agent selected by the applicant and about whom, on a reading of the correspondence, there appears to have been considerable disputation.

11. There appears to be a practical way through this which would enable the applicant to be paid money owed to her under the substantive orders of 22 December 2015 and still preserve to the respondent the best price it seems is reasonably able to be achieved on sale, that being the $825,000 if the conditional contract is able to be completed.  The respondent informs the Court that he is confident that some sort of a financing arrangement will be able to be negotiated with the purchaser which would then enable the respondent to be in sufficient funds to be able to pay to the applicant the capital sum of $140,000 plus interest which is expressed to be payable in these circumstances under the orders of 22 December 2015.  Clearly the most favourable outcome at this stage would be for the applicant to be paid in full as soon as possible.  On the respondent’s assertion, assuming that he is able to produce the funds, this could be achieved within 10 days. 

12. Given the difficulties that the parties have had over a long time with this matter, given the fact that the substantive order was put in place for the purpose of bringing to an end their financial disputation and given that the respondent is most desirous of being able to achieve a price of $825,000 for the property which he never wanted to sell anyway, rather than the lower figure of $786,500, it seems to me that in all the circumstances, it would be just to provide him with the opportunity to do so.  I propose to include orders that in the event that he is unable to make that payment within 10 days of today, the applicant would be declared Trustee for Sale of the property in accordance with the orders of 22 December 2015 and be able to sell the property either to this purchaser which her real estate agent appears to have been able to secure or some other ready and willing purchaser but on the condition set out in the original orders.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 18 July 2016.

Associate:      S Mills

Date:  13 June 2017