Narkis and Narkis - [2018] FamCA 1083

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS

[2018] FamCA 1083

FAMILY LAW – PROPERTY – enforcement where the wife has a pending s 79A application and wanted certain real property not sold on the basis that she hoped to keep it if she was successful in her application but also, she had an obligation to pay land tax – where the evidence establishing she paid the land tax but only at the last moment – where there is every chance that will recur in the future – order made for sale.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Narkis & Narkis [2017] FamCA 226
Narkis & Narkis and Anor (No 2) [2018] FamCA 1026

APPLICANT:

Mr Narkis

RESPONDENT:

Ms Narkis

FILE NUMBER:

MLC

210

2014

DATE DELIVERED:

18 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

05 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strum QC

SOLICITOR FOR THE APPLICANT:

Cantwell Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Matson

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

Orders

All existing orders precluding the husband selling the property at M Street, Suburb N (“the M Street Property”) are discharged.
The husband have the right to sell the said M Street property and after discharge of all sale costs, outstanding liabilities and encumbrances, the balance of funds be placed in an interest-bearing account in his name, to be held upon trust for both parties pending further order of the Court.
The application in a case filed on 9 November 2018, and the response thereto filed on 5 December 2018 are otherwise dismissed.

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 Narkis & Narkis 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 MELBOURNE

FILE NUMBER: MLC 210 of 2014

Mr Narkis

Applicant

And

Ms Narkis

Respondent

REASONS FOR JUDGMENT

The application in the judicial duty list on 5 December 2018 was by Mr Narkis (“the husband”) seeking that interlocutory property orders made in December 2017 be set aside and that three properties at M Street, Suburb N (“M Street”) be sold.
Ms Narkis (“the wife”) opposed the orders.
The argument revolves around a modestly simple question. The wife was to pay land tax obligations in respect of M Street. That obligation arose from the orders of the Court. According to the title, the person responsible to the State Revenue Office for the payment of the land tax is the husband. His argument is that the failure 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.

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Details

Case: [2018] FamCA 1083
Decision Date: 18 December 2018

CaseChat Overview and Summary

In *Narkis and Narkis*, heard by Cronin J, the dispute concerned the disposition of a property located at M Street, Suburb N. The husband sought to sell this property, a request that was opposed by the wife. The court was tasked with determining whether to permit the sale of the M Street Property and, if so, how the proceeds should be managed.

The central legal issue before the court was the husband's right to sell the M Street Property, which was subject to existing orders that precluded its sale. The court had to consider the implications of discharging these precluding orders and the appropriate handling of the sale proceeds.

Cronin J reasoned that the existing orders preventing the sale of the M Street Property should be discharged. The court ordered that the husband be granted the right to sell the property. Following the discharge of all sale costs, outstanding liabilities, and encumbrances, the remaining balance of the funds was to be placed in an interest-bearing account in the husband's name. This account was to be held upon trust for both parties, pending further orders from the Court. The applications filed on 9 November 2018 and 5 December 2018 were otherwise dismissed.

Orders

Orders of the court

All existing orders precluding the husband selling the property at M Street, Suburb N (“the M Street Property”) are discharged.

The husband have the right to sell the said M Street property and after discharge of all sale costs, outstanding liabilities and encumbrances, the balance of funds be placed in an interest-bearing account in his name, to be held upon trust for both parties pending further order of the Court.

The application in a case filed on 9 November 2018, and the response thereto filed on 5 December 2018 are otherwise dismissed.

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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