Narkis and Narkis (No 2)

[2019] FamCA 204

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO. 2) [2019] FamCA 204

FAMILY LAW – PROPERTY – pursuant to the previous orders the husband having power to sell three units in Suburb N – husband wants ability to sell prior to auction if a favourable offer emerges – wife opposed to anything except a public auction that is open and transparent – public auction ordered.

APPLICANT: Ms Narkis

FIRST RESPONDENT: Mr Narkis

PROSPECTIVE RESPONDENT: Mr HH

INDEPENDENT CHILDREN’S LAWYER: Alison Trapski

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 3 April 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Wilson

HEARING DATE: 3 April 2019

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: None

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Cantwell Family Lawyers

COUNSEL FOR THE PROSPECTIVE RESPONDENT: No appearance

SOLICITOR FOR THE PROSPECTIVE RESPONDENT: Creative Family Law Solutions

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

Orders

1. The properties situate at M Street, Suburb N, are to be sold by public auction on ….

2. Paragraphs 3, 4 and 5 of the applicant’s application in a case filed on 27 February 2019 are otherwise held over for consideration by the trial judge.

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

Ms Narkis

Applicant

And

Mr Narkis

Respondent

And

Mr HH

Prospective Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application in a case filed 27 February 2019, at paragraph 2, the applicant sought to enjoin the husband from selling the properties at M Street, Suburb N, otherwise than by first offering the properties by public auction on …  There was no dispute before me about the desirability of selling the three units that make up the properties at M Street. The auction dates have been set on ….  Some steps in the advertising campaign have already been undertaken, apparently. 

2. The applicant wanted the properties sold by public auction because she said such a course enhanced the transparency of the process in circumstances where she is otherwise fearful that the husband may enter into an arrangement pursuant to his existing powers to sell the properties by virtue of earlier orders at a price less than the best price available derived through a competitive auction process. 

3. Ms Cantwell, for the husband, said that her client has the power pursuant to previous orders to sell the properties and with that carries the entitlement to negotiate, prior to the auction day, if an offer within the range as advised by selling agents is proffered and a transaction can be effected.  Ms Cantwell said that the husband should not be constrained in the method that he applies in the sale of the properties.  The point was fought hard about transparency.  Cronin J has had a long association with this case, having written many judgments at various stages of the proceeding. 

4. Having come into this case very recently, I did not have the benefit of that familiarity but I did see the wisdom of the properties being sold by public auction transparently in the public gaze and for the best price available on the day.  In a frank exchange with Ms Cantwell, there was a discussion about whether an existing purchaser was in the wings who might be scared off from the auction unless a transaction was negotiated prior to the auction. 

5. Candidly, Ms Cantwell told me there was no evidence of such a purchaser.  But Ms Cantwell said there may be and she submitted that the husband’s entitlement to sell should not be constrained in the way advocated by the applicant.  Ms Cantwell also said that I should have regard to the fact that pursuant to previous orders the applicant has failed to pay holding costs that were ordered on 13 December 2017 and that outstanding holding costs are unpaid for the months of January, February and March of this year, the April instalment being due on 15 April 2019.  In those circumstances, Ms Cantwell urged me to give the husband full power to sell in whatever way he can so as to sell the units thereby reducing one of the issues in dispute between the parties. 

6. In my view, the applicant is correct in insisting that these properties be offered for public auction.  Far too much enmity exists between the parties for it to be otherwise.  The best way to flush out an offer on the most favourable terms is to do so at public auction.  Experience tells that.  Furthermore, having regard to the angst that exists between the parties to this litigation, that is the only satisfactory way to proceed. 

7. If it turns out that a purchaser is in the wings in the lead‑up to the auction, that purchaser may very well bid on the day and thereby enhance the prospects of getting a better price on the day.  All the more if there is more than one as indeed the applicant told me that the subject properties are picturesque and highly sought‑after. Not having seen it, then I cannot say whether that is true.  Nonetheless, I accept that M Street, Suburb N, is a much sought‑after location and, at public sale, despite the possibility that prices are waning, the best price is likely to be fetched.  In those circumstances, it seemed to me that the properties should go to auction. 

8. It was agreed between Ms Cantwell and the applicant that paragraphs 3, 4 and 5 of the application sought in the applicant’s application in a case made 27 February 2018 be held over to the trial judge and, in those circumstances, I will make such an order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 3 April 2019.

Associate:     

Date:              5 April 2019