Nestor and Ripley & Anor - [2020] FamCA 694

FAMILY COURT OF AUSTRALIA

NESTOR & RIPLEY AND ANOR

[2020] FamCA 694

FAMILY LAW – PROPERTY – ENFORCEMENT – where previous orders provided for the sale of the property and that the parties do all things to facilitate sale – where the husband says the wife has sought to frustrate the sale – where the husband makes an application pursuant to rule 20.54 of the Family Law Rules 2004 (Cth) that a warrant of possession issue requiring the respondent wife to vacate the real property and give vacant possession of the land to the husband’s agents – order that the warrant issue – order that the warrant be stayed until 14 days following the lifting of stage-4 COVID-19 restrictions in Victoria.

FAMILY LAW – COSTS – indemnity costs awarded in favour of the applicant and second respondent.

Family Law Act 1975 (Cth) s 105, s 117
Family Law Rules 2004 (Cth) r 19.34, r 20.54

Baum & Lokare (No. 2) [2019] FamCA 292
Collins & Olsthoorn (2005) FLC 93-216
Danks & McCabe (2017) FLC 93-767
Colgate-Palmolive & Anor & Cussons Proprietary Limited (1993) 46 FCR 225
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Anor (2005) 33 Fam LR 123
Fountain Selected Meats (Sales) Proprietary Limited & International Produce Merchants Proprietary Limited (1988) 81 ALR 397
In the marriage of Kerr (1983) 8 Fam LR 1023
In the marriage of Ramsey (1983) FLC 91-301
Penfold & Penfold (1980) 144 CLR 311
Wrenstead & Eades (2016) FLC 93-697
Yunghanns & Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Nestor

RESPONDENT:

Ms Ripley

SECOND RESPONDENT:

Ms F

FILE NUMBER:

MLC

7837

2017

DATE DELIVERED:

10 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

10 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Accord Family Law

COUNSEL FOR THE RESPONDENT:

Mr Gardiner

SOLICITOR FOR THE RESPONDENT:

David Gibbs & Associates

SOLICITOR FOR THE SECOND RESPONDENT:

Farrar Gesini Dunn

Orders

IT IS ORDERED THAT:

Order 6.1 of the orders made on 29 October 2019 which provide for the wife to have sole use and occupation of the property situated at D Street, E Town, in the State of Victoria, the whole of the land and certificate of title volume … folio …, (“the E Town property”), be and are hereby discharged.
Within 14 days of the date of the current stage-4 restrictions in Victoria lifting, the wife do all acts and things to vacate and remove all of her chattels and possessions from the E Town property and deliver up vacant possession to the husband or his nominated agent (“vacation”) by 9 am on the 14^th day after the lifting of the stage-4 restrictions, and thereafter the husband be entitled to sole possession of the property for the purposes of conducting the sale of the property pursuant to these and previous orders of this Court.
For the purposes of the vacation, the wife cause to be delivered to G Real Estate the following:

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: [2020] FamCA 694
Decision Date: 10 August 2020

CaseChat Overview and Summary

In the matter of *Nestor and Ripley & Anor*, McEvoy J of the Family Court of Australia considered an application by the husband seeking enforcement of previous property settlement orders. The dispute arose from the husband's assertion that the wife had frustrated the sale of a property located at E Town, Victoria, which had been ordered to be sold. The husband sought a warrant of possession under rule 20.54 of the *Family Law Rules 2004* (Cth) to require the wife to vacate the property and provide vacant possession to his agents.

The primary legal issue before the court was whether to grant the husband's application for a warrant of possession to facilitate the sale of the E Town property, and consequently, to discharge the wife's sole use and occupation of that property. The court was also required to determine the terms and conditions under which possession would be granted, the wife's obligations regarding the property and its sale, and the extent of the husband's authority to manage the sale process. Furthermore, the court had to consider the appropriate costs orders.

McEvoy J reasoned that the wife's actions, including the operation of Airbnb accounts at the property, were inconsistent with the previous orders for sale. The court ordered the discharge of the wife's sole use and occupation of the E Town property. A warrant of possession was ordered to issue, requiring the wife to vacate the property and deliver vacant possession within 14 days of the lifting of stage-4 COVID-19 restrictions in Victoria. The husband was granted extensive authority to manage the sale process, including instructing agents and lawyers, signing necessary documents, and undertaking reasonable maintenance and repairs to prepare the property for sale. The wife was restrained from re-entering the property or causing others to do so, and from devaluing or damaging the property.

The court ordered that the execution of the warrant of possession be stayed until 14 days following the lifting of stage-4 COVID-19 restrictions in Victoria. The wife was ordered to pay the husband's and the second respondent's costs of the application on an indemnity basis, to be met from her entitlement to the proceeds of sale of the E Town property. The husband's application filed on 24 July 2020 was otherwise dismissed.

Orders

Orders of the court

IT IS ORDERED THAT:

Order 6.1 of the orders made on 29 October 2019 which provide for the wife to have sole use and occupation of the property situated at D Street, E Town, in the State of Victoria, the whole of the land and certificate of title volume … folio …, (“the E Town property”), be and are hereby discharged.

Within 14 days of the date of the current stage-4 restrictions in Victoria lifting, the wife do all acts and things to vacate and remove all of her chattels and possessions from the E Town property and deliver up vacant possession to the husband or his nominated agent (“vacation”) by 9 am on the 14th day after the lifting of the stage-4 restrictions, and thereafter the husband be entitled to sole possession of the property for the purposes of conducting the sale of the property pursuant to these and previous orders of this Court.

For the purposes of the vacation, the wife cause to be delivered to G Real Estate the following:

(a) the gate locks and remote controls;

(b) the keys and access passes for every part of the modern house;

(d) the passwords and codes for the wife’s Airbnb accounts relating to the E Town property including the modern house, the old house and/or both of them;

(e) notify in writing all customers booked to inhabit the modern house and/or the old house that their bookings have been cancelled.

Pursuant to the Family Law Rules 2004 (Cth), rule 20.54, a warrant of possession issue in the form of the document annexed to this order, but that execution thereof be stayed until the 15th day from the lifting of stage-4 restrictions in Victoria.

Upon the wife vacating the E Town property pursuant to order 2 of these orders, the wife be and is hereby restrained by injunction from entering upon the E Town property and from causing any other person acting on her behalf or upon her instruction, including as a result of any Airbnb or other accommodation booking, to enter the property for any purpose unless further ordered by the Court.

The wife be restrained by injunction from doing any act or thing which has the effect of devaluing the E Town property, or causing damage or destruction to the property, or any part of it or surrounds, or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property.

The husband do all acts and things, and sign all documents necessary to cause the E Town property to be sold in accordance with the terms and conditions of the orders of this Honourable Court made on 29 October 2019 and 6 May 2020, (“the previous orders”).

The husband in his capacity as trustee for the wife and the husband in respect of the sale of the E Town property is entitled to do any or all of the following for the purpose of effecting the sale of the property on his own behalf as trustee for the wife pursuant to these orders or, noting his residence in Country B, instruct an agent in writing on his behalf to do the following:

(a) instruct H Lawyers to undertake the conveyancing of the E Town property, including signing any costs agreement and authorising any necessary disbursements for the preparation of a contract of sale;

(b) instruct G Real Estate to conduct a sales and marketing campaign for the property and provide authority for any reasonable disbursement for the sales and marketing campaign, agree upon selling price with the real-estate agent, negotiate with any prospective purchaser, and authorise acceptance of a sale price and authorise such other action as may be required to effect the sale of the E Town property in accordance with the previous orders of 29 October 2019 and 6 May 2020;

(d) sign any memorandum of transfer for the E Town property in favour of the purchaser;

(e) sign any other document required of the parties in order to give effect to the sale of the E Town property;

(f) authorise the payment of funds in satisfaction of any mortgage debt secured over the title of the E Town property, and any rates and charges with respect to the property upon the settlement of the sale;

(g) authorise the payment of fees and disbursements to the real-estate agent and lawyers engaged with respect to the sale of the E Town property;

(h) authorise the drawing of cheques for the disbursement of proceeds of sale of the E Town property pursuant to these orders;

(i) do any other act or thing necessary in order to effect the sale of the E Town property or cause the distribution of the proceeds of sale in accordance with the orders of 29 October 2019 and 6 May 2020 respectively.

Upon the husband taking vacant possession of the E Town property he is authorised to:

(a) permit any other person to occupy the property for the purposes of effecting inspections, maintenance, and repairs and to ensure that the property is secure, clean, and maintained and otherwise in an appropriate condition to effect a favourable sale;

(b) undertake reasonable maintenance and rectification to the property for the purposes of the sale of the property including, but not limited to:

(i) removing any rubbish or abandoned items;

(ii) removing any motor vehicles and motor-vehicle parts and causing same to be stored and valued;

(iii) removing any equipment and tools left by the wife at the property;

(d) do any other act or thing reasonably necessary to prepare the property for sale and to maintain it pending settlement of the sale.

10.

The husband be at liberty to apply upon short notice to have the matter relisted in respect of the sale or implementation of these orders and previous orders in respect of the sale, the matter, if practicable, to be listed before the Honourable Justice McEvoy.

11.

The wife pay:

(a) the husband’s costs of this application on an indemnity basis; and

(b) the second respondent’s costs relating to this application on an indemnity basis

with all such costs to be met from the respondent wife’s entitlement to proceeds of sale of the E Town property created by paragraph 9.4 of the final orders made 29 Oct 2019 contemporaneously with settlement of the sale of the E Town property.

12.

The husband’s application in a case filed 24 July 2020 otherwise be 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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