NEUMANN & HAAS - [2020] FamCA 1076

FAMILY COURT OF AUSTRALIA

NEUMANN & HAAS

[2020] FamCA 1076

FAMILY LAW – INTERIM PROPERTY – Where the wife seeks orders for the sale of the former matrimonial home and for the husband to vacate that property – Where the husband opposes the sale and seeks to retain the property in the ultimate property settlement between the parties – Whether there is any practical possibility of the husband ultimately retaining the property – Where the prospects of the husband being able to retain the property in any final property settlement are effectively nil – Where the property will need to be sold in order to finally determine the parties’ financial relationship – Where orders made for the sale of the property and for the husband to vacate it – Further interim property orders made.

Family Law Act 1975 (Cth) ss 75, 79, 114

Family Law Rules 2004 (Cth) rr 6.03, 13.01

Australian Broadcasting Corporation v O’Neil (2006) 227 CLR 57
Liwszyc v Smolarek (2006) 24 ACLC 58; [2005] WASC 199
Shepherd Homes Ltd v Sandham [1971] Ch 340

APPLICANT:

Ms Neumann

FIRST RESPONDENT:

Mr Haas

SECOND RESPONDENT:

Mr B Neumann

FILE NUMBER:

CSC

618

2019

DATE DELIVERED:

15 December 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

15 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Raeburn

SOLICITOR FOR THE APPLICANT:

Miller Harris Lawyers

THE FIRST RESPONDENT:

Self-represented litigant

SOLICITOR FOR THE SECOND RESPONDENT:

Hartley Whitla Lawyers

Orders

Contract of sale of F Town Property

That no later than 4:00pm on Thursday 17 December 2020, Mr Haas (“the husband”), must do all acts and things necessary to sign the contract for sale contained in Annexure A to the Application in a Case filed 1 December 2020, for the property situated at C Street, F Town, in the State of Queensland, more particularly described as Lot … on Registered Plan … with Title Reference … (“F Town Property”), and thereupon send the signed contract to D Real Estate, G Town (“the agents”) by express post.
That the husband and Ms Neumann (“the wife”) (collectively “the parties”) must jointly instruct such solicitor as they agree upon to have the conduct of the sale on behalf of the parties or, in the absence of agreement reached within seven (7) days of the date of these orders, such solicitor as may be appointed by the President for the time being of the Law Society of Queensland (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the husband and wife, and paid from sale proceeds, or should sale proceeds be insufficient, by the wife in the first instance, as and when they fall due.
That the parties are required to co-operate in every way with the agent and the solicitor, including, but not limited to, allowing access to the property for the completion of the building and pest inspection; keeping the property in a reasonably clean condition; and signing any documentation prepared…

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

AGLC: NEUMANN & HAAS [2020] FamCA 1076
Case: [2020] FamCA 1076
Decision Date: 15 December 2020

CaseChat Overview and Summary

In this matter before Tree J of the Family Court of Australia, the wife sought interim orders for the sale of the former matrimonial home and for the husband to vacate the property. The husband opposed the sale, seeking to retain the property as part of the ultimate property settlement. The court considered the practical possibility of the husband ultimately retaining the property and found his prospects to be effectively nil, necessitating the sale to finally determine the parties' financial relationship.

The primary legal issues before the court were whether to order the sale of the former matrimonial home and require the husband to vacate it, and how the proceeds of sale should be distributed. The court also considered the husband's obligations regarding company and partnership matters, and the requirement for full financial disclosure.

The court reasoned that given the husband's negligible prospects of retaining the property in a final settlement, an interim sale was appropriate to facilitate the resolution of the parties' financial affairs. The court made detailed orders for the sale of the F Town Property, including the husband's obligation to sign the contract for sale and vacate the property within a specified timeframe. The proceeds of sale were to be applied first to outstanding rates, then to discharge the mortgage, followed by the costs of sale, with the balance to be held pending further order. The husband was granted sole use and occupation of another property located on J Street, H Town, until further order. The court also made orders concerning company and partnership matters, requiring the husband and their son to comply with previous interim orders, and authorised the wife as trustee to act in their stead if they failed to comply. Finally, the husband was ordered to provide full and frank financial disclosure within fourteen days.

The court further ordered that the Registrar of the Family Court of Australia be appointed to execute the contract for sale or any necessary documents on behalf of either party should they refuse or neglect to do so, pursuant to section 106A of the *Family Law Act 1975* (Cth). The costs of the wife's applications were reserved.

Orders

Orders of the court

Contract of sale of F Town Property

That no later than 4:00pm on Thursday 17 December 2020, Mr Haas (“the husband”), must do all acts and things necessary to sign the contract for sale contained in Annexure A to the Application in a Case filed 1 December 2020, for the property situated at C Street, F Town, in the State of Queensland, more particularly described as Lot … on Registered Plan … with Title Reference … (“F Town Property”), and thereupon send the signed contract to D Real Estate, G Town (“the agents”) by express post.

That the husband and Ms Neumann (“the wife”) (collectively “the parties”) must jointly instruct such solicitor as they agree upon to have the conduct of the sale on behalf of the parties or, in the absence of agreement reached within seven (7) days of the date of these orders, such solicitor as may be appointed by the President for the time being of the Law Society of Queensland (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the husband and wife, and paid from sale proceeds, or should sale proceeds be insufficient, by the wife in the first instance, as and when they fall due.

That the parties are required to co-operate in every way with the agent and the solicitor, including, but not limited to, allowing access to the property for the completion of the building and pest inspection; keeping the property in a reasonably clean condition; and signing any documentation prepared by the solicitor to facilitate the sale of the property, including, but not limited to, Land Titles transfer documentation and mortgage discharge authority, within two (2) days of a request to sign such documentation being received by said solicitor or agent.

That in the event that the contract is then unconditional, within twenty-eight (28) days of these orders, the husband is to vacate and deliver to the wife, vacant possession of the F Town Property. The wife is to have sole use and occupation of the F Town Property from the date the husband vacates the property in accordance with this order until the date of settlement of sale of the F Town Property. For the purposes of this order, vacant possession includes that the husband:

(a) vacate the property;

(b) remove his belongings from the property;

(c) leave all chattels that are included in the contract for sale contained in Annexure A to these orders at the F Town Property;

(d) not remove any fixtures from the property;

(e) hand over all keys for the property to the applicant or her nominated agent; and

(f) leave the property in a reasonably clean condition.

Proceeds of sale from F Town Property

On settlement of the sale of the F Town Property the proceeds of sale shall be paid in the following manner and priority:

(a) the amounts required to pay all municipal and water rates outstanding with respect to the F Town Property;

(b) the amounts required to discharge the National Australia Bank Limited registered mortgage number …;

(c) all costs and expenses of sale including legal costs and disbursements, agents commission, advertising expenses and valuers fees, (including reimbursement of either party for expenses incurred in the preparation of the property in accordance with the recommendation of the agent); and

(d) the balance then remaining be held in the trust account of the wife’s solicitor pending further order of This Honourable Court.

J Street, H Town

That from the date of these orders, until further order, the husband shall have sole use and occupation of the property situate at J Street, H Town, in the State of Queensland, more particularly described as Lot … on Building Unit Plan …, with Title Reference ...

Company and Partnership

That within seven (7) days of the date of these orders, the husband and Mr B Neumann (“the son”) are to do all acts and things necessary to comply with paragraphs 1 to 3 of the Interim Orders made by the Federal Circuit Court of Australia at Cairns on 17 February 2020.

In the event the husband or son fail to comply with paragraph 7 of these orders, the wife is authorised as trustee of the husband and is hereby authorised to do all acts and things necessary to comply with the Interim Orders made by the Federal Circuit Court of Australia at Cairns on 17 February 2020.

Disclosure

That within fourteen (14) days of the date of these orders, the husband must make full and frank disclosure in accordance with r 13.01 of the Family Law Rules 2004 (Cth) in respect of all financial and other documents relevant to the issues in question.

Other Orders

10.

That the parties do all acts and sign all documents required to implement these orders.

11.

That:

(a) if the husband refuses or neglects to sign the contract for sale of the F Town property by 4:00pm on Thursday 17 December 2020; or

(b) if either party refuses or neglects to sign (within 7 days of a written request to do so) any documents necessary to give effect to the terms of these orders;

then the Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute the contract or such documents on behalf of such party.

12.

That the costs of and incidental to the wife’s Applications in a Case filed 16 September 2020 and 1 December 2020 be reserved.

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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