NIXON & NIXON - [2013] FamCA 147

FAMILY COURT OF AUSTRALIA

NIXON & NIXON

[2013] FamCA 147

FAMILY LAW – ENFORCEMENT OF ORDERS

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

APPLICANT:

Ms Nixon

RESPONDENT:

Mr Nixon

FILE NUMBER:

MLC

2061

2009

DATE DELIVERED:

29 January 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

JUDGMENT OF:

Dessau J

HEARING DATE:

29 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Vadarlis

SOLICITOR FOR THE APPLICANT:

Vadarlis & Associates

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

K Capital Pty Ltd

That on the oral application by Mr Styring of counsel made before me this day, K Capital Pty Ltd … shall be given leave to intervene in this proceeding.
That the intervener be granted leave to file the affidavit of Rachael Jane Gibbs sworn 25 January 2013.

B Street Sale

That the words “the [B Street] property and” and paragraph (c) of Order 9 of the Orders made by the Honourable Justice Dessau on 19 October 2012 (“the orders”) are hereby deleted.
That the words “That for the purposes of paragraph 9 of these orders” appearing in paragraph 10 of the Orders are hereby deleted.
That the husband shall be and is hereby restrained by himself, his servants or agents from using, encumbering, selling, borrowing against or in any way dealing with or diminishing his interest in Take and Use Licence numbered … issued under the Water Act 1989 or any other similar water or bore licence or rights that relates to or affects the B Street property.
That the intervener shall keep the applicant wife and respondent husband reasonably informed as to the progress of the sale.
That the solicitors for the wife, Vadarlis & Associates:
(a)Forthwith serve a copy of this order upon the Victorian Sheriff and the Marshal of the Family Court of Australia; and
(b)By 4.00pm on 5 February 2013 lodge with the Victorian Registrar of Titles a Withdrawal of the Warrant of Seizure and Sale numbered … lodged by the wife over the B Street Certificate of Title on 24 October 2012.

Chattels

That by 4.00pm on 8 February 2013 the husband shall deliver to BB Auctioneers at …, the following artefacts:
(a)Artefact CC
(b)Artefact DD
(c)Artefact EE
(d)Artefact FF
(e)Artefact GG
(f)Artefact HH
(g)Artefact JJ
(h)Artefact KK
(i)Artefact LL
(j)Artefact MM
(k)Artefact NN
That the Victorian Sheriff is directed that the artefacts and chattels referred to in paragraph 8 of the Orders be sold via BB Auctioneers, …, in their next scheduled auctions on … 2013 (for the Type 1 art) and … 2013 (for the Type 2 art).
That the husband shall be and is hereby restrained by himself, his servants and agents from attending the BB Auctioneers viewings and auctions of the artefacts and chattels referred to in paragraph 8 of the Orders.

Liberty to Apply

That liberty to apply shall be granted to the parties and the enforcement officer in respect to any matters arising from these orders, and to the wife and the…

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.

Continue reading NIXON & NIXON

Details

AGLC: NIXON & NIXON [2013] FamCA 147
Case: [2013] FamCA 147
Decision Date

CaseChat Overview and Summary

This matter came before the Family Court of Australia concerning enforcement orders previously made on 19 October 2012. The applicant, Ms Nixon, sought orders for outstanding works of art to be delivered to the Victorian Sheriff for sale, and for these artworks to be sold through BB Auctioneers rather than OO Auctioneers as proposed by the Sheriff. The respondent, Mr Nixon, resisted these applications, seeking the discharge of the original enforcement orders and the dismissal of his wife's application. An additional oral application was made by K Capital Pty Ltd, the first mortgagee of a property previously subject to the enforcement warrant, seeking leave to intervene and to effect the sale of the property itself.

The court was required to determine several legal issues. Firstly, whether K Capital Pty Ltd should be granted leave to intervene and whether the B Street property should be removed from the enforcement warrant to allow the mortgagee to conduct its sale. Secondly, the court had to consider the wife's application regarding the sale of artworks, specifically whether they should be delivered to the Sheriff and sold through BB Auctioneers, and whether the husband should be restrained from attending the auctions. Finally, the court needed to determine the appropriate costs order for the proceedings.

In relation to the B Street property, the court granted leave for K Capital Pty Ltd to intervene and agreed to remove the property from the enforcement warrant. This decision was based on the mortgagee's entitlement to sell the property due to Mr Nixon's default, the potential for delay if the Sheriff handled the sale, and the mutual interest of all parties in a prompt sale at the best possible price, which would be best facilitated by the mortgagee controlling the transaction. Regarding the artworks, the court found that Mr Nixon's explanations for their non-delivery were vague and lacked credibility, particularly in light of his previous assertions about their ownership and his current claims of homelessness. The court accepted the urgency for Ms Nixon to realise funds from the sale to support herself and their children, and therefore ordered that the artworks be delivered to the Sheriff within ten days for sale by BB Auctioneers, a decision supported by Ms Nixon's expertise in the field and the favourable terms offered by that auction house. The court also found that it had the power under the Family Law Rules 2004 to direct the Sheriff as to the method of sale.

The court ordered that K Capital Pty Ltd be granted leave to intervene and that the B Street property be deleted from the enforcement warrant, with the mortgagee to conduct the sale. Mr Nixon was restrained from dealing with any water rights pertaining to the property. The husband was ordered to deliver the specified artworks to the Victorian Sheriff within ten days for sale by BB Auctioneers, and was further restrained from attending any viewings or auctions of these items. Liberty to apply was granted to the parties and the enforcement officer. Mr Nixon was ordered to pay Ms Nixon's costs of the application on an indemnity basis. All other outstanding applications in the case were dismissed.

Orders