NIXON & NIXON

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.