Norburn and Norburn - [2017] FamCA 311

FAMILY COURT OF AUSTRALIA

NORBURN & NORBURN

[2017] FamCA 311

FAMILY LAW – REFUSAL OF INJUNCTION – COSTS – Transfer of proceedings to another registry – Transfer of proceedings to federal circuit court.

Family Law Act 1975 (Cth) - ss 114(1)(b), 117

In the Marriage of Waugh (2000) ¶FLC 93-052
Campbell v Superannuation Complaints Tribunal [2016] FCA 808
Welch & Abney [2016] FamCAFC 271

Yunghanns & Ors [1999] FamCA 64

APPLICANT:

Ms Norburn

RESPONDENT:

Mr Norburn

FILE NUMBER:

CAC

670

2017

DATE DELIVERED:

16 May 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

8 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hassall

SOLICITOR FOR THE APPLICANT:

Sautelle White Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Irving

SOLICITOR FOR THE RESPONDENT:

Wards Barristers & Solicitors

Orders

By consent, Ms Norburn and Mr Norburn are each restrained by injunction from causing damage to, or from reducing the value of, the premises known as B Street, C Town in the state of Victoria (C Town property).
That within 60 days of the date of these Orders the parties shall do all such acts and things and sign all such documents as may be required to cause the C Town property, being the whole of the land more properly described in certificate of title volume … Folio … to be listed for sale by private treaty at the earliest date possible at the market value determined in accordance with Order 2(b) below:
(a)The husband and wife place the C Town property with an agent agreed between the husband and wife or in default of agreement with an agent (the agent) nominated by the President of the Real Estate Institute of Victoria.
(b)The market value of the property be as agreed between the husband and wife or failing such agreement as determined by a valuer nominated by the President of the Australian Valuers’ Institute, such determination to be paid for equally by the husband and the wife.
(c)If the property is not sold within three months of the date of these Orders or if the property is sold and the sale subsequently does not proceed to completion the husband and wife do all things necessary to offer the property immediately for sale by public auction by the agent, the reserve price being the market value determined in accordance with Order 2(b).
(d)The husband and wife execute all documents requested by the agent as auctioneers for sale of the property by auction.
(e)The husband and wife execute a contract of sale.
The proceeds of the sale referred to in Order 2 shall be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b) Payment of monies due and owing to the mortgagee; and
(c)Balance to be deposited in the mother’s solicitor’s trust account until further order of this Court.
The parties’ applications for interim orders, including for injunctive relief, are otherwise dismissed.
The husband’s application for costs is refused.
These proceedings are…

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: [2017] FamCA 311
Decision Date: 16 May 2017

CaseChat Overview and Summary

In the matter of *Norburn and Norburn*, Gill J of the Supreme Court of Victoria considered applications for interim orders, including injunctive relief, between a husband and wife concerning a property located at B Street, C Town, Victoria. The dispute centred on the management and sale of this jointly owned property.

The court was required to determine the appropriate interim orders to be made regarding the C Town property, specifically addressing the parties' applications for injunctive relief and the practical steps for the property's disposition. The court also considered the husband's application for costs and the appropriate forum for further proceedings.

Gill J ordered, by consent, that both parties be restrained from causing damage to or reducing the value of the C Town property. The court further ordered that within 60 days, the parties must take all necessary steps to list the property for sale by private treaty at its market value, to be determined by agreement or by a valuer nominated by the President of the Australian Valuers’ Institute. If the property was not sold within three months or if a sale did not complete, it was to be offered for sale by public auction with a reserve price equal to the determined market value. Proceeds of sale were to be applied first to sale expenses and mortgagee payments, with the balance to be held in the mother's solicitor's trust account pending further court order. The parties' other applications for interim orders were dismissed, the husband's costs application was refused, and the proceedings were transferred to the Federal Circuit Court of Australia at the Dandenong registry for further hearing and directions.

Orders

Orders of the court

By consent, Ms Norburn and Mr Norburn are each restrained by injunction from causing damage to, or from reducing the value of, the premises known as B Street, C Town in the state of Victoria (C Town property).

That within 60 days of the date of these Orders the parties shall do all such acts and things and sign all such documents as may be required to cause the C Town property, being the whole of the land more properly described in certificate of title volume … Folio … to be listed for sale by private treaty at the earliest date possible at the market value determined in accordance with Order 2(b) below:

(a) The husband and wife place the C Town property with an agent agreed between the husband and wife or in default of agreement with an agent (the agent) nominated by the President of the Real Estate Institute of Victoria.

(b) The market value of the property be as agreed between the husband and wife or failing such agreement as determined by a valuer nominated by the President of the Australian Valuers’ Institute, such determination to be paid for equally by the husband and the wife.

(c) If the property is not sold within three months of the date of these Orders or if the property is sold and the sale subsequently does not proceed to completion the husband and wife do all things necessary to offer the property immediately for sale by public auction by the agent, the reserve price being the market value determined in accordance with Order 2(b).

(d) The husband and wife execute all documents requested by the agent as auctioneers for sale of the property by auction.

(e) The husband and wife execute a contract of sale.

The proceeds of the sale referred to in Order 2 shall be disbursed as follows:

(a) Payment of agent’s commission and advertising expenses and legal expenses of the sale;

(b) Payment of monies due and owing to the mortgagee; and

The parties’ applications for interim orders, including for injunctive relief, are otherwise dismissed.

The husband’s application for costs is refused.

These proceedings are transferred to the Federal Circuit Court of Australia at the Dandenong registry for further hearing and directions on a date to be notified.

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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