OCHOA & SCHIRMER - [2020] FCCA 1207

FEDERAL CIRCUIT COURT OF AUSTRALIA

OCHOA & SCHIRMER

[2020] FCCA 1207

Catchwords:
FAMILY LAW – Interim defended hearing – orders made.

Legislation:

Family Law Act 1975 (Cth), s.114

Cases cited:

Gillim & Gillim [2019] FamCA 897

Marvel & Marvel [2010] FamCAFC 101

Applicant:

MS OCHOA

Respondent:

MR SCHIRMER

File Number:

PAC 4299 of 2019

Judgment of:

Judge Newbrun

Hearing date:

17 February 2020

Date of Last Submission:

17 February 2020

Delivered at:

Parramatta

Delivered on:

17 March 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Keen - Keen Lawyers

Solicitors for the Respondent:

Mr West - Coleman Greig Lawyers

ORDERS

The Court makes the following orders:

That within 30 days of the making of these Orders, the parties shall do all such things and sign all documents necessary to cause the sale of property situated at and known as A Street, Town B in the State of New South Wales, being the property described in Folio Identifier …91 (“the Town B property”) in accordance with the conditions contained in Order 2 below, and the proceeds of sale shall be paid in the following manner and priority:
1.1Payment of the agent’s commission and advertising or other expenses, payable on the sale;
1.2 Payment of the legal costs on the sale;
1.3In payment to C Bank to discharge the mortgage secured over the Town B property;
1.4 An amount of $100,000 each to the Respondent and the Applicant;
1.5The balance thereafter to be paid into an interest-bearing account in the joint names of the parties.
That subject to the preceding Orders in relation to the sale of any real property as contemplated by Orders 1 above, the parties shall give effect to the following conditions of sale:
2.1The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of the first party proposing a real estate agent, the real estate agent will be as nominated by the President of the Real Estate Institute of New South Wales at the request of the parties or either of them.
2.2The parties shall instruct a solicitor/conveyancer to act on the conveyance of the property as is agreed between the parties and failing agreement within 14 days from the date of the first party proposing a solicitor/conveyancer, a solicitor/conveyancer will be nominated by the President of the Law Society of New South Wales at the request of the parties or either of them, and the costs of and incidental to that appointment will be borne equally by the parties.
2.3The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the appointment of the agent pursuant to 2.1 above then the list price will be as nominated by the real estate agent appointed to sell the property.
2.4The sale price of the property shall be such amount as is agreed between the parties and failing agreement…

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 OCHOA & SCHIRMER

Details

AGLC: OCHOA & SCHIRMER [2020] FCCA 1207
Case: [2020] FCCA 1207
Decision Date: 17 March 2020

CaseChat Overview and Summary

In this matter before Judge Newbrun, the parties, Ochoa and Schirmer, were involved in a dispute concerning the sale of a property located at A Street, Town B, New South Wales. The court was required to make orders regarding the sale of this property and the distribution of the proceeds.

The primary legal issue before the court was to determine the terms and conditions under which the jointly owned property should be sold, including the method of sale, pricing, agent and legal representation appointments, and the distribution of sale proceeds. The court also needed to establish a framework for dealing with potential disagreements between the parties regarding these matters, including provisions for sale by private treaty, auction, and subsequent re-auctions if the property remained unsold.

Judge Newbrun ordered that the parties must cooperate to sell the Town B property within 30 days. The proceeds of sale were to be applied first to commission and expenses, then legal costs, followed by the discharge of the mortgage to C Bank. After these payments, each party was to receive $100,000, with the remaining balance to be held in a joint interest-bearing account. The order detailed specific conditions for the sale, including mechanisms for agreeing on or nominating a real estate agent, solicitor/conveyancer, list price, and sale price, with provisions for private treaty sale and, if unsuccessful, sale by auction with a reserve price. The court also stipulated that if the property remained unsold after auction, it was to be re-submitted for auction at three-monthly intervals until sold. The proceedings were adjourned for mention on 22 April 2020.

Orders

Orders of the court

The Court makes the following orders:

That within 30 days of the making of these Orders, the parties shall do all such things and sign all documents necessary to cause the sale of property situated at and known as A Street, Town B in the State of New South Wales, being the property described in Folio Identifier …91 (“the Town B property”) in accordance with the conditions contained in Order 2 below, and the proceeds of sale shall be paid in the following manner and priority:

1.1 Payment of the agent’s commission and advertising or other expenses, payable on the sale;

1.2 Payment of the legal costs on the sale;

1.3 In payment to C Bank to discharge the mortgage secured over the Town B property;

1.4 An amount of $100,000 each to the Respondent and the Applicant;

1.5 The balance thereafter to be paid into an interest-bearing account in the joint names of the parties.

That subject to the preceding Orders in relation to the sale of any real property as contemplated by Orders 1 above, the parties shall give effect to the following conditions of sale:

2.1 The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of the first party proposing a real estate agent, the real estate agent will be as nominated by the President of the Real Estate Institute of New South Wales at the request of the parties or either of them.

2.2 The parties shall instruct a solicitor/conveyancer to act on the conveyance of the property as is agreed between the parties and failing agreement within 14 days from the date of the first party proposing a solicitor/conveyancer, a solicitor/conveyancer will be nominated by the President of the Law Society of New South Wales at the request of the parties or either of them, and the costs of and incidental to that appointment will be borne equally by the parties.

2.3 The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the appointment of the agent pursuant to 2.1 above then the list price will be as nominated by the real estate agent appointed to sell the property.

2.4 The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price.

2.5 The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.

2.6 That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.

2.7 The contract of sale shall provide for completion within 42 days after the date of the contract, unless otherwise agreed between the parties in writing.

2.8 In the event that the property is not sold by private treaty on or before 6 months from the date of listing then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:

2.8.1 The property shall be listed with the agent appointed under 2.1 above for sale by auction within a further 3 months;

2.8.2 The parties shall execute all documents requested by the auctioneer for sale of the property by auction;

2.8.3 The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;

2.8.4 The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from their share of the proceeds of sale;

2.8.5 The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;

2.8.6 The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;

2.8.7 That the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached;

2.8.8 The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 90% of the reserve price shall be accepted by the parties; and

2.8.9 That upon agreement being reached for sale of the property, paragraphs 2.6 and 2.7 shall apply.

2.9 In the event that the property is not sold at the auction pursuant to Order 2.8 above or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held and for that purpose the provisions of Order 2.8 above shall apply and in the event the property remains unsold, the property shall continue to be re-submitted for auction at 3 monthly intervals until sold.

The proceedings are adjourned for mention to 22 April 2020 at 11:30am.

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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