OLLORAN & CARSELTON

[2020] FamCA 562

FAMILY COURT OF AUSTRALIA

OLLORAN & CARSELTON [2020] FamCA 562

FAMILY LAW – PROPERTY – where the Court has previously ordered the sale of the former matrimonial home in which the Respondent resides – where the property is yet to be listed with an agent – where the Respondent failed to appear before the Court – where the Court makes orders for the appointment of a Trustee for Sale – where the orders are stayed until the next appearance

Family Law Act 1975 s44(6)

Olloran & Carselton [2019] FamCA 895

APPLICANT: Mr Olloran

RESPONDENT: Ms Carselton

FILE NUMBER: BRC 7650 of 2017

DATE DELIVERED: 3 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 3 July 2020

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: No appearance

Orders

Appointment of Trustee for Sale

1. That Mr G, solicitor of K Law be appointed as Trustee for sale (“the Trustee”) of the following real property (hereinafter referred to as “the property”) and that the property vest in the Trustee for the purposes of sale:

   (a)The real property situated at D Street, Suburb E in the State of Queensland more particularly described as Lot … on Survey Plan … Title Reference … (“the property”).

2. That the Trustee be entitled to sell the property by such method as he deems appropriate in the circumstances including but not limited to sale by auction or by private treaty.

3. That in the event of sale by private treaty the Trustee shall determine the appropriate marketing of the property including listing price from time to time, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments.

4. That in the event of sale by auction:

   (a)the Trustee shall determine the appropriate marketing campaign for the property including a marketing budget for advertising, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments;

   (b)the Trustee shall determine the reserve price for the auction after consultation with the auctioneer and considering any recommendations of the auctioneer;

   (c)the Trustee may but is not obliged to obtain a valuation of the property if he deems that appropriate for the purposes of determining the reserve price at any auction.

5. That the Trustee is authorised to communicate directly with any party in respect of the sale of the property.

6. That pending sale the Respondent shall, in accordance with Order 23 of the Order dated 25 September 2017, be responsible for payment of all payments of the joint mortgage, rates, insurance and outgoings for the property until the property is sold. The Respondent shall maintain adequate fire, general and public risk insurance on the property and file evidence of same to the Trustee as requested by the Trustee from time to time.

7. That the Trustee is hereby indemnified by the Respondent against any claims made against him as registered proprietor as Trustee consequent upon a failure to pay any of the outgoings of the nature described in the preceding Order.

8. That pending the dale of the property, the Trustee make every endeavour to ensure that the property is adequately insured, and he effect those insurances which are necessary in the event the Respondent fails to do so, with such costs of any relevant insurances to be borne by the Respondent.

9. That the parties must promptly comply with requests by the Trustee for the provision of information and the signing of a deed or instrument to give effect to the Trust for sale under these Orders.

10. That if a party refuses or neglects to comply with a request of the Trustee to sign a deed or instrument for a period of greater than twenty-four (24) hours, a Registrar of the Court is appointed under s 106A of the Family Law Act 1975 to sign the deed or instrument on behalf of the defaulting party and do all things to give validity and effect to the deed or instrument.

11. That the Trustee by virtue of the vesting of the property in the Trustee under these Orders is empowered to sign on behalf of the previous owners all real estate listing authorities, mortgage discharge authorities and other transfer and relevant documents required by the Land Titles Office, that are necessary for the conveyancing process or are necessary to complete the settlement of the sale.

12. That pending sale the Respondent shall:

    (a)maintain the property in its current condition; and

    (b)cooperate with the reasonable requests of the Trustee and his duly appointed agents for making the property available for inspections by prospective purchasers, agents and auctioneers.

13. That once a contract of sale is entered into by the Trustee and unless otherwise agreed in writing by the Trustee and the Respondent, the Respondent shall vacate the property no later than fourteen (14) days before the duly appointed settlement date under the contract and deliver possession of the property with keys and any garage and/or security devices to the Trustee or his duly appointed agent.

14. That upon sale, the sale proceeds shall be paid in the following manner and priority:

    (a)Firstly, in payment of all necessary selling costs including agent’s commissions, legal costs, marketing and advertising costs and all other necessary costs incurred in the sale;

    (b)Secondly, the discharge of any liabilities secured against the property by the registered mortgage; and

    (c)Thirdly, in payment of any other costs, disbursements and liabilities incurred by the Trustee for sale in the course of the trusteeship for sale; and

    (d)the balance of the remaining sale proceeds be paid to the Trust account of K Pty Ltd Law Practice Trust Account, to be held by that law practice as trustee in the joint names of the parties pending final determination as to the disbursements of those funds.

15. That the Trustee is entitled to charge for all his costs and outlays incurred by the Trustee in the performance of his obligations pursuant to these Orders on an indemnity basis and that his costs and outlays be a first charge on the trust monies.

16. That the Trustee has liberty to apply on seven days’ notice to the Court and to the parties.

17. That the Respondent pay the Applicant’s costs on an indemnity basis, of and incidental to the application to appoint a trustee for sale.

18. That the costs and outlays incurred by the Trustee for sale be ultimately borne by the Respondent out of her property entitlement.

Other

1. That the Registry forward to Mr G a copy of these Orders.

2. That a copy of the Reasons for Judgment delivered on 3 July 2020 be provided to the parties and Mr G.

3. That the effect of Orders 1 through 18 herein be stayed until 9.30am on 29 July 2020.

4. That these proceedings be adjourned for Case Management Hearing at 9.30am on 29 July 2020 in the Family Court of Australia at Brisbane.

5. That Mr G, or his representative, have leave to appear by telephone on 29 July 2020.

6. That all parties have leave to appear by telephone on 29 July 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   (a)They shall each telephone … (within Australia only) (toll free) by 9.25am on 29 July 2020;

   (b)They shall each then enter the pass code …; and

   (c)Hold the line until the Court is ready to connect and proceed with the matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olloran & Carselton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7650 of 2017

Mr Olloran 

Applicant

And

Ms Carselton

Respondent

REASONS FOR JUDGMENT

1. The proceedings currently before me have had a long and difficult history.  In July 2017, the Applicant, Mr Olloran, brought both parenting and property proceedings before the Federal Circuit Court of Australia.  The matter was transferred to the Family Court of Australia by Judge Jarrett on

   
   

   25 September 2017 because the parenting issue relating to the parties’ child involved an application for relocation of the child to New Zealand. That matter has since been resolved by consent.

2. Sadly, however, as the Reasons which I gave on the 8th of November 2019 (see Olloran & Carselton [2019] FamCA 895), an earlier Order made by a Federal Circuit Court Judge for the sale of the property (which the parties had consented to) was made, in my view, without power. My Reasons of

   
   

   8 November 2019 explain the history and support the Order made, that pursuant to section 44(6) of the Family Law Act1975 (“the Act”), the Application for property settlement filed by the applicant have leave to proceed. 

3. At the time the Order was made on the 8 November 2019, the Applicant,

   
   

   Mr Olloran, who still resides in New Zealand permanently and suffers some neurological issues which are progressing adversely to him, was represented by a solicitor.  That firm of solicitors has since ceased acting for him.  As a result, Mr Olloran and his former partner, the respondent, Ms Carselton, have now both been unrepresented since at least November 2019. 

4. The challenges created by the lack of representation of the parties is apparent from the nature of Orders made on 9 December 2019, 4 February 2020 and on 28 April 2020.  Put simply, the Applicant, with his significant and severe neurological issues and from New Zealand, has been unable to secure the sale of the property as has now been Ordered again by this Court. 

5. The Court took the unusual step in endeavouring to assist these parties of causing the Chambers of this Judge to get involved in enquiries with the agent, retained by the parties under a listing arrangement, Mr B of C Valuations, to try and ascertain how the matter is progressing.  Marked as Exhibit 1 today is a copy of the memorandum that the parties have received by email today from my Associate dealing with the enquiries made.  It would be most unusual for a Court to do what we have done.  However, in the circumstances of this case, where neither party was prepared to do anything really, it seemed necessary. 

6. Ms Carselton, who resides in the property, and it might be said therefore has less desire to see a sale of the property as it will cause her to need to seek other accommodation (although she has previously consented to its sale), has failed to appear today.  I am satisfied she was aware the matter was listed today.  I am satisfied that my Associate has made both email and telephone attempts to keep her informed of the date. 

7. In these circumstances, it seems to me appropriate that the Court consider making the Order that was sought initially by the Applicant in an Application in a Case filed 5 July 2019 at paragraphs 4 to 21.  Those Orders sought by

   
   

   Mr Olloran sought the appointment of a solicitor, Mr G, to be appointed as trustee for the purpose of sale of the property at Suburb E. 

   
   

   Mr G had, in an Affidavit filed on 5 July 2019, indicated that he was prepared to consent to be a trustee. The Application filed 5 July 2019 was not dealt with and could, in the Court’s view, not be dealt with until the Application under section 44(6) of the Act had been determined.

8. Thereafter, as the record reveals, this Court has attempted to take these unrepresented parties through a process of effectively achieving a sale of the property at market value.  The difficulties were significant, even before the restrictions associated with COVID-19 in Australia and in Queensland in particular impacted.  In my view, there is no other way of progressing this matter to a resolution that involves a sale of a property unless the interim property orders sought by the Applicant in the Application are now made.

9. As the Respondent has, for reasons unknown, failed to appear by telephone today, this Order has been made in her absence. It is appropriate, in these circumstances, for the Order to be stayed for a short period to allow her an opportunity to be heard. I so Order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 July 2020.

Associate:

Date: 14 July 2020

Appendix one

Exhibit 1 of 3 July 2020

File Note  Olloran & Carselton  BRC7623/2017

Prepared by: The Legal Associate to the Honourable Justice Baumann

Phone Call on Mr B – C Valuations         11 May 2020

Call 1: 2.15pm

On 11 May 2020 I telephoned Mr B of C Valuations in accordance with the Orders made 28 April to obtain listing documents for execution by a Registrar. Mr B stated that he was very familiar with the matter. He stated that a previous notice of listing was executed around seven months ago which was signed by both parties.

Mr B said in his management of the listing he has experienced difficulties with both
Mr Olloran (predominantly in the past) and Ms Carselton, each for different reasons, which has prevented the house being listed to date. Most recently, he had been impeded by Ms Carselton not responding to requests to have a photographer go through the property to allow photographs to be obtained for marketing.

Mr B indicated that sometime in the last week Ms Carselton had been in touch with him asking if and why Mr Olloran hadn’t signed the listing. Mr B informed her that that was not correct and that a valid listing had been executed by both of them.

I explained to Mr B that there had been some problems with the previous Orders for the sale of the property but that, in short, there were now proper Orders in place and perhaps it would be best to execute a new listing, if the only one executed pre-dated the new Order for sale of the property. I informed him that the Court was able to have a Registrar sign that document on behalf of the parties. Mr B indicated that he would double check the date of the last executed listing but otherwise was happy to execute a new document through the parties, and only if required through the Court. He indicated he wanted to check that he had contact details for the parties still.

Call 2: 3.25

I telephone Mr B back to check that he had contact details for the parties, which he confirmed he did. Mr B indicated that since our last call he had located a listing executed in February 2020 (Ms Carselton 18 February 2020 and Mr Olloran 20 February 2020). He indicated that he would be able to proceed with this listing document and did not require the Court to assist in executing another.

Mr B offered to include Chambers in all communication with the parties, however I indicated that would not be required. I requested that if in four weeks there had been no change in the progress of the listing, i.e. in terms of getting the marketing prepared, he should email Chambers with a brief message stating simply that there had been further difficulties in regards to the listing. Note, no email to that effect has ever been received from Mr B.

Follow Up email sent: 11 May 2020 – Email sent to provide a contact address for Chambers. In contents of email Mr B was asked simply to advise if persistent difficulty occurs in progressing the listing.

Phone Call on Mr B – C Valuations         1 July 2020

I phoned Mr B at 12.10pm, left a message and he immediately called back. I indicated I was calling in regards to the Olloran & Carselton listing and just checking in to see if the listing had progressed. Mr B indicated nothing had changed since our last phone call. I asked whether the photographs had been obtained, he indicated they had not. I asked whether he had received any communication from Ms Carselton since the conversation in early May, he indicated he had not.