Owen and Owen and Anor

[2018] FamCA 662

FAMILY COURT OF AUSTRALIA

OWEN & OWEN AND ANOR [2018] FamCA 662

FAMILY LAW – PROPERTY – Appointment of Trustee – enforcement of orders for sale – where respondent non-compliant with certain orders – where applicant seeks orders appointing her trustee for sale – enforcement of decrees generally.

Family Law Act 1975 (Cth) s 105

Alam & Sayid and Anor [2018] FamCA 483
Mulroy & Percell [2016] FamCA 1175
Zubcic & Zubcic & Ors [2015] FamCA771

APPLICANT: Ms Owen

RESPONDENT: Mr Owen

SECOND RESPONDENT: Ms A Owen

FILE NUMBER: CAC 1752 of 2016

DATE DELIVERED: 14 August 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Barker & Barker

SOLICITOR FOR THE RESPONDENT: Camden Solicitors & Conveyancers

SOLICITOR FOR THE SECOND RESPONDENT: Streeterlaw

Orders

1. Ms Owen be appointed sole trustee for sale of each of the following properties:

   (a)B Street, Suburb C, New South Wales, … (the Suburb C property);

   (b)Lots 1 and 2, D Town, New South Wales (the D Town property).

2. Ms Owen as against Mr Owen have sole right of occupancy of the Suburb C property.

3. Ms Owen do all things necessary to sell the Suburb C property and the D Town property.

4. The net sale proceeds be placed in the Barker & Barker trust account and invested into an interest bearing account on behalf of Ms Owen and Mr Owen.

5. The wife's costs of the Application in a Case are reserved to the trial of 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 Owen & Owen and Anor 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 CANBERRA

FILE NUMBER: CAC 1752 of 2016

Ms Owen

Applicant

And

Mr Owen

Respondent

Ms A Owen

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In this matter application is made by the Wife to vary orders made by consent for the sale of properties.  That application is made in aid of enforcement by virtue of an alleged non-compliance and non-cooperation by the Husband with the sale of those properties.  In relation to that application the Respondent failed to file any material in response until after 10am on the day of the hearing.  The matter was heard in the absence of material from either Respondent, however, each Respondent was heard in relation to the application made by the Wife.

2. Orders were made by consent on 16 August 2017 and in part provided for the listing of five properties for sale, being the property at E Town, a property at Suburb C, a property at F Town, a property at D Town and a property at G Town.  The orders speak to the expectation of sale as they deal with how the proceeds of the sale are to be held.  They cast responsibility on both parties to do all things necessary to list the properties for sale and cast particular responsibilities on the parties for engaging instructing agents and solicitors firstly on the Wife in respect of E Town, which is now sold, and in respect of Suburb C, which is unsold, and for the Husband in relation to F Town, which is now sold, in relation to D Town, which is unsold and not on the market, and in relation to G Town, which is unsold and not on the market. 

3. The Wife asks to be appointed as the trustee for sale in respect of Suburb C, D Town and G Town.  Her material is not contradicted by any evidence from either respondent.  She says that the Husband has been obstructive in relation to the sale of Suburb C.  That obstruction has taken the form of an insistence that the property be listed for auction against the advice that they were given by the engaged real estate agent.  The property was listed for auction. There were no bids made at the auction.  Further, the Husband rejected an offer that was in the range of estimated prices as given by the real estate agent and currently insists on a sale price above the advised range.  The property is currently in arrears in relation to two mortgages against that property.  The arrears amount totals approximately $24,000.  The property is not currently listed.

4. In relation to the D Town property the Wife says the Husband has taken no action in relation to the sale of the D Town property.  The Husband, during the hearing, agreed to the Wife being responsible for the sale of the D Town property. 

5. The Wife further says that the Husband has taken no action in respect of the sale of the G Town property that is, it has not at any stage been listed for sale.  He occupies that property.  It has not been listed for sale despite orders providing for it to be on the market.  The Husband responds in relation to the G Town property by reference to Order 13 of the consent orders.  That order provides for withdrawal from market if there is no agreement to sell the property to the Second Respondent.  That is, Order 13 provides what is effectively an exit clause from the obligation to hold the property on market.  It is difficult because of the presence of Order 13 to come to a conclusion in relation to the G Town property that the Husband is currently acting outside the scope of the orders, or in conflict with the orders.  That is, the orders contained an agreed mechanism to withdraw the property from market.  I cannot determine that it is currently off market otherwise than in accordance with the provision of Order 13.  That particular fact is sufficient reason to refuse relief in respect of the G Town property.

6. Returning to the D Town and Suburb C properties, the power to give relief by enforcement is contained at s105 of the Family Law Act 1975 (Cth). It is a discretionary power. The Husband's lack of action in respect of the D Town property means that he is non-compliant with his obligations regarding sale in accordance with the orders. That non-compliance enlivens the discretion held at s105. The Husband’s actions in relation to Suburb C are that he has undermined sale in the context of orders that contemplate sale. He has repeatedly contradicted sale by acting contrary to advice through his insistence that it be sold at auction and his insistence on a price outside the range. These matters practically foiled the sale contemplated by the orders. On the basis that the orders contemplated the parties effecting the sale and the Husband appears unreasonably obstructive regarding the Suburb C property, the discretion to enforce has been enlivened.

7. The question then arises as to whether there should be enforcement and should it be in the manner as sought by the Wife.  Similar orders that is, for the appointment of a person as trustee for sale, have been made in a number of cases, including Mulroy & Percell [2016] FamCA 1175 per Justice Johnston, Alam & Sayid and Anor [2018] FamCA 483 per Justice Watts and Zubcic & Zubcic & Ors [2015] FamCA771 per Justice McClelland.  In the first two of those cases that was in a context of final orders being amended to allow machinery provisions to be changed to assist in the enforcement of those orders.  In the case of Zubcic it was in relation to interim orders.

8. Section 105 deals with enforcement generally. It is broadly cast, although it must be directed to the enforcement of decrees made under the Act. The other limitations contained with s105, that is, that it is subject to Regulations and Rules, are inapplicable in the circumstances of this particular case. The Rules as applied to enforcement do not touch upon the current circumstances before the Court. The Court therefore by discretion in s105 is empowered to enforce in the manner as set out in Mulroy, Alam and Zubcic. 

9. The key opposition raised by the First and Second Respondent's is that the Wife may engage in a ‘fire sale’ of the assets.  No evidence was presented to indicate this to be a real risk.  There was no circumstance pointed to suggestive of such a risk.  The evidence does not enable such a proposition to be made out.

10. To the contrary, to date the Wife has sought professional advice regarding sale, the approach to sale and options for sale.  Supportive of the Wife's position is that even at this stage the Husband adopts a position which is likely to foil a sale in respect of Suburb C by insisting on a sale price above the recommended range.  Ongoing cooperation between the parties, as a requirement for the sale, appears likely to continue to frustrate the orders. 

11. The Wife's proposal in respect of both D Town and Suburb C is both the only identified method to enforce and is an appropriate manner to achieve the sales contemplated in the orders particularly absent evidence of risk, with evidence of the Wife's sensible approach via the adoption of professional advice. 

12. What gives further imperative to such remedy is the drift into arrears for both the D Town and Suburb C properties.  The sale of the properties will mitigate this risk to the pool of property, which is the subject of the proceedings and the subject of the orders from August 2017. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 August 2018.

Associate:

Date:  30 August 2018