PELTON & BANBURY
[2019] FamCA 757
•18 October 2019
FAMILY COURT OF AUSTRALIA
| PELTON & BANBURY | [2019] FamCA 757 |
| FAMILY LAW – PROPERTY – INTERIM PROPERTY – SALE OF ASSETS – terms of sale – where the wife seeks realisation of certain assets of the relationship – where the husband seeks to keep such assets at a reduced price as part of his final property entitlements – orders to list the assets for sale at full price pending final determination of the proceedings. FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION TO REOPEN – where husband seeks leave to reopen submissions already put before the court and subject of determination – application dismissed. |
| Family Law Act 1975 (Cth) |
| Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300 Gaspaldi & Gaspaldi [2008] FamCAFC 134 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Summitt & Summit and Ors (Re-opening) [2009] FamCA 365 |
| APPLICANT: | Ms Pelton |
| RESPONDENT: | Mr Banbury |
| FILE NUMBER: | MLC | 10051 | of | 2018 |
| DATE DELIVERED: | 18 October 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 7 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dickson QC |
| SOLICITOR FOR THE APPLICANT: | Hargreaves Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mort of counsel |
| SOLICITOR FOR THE RESPONDENT: | Farrell Family Lawyers |
Orders
Sale of Motor Vehicles, Boat & Jet Ski
That the parties do all such acts and things and sign all such documents as are required to appoint B Business or such other automotive sales group as recommended by B Business, or as otherwise agreed between the parties in writing, to market the Motor Vehicle 2 for sale on the following basis:
(a)The listing price shall be $190,000 unless otherwise agreed in writing;
(b)By 4.00 pm on 1 November 2019 the husband shall deliver the Motor Vehicle 2 in good working order and neat and clean condition to B Business or such other automotive sales group appointed to market the Motor Vehicle 2;
(c)The Husband shall co-operate with the selling agent in relation to the marketing of the Motor Vehicle 2 including but not limited to making the keys, manuals and service books available;
(d)The Husband and Wife shall each be at liberty to contact the selling agent;
(e)Upon the settlement of the sale, the proceeds be applied:
(i) Firstly, to pay the costs, commissions and expenses of the sale;
(ii) Secondly, to pay down the Commonwealth Bank account #…08.
That the parties do all such acts and things and sign all such documents as are required to cause the Motor Vehicle 1, the Boat and the Jetski to be marketed for sale on the following basis:
(a)The parties shall do all such acts and things and sign all such documents as are required to cause B Business or such other automotive sales group as recommended by B Business or otherwise agreed between the parties in writing to list and market them for sale;
(b)The listing prices shall be:
(i) $56,000 for the Motor Vehicle 1 unless otherwise agreed in writing;
(ii) $85,000 for the Boat unless otherwise agreed in writing; and
(iii) $15,500 for the Jetski unless otherwise agreed in writing.
(c)By 4.00 pm on 1 November 2019 the husband shall deliver the Motor Vehicle 1, Boat and Jetski in good working order and neat and clean condition to B Business or such other sales group appointed to market the Motor Vehicle 1, the Boat and the Jetski;
(d)The Husband shall co-operate with the selling agent in relation to the marketing of the Motor Vehicle 1, the Boat and the Jetski including but not limited to making the keys and any manuals and service books available;
(e)The Husband and Wife shall be at liberty to contact the selling agent in relation to the sales;
(f)Upon the settlement of the sale of the Motor Vehicle 1, the proceeds be applied:
(i) Firstly, to pay the costs, commissions and expenses of the sale; and
(ii) Secondly, to pay down the loan in favour of the Commonwealth Bank account #…07.
(g)Upon the settlement of the sale of the Boat and the Jetski, the proceeds be applied:
(i) Firstly, to pay the costs, commissions and expenses of the sale; and
(ii) Secondly, the balance then remaining be paid into an interest bearing account in the joint names of the parties held by Morgan Legal until further order.
That the question of whether the Husband be entitled to retain the Motor Vehicle 2, the Motor Vehicle 1, the Boat and/or the Jetski as part of his entitlement to property settlement be otherwise reserved for determination at Trial.
All extant interim applications be otherwise dismissed and removed from the list of cases awaiting hearing.
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 Pelton & Banbury 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 MELBOURNE |
FILE NUMBER: MLC 10051 of 2018
| Ms Pelton |
Applicant
And
| Mr Banbury |
Respondent
REASONS FOR JUDGMENT
On 7 October 2019 I pronounced orders and published my reasons with respect to the parties competing interim applications listed for hearing before me on 2 and 3 September 2019. In those reasons I indicated that I proposed to make orders in terms of the wife’s proposal for the sale of the Motor Vehicle 2, the Motor Vehicle 1, the boat, and the jet ski which provided inter alia that they be listed for sale based upon their respective valuations (the “list price”), with the parties being required to accept any offer of at least 80 per centum of the listed price. However I also indicated that, contrary to the wife’s proposal, I would give the husband the opportunity to purchase the vehicles initially at the listed price and, if they remained unsold after a certain time period, at 80 per centum of that price as proposed by the wife. I otherwise listed the matter for mention before me for submissions as to the time I should allow for the sale at the listed price and what arrangements should be made for the sale in order to avoid further dispute with respect to those sales.
Counsel for the wife proposed that the Motor Vehicle 2, the Motor Vehicle 1, the boat, and the jet ski be placed on the market at the list price for 90 days and thereafter the parties be required to accept any offer of at least 80 per centum. The husband proposed that the Motor Vehicle 2, the Motor Vehicle 1, and the jet ski be marketed at their list price for 30 days, and the boat for 60 days. Counsel for the husband further submitted that rather than paying for any of these items, the husband be permitted to retain some or all of the items as part of his final property settlement entitlements, at the reduced price. Although my preliminary view was that this had not been raised during the hearing, having reviewed the submissions made during the hearing counsel for the husband did submit at that time that, as the vehicles were not subject to finance, the husband be entitled to retain them as a partial property settlement. Counsel’s submissions at that time did not include the boat or the jet ski. Significantly in my view this was not part of the husband’s case until the wife proposed, in order to ensure that the husband did not frustrate the sale, that the parties be required to accept any offer over 80 per centum of the listed price.
The Court has a discretionary power to grant leave to reopen a case prior to judgment being delivered. The fundamental principle in determining whether to grant an application to reopen a case is whether it is in the interests of justice, the essential question being whether the interests of justice are better served by allowing the application or rejecting it: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256, per Brennan, Dawson, Toohey and Gaudron JJ at 266-267 (“Smith”), Gaspaldi & Gaspaldi [2008] FamCAFC 134 at [136], Summitt & Summit and Ors (Re-opening) [2009] FamCA 365, per Murphy J at [15]. The Court should also consider the public interest in the need for finality of litigation. The High Court of Australia has stated that the discretion “is not to be exercised for the purposes of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put”: Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300, per Mason CJ at 303. In Smith at 266-267 the majority said that different considerations may apply depending on whether the case is simply one in which the hearing is complete or one in which reasons for judgment had been delivered, and where judgment was yet to be delivered, it is difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side. In this case I had handed down my reasons, reserving for further submissions the question of how long the property to be sold should be marketed at the listed price.
As referred to in those reasons, the husband changed his instructions during the hearing and as a consequence his case was at times difficult to follow. What is clear however is that in his Response to an Application in a Case filed on 22 August 2019, the husband sought orders for the sale of the Motor Vehicle 2, the Motor Vehicle 1, the boat, and the jet ski, albeit he wanted to have the conduct of those sales. There was, at least at that time, nothing to suggest that he wanted to retain any of them. It was not until the wife had provided a minute of the orders she proposed, in particular her proposal which she made for the first time that the parties be required to accept any offer of at least 80 per centum of the list price, that the husband indicated he wanted the opportunity to retain the two motor vehicles. The key to his submission being that he should be permitted to do so at the reduced price. It is also the case that on 30 April 2019, an order had been made by consent that the husband be at liberty to sell the Motor Vehicle 2, with $50,000 of the proceeds of sale to be paid into the parties’ joint account, and the balance otherwise held on trust pending further order.
Counsel for the husband having previously submitted that the husband should be permitted to retain the vehicles at the reduced price as part of his property settlement entitlements, nothing has changed. In so far as the husband now seeks to reopen his case, I do not accept as submitted by counsel for the husband, that it would not be “fair” to require the husband to pay for these items of property in circumstances where it was his own case until the latter part of the hearing before me that they should be sold. In my view, the difficulty with the husband’s proposal is that if I were to give him leave to reopen his case and ultimately allow the husband to retain the vehicles as part of his property entitlements, the wife would lose the opportunity of selling the Motor Vehicle 2, the Motor Vehicle 1, the boat, and the jet ski at the list price. In my view this would not be fair to the wife. The position might be different if the husband were to take those items at the listed price, however that was not his case and it is easy to see how there could be further dispute with respect to those sales particularly if the husband were to retain the vehicles pending a sale or have control of that sale given his stated preference that he be permitted to retain them at the reduced price. Even if the husband was to be permitted to reagitate his submission that he be permitted to retain the vehicles, or as he now submits the vehicles and boat and the jet ski, as part of his property entitlements at the list price, this would raise new issues which the wife would be required to address as to why the vehicles should be sold rather than form part of the husband’s entitlements. Not surprisingly this had not been part of the wife’s case in circumstances where the husband’s Response to her Application in a Case also sought a sale.
Although there is no specific evidence in relation to the time frame for the sale at the listed price, that only being raised by the wife to make sure that the sale could not be frustrated by the husband, I accept counsel for the wife’s submission that items such as those being sold may take time to sell and it is in my view reasonable to infer that the Christmas holiday period might also have some impact. In these circumstances, I propose to make orders essentially in accordance with the wife’s proposal. However, as that 90 day period would end sometime in mid January 2020, rather than make orders requiring the parties to accept any offers of 80 per centum of the list price, I propose to simply make orders for the sale at the list price and otherwise reserve the question of whether the husband should be permitted to retain all or any of the items of property he now says he wishes to retain and on what conditions for determination at trial. On this basis, the husband will still have the opportunity to purchase the Motor Vehicle 2, the Motor Vehicle 1, the boat or the jet ski or all of them at the list price.
I am satisfied that this will not only give the wife the opportunity to effect a sale in accordance with the values attributed to these items by the expert valuers, but also give the husband the opportunity to put his case at trial that he should be permitted to retain them as part of his entitlements, if he still wishes to do so in the event that they have not sold at that list price.
Counsel for the wife also submitted that the husband should be required to deliver up within seven days the Motor Vehicle 2, the Motor Vehicle 1 the Boat and the Jetski. In circumstances where they are in effect to be marketed at the list price until the final hearing, I propose to allow the husband 14 days to do so.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 October 2019.
Associate:
Date: 18 October 2019
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