Percell and Mulroy

[2016] FamCA 1174

FAMILY COURT OF AUSTRALIA

PERCELL & MULROY [2016] FamCA 1174

FAMILY LAW – PROPERTY – ENFORCEMENT – Implementation of final orders – Where previous orders provide for the applicant to be appointed Trustee for Sale in the event that the respondent fails to pay her a sum within the required time frame –Where the payment was made but outside the required time – Where the applicant seeks that she be appointed Trustee for Sale – Where the substantive requirement of the final property orders has been satisfied – Order made to discharge order appointing the applicant Trustee for Sale.

Family Law Act 1975 (Cth)

APPLICANT: Mr Percell

RESPONDENT: Ms Mulroy

FILE NUMBER: SYC 1379 of 2013

DATE DELIVERED: 7 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 7 October 2016

REPRESENTATION

FOR THE APPLICANT: Mr Percell

COUNSEL FOR THE RESPONDENT: Mr Gardiner

SOLICITOR FOR THE RESPONDENT: Central Coast Family Law

Orders

1. That the Court notes that Ms Mulroy’s costs assessment application had been listed before Registrar Mordaunt for determination on 31 May 2016 but was vacated apparently in error.

2. That the said costs assessment application is listed for mention and directions before Registrar Mordaunt at 9.00 am on 5 December 2016 by telephone and for this purpose:

   ·Dial service provider AAPT “Global Meet” …

   ·At the prompt, enter …

   ·Please be patient until the Court is ready/connects the call

3. That paragraph 3.2 of the orders of 18 July 2016 is discharged.

4. That otherwise Johnston J’s judgment in relation to the child support issue is reserved.

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 < Percell & Mulroy 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 SYDNEY

FILE NUMBER: SYC 1379 of 2013

Mr Percell

Applicant

And

Ms Mulroy

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by Ms Mulroy (“the mother”) for orders which would make it clear that she is appointed Trustee for Sale of the property at B Street, C Town, New South Wales in accordance with paragraph 3.2 of the orders made on 18 July 2016.  The purpose of the orders would be to secure whatever assessment the Registrar, or ultimately this Court, makes in respect of an outstanding costs order which was part of the package of orders made by consent of the parties in these proceedings on 22 December 2015.  Those orders resolved the issues between the parties about whether or not they had a de facto relationship within the meaning of the Family Law Act 1975 (Cth) and provided for property settlement. Mr Percell (“the father”) agreed to an order that he would pay the mother’s costs in respect of that aspect of the proceedings as agreed or as assessed. That assessment has not been made and today I made some directions to try and bring that matter back into order because it seemed to have become somewhat lost in the system.

2. Paragraph 3.2 of the orders made on 18 July 2016 is to the effect that in the event that the father did not pay the sum of $140,000 with interest within 10 days of 18 July 2016 which he was required to do in order to resolve the substantive property proceedings between the parties, then paragraph 3.2 appointed the mother as Trustee for Sale of the property which has always been the subject of these proceedings at B Street, C Town, New South Wales.

3. Mr Gardiner, counsel for the mother, is correct in his submission that under the orders in circumstances where the father paid outside the 10 day time limit prescribed under paragraph 3.1 of those orders, the mother was declared and appointed Trustee for Sale of the property.

4. The property has actually been sold.  There is a purchaser, and in fact monies have been advanced to the father by the purchaser, in order for him to be able to bring about the substantive judgment which was the payment to the mother of the $140,000.  Paragraph 3.2 provided that the net proceeds of sale would be paid out in accordance with some earlier orders that had been made. 

5. What the mother is endeavouring to do by her application is to have the authority to sell the property which would produce funds from which her costs could be secured, whatever amount those costs might be assessed in.  It is submitted on behalf of the mother that because the father was a couple of days outside the 10 day limit he has not complied with the order and paragraph 3.2 comes into effect, and by operation of that provision, at law, the mother is now the Trustee for Sale of that property. 

6. In my view, there are a number of difficulties with this.  The first difficulty is that paragraph 3.2 was there to serve the substantive order, that is, to ensure that the Court’s judgment in the substantive orders that were made for the payment of $140,000 plus interest found its way as intended and as a matter of justice and equity to the mother.  The reality is that that has occurred albeit a couple of days outside the time.  What the mother is endeavouring to achieve, as I have said, is to use that order for a purpose for which it was never intended.  I am not inclined to permit that to occur.

7. I was also asked to make a different order and that would be an order to the effect that upon the proceeds of sale of that property becoming available, those proceeds be deposited into a controlled monies account to await further order of the Court. 

8. The difficulty I have with both courses which the Court is asked to put in place by orders in favour of the mother, is that there are clearly other creditors involved here.  There simply is not enough money to go around and pay everybody.  The father has indicated that he borrowed funds to pay K Pty Ltd $110,000 which was part of the first arrangement that the parties made and which was part of the substantive arrangement between them.  He says he owes a lot of money to his previous solicitors who have not been acting for him now for a long time.  In my view, it would be inappropriate to make the orders as sought.  In circumstances where the substantive requirement has been honoured, in my view, paragraph 3.2 of the orders made on 18 July 2016 no longer has any work to do and I do not accept that the Court is functus in respect of that.  After all, Order 3.2 is not a substantive order but rather an order to implement the substantive order.

9. In my view, the appropriate course is to discharge that order and I propose to do so.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 7 October 2016.

Associate:     

Date:  13 June 2017