Peroni and Kappa - [2018] FamCA 450

FAMILY COURT OF AUSTRALIA

PERONI & KAPPA

[2018] FamCA 450

FAMILY LAW – PROPERTY – Interim – Sale of a property – Enforcement of Court orders – Where the husband seeks to substitute a property ordered for sale for a second property – Where the husband alleges the wife obstructed the sale of the property ordered to be sold – Where the property the husband wishes to sell is the property the wife lives in – Whether the property ordered to be sold should be substituted for another property.

Family Law Act 1975 (Cth)

Dinci & Smith [2012] FamCA 840
Marchant & Marchant [2012] FamCAFC 181
Strahan v Strahan (Interim Property Orders) (2009) 241 FLR 1

APPLICANT:

Mr Peroni

RESPONDENT:

Ms Kappa

FILE NUMBER:

SYC

5788

2015

DATE DELIVERED:

16 February 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

12, 13 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner

SOLICITOR FOR THE APPLICANT:

Taylor & Scott Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Anne Day & Associates

Orders

The husband’s Application in a Case filed 19 January 2018 is dismissed.
The wife’s Response to the husband’s Application in a Case, as varied by minute of order sought, filed in court on 13 February 2018 and marked as Exhibit W1 is dismissed.
The husband is appointed as trustee for sale for the property at D Street, Suburb E (hereafter called “the Suburb E property”), for the purpose of achieving a sale of that property and distribution of the sale proceeds as required by the orders made by this Court on 17 August 2017.
The wife is to sign all documents and do all things reasonably required of her by the husband, in his capacity as the Trustee for sale of the Suburb E property, in order to facilitate a prompt sale of the said property.
The husband, as trustee for sale, is to cause the Suburb E property to be listed for sale through a real estate agent or agents of his choice, at an initial sale price which has been recommended by a valuer nominated by the Chair of the Australian Property Institute. The cost of the valuation is to be met initially by the wife, with half of that cost to be reimbursed to the wife upon completion of sale of the Suburb E property, such payment to come from the husband’s portion of the sale proceeds.
For the purpose of exercising the power of sale created by these orders, the husband is empowered and authorised to sign any necessary documents to enable the sale of the Suburb E property in the name and style of the wife.
The husband, as trustee for sale, may, at his discretion, reduce the asking price for the Suburb E property at the conclusion of each six week period during which the property is listed for sale and not sold. The court notes the husband seeks to reduce the sale…

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 Peroni and Kappa

Details

AGLC: Peroni and Kappa [2018] FamCA 450
Case: [2018] FamCA 450
Decision Date: 16 February 2018

CaseChat Overview and Summary

In a proceeding before Le Poer Trench J, the husband and wife were in dispute regarding the sale of a property located at D Street, Suburb E. The husband had filed an Application in a Case, and the wife had filed a Response. Both of these applications were ultimately dismissed by the court.

The central legal issues before the court concerned the appointment of a trustee for the sale of the Suburb E property and the terms and conditions under which that sale should proceed. The court was required to determine how the property should be listed, valued, and what discretion the appointed trustee would have in adjusting the sale price over time, as well as the respective obligations of each party in facilitating the sale and preventing interference.

Le Poer Trench J reasoned that the husband should be appointed as trustee for sale of the Suburb E property to facilitate its sale and the distribution of proceeds as previously ordered. The court stipulated that the husband, in his capacity as trustee, was authorised to sign necessary documents in the wife's name to effect the sale. The property was to be listed at a price recommended by a valuer nominated by the Chair of the Australian Property Institute, with the wife initially bearing the cost of the valuation, to be reimbursed from the husband's share of the sale proceeds. The husband was granted discretion to reduce the asking price every six weeks, but with a caution that reductions exceeding 2.5% might require justification to the court. The wife was ordered to ensure her parents or associates did not interfere with the sale process.

The court ordered the dismissal of both the husband's application and the wife's response. The husband was appointed trustee for sale of the Suburb E property, with detailed directions regarding its listing, valuation, and sale price adjustments. The wife was directed to cooperate with the sale, and the husband was ordered to pay the wife's costs for her attendance on 13 February 2018 from his portion of the sale proceeds. The matter was also scheduled for review by the Docket Registrar in the week of 21 May 2018.

Orders

Orders of the court

The husband’s Application in a Case filed 19 January 2018 is dismissed.

The wife’s Response to the husband’s Application in a Case, as varied by minute of order sought, filed in court on 13 February 2018 and marked as Exhibit W1 is dismissed.

The husband is appointed as trustee for sale for the property at D Street, Suburb E (hereafter called “the Suburb E property”), for the purpose of achieving a sale of that property and distribution of the sale proceeds as required by the orders made by this Court on 17 August 2017.

The wife is to sign all documents and do all things reasonably required of her by the husband, in his capacity as the Trustee for sale of the Suburb E property, in order to facilitate a prompt sale of the said property.

The husband, as trustee for sale, is to cause the Suburb E property to be listed for sale through a real estate agent or agents of his choice, at an initial sale price which has been recommended by a valuer nominated by the Chair of the Australian Property Institute. The cost of the valuation is to be met initially by the wife, with half of that cost to be reimbursed to the wife upon completion of sale of the Suburb E property, such payment to come from the husband’s portion of the sale proceeds.

For the purpose of exercising the power of sale created by these orders, the husband is empowered and authorised to sign any necessary documents to enable the sale of the Suburb E property in the name and style of the wife.

The husband, as trustee for sale, may, at his discretion, reduce the asking price for the Suburb E property at the conclusion of each six week period during which the property is listed for sale and not sold. The court notes the husband seeks to reduce the sale price by 5 per cent at the conclusion of each six week period, where a sale has not been contracted, and the wife has requested the reduction in price be no more than 2.5 per cent. The husband is on notice that should he reduce the asking price by more than 2.5 per cent at the conclusion of each six week period, the wife may require that he satisfy the court that any additional reduction was appropriate.

The wife is to use her best endeavours to ensure her parents, or any other relative or associate, does not act in a manner which interferes in, disrupts or adversely impacts on the husband efforts to sell the Suburb E property.

The husband has leave to apply for any further orders which may be necessary to implement the sale of the Suburb E property. Each party is on notice that they are at risk as to costs should there be any such listing of this matter in the Court.

10.

The husband is to pay the wife’s costs of attendance at court on 13 February 2018. Such payment to be made from the husband’s entitlement to the funds ordered to the paid to the husband (orders 17 August 2017) following the sale of the Suburb E property.

11.

I request that the Docket Registrar, in the week of 21 May 2018, cause the matter to be reviewed and further directions made to the progress this matter.

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

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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