PEROT & PEROT - [2012] FamCA 958

FAMILY COURT OF AUSTRALIA

PEROT & PEROT

[2012] FamCA 958

FAMILY LAW – ENFORCEMENT – property – wife made trustee for sale – conditional upon the wife attempting to effect subdivision and attempting to exchange contracts with prospective purchaser

APPLICANT:

Ms Perot

RESPONDENT:

Mr Perot

FILE NUMBER:

SYC

5596

2011

DATE DELIVERED:

14 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

14 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Karras Partners

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

The husband’s Application in a Case filed 8 November 2012 is dismissed.

The letter from Ms J to Mr D dated 6 September 2012 is marked exhibit 1.

The wife be appointed as trustee for sale to implement the sale referred to in order 3 made on the 12 June 2012 upon these conditions:

3.1.The wife may do all things and sign all necessary documents on behalf of the husband including in his capacity as an office bearer of M Pty Ltd and an office bearer of I Pty Ltd to give effect to these orders.

3.2.The wife investigate as soon as practicable and establish the expected time that it would take to register the plan of subdivision, prepared by Mr A referred to in Annexure C of the husband’s affidavit filed 8 November 2012, and have separate titles issued for each Lot in that subdivision.

3.3.In the event that it is expected that the time to register the subdivision and have separate titles issued is no later than the end of February 2013:

3.3.1.The wife shall do all things and sign all documents to arrange for Lot 1, which is the subject of the offer by Ms J in exhibit 1, to be registered in the name M Pty Ltd and arrange for Lot 2 to be registered in the name of I Pty Ltd.

3.3.2.The wife will do all things and sign all documents necessary to cause M Pty Ltd to enter into a contract with Ms J to sell her Lot 1 at a price of $375,000, which contract will be conditional upon the registration of the subdivision and the issue of separate title and subject to the existing tenancy.

3.4.At any time, the wife may sell the un-subdivided property (which is currently Lot 47 section …) at a price of $740,000 (which I note is a price $10,000 more than Mr K’s valuation, but $10,000 less than twice the amount that Ms J is prepared to pay for one of them).

The matter is relisted at 2.00pm on 13 December 2012, and in the event Order 3.3 had not been implemented:

4.1.The wife to file an affidavit by 10 December 2012 and serve it on the husband setting out what she’s done by way of attempting to implement Order 3.3; and

4.2.On the 13 December 2012 I’ll hear any argument from the wife in relation to the reduction of the sale price in respect of the un-subdivided Lot.

It would be my preliminary view that, upon settlement of any sale, the wife should be entitled to be paid interest in accordance with the Family Law Rules 2004 (Cth) Rule 17.03 on the amount of $289,140 from the 24 July 2012, but the husband can further address me on the 13 December 2012 as to whether or not I should make an order in those terms and he can file any additional evidence that he wants to rely upon about that issue by the 10 December 2012.

The husband should pay the wife’s costs of the wife’s application for enforcement to date and the costs of the husband’s application in a case on a party/party basis, as agreed or assessed.

As expeditiously as possible, the husband is to do all things and to provide all documents that he has in his possession that relate to the registration of the plan of subdivision at the Land Titles Office (including the original certificate of title and linen plans).

The husband is to pay the costs of the registration of the plan of subdivision (if that is to happen) pursuant to Order 3.3.

The income from the tenants in relation to the two Lots can continue to be paid to the husband. The wife is to give whatever instructions that are needed to the real estate agent to make sure that that continues to happen.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5596 of 2011

Ms Perot

Applicant

And

Mr Perot

Respondent

EX TEMPORE REASONS FOR JUDGMENT

In this matter, the wife seeks the following order:
That by way of enforcement of the orders made in the Family Court of Australia at Sydney on 12 June 2012, the wife is hereby appointed trustee to implement the provisions of paragraphs 4, 5 and 6 of the orders and, without limiting the generality of the foregoing, to sign all documents, instruments and writings required to perfect the sale of [H] Street, [S suburb] by adopting a reserve price for the purposes of order 4.2 of $680,000, and an order that the respondent pay the wife’s costs on an indemnity basis.
The wife supports that application by way of evidence given in an affidavit which she filed on 29 August 2012.
The husband has filed a Response in which he seeks no specific order in writing, but it is clear from the discussion during submissions that he wishes the application that the wife has made to be dismissed. In support of that application, he has filed an affidavit on 7 November 2012.
The husband has also filed an Application in a Case on 8 November 2012 in which he seeks a variation of final property orders to allow a subdivision of the property at H Street, S suburb, and for the wife to sign a contract in relation to the sale of duplex number 1. He also seeks an order that the wife remove a caveat in order to enable the registration of the plan of subdivision and for that sale to proceed. He also seeks an order for damages against the wife if the price that he obtains for duplex 1 is less than the offer of $375,000 that has been made (see exhibit 1). He seeks an order for costs. He seeks an order for reimbursement for one-half of a valuation that he has obtained from K Valuations. He supports that application by a further affidavit which was filed on 8 November 2012.
Final property orders were made in this matter by consent by myself on 12 June 2012. Order 2 made on that day provided that the husband shall within 42 days do all acts and things required to pay to the wife the capital sum of $289,140. The parties agree that 42 days expired on 24 July 2012. Prior to 24 July 2012 the solicitors for the wife made two enquiries about the payment by the due date. In response, in correspondence dated 23 July 2012, the husband, who by then was acting on his own behalf, made it clear that the capital sum referred to in Order 2 was not going to be paid within the 42 days stipulated and, inferentially, was not going to be paid by way of a capital sum at all. He says in that letter that he has activated the default provisions of the Orders in relation to the sale of the property at H Street, S suburb so the wife would receive her money from that sale.
I pause to note that that property is registered in the names of M Pty Ltd and I Pty Ltd. I am told that I Pty Ltd is the trustee of the self-managed superannuation fund which is referred to at Order 9 of the final Orders made on 12 June 2012. Without reference to the wife, the husband at some point after 24 July 2012 listed the S suburb property for private treaty at an asking price of $815,000. This price was surprisingly high given that the final orders for property settlement made on 12 June 2012 were negotiated on an agreed value of the S suburb property at $680,000. The property did not sell at the listed price of $815,000. The husband left the property on the market at that price for some reasonable period of time.
The wife, on 10 August 2012, wrote to the husband drawing to the husband’s attention that the wife did not agree to the price that the husband had unilaterally set and made the point that the asking price that the husband had set at $815,000 was significantly higher than previously envisaged. The wife directly raised with the husband in that letter her suspicion that he had deliberately set a high price to frustrate an efficient sale of the property.
The reason that he might have done that is that it is clear from other evidence that the husband was taking steps to subdivide the property in the hope that he would be able to obtain a sale price for the property which exceeded $680,000. The wife in the letter of 10 August 2012 nominated a listing price of $740,000 and asked for the husband to respond to that within 48 hours. The husband made no response to that letter by the time the wife had filed her application for enforcement on 29 August 2012.
He did eventually respond in a letter dated 3 October 2012 without reference to the wife’s letter of 10 August 2012, so the response was indirect. In that letter of 3 October 2012 the husband tells the wife’s lawyer, that he has reduced the sale price to $760,000. Again, that was a unilateral action without the wife’s agreement.
The husband did not do some other things and did do some other things without reference to the wife. He attempted to engage with Australian Institute of Valuers without letting the wife know that he was doing it. There is provision in Order 3.3 of the orders of 12 June 2012 for the parties jointly to do that if they are unable to agree on a sale price. Order 4 of the final orders provided that if the duplex did not sell within 90 days of it being listed for sale by private treaty, the property then be offered for sale by auction. The husband did not do anything about implementing that order. The husband also unilaterally engaged K Valuations to carry out a valuation of the property. That valuation was enclosed with the husband’s material. K Valuations has valued the property at $730,000 but has done so on the basis that the property is subdivided.
At all times during this process it appears that without reference to the wife, without keeping her in the loop in a timely way, the husband has been proceeding with steps to attempt to subdivide the property. The wife got an inkling that that was happening as early as 7 August 2012 when she had a conversation with Mr D at L Real Estate who gave her information the husband was making an application to the local council for the subdivision. Nothing in the evidence I have indicates that the husband told the wife at the time that he was making that application.
At some point the husband employed the services of Mr A, a registered surveyor who has apparently drawn the necessary documents and has obtained a preliminary strata number for subdivision of those new lots being Lot 1 strata plan …, Lot 2 strata plan ….
The husband hopes to obtain an economic benefit from what he has done. The quantum of that benefit is to be seen in exhibit 1. Ms J, an apparent third party purchaser, has indicated she is prepared to make an offer at $375,000 for what appears to be Lot 1 in a subdivided property. K Valuations has valued each Lot in the subdivision at $365,000. Ms J has offered $10,000 more than that for one of the Lots.
Given the history, the wife is entitled to some certainty as to when she might get her money. The husband, however, is fearful that if all the wife is concerned about is obtaining what the orders allow her to obtain, then she might sacrifice the sale of the un-subdivided property in order to get her money as quickly as possible.
I intend to make some orders that attempt to provide some protection to the husband, but at the same time allow the wife to get her money within a reasonable period of time.
I will require the wife to investigate as soon as practicable, whether or not a subdivision of the property (including separate titles) can be achieved by the end of February 2013. I will appoint the wife trustee for sale for the purposes of attempting to do that and attempting to enter into a contract for sale of Lot 1 with Ms J at the price that she has offered. At any time the wife may sell the un-subdivided property at a price of $740,000 which I note is a price $10,000 more than K Valuation’s valuation, but $10,000 less than twice the amount that Ms J is prepared to pay for one of them.
The husband is to do all things and provide all documents to facilitate the wife being able to implement what I have asked her to do and that includes handing over linen plans as expeditiously as possible.
The husband is to forthwith deliver to the wife original certificate of title, and all documents that he has in his possession that relate to the registration of the plan of subdivision of the Land Titles Office.
The husband is to pay the costs of the registration of the plan of subdivision (if that is to happen). He can continue to receive the income from the tenants that currently have leases in relation to the two parts of the property and the wife is to give whatever instruction is needed to the real estate agent to make sure that that continues to happen.
I am going to relist the matter before myself at 2:00 pm on 13 December and at that time I will hear any argument from the wife in relation to a reduction of the sale price in respect of the un-subdivided lot if she has ascertained that the subdivision (including the issue of the two new title documents) cannot be effected by the end of February 2013. If the wife says this cannot be done by the end of February, she is to file an affidavit by 10 December 2012 and serve it on the husband setting out what she has done by way of attempting to implement the orders I have made today.
I note that it is my preliminary view that upon settlement of any sale the wife should be entitled to be paid interest in accordance with the Family Law Rules 2004 (Cth) rule 17.03 on the amount of $289,140 from 24 July 2012, but the husband can further address me on 13 December as to whether or not I should make an order in those terms and he can file any additional evidence that he wants to rely upon about that issue by 10 December 2012.
In relation to the issue of costs, it flows from what I have said that the wife has been wholly successful in the terms of the application that she be appointed as trustee for the sale. Her success is based on a failure by the husband to implement the orders in the way that they were written particularly in relation to the parties jointly doing things. Accordingly, the husband should pay the costs of the wife’s application for enforcement to date and the costs of the husband’s application in a case but on a party/party basis, not on an indemnity basis.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 14 November 2012

Associate:

Date: 20.11.2012