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…

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 PEROT & PEROT

Details

AGLC: PEROT & PEROT [2012] FamCA 958
Case: [2012] FamCA 958
Decision Date: 14 November 2012

CaseChat Overview and Summary

In the matter of *Perot & Perot*, Watts J considered applications by both the husband and wife concerning the sale and subdivision of property. The husband had filed an application on 8 November 2012, which was subsequently dismissed. The wife was appointed as trustee for sale to implement a prior order for the sale of property, with specific conditions attached to the process.

The court was required to determine the terms under which the wife, as trustee, would proceed with the sale of subdivided lots and the un-subdivided property. This involved establishing the timeline for the registration of a plan of subdivision and the issuance of separate titles. The court also considered the conditions for the sale of Lot 1 to Ms J and the potential sale of the un-subdivided property at a specified price. Further issues included the wife's entitlement to interest on a sum of money and the payment of costs.

Watts J reasoned that the wife, as trustee, should be empowered to take all necessary steps to effect the sale, including signing documents on behalf of the husband and associated companies. The court outlined a conditional process for the sale of Lot 1, contingent on the timely registration of the subdivision. The wife was also given the authority to sell the un-subdivided property at a set price. The court relisted the matter to address any implementation issues regarding the subdivision and to hear arguments on a potential reduction in the sale price of the un-subdivided lot. The husband was ordered to provide all necessary documents for the subdivision and to pay its costs, while the income from tenants was to continue to be paid to the husband. The husband was also ordered to pay the costs of both parties' applications.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.