Petresca and Petresca - [2008] FamCA 920

FAMILY COURT OF AUSTRALIA

PETRESCA & PETRESCA

[2008] FamCA 920

FAMILY LAW – PROPERTY – Husband bankrupt – Trustee in bankruptcy nominal role in proceedings – Section 44(3) application where parties divorced in 1983 but reconciled shortly after – Hardship question considered – Husband’s bankruptcy and failure to file material is a ground for permitting wife to proceed on undefended basis

Family Law Act 1975 (Cth)

Australian Securities Commission v MacLeod (1994) 130 ALR 717
Brown and Brown [2004] FamCA 1067
Keith and Soukis [2007] FamCA 1017
State of Queensland v JL Holdings 189 CLR 146
Tate v Tate (2000) FLC 93-047

APPLICANT:

MS PETRESCA

RESPONDENT:

MR PETRESCA

INTERVENOR:

OFFICIAL TRUSTEE IN BANKRUPTCY

FILE NUMBER:

MLC

872

2008

DATE DELIVERED:

31 OCTOBER 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

31 OCTOBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR SPICER

SOLICITOR FOR THE APPLICANT:

TIA FORBES & HENRY

COUNSEL FOR THE RESPONDENT:

IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR:

MS ELSUN

SOLICITOR FOR THE INTERVENOR:

FORTE FAMILY LAWYERS

Orders

That the wife have leave to proceed on an undefended basis subject to the limitations otherwise referred to in these orders.
That pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), the wife have leave to proceed with her application out of time.
That the property situated at M being the land described in Certificate of Title Volume … Folio … be sold by public auction altogether out of court.
That the property situated at O and known as the O Business being the land described in Certificate of Title Volume … Folio … be sold by public auction wholly out of court and until the annulment of the husband’s bankruptcy, the second respondent be solely entitled to all or any occupation fees or like payments in respect of the said property.
That the wife have sole responsibility for the implementation of the two foregoing orders on the basis that she consult with the official trustee or the trustee of the husband’s bankrupt estate with regards to the reserve price and terms of sale of each property.
That paragraphs 1-5 of the orders made on 7 August 2008 be discharged.
That after the payment of reasonable selling costs, the proceeds of sale of whichever property sells and settles first be applied as follows:
(a)     to discharge the mortgage, if any, attached to that particular property;
(b)     to pay all debts, fees, interest, expenses and costs of the bankruptcy and annulment of the husband;
(c)     the balance, in the event that the O Business sells and settles first, be paid towards the mortgage encumbering the property at M being the mortgages to Westpac Bank registered number … and …; and
(d)     that the balance (if any) be held in interest bearing account on behalf of the parties by the solicitor for the wife.
If the sale of the first property, whichever it is, is inadequate to discharge…

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 Petresca and Petresca

Details

AGLC: Petresca and Petresca [2008] FamCA 920
Case: [2008] FamCA 920
Decision Date: 31 October 2008

CaseChat Overview and Summary

In the matter of *Petresca and Petresca*, heard by Justice Cronin, the wife sought leave to proceed with her application out of time, pursuant to s 44(3) of the *Family Law Act 1975* (Cth). The dispute concerned the sale of two properties: one residential property and a business known as the O Business. The husband was bankrupt, and the wife was seeking orders for the sale of these assets to resolve financial matters between the parties.

The court was required to determine whether to grant the wife leave to proceed with her application out of time, and to make orders regarding the sale of the parties' properties. Specifically, the court needed to address the disposition of the proceeds from the sale of these assets, considering the husband's bankruptcy and the existing mortgages. Further issues included the husband's involvement in the sale process and the appointment of a registrar to execute necessary documents on his behalf.

Justice Cronin granted the wife leave to proceed out of time and ordered the sale of both the residential property and the O Business by public auction. The proceeds of sale were to be applied first to discharge any mortgages on the respective properties, then to cover the costs and debts associated with the husband's bankruptcy and its annulment. Any remaining balance from the sale of the O Business was to be applied towards the mortgage on the residential property. If the sale of the first property was insufficient to cover these payments, the proceeds from the second property would be used. The husband was restrained from contacting estate agents or attending the properties or auctions. The Registrar of the Court was appointed to sign any deeds or instruments on behalf of the husband, upon being satisfied of the necessity by affidavit. The wife was granted sole responsibility for implementing the sale orders, in consultation with the official trustee. The court also made orders regarding the wife's occupation of the residential property pending its sale and adjourned the wife's amended application for final orders.

Orders

Orders of the court

That the wife have leave to proceed on an undefended basis subject to the limitations otherwise referred to in these orders.

That pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), the wife have leave to proceed with her application out of time.

That the property situated at M being the land described in Certificate of Title Volume … Folio … be sold by public auction altogether out of court.

That the property situated at O and known as the O Business being the land described in Certificate of Title Volume … Folio … be sold by public auction wholly out of court and until the annulment of the husband’s bankruptcy, the second respondent be solely entitled to all or any occupation fees or like payments in respect of the said property.

That the wife have sole responsibility for the implementation of the two foregoing orders on the basis that she consult with the official trustee or the trustee of the husband’s bankrupt estate with regards to the reserve price and terms of sale of each property.

That paragraphs 1-5 of the orders made on 7 August 2008 be discharged.

That after the payment of reasonable selling costs, the proceeds of sale of whichever property sells and settles first be applied as follows:

(a) to discharge the mortgage, if any, attached to that particular property;

(b) to pay all debts, fees, interest, expenses and costs of the bankruptcy and annulment of the husband;

(c) the balance, in the event that the O Business sells and settles first, be paid towards the mortgage encumbering the property at M being the mortgages to Westpac Bank registered number … and …; and

(d) that the balance (if any) be held in interest bearing account on behalf of the parties by the solicitor for the wife.

If the sale of the first property, whichever it is, is inadequate to discharge all of the payments referred to in the foregoing order, the proceeds of sale of the second property be applied to discharge those payments.

That the husband be and is hereby restrained from:

(a) contacting the estate agents retained to sell the property at M or the O Business pursuant to these orders;

(b) attending at or being within 100 metres of either of those said properties; and

10.

Neither the husband or the wife encumber the said properties without order of this court.

11.

That the official trustee in bankruptcy and/or the trustee of the husband’s bankrupt estate be excused from further attendance at court hearings save for when any hearing may affect the trustee’s interests or if the wife seeks to amend her application for final orders or to vary these orders.

12.

That pursuant to s 106A of the Act, the Registrar of this Court is appointed for the purposes of signing any deed or instrument required to be executed by the husband in the name of the husband and to do all acts and things necessary to give validity and operation to that deed or instrument.

13.

That for the purposes of paragraph 12 of these orders, the Registrar shall be satisfied of the requirement to sign such deed or instrument by the production of an affidavit sworn by the legal practitioner for the wife or the trustee of the bankrupt estate of the husband setting out the document required for execution.

14.

That the wife and the trustee of the husband’s bankrupt estate have general liberty to apply.

15.

That the wife advise the husband in writing as to any sale made pursuant to these orders by ordinary post to him C/- T Street, R or the address for the service in any Notice of Address for Service subsequently filed by him in these proceedings.

16.

That within 14 days of service of notification pursuant to paragraph 15 of these orders of sales pursuant to these orders, the husband may file and serve:

(a) a Notice of Address for Service;

(b) a response to the wife’s amended application for final orders filed 20 October 2008 including an application to vary paragraph 1 of these orders if he so choses or is so advised;

(d) a financial statement complying with Order 13 of the Family Law Rules 2004.

17.

That all questions of costs be reserved.

18.

That the wife’s amended application for final orders be adjourned part-heard before me on a date to be fixed as soon as practicable after the pool of assets has been crystallised by the said sales.

19.

That a copy of these orders be sent by my Associate to the husband at T Street, R.

20.

That my reasons this day be placed upon the file and be made available to the parties, including the husband by post to T Street, R.

21.

That pending the completion of the sale of the O Business, the wife have the sole right to occupy the property at M until the settlement of the sale of that property and each party hold their respective interests in the real properties upon trust pursuant to these orders.

22.

That the application of the wife seeking interim orders filed on 20 October 2008 be otherwise dismissed.

IT IS CERTIFIED:

23.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and solicitor appearing as counsel to attend.

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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