Philips & Samuels - [2017] FamCA 125

FAMILY COURT OF AUSTRALIA

PHILIPS & SAMUELS

[2017] FamCA 125

FAMILY LAW – PROPERTY – Interim injunctions – Where previous interim orders to give effect to rural property sales – Where ongoing conflict between the parties – Where delay in sale causing significant increase in secured debt – Where appropriate to amend previous orders to provide clarity as to rights and obligations and for an orderly sale – Where appropriate to appoint trustee for sale to implement sale orders – Where wife’s conduct frustrating sale of remaining stock on the property for purposes of property sale – Where appropriate to make injunctive orders to facilitate sale

Family Law Act 1975 (Cth) s 114

Martin & Martin and Ors [2013] FamCA 222

APPLICANT:

Ms Philips

RESPONDENT:

Mr Samuels

FILE NUMBER:

DUC

319

2014

DATE DELIVERED:

8 March 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Jones Rolfe Rudd

COUNSEL FOR THE RESPONDENT:

Ms Breeze

SOLICITOR FOR THE RESPONDENT:

Campbell Paton & Taylor

Orders 14 February 2017:

That the husband is hereby authorised and directed forthwith do all things necessary and sign all necessary documents so as to cause a sale of the livestock owned by the “V Trust” to be sold at the best price reasonably obtainable to W Pty Ltd via X Agents or in the event that such sale is not capable of proceeding then to sell such stock promptly at the best price reasonably available.
That the wife is hereby restrained from doing any act or thing or signing any document that may hinder or obstruct the sale provided for in the previous order and shall provide to any selling agent appointed by the husband free and unfettered access to the said stock and the parties’ property for the purposes of sale.
That the husband shall promptly inform the wife of any selling agent instructed by him on behalf of the “V Trust” other than X Agents and shall authorise the wife to be provided by any such selling agent any information or documents as to the sale of the stock that she may reasonably request from time to time.
That the husband is hereby restrained from receiving or disbursing any of the sale proceeds from the stock sale or sales and shall authorise and direct the selling agent to disburse the gross proceeds of sale in the following order and priority:
(a)In payment of selling agent’s commission and reasonable costs of and incidental to the sale if any.
(b)In discharge of any stock mortgage secured over the stock.
(c)In payment of the balance then remaining jointly to the solicitors for each of the parties Ms Y and Mr Z with such funds to be held by the said solicitors in trust in an interest bearing controlled money account for the “V Trust” pending further order of the court or the parties agreement in writing and…

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 Philips & Samuels

Details

AGLC: Philips & Samuels [2017] FamCA 125
Case: [2017] FamCA 125
Decision Date: 8 March 2017

CaseChat Overview and Summary

This matter concerned an application to vary previous orders made by Foster J in the Family Court of Australia. The dispute involved the division of property between a husband and wife, specifically concerning a superannuation fund and jointly owned rural property. The core of the dispute revolved around the husband's obligation to acquire certain land for his superannuation fund and the subsequent sale of other jointly owned property.

The court was required to determine the terms and conditions under which the husband would acquire land for his superannuation fund, and the mechanism for the sale of the parties' jointly owned rural property, "C Town". Crucially, the court had to consider how the sale of "C Town" should proceed, particularly in the event that the husband failed to acquire the superannuation land by a specified date, and the terms of sale for "C Town" if the husband did acquire the superannuation land.

Foster J varied the existing orders to provide that the husband was to pay a sum of $1,210,000.00 to E Pty Ltd as Trustee of the Samuels Superannuation Fund by 31 March 2017. In consideration of this payment, the husband and wife were to transfer the land comprised in a specific folio identifier to the husband. The funds were to be held in an interest-bearing account requiring joint signatures. If the husband failed to acquire this property by the deadline, it was to be offered for sale by public auction, combined with the jointly owned rural property "C Town". Mr CC, Solicitor, was appointed Trustee for Sale of "C Town" and, in the event of the husband's default in acquiring the superannuation land, also of that land. The Trustee for Sale was directed to sell the properties as a combined entity for the best price reasonably obtainable and to ensure that the contract for the sale of "C Town" included appropriate terms regarding access, water rights, and fencing, so as not to adversely affect the value of "C Town" if the husband acquired the superannuation land.

Orders

Orders of the court

That orders made on 27 June 2016 be varied as follows:

(a) That Order 11 be discharged and the following order be substituted:

11. That on or before 31 March 2017 the husband pay to E Pty Ltd as Trustee of the Samuels Superannuation Fund the sum of $1,210,000.00 and in consideration of that payment the husband and wife do all necessary things and sign all necessary documents so as to transfer to the husband the whole of the land comprised in Folio Identifier … and that those funds be paid into an interest-bearing account in the name of E Pty Ltd as Trustee of the Samuels Superannuation Fund requiring the joint signatures of the husband and wife and in default of the husband acquiring the said property by 31 March 2017 then the property shall be offered for sale by public auction with the parties’ jointly owned rural property “C Town” as a combine parcel.

That as and from 1 April 2017 Mr CC, Solicitor of H Town is hereby appointed Trustee for Sale of the parties’ jointly owned rural property known as “C Town” being the whole of the land comprised in Certificate of Title Folio Identifier Auto Consol …, Auto Consol …, Auto Consol …, Folio Identifier …, Folio Identifier … and in the event that the husband fails to acquire the superannuation land by 31 March 2017 Mr CC, Solicitor of H Town is appointed Trustee for Sale of the said superannuation land being the whole of the land comprised in Folio Identifier … and for the purposes of this order the said property or properties shall vest in the Trustee for Sale.

10.

That the Trustee for Sale shall do all things necessary to give effect to the sale orders for the property or properties as a combined entity as provided for in orders made 12 February 2016 (as amended) and 27 June 2017 and orders made this day for the best price reasonably obtainable.

11.

That the Trustee for Sale shall ensure that in the event that the husband acquires the superannuation land that the Contract for Sale of the remaining property “C Town” shall include appropriate terms and conditions addressing issues as to access, water rights and fencing as the superannuation land acquired by the husband such as would not unduly adversely affect the value of “C Town” property on sale.

12.

That the Trustee for Sale shall have liberty to apply for directions or further or other orders as to the facilitation or enforcement of these orders.

13.

That otherwise all pending interim applications before the Court be dismissed.

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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