Philips & Samuels

[2016] FamCA 881

FAMILY COURT OF AUSTRALIA

PHILIPS & SAMUELS [2016] FamCA 881

FAMILY LAW – INJUNCTIONS – Where application for injunctions as to conduct and anticipatory conduct frustrating previous consent orders for sale – Where previous consent orders as to sale sought to be revisited – Where proposed sale by auction sale at future date – Where not appropriate for orders to be made in circumstances - Where further application appropriate if auction frustrated by conduct of a party – Applications dismissed.

APPLICANT: Ms Philips

RESPONDENT: Mr Samuels

FILE NUMBER: DUC 319 of 2014

DATE DELIVERED: 14 October 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Breeze

SOLICITOR FOR THE APPLICANT: Jones Rolfe Rudd

COUNSEL FOR THE RESPONDENT: Ms De Vere

SOLICITOR FOR THE RESPONDENT: Campbell Paton & Taylor

Orders

1. That the wife’s Application in a Case filed 13 September 2016 and the husband’s Response to that Application a Case filed 16 September 2016 be dismissed.

2. That there be no order as to costs.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 319  of 2014

Ms Philips

Applicant

And

Mr Samuels

Respondent

REASONS FOR JUDGMENT

1. The primary proceedings ultimately for determination in this matter are competing applications for property adjustment as between the applicant wife and the respondent husband.

2. The proceedings were commenced by application filed by the wife in October 2014 and since that date there have been various interim applications made in the proceedings.

3. On 12 February 2016 certain interim orders were made by consent in the following terms:

   (1)All previous orders are discharged except order of 3 September 2015.

   (2)The Husband to use his best endeavours to refinance all outstanding facilities owed to the National Australia Bank (“the NAB Loans”) secured by the property situate at and known as [B Street, C Town] in New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier Auto Consol …, Auto Consol …, Auto Consol …, Folio Identifiers 2/042670, Folio Identifier … (“[B Street]”) and to that end:-

   2.1The Husband to provide to the Wife conditional or “in principle” approval in writing from a financial institution by no later than 15 April 2016;

   2.2The Husband to provide to the Wife in writing by 15 April 2016:

   2.2.1Draft financial statements to end February 2016 for all those entities listed at Order 1.3 of the Orders made 3 September 2015 and any other entity of which he is a director or shareholder;

   2.2.2Confirmation in writing of the offer for the Husband’s interest in [D Pty Ltd] in the amount of $750 000.

   (3)If the Husband complies with Order 2 herein by 15 April 2016 then the Husband shall continue to use his best endeavours to obtain a refinance of the NAB Loans up to and including 31 May 2016, and if the Husband fails to comply with Order 2 above by 15 April 2016 [B Street] and the Super Land shall be forthwith offered for sale in accordance with Order 5 herein.

   (4)If the Husband has not obtained unconditional approval in writing confirmed to the Wife in writing of a refinance of the NAB Loans by 4.00 pm on 31 May 2016 then [B Street] together with the land described as Folio Identifier … (“the Super Land”) shall be forthwith offered for sale as set out in these Orders.

   (5)In the event that the Husband fails to comply with Order 2 by 15 April 2016 OR a refinance by 31 May 2016 in accordance with Order 3 and subject to Order 14 then on 1 June 2016 and forthwith thereafter the parties on their own account and as Directors of [E Pty Ltd] as Trustee of the [Samuels] Superannuation Fund shall do all things necessary to market “[B Street]” together with the “Super Land” for sale by public auction and to that end:

   5.1The price shall be as agreed by the parties and failing agreement as assessed by [F Valuers];

   5.2[F Valuers] to conduct a valuation of the Super Land;

   5.3The solicitor having carriage of the sale shall be [I Lawyers] of [H Town];

   5.4The agent appointed shall be [Company G] of [H Town] jointly with [J Real Estate] of [H Town].

   (6)Upon sale of “[B Street]” and “the Super Land” the proceeds shall be disbursed as follows:

   6.1In payment of conveyancing costs, commission and auctioneer’s costs;

   6.2In payment of the amount equivalent to the Super Land as assessed  by [F Valuers] to be held by I Lawyers in a controlled monies account to the [Samuels] Superannuation Fund;

   6.3In discharge of the NAB Loans;

   6.4The balance to be held by I Lawyers in a controlled monies account for the parties.

   (7)From the date of these Orders until sale or refinance the Husband shall:

   7.1Ensure that all sums arising from or in relation to “[B Street]” due to [Mr Samuels], [K Pty Ltd] and [B Street Trust] are deposited directly into the Westpac Banking Corporation bank account number … (“the Westpac Account”) and shall direct [L Pty Ltd] and [M Pty Ltd] to that end;

   7.2Continue to conduct a [livestock] trading business on “[B Street]” and to that end be at liberty to pay from the Westpac Account the following:

   7.2.1Wages, superannuation contributions and disbursements incurred by [Mr N];

   7.2.2Farming expenses being repairs and maintenance to “[B Street]”, utilities expenses, cropping expenses, weed control, [livestock] expenses, drenching, farm insurance, O Town Council rates and telephone costs;

   7.2.3Company accountancy fees

   7.2.4Interest to the ANZ

   7.2.5Leasing costs and payments associated with:

   7.2.5.1…Tractor

   7.2.5.2[4WD]

   7.2.5.3[German motor vehicle]

   7.2.6Horse expenses

   (8)In addition to Order 7 above the Husband shall be entitled to withdraw from the Westpac Account $1,000.00 per week for personal expenses.

   (9)BLANK

   (10)The Husband and Wife shall forthwith use their best endeavours to negotiate a moratorium on interest payments accumulating on the NAB Loans.

   (11)The Husband will within 7 days transfer to the Westpac Account any funds received from [L Pty Ltd] currently held in his personal Commonwealth Bank of Australia account and shall within 7 days provide to the Wife copies of the bank statements from 1 July 2015 to the present for that account.

   (12)The Husband to provide to the Wife a detailed account of the operations of [K Pty Ltd] and [B Street Trust] not less than every 28 days to be accompanied by all bank statements for the period the first such accounting to be for the period 1 November 2015 to the date of these Orders and to be provided to the Wife within 14 days.

   (13)In the event that the Husband effects a refinance offer in accordance with these Orders the Wife will simultaneously do all things necessary to transfer her legal title in “[B Street]” to the Husband not by way of interim property distribution and the Wife shall remain in residence on [B Street] until any final settlement.

   (14)The parties do all things necessary to engage [F Valuers] to value the Super Land both as a separate entity as is and as a saleable combined parcel together with “[B Street]” and in the event that the separate entity value is less than the saleable value as a combined parcel with [B Street] then the Super Land shall be offered for sale together with “[B Street]”  in accordance with the sale provisions of these Orders and if the value of the Super Land as a stand-alone entity is in excess of the combined value with sale with “[B Street]” then the Super Land shall not be offered for sale.

   (15)In the event that “[B Street]” is to be sold in accordance with these Orders the Husband shall have the first option to purchase the Super Land as valued at whichever value is higher as between the sell with value and the stand alone value.

4. It is common ground that the husband was unable to refinance existing debt as contemplated by the above orders and that the property is being sold as a consequence. The auction sale is now listed for 21 October 2016.

5. It is also common ground that the husband’s option to purchase the Super Land is at a price of $1.12 million as determined by an agreed single expert.

6. On 27 June 2016 in the context of an Application in a Case filed by the wife orders were ultimately made by consent in the following terms, as subsequently amended under the slip rule:

   (1)The parties agree that [K Pty Ltd] ATF [B Street] Trust will continue to operate a [livestock] trading business on “[B Street]” including the land owned by [E Pty Ltd] ATF the [Samuels] Superannuation Fund as follows:

   (a)The Husband to provide to the Wife written notice of his intention to trade [livestock] with either of [L Pty Ltd] and/or [M Pty Ltd] including details of the amount of [livestock] to be traded, the price and the costs of purchase and sale and the Wife shall within 3 business days of receiving such notice provide her authorisation for the trade in the circumstances where she agrees and the Wife may not unreasonably withhold her consent and both parties have liberty to apply on 3 days’ notice on this issue.

   (b)The Husband and the Wife direct either or both of L Pty Ltd and M Pty Ltd to deposit the proceeds of sale after payment of the stock mortgage and costs of trade and agents commission into the [K Pty Ltd] Westpac Banking Corporation account.

   (2)Both of the Husband and the Wife be and are hereby restrained from opening any further account with any bank on behalf of [K Pty Ltd] ATF [B Street] Trust.

   (3)All trading activity as from the date of these orders in the [K Pty Ltd] bank account shall be by way of direct debit signed by both the Husband and the Wife or by cheque with both the Husband and the Wife to sign and both the Husband and the Wife are restrained from conducting any internet or electronic funds transfer banking on the [K Pty Ltd] account unless agreed in writing.

   (4)That the Wife be hereinafter referred to as MS [PHILIPS] formerly known as Ms [Samuels]. 

   (5)That the Husband and the Wife be and are hereby restrained by injunction until further order from doing any act or thing which would or which could result in further encumbering any asset held by the husband and the wife jointly, the partnership of Mr and Ms [Samuels], [K Pty Ltd] ATF [B Street] Trust and [E Pty Ltd] ATF the [Samuels] Superannuation Fund without first obtaining the consent in writing of the other party.

   (6)That Order 7.2 and Order 8 of the orders made 12 February 2016 be discharged.

   (7)That the Husband and the Wife within 48 hours of the date of these Orders do all things necessary including signing all documents necessary to enable the Husband and the Wife to have joint authority only to operate the existing bank accounts of:

   (a)[K Pty Ltd] ATF for [B Street] Trust

   (b)[E Pty Ltd] ATF the [Samuels] Superannuation Fund

   (c)The Partnership of Mr and Ms [Samuels].

   and all accounts will hereinafter operate by way of direct debit and/or cheque authorised by both the Husband and the Wife unless agreed in writing.

   (8)That the Husband and the Wife will have the authority to authorise and effect the payment of the operating expenses of [B Street] Trust as follows:

   (a)Weekly wages to the Husband in the amount of $1,185.00 calculated on a weekly arrears basis as from 27 June 2016;

   (b)Wages and superannuation owing to [Mr N] in relation to his employment as Manager of “[B Street]”;

   (c)Necessary disbursements incurred by [Mr N] in the course of his employment with “[B Street]”;

   (d)Necessary farming expenses notified in writing by the Husband to the Wife prior to the expenditure being paid and approved by the Wife relating to repairs and maintenance to “[B Street]” , utilities expenses for “[B Street]”, cropping expenses, weed control, [livestock] expenses, drenching, farm insurance, O Town Council rates and telephone costs;

   (e)[P School] fees at 100% including all arrears for 2015 and 2016;

   (f)Leasing costs and payments associated with:

   (i)…Tractor

   (ii)[4WD]

   (iii)[German motor vehicle] ( x 2)

   (g)Horse expenses including horse float expenses

   (h)All marketing and agency expenses associated with the sale of “[B Street]” and the Super Land.

   (i)Any rental payments due and owing as from 27 June 2016 from [K Pty Ltd] and/or the partnership of Mr and Ms [Samuels] to [E Pty Ltd] ATF The [Samuels] Superannuation Fund and any back rent owing to be paid as soon as is practicable.

   (j)Electricity and gas expenses for the residences of the Husband and the Wife.

   (9)That the Wife be at liberty to produce a copy of these Orders to one [Mr Q] and that forthwith the Husband and the Wife do all things necessary to ensure that as from the date of these orders [Mr Q] deposit the rental fees relating to the cottage on “[B Street]” into the Westpac Bank account in the name of [K Pty Ltd] ATF [B Street] Trust.

   (10)That in addition to Order 12 of the 12 February 2016 Orders that the Husband provide to the Wife commencing Friday 1 July 2016 by no later than 4 pm and thereafter at monthly intervals a written account of the farming activities on “[B Street]” including the Super Land which will include but not be limited to the provision of copies of all primary documentation, invoices, account sale notices, bank statements and all and any correspondence of:

   (a)All livestock purchases and sales occurring in conjunction with or in relation to “[B Street]”, including the Super Land and [K Pty Ltd], its agents and nominees, for the preceding monthly period;

   (b)All monies received in relation to the activities described in Order 8(a) above including:

   (i)Amount received per head of livestock;

   (ii)Dates received

   (iii)Details of bank accounts to which funds for such sales were directed including name of financial institution, name of account holders

   (c)All operational activities occurring on [B Street] including but not limited to cropping activities and expenses, weed control, drenching, farm maintenance.

   (11)The Husband shall exercise his option to purchase the Super Land pursuant to Order 14 of the 12 February 2016 Orders on or before the date of auction of the Super Land and [B Street] as a combined parcel the exercise of his option shall include evidence of unconditional finance approval and execution of an unconditional contract for sale of land.

   (12)[E Pty Ltd] to reimburse the parties’ costs of the Super Land valuation within 14 days.

   (13)That the Husband cause the tractor to be delivered to [B Street] by 4 pm on Friday 1 July 2016.

7. It is in the context of the proposed sale of property pursuant to those orders that the wife makes further application to the Court. The wife filed a further Application in a Case on 13 September 2016 seeking to vary the arrangements agreed to in the previous consent orders as to the sale of the subject property and seeking certain injunctions.

8. In summary the wife sought the following orders:

   a)that the properties comprising “B Street” including the land owned by E Pty Ltd ATF the Samuels Superannuation Fund be sold by public auction on 21 October 2016 and that both parties be restrained from doing any act or thing that may or may reasonably be likely to impede the auction,

   b)that upon a successful sale at auction the husband do all things necessary to execute and facilitate an exchange of contracts and to complete the sale,

   c)that the husband be restrained from doing any act or thing likely to frustrate the sale of the property including refusing permission for any person introduced by the selling agent access to the property and refusing permission to any agent with carriage of the sale of the property to commence or continue any marketing campaign as recommended by that agent,

   d)that certain named persons being Mr R and Mr U be permitted access to the property for the purposes of assessing the property for sale either as agent or interested purchaser,

   e)that the husband upon receiving any request for information or documents from any agent with the carriage of the sale provide such information or documents promptly,

   f)that the wife be at liberty to provide a copy of orders to any listing agent with the carriage of the sale,

   g)that in the event that the husband wishes to exercise his option to purchase the land owned by E Pty Ltd he shall prior to 27 September 2016 provide to the wife’s solicitors written evidence of an unconditional offer of finance to fund the purchase of that property in the sum of $1.12 million and that in default the husband forfeit his option to purchase such land as provided in orders made on 12 February 2016,

   h)that in the event that the husband contravenes any of the above orders the wife shall forthwith have sole authority for management of the sale of the properties without further recourse to the court and the authorised to sign any documents on behalf of the husband so as to give effect to the sale,

   i)costs.

9. In support of the orders sought by her the wife relies upon her affidavit filed on 13 September 2016.

10. The wife asserts that the husband has sought to frustrate the sale of the subject properties as provided for in orders of February 2016 in that:

    a)the husband has failed to sign the requisite selling agreement with the listing agent,

    b)that the husband has refused to allow Mr R a rural specialist engaged by one of the selling agents to attend the property,

    c)that the husband was refusing to show agents around the property, refusing to supply a paddock map and refusing to provide relevant information about the property including information as to water pumps and other relevant features necessary for a proper sale,

    d)that the husband has sought to delay the initial auction date of 30 September 2016 until early November, which resulted in an agreement that the auction be deferred until 21 October 2016,

    e)that the husband has refused access to the property to selling agents and prospective buyers.

11. The husband filed a Response to the wife’s Application in a Case and in that Response in summary sought relevantly the following orders:

    a)that the Application in a Case be dismissed

    b)that order 14 dated 12 February 2016 and order 11 dated 27 June 2016 be discharged,

    c)that order 5.4 dated 12 February 2016 be amended to delete Company G as agent for the sale of the properties,

    d)that the wife provide disclosure of certain specified documents,

    e)costs.

12. The husband relies upon his affidavit filed on 16 September 2016 and the affidavit of Mr S filed on 16 September 2016.

13. Issues as to disclosure were not pressed at the interim hearing.

14. The husband asserts:

    a)that he signed the agency agreement for the sale of the property on 21 July 2016, having first signed the agency agreement on the 31 May 2016,

    b)the husband asserts that he was informed by one of the selling agents that it was proposed that a third party market and sell the property. That the selling agents recommended to him that the proposed sale should occur in late October or early November,

    c)that recent rainfalls had rendered it difficult for access to the property for the purposes of proper marketing,

    d)that if the sale proceeds as proposed certain stock on the property would be needed to be adjusted by the husband on settlement of the sale and that he had nowhere to agist that stock and would be forced to sell that stock prematurely,

    e)that a compromise auction date was agreed as 21 October 2016 and that he and the wife signed the revised agency agreement accordingly,

    f)that he denies any failure to cooperate with one of the listing agents and that he formed the view that as a consequence of certain correspondence the listing agent had acted inappropriately,

    g)that on 26 August 2016 the husband purported to terminate the agency agreement with that listing agent,

    h)that subsequently he had met with both listing agents and a revised agency agreement was signed on 2 September 2016 with the wife signing the revised agreement a few days later,

    i)the husband asserts that during his meeting with both listing agents it was agreed that no inspection would occur until the commencement of the advertising campaign on 19 September 2016 and that a Mr T and a Mr S be the only agents attending at the property for the purposes of marketing and the sale. It is not clear whether the wife was present at this meeting or part of the asserted agreement. There is no assertion by the husband that she was.

    j)that Mr T sought to show a potential buyer the property prior to the commencement of the advertising campaign and sought to bring forward the commencement of the advertising campaign to 15 September 2016.

    k)that the husband has not been informed of the venue and details of the proposed auction nor been provided with any advertising material for approval,

    l)that Mr T has expressed his concern that the husband and wife “literally can’t agree on anything regarding the sale”,

    m)the husband seeks an order that Mr T’s firm Company G no longer be one of the agents for the sale,

    n)the husband seeks to take issue with the single expert valuation of the Super Land as provided for in orders of February 2016,

    o)that the combined sale of the properties together will cause difficulty in determining the sale proceeds of the non-super land “B Street” that is subject to mortgage to the NAB. He provides no basis for this contention.

1. The substance of the applications before the Court are to amend or vary orders previously made by consent to facilitate an orderly sale of the subject properties.

2. It is clear that the parties continue to be at odds and are unable to sensibly agree on many issues. The property by agreement is listed for auction on 21 October 2016.

3. The wife’s application is in substance an application seeking to address as it were anticipatory breaches by the husband in relation to the listing agents marketing campaign.

4. The husband seeks the replacement of one of the listing agents as a consequence of what is to be inferred as some unilateral agreement reached by him with the two listing agents in the absence of the wife.

5. In all of the circumstances it is not appropriate to make orders as sought by either party. The property should proceed to auction as agreed by the parties on 21 October 2016 with the husband having the option to acquire the super land at an agreed value.

6. It is difficult to accept that there would be an issue in apportioning the sale price if the two lots are sold in line. The vendors are disparate entities and there will be a necessity for separate contracts for sale. An ascertainment of the relevant sale price through each entity it is to be inferred is also necessary for the purposes of if relevant calculation of GST and capital gains tax liabilities.

7. Should the proposed auction not proceed for good reason as a consequence of the adverse behaviour or conduct of one or other of the parties then appropriate application may then be made for the appointment of a trustee for sale who would facilitate an orderly sale of the subject properties.

8. In these circumstances the present applications before the Court are to be dismissed. As both parties have been unsuccessful there will be no order as to costs.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 October 2016.

Associate: 

Date:  13 October 2016