Picken and Picken

[2009] FamCA 133

FAMILY COURT OF AUSTRALIA

PICKEN & PICKEN [2009] FamCA 133

FAMILY LAW – PROPERTY – s 106A order – Certificate of title misplaced – Future costs – Case management

Family Law Act 1975 (Cth)

APPLICANT: Ms Picken

RESPONDENT: Mr Picken

INTERVENOR: Mr P (As Trustee in Bankruptcy of the Estate of the Wife)

FILE NUMBER: MLF 503 of 2005

DATE DELIVERED: 23 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 23 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR: MR NOTTAS

SOLICITOR FOR THE INTERVENOR: HUTCHINSON LEGAL

ORDERS

IT IS ORDERED:

1. THAT within ten (10) days the husband undertake all proper search and inquiries and locate and produce to the intervenor (the trustee in bankruptcy of the wife’s estate) the duplicate Certificate of Title, and any accompanying documents for the property at E in the State of Victoria.

2. THAT forthwith the husband advise the solicitor for the intervenor of the name, address and telephone number of the storage / courier firm which holds various containers on his behalf and inquiries be made as to the costs of permitting the husband to enter the containers at that address and search for the Certificate of Title.

3. THAT all costs of and incidental to the hearing this day be reserved to 16 March 2009 before Young J.  (It being noted that up to two (2) hours of court time was involved in this hearing).

4. THAT the solicitor for the intervenor make, file and serve an affidavit as to matters of and incidental to the conduct of the sale of the auction of E and the matters as to settlement of that sale and further as to his actions in assisting the husband to obtain a transfer of a property at A to his name and that such affidavit be served by registered post by the intervenor upon both the husband and wife.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

6. THAT the further hearing of all extant property and financial applications be adjourned to 10.00 a.m. on Monday 16 March 2009 before Young J.

7. THAT if the husband is unable to locate such Certificate of Title he make an affidavit as required to support an application for a replacement issue of such Certificate of Title and comply with all reasonable requests of the solicitor for the intervenor in that regard.

8. THAT pending the adjourned hearing date and only if settlement of the sale is completed the solicitor for the intervenor is at liberty to pay all creditors and other expenses of the bankruptcy estate save that no further distribution of monies is to be made, in whole or in part to the husband or wife.

IT IS NOTED

A.THAT the wife has already received and may retain a sum equal to one-half of the deposit monies paid by the purchasers for E property.

B.THAT it is requested that the court organise a Mandarin speaking interpreter to be present at the adjourned hearing date.

C.THAT the solicitor for the intervenor has advised the court and the husband that any and all caveats lodged on properties in A by or on behalf of the intervenor or the bankrupt estate of the wife have now been or will be immediately lifted but that does not cover any other caveat lodged by any independent financial organisation or Victoria Legal Aid.

IT IS NOTED that publication of this judgment under the pseudonym Picken & Picken is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 503 of 2005

MS PICKEN

Applicant

And

MR PICKEN

Respondent

And

MR P (As Trustee In Bankruptcy Of The Estate Of The Wife)

REASONS FOR JUDGMENT

1. The matter of Picken is again before the court this day.  The husband appears in person, the wife appears with the assistance of a Mandarin interpreter who has been organised through the court, and Mr Nottas, solicitor, appears for the trustee in bankruptcy of the estate of the wife. 

2. I am aware of the substantial history of this matter on all children's issues and on property and financial matters and there are various extempore judgments that I have delivered over the past year or thereabouts.  I will not reiterate the history of this matter but from the day the final consent s79A orders were made in February of 2008, there have been ongoing and significant delays.

3. The last property / financial orders of the court were made on 18 November 2008. At that date, a Registrar was appointed pursuant to section 106A of the Family Law Act to execute any document, contract or transfer of or incidental to the listing sale or settlement of the property at E in the state of Victoria. The husband is registered proprietor of that home and that fact was dealt with in the extempore reasons for judgment and in the appropriate orders. I emphasise that the parties were at court on that date and on all earlier dates.

4. The property went to public auction and sold.  The prior estimate of issue before the court was for a sale price of between $470,000 and $490,000.  The actual sale price of the property at auction was $476,000 and I have taken the opportunity to ask of the solicitor for the intervener if the purchasers were at arm's length to all parties and I am assured that was the case.

5. The purchasers are willing and able to settle and indeed pursuant to a licence, they now occupy the property.  The issue that has arisen is that the husband, as the registered proprietor, has not produced the certificate of title.  He was given notice by person-to-person registered post on 11 February of the requirement to produce the title at settlement.  This he either declined to do or is unable to do. 

6. In court this morning the husband has advised that he has various shipping containers of electrical equipment, furniture, chattels and documents.  Seemingly, two of them are in A and he is in the process of sorting through and inspecting all contents thereof.  The other two shipping containers, and whatever they may contain, are somewhere in the Ballarat district and he has provided a name of O Storage to the court, but that matter is to be followed up by the solicitor for the trustee.

7. I have been advised from the bar table that in respect of other properties at A, the husband was clearly and quickly able to locate titles.  There are separate issues about the transfer of a property in A to the husband which awaits some form of clearance from the State Revenue Office as to whether it is dutiable or otherwise and any costs on transfer.  I have invited the solicitor for the trustee to make, file and serve a further affidavit updating his actions in that regard, including the extent of his efforts in making a personal appearance, together with the trustee, upon the appropriate government office.

8. The wife's position is that she has vacated the home pursuant to orders.  She now rents a room at T Street in E.  It is unsuitable for her to have time spent with the two children.  The moneys, when settlement is finally concluded, are to be apportioned by the trustee pursuant to past consent orders.  Without in any way committing the trustee to any final division and subject to future costs, expenses and the like, it is contemplated at the moment that aside from his other property and assets, the husband may receive up to $9000.  The wife may receive the balance and that may total $210,000 or some like figure but that is subject to all future costs, expenses and the like.

9. Again, both the parties but particularly the husband has raised concerns, as he has in the past, with the settlement and the role of the former solicitor for the trustee.  I make no comment on these matters.  I have re-emphasised the extempore judgment involving the consent order and the fact that there was a period of some time between the settling of this matter at a financial conciliation conference at the court and ultimately the preparation and then the finetuning of the consent orders.  Those orders were made by me after a proper questioning of the parties and their understanding of the orders in court.

10. The situation of this ongoing matter is the title certificate needs to be produced.  Settlement must occur and only then can creditors be paid and ultimately the moneys available for the husband and the wife be known. 

11. The further proceedings will cost more money and there will be an issue as to who pays.  I make no predetermination of the issues.

12. I do not want to bring this matter back to court again. The parties can save themselves time and money by settling the sale and then receiving a distribution from the trustee. For so long as other creditors are not paid, interest will continue to accrue on other moneys and the parties will get less and less. I am not satisfied that the husband has made any reasonable search for the title. That is his obligation. He has known now for many, many months that the property would be sold and settled, and the title would have to be produced. It was discussed in court last time when I extended the order under section 106A to specifically include the husband.

13. It seems that all I can reasonably do today is to require production of the duplicate certificate of title, to give the husband a short period to produce that title, and to reserve costs.  I do not want to make any determination of costs until I know the actions in producing title by the husband, the costs incurred, the delay, because if it eventuates that he does not locate title, either innocently or maliciously I make no comment, it may be that there will be Supreme Court proceedings required for the order to replace or replicate that title.

14. My extempore reasons in the past will be seen to have urged a level of commonsense upon the parties.  Hopefully that will be listened to, but I say those words with no expectation whatsoever in this case.  The wife, I think it has dawned on her that the costs ultimately are paid and she may get less and less.  "Time is of the essence" is a legal expression.  To put it bluntly for the clients, every issue in this matter is now urgent and costs keep running and creditors will be paid.  The purchaser will at their request obtain possession of the property.  They are there on a licence at the moment.  Someone yet to be determined will have to pay some costs and the pool gets smaller and smaller.  I trust that does not sound gloomy.  I am trying to be realistic to the parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: