Powell and Colt

[2014] FCCA 2855

FEDERAL CIRCUIT COURT OF AUSTRALIA

POWELL & COLT [2014] FCCA 2855

Catchwords:
FAMILY LAW – Property – Application in a Case – Interim Orders – de facto relationship – need for urgent orders to place jointly owned real estate on market.

Legislation:

Family Law Act 1975 (Cth), s.90SS

Applicant: MR POWELL

Respondent: MS COLT

File Number: SYC 6308 of 2014

Judgment of: Judge Scarlett

Hearing date: 2 December 2014

Date of Last Submission: 2 December 2014

Delivered at: Sydney

Delivered on: 2 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Macpherson

Solicitors for the Applicant: Pope & Spinks

Respondent: In person

ORDERS

UNTIL FURTHER ORDER

1. The Applicant and the Respondent must forthwith do all acts and things and execute all deeds and documents necessary to effect the sale of the property at Property H in the State of Queensland (omitted) being the whole of the land contained in Certificate of Title Folio Identifier (omitted) by private treaty for sale at market price unless otherwise agreed by the parties.

2. The parties are to do all acts and things and sign all documents necessary to appoint (omitted) Real Estate of (omitted) in the State of Queensland to act as estate agent on behalf of the Applicant and the Respondent in connection with the sale of the property at Property H, in the State of Queensland.

3. The parties are to do all acts and things and sign all documents necessary to appoint Slater and Gordon’s Conveyancing Works at Level 17, 215 Adelaide Street, Brisbane in the State of Queensland to prepare a contract of sale and act on the sale of the property at Property H aforesaid.

4. On completion of the sale of Property H aforesaid the parties shall authorise and direct the following payments:

   (a)In discharge of registered mortgage No (omitted) received by first mortgagee “(omitted) Bank” over the said land;

   (b)In payment of all council and water rates and any other outgoings outstanding in respect of the said property;

   (c)In payment of all proper legal costs and expenses which may have been reasonably incurred in respect of such sale, Real Estate Agents’ proper commission and expenses of the sale; and

   (d)As to the balance of the proceeds of the sale such proceeds to be paid into the Trust Account of the Applicant’s solicitor to be paid into a Controlled Moneys Account on behalf of the Applicant and the Respondent until further Order of the Court.

5. Within seven (7) days of the date of these Orders the Applicant must forward to the Respondent any car keys or other items relating to the Holden Commodore utility in the possession of the Respondent.

6. The mention date of 8 December 2014 is vacated.

7. The parties are to attend a Conciliation Conference with a Registrar at 2:15 pm on 8 January 2015.

8. The Application is otherwise adjourned to 28 January 2015 for further mention at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6308 of 2014

MR POWELL

Applicant

And

MS COLT

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case brought by the Respondent in the substantive proceedings. In his Application in a Case, the Respondent seeks Orders providing that:

   a)The parties should join in the sale of the jointly-owned property at Property H in the State of Queensland for a minimum price of not less than 85% of the highest market appraisal received from three Real Estate Agents;

   b)The proceeds of sale to be used to discharge the mortgage over the property and other amounts owed to the (omitted) Bank, along with rates and other charges;

   c)That (omitted) Real Estate of (omitted) in Brisbane be appointed to act as agent on the sale;

   d)That Slater and Gordon’s Conveyancing should be appointed at act on the sale;

   e)That the parties should enter into satisfactory arrangements with the (omitted) Bank in order to preclude recovery action by the bank;

   f)That the parties will pay the amounts owing to (omitted) in equal shares;

   g)That the parties will each contribute a minimum amount of $40.00 per week towards repayment of credit card debts;

   h)That the Applicant (in the substantive matter) bring the parties’ joint account with the (omitted) Bank to a positive balance;

   i)That the Applicant (aforesaid) pay an amount equivalent to half of RSPCA fees in respect of two pet dogs;

   j)That the Applicant obtain the approval of his sister Ms S to sell a property at Property T in Queensland; and

   k)Until the sale of the Property T property is completed the parties enter into arrangements to the (omitted) Bank to preclude recovery action by the bank.

2. The Applicant in the substantive proceedings concedes that the day is the final day given to the parties by the bank to avoid recovery action by the Bank. He agrees that the parties should join in the sale of the jointly-owned property at Property H but disagrees with the other orders sought. His Counsel, Mr Macpherson, told the Court that:

   a)The property at Property T is jointly owned with his client’s sister, Ms S who should be a party to the proceedings; and

   b)The (omitted) loan relates to a Holden Commodore utility, currently in the possession of the Respondent.

Evidence

1. The Respondent relied on his affidavit affirmed on 25 November 2014 and filed on 28 November. In that affidavit, the Respondent sets out his concerns about the pressing demands on the parties:

   a)in respect of the prospective action by the (omitted) Bank in respect of the mortgage over the Property H property;

   b)in respect of the claim by (omitted) over the finance for the Holden motor vehicle, to which the Applicant still holds a key;

   c)the Respondent’s credit card debts;

   d)the parties’ joint bank account with the (omitted) Bank, which is currently in debit; and

   e)an invoice from the RSPCA for $630.00 for the care of two dogs which he claims were left by the Applicant at an RSPCA shelter on 21 June 2014, although the dogs are now in his care.

2. Mr Macpherson has tendered Short Minutes of Order intended to be made by consent, relating to the sale of the property at Property H, with the proceeds of sale being disbursed as follows:

   a)in discharge of the mortgage to the (omitted) Bank;

   b)in payment of outstanding council and water rates;

   c)in payment of legal costs and Estate Agent’s commission; and

   d)the proceeds of sale to be held in the Applicant’s solicitor’s Trust Account until further order.

Conclusions

1. The case has not been made any easier to deal with due to the fact that the Respondent is not represented and will not attend Court in Sydney, or even come to Sydney at all, as he told the Court that he had a drug addiction which means that coming to Sydney would negatively impact on him. He persists in attending Court by telephone, which does not necessarily aid the smooth and easy resolution of this matter.

2. When the matter was before the Court on 13 November 2014 I put to the Applicant’s solicitor a suggestion that this matter would benefit by the parties attending a Conciliation Conference. He was reluctant to agree to this idea but, as I pointed out to Mr Macpherson of Counsel, the need appears to be even more obvious. Mr Macpherson did not demur to the suggestion that the parties attend a Conciliation Conference and the Respondent agreed readily.

3. I intend to make that order.

4. It is clear that the property at Property H needs to be put on the market straight away to avoid the Bank taking action under the mortgage. There should be an order appointing a Real Estate Agent and a conveyancing solicitor, and I propose to make those orders. The parties have apparently been unable to agree on such matters up to now.

5. I also consider that the balance of the sale proceeds after payment of those necessary amounts should be held by the Applicant’s solicitor in a controlled moneys account on behalf of both parties.

6. The Court cannot make any effective order in respect of the Property T property, where Ms S is a joint registered proprietor, until she is joined as a party. I understand that this is in train.

7. It appears to me that the other orders sought by the Respondent should abide the Conciliation Conference, which can take place in early January.

8. I propose to order that the Applicant should return the car key which he is holding, as the Respondent has the vehicle and I understand that the Applicant will not be making a claim on it.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  2 December 2014