Pratt and Pratt

FAMILY COURT OF AUSTRALIA

PRATT & PRATT

[2016] FamCA 1100

FAMILY LAW – PROPERTY – Interim orders – Restraint of disposing of assets – Removal of caveat – Disclosure.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Pratt

RESPONDENT:

Ms Pratt

FILE NUMBER:

BRC

3945

2009

DATE DELIVERED:

20 December 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

19 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Harding

SOLICITOR FOR THE APPLICANT:

O'Neill Family Law

COUNSEL FOR THE RESPONDENT:

Ms Pointing

SOLICITOR FOR THE RESPONDENT:

Kennedy Spanner Lawyers

Orders

IT IS ORDERED BY WAY OF INTERIM ORDER THAT

The property known as “C Property” situated at O Street, E Town in the State of Queensland more particularly described as Lot 2 on …, County of J, Parish of P Title Reference … and Lot 1 on …, County of J, Parish of P Title Reference … (hereinafter referred to as C Property) remain listed for sale by way of expressions of interest with Mr Q at W Real Estate until 27 January 2017.
From 27 January 2017:-
(a)C Property shall be listed for sale by private treaty with Mr Q at W Real Estate; and
(b)C Property shall be listed for sale at “Offers over $1,500,000.00” unless otherwise recommended in writing by Mr Q at W Real Estate; and
(c)the parties are to cooperate in every way with Mr Q at W Real Estate in relation to the marketing of C Property for sale including making the key readily available, allowing inspection of C Property at all times reasonably requested by the agent, saying and doing nothing to hinder or prevent the sale being effected, ensuring that the property and the grounds are in neat and clean condition at the time of inspections by the agent and prospective purchasers; and
(d)the Husband shall instruct X Solicitors in E Town as the conveyancing solicitors for the sale of C Property.
The Husband be at liberty to accept any offers to purchase C Property which provide for a purchase price of over $1,100,000.00.
This Order authorises, requests and directs Mr Q of W Real Estate to provide all relevant information and details regarding the listing of C Property to the Wife (including but not limited to any and all inspections conducted and offers received) as soon as practicably possible.
This Order authorises, requests and directs the conveyancing solicitors X Solicitors to provide all relevant information and details as may be requested by the Wife regarding the progression of the contract for the sale of C Property to the Wife as soon as practicably possible.
The Husband is at liberty to extend the timeframe for repayment of the existing loan associated with the ANZ mortgage secured against C Property.
The Husband is to keep the Wife informed within seven (7) days of approval of any extension of the timeframe for repayment of the existing loan associated with the ANZ mortgage secured against C Property.
The Wife be at liberty to obtain two (2) real estate agent appraisals of C Property, and the Husband will provide access for each of the real estate agents to C Property upon receipt of forty-eight (48) hours’ notice of their intention to attend C Property.
Upon completion of the sale of the property the proceeds of sale shall be distributed as follows:-
(a)firstly, an amount to be paid to the ANZ sufficient to discharge the ANZ Mortgage registered upon C Property; and
(b)secondly, all costs, commissions and expenses associated with the sale; and
(c)thirdly, any rates or taxes owing with respect to C Property; and
(d)fourthly, the conveyancing solicitors’ fees in respect of the conveyance; and
(e)fifthly, the conveyancing solicitors’ fees in respect of any account maintained pursuant to Clause 14 herein; and
(f)thereafter, the balance be held in the O’Neill Family Law Trust Account, with same to be invested on behalf of the Husband and Wife, pending further Order of the Court or any written agreement between the parties.
Pending the sale of C Property, the Husband:-
(a)is restrained from further encumbering C Property or increasing the existing loan associated with the ANZ mortgage secured against C Property; and
(b)shall pay all rates, taxes, licences, insurance, and like apportionable outgoings with respect to the property as and when they fall due; and
(c)shall maintain insurance with respect to the property and all improvements upon C Property.
This Order authorises, requests and directs the conveyancing solicitors X Solicitors to send a copy all items of correspondence sent to the Husband regarding the progression of the contract for the sale of C Property contemporaneously to the Wife care of …
The Husband is to send a copy all items of correspondence sent to X Solicitors regarding the progression of the contract for the sale of C Property contemporaneously to the Wife care of …
Each party is at liberty to request additional information from the conveyancing solicitors X Solicitors in relation to any sale of C Property.
This Order directs the conveyancing solicitors X Solicitors, (or such other agreed conveyancing solicitors) to maintain a separate billing account for any requests made pursuant to Clause 13 which are for information in addition to that which would be provided in the usual conduct of a conveyance of real property.
Upon the sale of C Property the Husband shall leave the real property in a reasonable condition, fair wear and tear excepted, with the Husband to be responsible and bear all liability for repairing any damage to the real property prior to settlement.
The Wife is to sign all such documents to lift the caveat at least seven (7) days prior to intended settlement of the sale of C Property so as to allow the sale to proceed provided that:
(a)the purchase price is over $1,100,000.00;
(b)the only disbursements to occur at settlement from the sale proceeds are as provided for within these Orders.

Restraint

Except as otherwise provided, the Husband is restrained from disposing, by any means, of any of the assets, plant and equipment, cattle and horses (or any embryo of any of these horses) referred to in Paragraph 16 of the Wife’s affidavit filed 9 December 2016 except on condition that:
(a)he provide the Wife with forty-eight (48) hours’ notice of any proposed disposition; and
(b)within twenty-four (24) hours of any disposition of whatever kind, he provide the Wife with a copy of all documents evidencing the disposal or created in connection with the disposal (including those documents which detail the item to be sold, the identity of the purchaser and the purchase price); and
(c)he is at liberty to retain no more than $2,000.00 from the proceeds of sale of any asset, plant and equipment, cattle and horses (or any embryo of any of these horses) sold; and otherwise; and
(d)he cause the balance of any sale proceeds to be paid into and retained in the O’Neill Family Law Trust Account, with the same to be invested on behalf of the Husband and Wife pending further order of the Court or the written agreement of both parties.

Caveat

Contemporaneously with the settlement of the sale of C Property and receipt of the distributions provided for in Order 9 hereof, the Wife shall provide all necessary documents to consent to the removal of the Caveat registered over C Property to the purchaser (or the purchaser’s financier as the case may be) at settlement.

Disclosure

In the event the Husband has not already provided same, then, within fourteen (14) days of the date of these Orders, he is to provide the following to the Wife, through her solicitors:
(a)all documents exchanged with the ANZ Bank in relation to varying the existing mortgage secured against C Property in 2016;
(b)all documents supporting the application of the additional funds received from the ANZ Bank when varying the existing mortgage secured against C Property.

Costs

Costs be reserved.

Liberty to apply

Each party has liberty to apply on the giving of forty-eight (48) hours’ notice in writing to the other.

IT IS DIRECTED THAT

Each party have leave to issue as many subpoenas to produce documents as may be required.
The parties confer in writing within thirty-five (35) days as to the value/s to be attributed to the property in the asset pool. In the event that values are not agreed as at 23 January 2017 for the purposes of trial, valuations (including updated valuations) are to be jointly obtained from experts as agreed between the parties in relation to the disputed item of property.
Letters of instruction pursuant to rule 15.54 of the Family Law Rules 2004 to value any disputed item(s) of property are to be provided to the agreed experts by no later than 30 January 2017.
Any agreed experts are hereby appointed as Single Expert witnesses pursuant to rule 15.44(1) of the Family Law Rules 2004.
The Wife file and serve an Amended Initiating Application (which sets out all final orders sought) by 13 February 2017.
The Husband file and serve an Amended Response to Final Orders (which sets out all final orders sought) by 20 February 2017.
The Wife and the Husband each file and serve by no later than 27 February 2017 the following:
(a)one consolidated affidavit setting out his/her evidence in chief; and
(b)any affidavit setting out the evidence of any lay witness that the party proposes to call at the trial; and
(c)undertaking as to disclosure pursuant to rule 13.15 of the Family Law Rules 2004; and
(d)an updated Financial Statement.
The Wife and the Husband each file and serve by no later than 6 March 2017 any affidavit setting out the evidence of any expert witness that the party proposes to call at the trial (including the evidence of Single Expert witnesses).
The Wife and the Husband are to file a Balance Sheet which sets out the assets, liabilities and financial resources of the parties by no later than 6 March 2017.
The each party file and serve a Summary of Argument and the following Case Information by no later than 20 March 2017:
(a)a list of the applications, responses and affidavits relied upon by the party; and
(b)a brief chronology of relevant events.
All applications under rule 16.05 of the Family Law Rules 2004 for attendance at the trial by telephone or video be filed and served 28 days prior to the commencement of trial.
The matter be listed for final hearing with an estimated hearing time of five (5) days commencing 10.00 am at Monday 3 April 2017.

IT IS NOTED THAT

A.Other than the terms of Clauses 2b, 5, 9d, 9e, 13, 14 and 17, the above orders are made by consent.
B.The parties are at liberty to argue in relation to the proper apportionment of the fees paid to the conveyancing solicitor pursuant to Clauses 13, 14 and 9e of this Order.

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 Pratt & Pratt 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 BRISBANE

FILE NUMBER: BRC 3945 of 2009

Mr Pratt

Applicant

And

Ms Pratt

Respondent

REASONS FOR JUDGMENT

The parties in this longstanding matter have thankfully reached agreement about a number of directions and orders pending the finalisation of the matter at a hearing early next year. There remain only three matters outstanding.
The first of those is the listing price for the property “C Property”. It is agreed between the parties that that property be listed for sale.
It is also agreed that it be listed for sale with a Mr Q from W Real Estate. What is not agreed is the price at which the property be listed for sale.
I am persuaded on the evidence before me that it is more appropriate that an order be made in the terms proposed by Counsel for the husband, namely, that C Property shall be listed for sale at offers of $1,500,000.00 unless otherwise recommended in writing by Mr Q at W Real Estate. I arrive at that decision because Mr Q is the agreed real estate agent, there is no evidence before me other than that the property was, in about November 2014, valued at $1.1million, the wife previously asserted a range of value for the property of between $1.3 and 1.7 million dollars and, as it is the most substantial asset in existence, it is in both parties’ interests to seek to obtain as much for it as possible. I also take into account that the matter came before the court as a consequence of the husband’s application for permission to sell the property so as to permit him to move interstate and purchase other real property. For those short reasons then the order will be as I have outlined.
The next matter that requires determination is in relation to the manner in which any additional information about any proposed sale of C Property be provided to each of the parties. It seems to me to be appropriate to make orders that permit each party to seek information from the agreed conveyancing solicitors; to make provision for those conveyancing solicitors to maintain a separate billing account for any request for any information which is in addition to that which would otherwise be provided to parties in the usual conduct of the conveyance of real property and to permit the conveyancing solicitors to be paid, not only any sums referable to such requests but, also, referable to the conveyance itself from the sale proceeds of C Property. It is appropriate, I think, to then permit the parties, if they wish at trial to be heard further in relation to which of them is ultimately responsibility for any additional costs.
Orders will be made to give effect to the reasons I have just outlined.
The next matter that requires determination is whether the balance of convenience persuades of the making of injunctive relief against the husband in the manner proposed by Counsel for the wife between now and the pending trial of the matter commencing on 3 April 2017.
I am persuaded, having regard to the previous matters that seem not to be contested - namely, that there was prior agreement between the parties in November 2010 associated with the wife’s vacation of C Property that would have seen the husband pay to her the sum of $100,000.00 in two instalments and a further $2,000.00 per month; the husband failed to meet those payments after the wife vacated the premises and it was not until she applied for a Third Party Debt Notice that any payments were made; a further order made in late August 2013 required that the husband pay to the wife the sum of $50,000.00, in default of which she was permitted to take possession of and sell or dispose of a helicopter; payment was not made and there were subsequent issues in relation to the sale of that asset.
The parties have a significant disagreement in relation to the property of each and both of them as contended for. It appears the husband contends the property of the parties in existence has a value of about $1.1million whilst the wife, who contends it is valued somewhere up to $1,000,000.00, also contends that approximately $3,000,000.00 ought notionally be added back to the property of the parties as a consequence of what she asserts has been the husband’s premature disposition of assets. Of course, these are matters in contention and cannot be the subject of determination at this interim stage.
However, the combinations of these concerns, the disparate values contended for by the parties as constituting the value of the property of the parties for the purpose of the litigation, the fact that the matter will be before me for final hearing in early April 2017 and the fact that the husband has, to date, been able to support himself from his endeavours in camp drafting persuades me that it is appropriate to restrain him from disposing, by any means, of any of the assets, plant and equipment, cattle and horses or any embryos of any of the horses referred to in Paragraph 16 of the wife’s affidavit filed 9 December 2016 except on condition that:
a)he provide her with 48 hours’ notice of any proposed disposition; and
b)he provide her within 24 hours a copy of all documents evidencing the disposal or created in connection with the disposal of any such asset; and
c)he be at liberty to retain no more than $2,000.00 from the proceeds of sale of any such asset and cause the balance of any sale proceeds to be paid into trust.
In that way, I have attempted to balance the competing contentions of each of the parties - namely, to provide to the husband some means of support between now and April 2017 (but to limit the same such that, if needed, appropriate adjustment can be made at trial) and, also, to address the wife’s concerns and allegations about the premature disposition of assets to date.
For those short reasons then, orders will be made to give effect to that determination.
In addition, I have provided to each of the parties in the orders that will issue liberty to apply on the giving of 48 hours’ notice in writing to the other.
I have also noted on the order those aspects of it which have been made by consent and those that have required determination.
For these reasons then, I make orders in terms of the minute signed by me and placed with the papers. I direct that a copy of the Order be provided to the parties forthwith and that each party be provided with a copy of the Reasons just delivered once settled.

I certify that the preceding fifteen (15) paragraphs are a true copy of the Reasons for \Judgment of the Honourable Justice Hogan delivered on 20 December 2016.

Associate:

Date: 20 December 2016

[2016] FamCA 1100

20 December 2016

Key Legal Topics

Areas of Law

Family Law

Property Law

Civil Procedure

Legal Concepts

Injunction

Costs

Remedies

Expert Evidence

Procedural Fairness