Prendergast and Parsons and Anor (No. 11)

This matter concerned orders made by Guest J in the Family Court of Australia between a husband and wife regarding their property. The central dispute revolved around the sale of a property known as the "H property" and the distribution of its proceeds. The orders also addressed the husband's possession and interference with the property and its sale.

The court was required to determine the terms of the sale of the H property, including the provision of vacant possession by the husband, the method of sale (public auction), the setting of a reserve price, and the appointment of a real estate agent in the event of disagreement. Furthermore, the court needed to specify the order in which the proceeds of the sale were to be applied, including the payment of sale costs, outstanding rates, and any mortgage discharge, before the balance was held in trust pending further order. The court also considered the husband's conduct in relation to the property and the potential need for court officers to execute documents to facilitate the sale.

Guest J ordered that the husband provide vacant possession of the H property to the wife within 21 days. The property was to be sold by public auction, with a reserve price to be agreed upon by the parties or determined by a valuer nominated by the President of the Real Estate Institute of Victoria if agreement could not be reached. A real estate agent, also to be agreed upon or nominated, would conduct the sale. Upon completion, sale costs and outstanding rates were to be paid first, followed by the discharge of any mortgage. The remaining balance was to be paid into an interest-bearing trust account managed by the wife's solicitors. The husband was restrained from attending the property or interfering with the sale. Crucially, pursuant to s 106A of the *Family Law Act 1975*, the Registrar or Deputy Registrar was appointed to execute all necessary documents in the husband's name if he failed to comply with the sale requirements within 14 days. Monies held by real estate agents were to be released to the wife's solicitors as a partial distribution of property. Costs were reserved.