Prosser and Prosser and Anor (No 2)
[2020] FamCA 500
•19 May 2020
FAMILY COURT OF AUSTRALIA
| PROSSER & PROSSER & ANOR (NO. 2) | [2020] FamCA 500 |
| FAMILY LAW – PROPERTY – where final judgment delivered – where parties unable to agree on a form as to the final orders consistent with the Reasons delivered – where the minutes of the parties were considered and Orders were made in Chambers |
| Family Law Rules 2004 |
| Prosser & Prosser and Anor [2020] FamCA 378 |
| APPLICANT: | Ms Prosser |
| FIRST RESPONDENT: | Mr Prosser |
| SECOND RESPONDENT: | Mr J |
| FILE NUMBER: | BRC | 1320 | of | 2015 |
| DATE DELIVERED: | 19 May 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | Written Submissions provided to Chambers 12 June 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr A Cooper, Cooper Family Law |
| SOLICITOR FOR THE FIRST RESPONDENT: | Mr P Commerford, Parker & Kissane |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mr A Cooper, Cooper Family Law |
Orders
That within ninety (90) days of the date of these Orders, the Applicant and/or the Second Respondent pay to the First Respondent the sum of $75,000 care of Parker & Kissane’s Trust Account contemporaneously with the First Respondent providing a withdrawal of Caveat in registerable form in respect of his Caveat registered over the title to the Suburb G unit;
That in the event Order 1 is not complied with the Suburb G Unit being Unit … K Street, Suburb G Brisbane Queensland, more particularly described as Lot … Building Unit Plan … (“Suburb G unit”) be listed for sale by private treaty as follows:
(a)With a Real Estate Agent as agreed between the parties and if agreement is not reached within seven (7) days as nominated by the Chief Executive Officer for the time being of the Real Estate Institute of Queensland;
(b)At a list price as agreed between the parties but failing agreement at the list price as recommended by the appointed real estate agent; and
(c)With an advertising campaign as agreed between the parties or as recommended by the Chief Executive Officer for the time being of the Real Estate Institute of Queensland by the appointed real estate agent; and
(d)
That the parties will attend to signing all documents to give effect to a sale if an offer is made from a prospective purchaser where the purchase is
2.5% above or below the list price.
That in the event of a contract for sale not being entered into within six (6) months of the date of these Orders, the property will be auctioned forthwith and the following shall apply;
(a)The auctioneer shall be as agreed between the parties but failing agreement as nominated by the Chief Executive Officer for the time being of the Real Estate Institute of Queensland; and
(b)The reserve price shall be as agreed between the parties not less than seven (7) days prior to the auction and failing agreement at a list price as recommended by the appointed real estate agent as referred to in 2(a); and
(c)In the event that the bidding does not reach the reserve price, the parties may sell the property to the highest bidder if it is agreed between the parties.
That should the property not be disposed of at auction as contemplated by
Order 3 of these Orders, the property is to be re-listed for sale by private treaty for a further period of thirty (30) days with a further auction to be held forthwith at the expiration of the thirty (30) day period. This auction is to be conducted in the same manner as specified in Order 3(a), 3(b) and 3(b).
That in the event the property is not disposed of at the first auction the listing price shall be reduced by 2.5% and continue to reduce by the same amount for each listing and/or auction thereafter.
That the process specified in Order 4 and Order 5 will be repeated until such time as the property is sold or until such time as the parties agree to the one buying out the other parties share at a price to be agreed.
That the parties shall cooperate in every way with the agent for sale including:
(a)Making the key available for the agent;
(b)Allowing inspection of the property at all reasonable times requested by the agent;
(c)Doing and saying nothing to hinder or prevent a sale being effected;
(d)Ensuring the property, including the grounds, are in neat and clean condition at the time of the inspection by the agent and prospective purchasers; and
(e)Signing all documents requested by the agent in relation to the listing for the sale of the property.
That upon the property being sold, the gross proceeds of the sale (including any deposit) are to be disbursed as follows:
(a)To any reasonable agents fees and commissions, including the costs of marketing the Suburb G unit;
(b) To any reasonable conveyancer’s fees;
(c)To expunge any indebtedness secured by the Suburb G Unit and to release any security given over the Suburb G unit;
(d)$75,000 to the First Respondent care of Parker & Kissane’s Trust Account together with interest as assessed under the Family Law Rules 2004 from the date of due payment to the date of payment;
(e)The balance to the Second Respondent care of Cooper Family Law’s Trust Account.
That pending payment to the First Respondent of the sum under Order 1 (or if delayed under Order 8(d)), the injunction at Order 2 made 16 November 2015 shall remain in full force and effect save for the Second Respondent being entitled to negotiate and execute any loan applications and mortgage documents in respect of a loan to be secured over the Suburb G unit and upon payment of the said ordered sum to the First Respondent, the injunction shall be discharged.
That otherwise, all parties retain to their exclusive possession and/or ownership all assets, whether real or personal, vested or contingent, howsoever held, including any funds in any bank or superannuation fund standing to the parties name, as at the date of these orders.
That otherwise, all parties keep safe and indemnify all other parties for any debts standing to the name of the first-mentioned party, or in the name of any entity associated with the first-mentioned party.
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 Prosser & Prosser and Anor 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 1320 of 2015
| Ms Prosser |
Applicant
And
| Mr Prosser |
First Respondent
And
Mr J
Second Respondent
REASONS FOR JUDGMENT
Arising from Reasons for Judgment delivered 22 May 2020 in this matter (see Prosser & Prosser & Anor [2020] FamCA 378), in accordance with the invitation to seek to agree on orders that reflect the Reasons given and the intention identified, the parties did apparently negotiate but do not agree on the form of Orders.
As a result, on 12 June 2020, both parties provided to the Court a minute of order and written submissions as to why their draft ought be preferred. Many of the terms are agreed, however the form of Order which appears at the commencement of these short Reasons, is an Order which I find achieves justice and equity. My decision on various differing submissions follow:
a)the subject unit is unencumbered and the husband’s entitlement to receive his payment of $75,000 is not therefor at risk in my view whilst the Caveat and interim injunction made 16 November 2015 remain in place until the payment is made. As a result I have Ordered that the interim injunction at Order 2 made 16 November 2015 be discharged upon payment of the sum of $75,000, but with a slight variation to avoid any doubt that the current legal owner is not restrained from signing documents necessary for finance (if required). Simply, the existence of the Caveat, would not (with proper explanation to any potential incoming mortgagee) “impede the finance process”. It is common conveyancing practice in Queensland for a withdrawal of Caveat to be available on settlement.
b)I will allow 90 days from the date of this Order for the payment to be made – considering that the wife and/or Mr J have now been aware of the obligation to pay $75,000 since the Reasons were published over one month ago.
c)whilst I regard the likelihood of Mr J failing to pay the sum of $75,000 within 90 days from the date of this Order as minimal notwithstanding the prolonged and troubled history of this litigation, I can not entirely ignore the possibility that payment may not be made, and, as a result a sale of the unit would be necessary.
d)to provide further incentive to the payment being made, interest on the sum of $75,000 will accrue from the date of due payment to the date of actual payment at the rate currently prescribed by the Family Law Rules 2004 – being 6. 75% pa, which I accept is higher than currently available home loan rates.
e)furthermore, if payment is not made as required, then I will adopt the process for sale as submitted by the husband, because:
i)this would avoid a possible further application for enforcement or machinery orders; and
ii)with the husband’s “equitable” interest even though it is a minority interest, where the legal owner is out of the jurisdiction and there has been extensive conflict between all the parties, it is in my view just and equitable for the husband to be involved in the sale as his proposed orders contemplate.
Of course, such issues will not arise for implementation, if the payment is made as ordered within 90 days.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 19 June 2020.
Associate:
Date: 19 June 2020