READ & FRY

[2020] FamCA 793

FAMILY COURT OF AUSTRALIA

READ & FRY [2020] FamCA 793

FAMILY LAW – ENFORCEMENT OF ORDERS – Where final property adjustment Orders were made in April 2019 – Where those Orders were upheld on appeal by the Full Court in May 2020 – Where the Orders have not been executed – Where a trustee for sale will be appointed for the sale of the real properties situated in Queensland and following payment of any liabilities and expenses incurred in the sale of those properties a lump sum payment be made to the wife in the sum of $107,110 plus interest from the proceeds of the sale, with the balance, if any, to be held in the trustee for sale’s trust account, with the authority to invest, pending further order of this Court.

Family Law Act 1975 (Cth)

APPLICANT: Ms Read

RESPONDENT: Mr Fry

FILE NUMBER: BRC 2772 of 2011

DATE DELIVERED: 22 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 September 2020

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

Orders

1. That by way of enforcement of the Orders made by Justice Forrest of this Court on 5 April 2019, Peter John Sheehy be appointed Trustee for Sale of the real property situated at:

   (a)T Street, Town B in the State of Queensland, more particularly described as Lot 3 on RP …, Title Reference …;

   (b)Lot 1 NN Street, Town B in the State of Queensland, more particularly described as Lot 1 on RP …, Title Reference …; and

   (c)Lot 2 NN Street, Town B in the State of Queensland, more particularly described as Lot 2 on RP …, Title Reference …;

   and that the said property vest in the Trustee for the purposes of sale.

2. That the Trustee be entitled to sell the property by such method as he deems appropriate in the circumstances, including but not limited to sale by auction or by private treaty.

3. That in the event of sale by private treaty the Trustee shall determine the appropriate marketing of the property including listing price from time to time, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments.

4. That in the event of sale by auction:

   (a)the Trustee shall determine the appropriate marketing campaign for the property, including a marketing budget for advertising;

   (b)the Trustee shall determine the reserve price for the auction after consultation with the auctioneer and after considering any recommendations of the auctioneer.

5. That the Trustee may, but is not obliged to, obtain a valuation of the property if he deems that necessary for the purposes of determining the reserve price at any auction.

6. That the Trustee is authorised to expend money on the property in preparation for its sale using the recommendations of any agent in that regard, and for its marketing or advertising and that the amount of such expenditure be paid by the Applicant Wife in the first instance to the Trustee or to whom he directs, with such expenditure to be taken into account by being repaid in accordance with paragraph 9(d) of this Order.

7. That pending sale, the Respondent Husband shall maintain adequate fire, general and public risk liability insurance on the property and provide evidence of same to the Trustee as requested by him from time to time to enable the Trustee to have his interest noted on any policies of insurance in respect of the real estate the subject of trust created by this Order.

8. That the Trustee is entitled to charge for all reasonable costs and disbursements incurred by the Trustee in performance of his obligations pursuant to these Orders and that his fees and expenses be a first charge on the trust monies.

9. That upon settlement of the sale, the sale proceeds shall be paid in the following manner and priority:

   (a)Firstly in payment of all necessary selling costs including agent’s commissions, conveyancing fees, marketing and advertising costs and all other necessary costs incurred in the sale;

   (b)Secondly in discharge of any liabilities secured or charged against the property for payment of any outstanding local authority rates and water rates;

   (c)Thirdly in payment of the Trustee’s costs and expenses incurred in effecting the sale;

   (d)Fourthly in payment to the Applicant Wife of any monies paid on account of expenditure under paragraph 6 of this Order;

   (e)Fifthly to the Applicant Wife, an amount of $107,110.00 (“judgment amount”) plus interest pursuant the Family Law Act 1975 (Cth) and Family Law Rules 2004 (Cth) on that amount calculated from 5 April 2019 to the date of payment (“interest”), should the net sale proceeds of sale after the payment of monies under sub-paragraphs 9(a), (b) and (c) be sufficient to pay such amounts, and in the event that the net sale proceeds do not provide sufficient funds to pay the judgment amount and interest, then such lesser amount that is available to pay towards the judgment amount and interest;

   (f)Sixthly, the balance, if any, after the above payments, be paid to the trust account of Peter J Sheehy Solicitor, to be held by him pending further order of the Court with authority to invest such funds in accordance with investment powers under the Trusts Act 1973 (Qld).

10. That upon the Trustee giving (14) days’ notice to the Applicant Wife or such longer time as the Trustee considers appropriate, that he requires vacant possession of the property, the Applicant Wife shall provide vacant possession to the Trustee by delivering to him or his duly appointed agent in writing, all keys and security devices.

11. That the Trustee is hereby indemnified by the Applicant Wife and the Respondent Husband against any claims made against him upon becoming registered owner as trustee on title, consequent upon a failure to pay any of the outgoings on the property pending sale including insurance under paragraph 7.

12. That the Trustee by virtue of the vesting order herein, is empowered to sign on behalf of the previous registered owner on title or other parties, all real estate listing authorities, mortgage discharge authorities and Form 1 transfer and relevant documents required by the Land Titles Office (Qld), that are necessary for the conveyancing process resulting from the sale or are necessary to complete the settlement of the sale and in particular the following Land Title Act 1994 (Qld) documents:

    (a)to sign as Applicant, a Form 14 General Request to remove mortgages numbered …81 and …84 over the land described in paragraph 1 above, in pursuance of the Order of the Family Court of Australia made 5 April 2019;

    (b)to sign as Applicant, a Form 14 General Request to withdraw caveat no. …58 over the real property land described in paragraph 1 above;

    (c)to sign as Applicant, a Form 14 General Request to remove lapsed caveat no. …13 over the real property described in paragraph 1 above.

13. That the Trustee be provided access to the portal file for this matter.

14. That there be liberty to apply to all parties and the Trustee on 5 days’ notice, one party to the others.

15. That the directions hearing listed on 17 December 2020 be vacated.

16. That the matter be listed for mention on a date to be fixed after the Trustee for Sale, Mr Peter Sheehy, informs the Court that the property has been sold.

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 Read and Fry 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 2772 of 2011

Ms Read

Applicant

And

Mr Fry

Respondent

REASONS FOR JUDGMENT

1. In April last year, I made final property adjustment Orders and published reasons for those Orders in proceedings in this matter. The Intervener and the Respondent husband appealed against those Orders. The Orders were stayed pending the determination of those appeals. The judgment of the Full Court of this Court dismissing both appeals was delivered on 28 May this year.  Consequently, the Orders I made in April last year became operative again.

2. Relevantly, those Orders provided for the Queensland freehold land register to be corrected so that two particular mortgage documents are removed from the title to three particular lots of real property located in south-west Queensland registered in the name of the husband. Those Orders also provided for the husband to pay to the wife within one calendar month the sum of $107,110 and, in default of such payment, for those three lots to be sold with the wife to be paid that amount plus interest in accordance with the Family Law Act 1975 (Cth) (“the Act”) and the Family Law Rules 2004 (Cth) from the sale proceeds, with the balance of any sale proceeds to be paid to the husband. If the husband paid the said sum to the wife as ordered, without the lots having to be sold, he was to retain those lots as his property.

3. Also, within one calendar month of the Orders, the husband was required to do all things necessary to transfer his interest in a property that is registered in his and the wife’s joint names that is situated in the State K in the United States of America (“the State K property”) to the wife. In return, the wife is to cause the mortgage secured over that property to be repaid and discharged or refinanced and discharged.

4. Now, nearly four months after the judgment of the Full Court was delivered, none of those things have happened and the matter has come back before me because of this.

5. The husband, an Australian man with the right to live in the USA, lives in the house in State K. He lives there with his partner and their child or children. An adult son of a former relationship may also live there with him. He has told the wife and the Court that he has not complied with the Order to pay the $107,110 to the wife or the Order to transfer the State K property to her as he does not have the money and does not have anywhere else to go to live.

6. The wife, who is an American woman with the right to live in Australia, would like to return to the USA. She has rejected the husband’s proposals for the resolution of the dispute since the Full Court handed its decision down. She brought the matter back before the Court seeking orders significantly varying the final Orders that I made. She wanted the Court to make orders that the husband transfer the three Queensland lots to her and then pay her $173,720 in return for which she would transfer her interest in the State K property to the husband. The husband does not agree to that proposed course.

7. At the first return of the matter before me, where both the husband and the wife appeared by telephone and without legal representation, I informed the wife that if she persisted with that application it would have to proceed through the Court’s list as an application pursuant to s 79A of the Act and be listed for another trial if the husband continued to oppose it. The husband told the Court that he was content to sell the three Queensland properties so that the wife could be paid out. He would not offer the Court any assurance though that he would comply with the Order to transfer his interest in the State K property to the wife. It did not come as a surprise to me to be informed by both parties at the first return date that their own inquiries had revealed that the State K State authorities would not necessarily recognise and enforce this Court’s orders over there. In particular, the wife told the Court that she had received advice from a State K lawyer that a transfer of the husband’s interest in the State K property signed in his stead by a Registrar of this Court in accordance with an Order made pursuant to s 106A of the Act will not necessarily be acted upon by the State of State K.

8. At the hearing before me, I told the wife and the husband that I considered enforcement orders in respect of the three lots of real property situated here in Queensland appropriate to be made. I told them both that I considered the appointment of an independent solicitor to act as trustee for both of them in respect to the sale of the properties was the appropriate course. I told them that the solicitor could cause the sum of $107,110 plus interest to be paid out to the wife upon the completion of the sale, then hold the balance of all the sale proceeds in an interest bearing trust account pending compliance by the husband with the Order to transfer his interest to the wife or an earlier Order that some or all of the balance be paid to the wife so that she can go to the US and seek to have the property in the US transferred to her or at least sold with the proceeds of sale or at least half of the proceeds of sale paid to her. When I laid out this proposed course, the wife indicated her agreement with that proposed course. I understood the husband was not really happy with the proposed sale of the properties being taken out of his sole control and put in the hands of an independent trustee, but he had proposed sale of the properties and my proposed course was going to achieve that. I made no secret of the fact that I considered that the only way in which each party’s interests were going to be protected in this case was by way of the appointment of an independent trustee for the sale of the properties. Additionally, whilst the husband openly defies the Order to transfer his interest in the State K property to the wife, I consider it critical and in the interests of justice to ensure that the wife’s position remains protected as well as it can be.

9. I told the parties that I would reserve my decision and adjourn the matter, proposing to contact Brisbane solicitor, Mr Peter Sheehy, an experienced and well-known family law solicitor who I know has acted as trustee for the sale of real property and businesses on the order of this Court on many occasions over the years.

10. After the matter was adjourned, I had my Associate contact Mr Sheehy, with all communications between the Court and Mr Sheehy copied in to the husband and the wife. Mr Sheehy subsequently replied, informing the Court that he was prepared to accept the Court’s appointment of him to act as trustee for the sale of the three Queensland lots. Mr Sheehy sent through, as asked of him, a set of draft orders that he asked the Court to consider making in the circumstances, having regard to his experience. I have looked through those and accept that they should be made.

11. I make the Orders set out at the commencement of these written reasons. I vacate the hearing currently listed before a Registrar later in the year and consider the matter should come back before the Court again after Mr Sheehy has sold the three lots.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 September 2020.

Associate: 

Date:  22 September 2020