Rooke and Benlow and Ors

[2008] FamCA 610

FAMILY COURT OF AUSTRALIA

ROOKE & BENLOW AND ORS [2008] FamCA 610

FAMILY COURT – PROPERTY – Application in a case

APPLICANT: Ms Satsi

RESPONDENT: Ms Rooke

FILE NUMBER: DGF 2729 of 2001

DATE DELIVERED: 30 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 30 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr A.G. Robinson

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. That the application in a case of MS SATSI filed on 23 July 2008 shall be adjourned to the Judicial Duty List before Justice Bennett on 18 August 2008.

2. That any application to be filed by the wife to join the husband’s mother, Ms D Benlow, shall be filed and served by 4.00pm on 6 August 2008 and any such application shall be returnable on 18 August 2008.

3. That the applicant, Ms Satsi, shall forthwith upon provision of same, execute irrevocable authorities directed to any person or entity paying monies to, or holding monies on behalf of, the applicant in respect of the sale of the real property situate at and known as B (“the property”), requiring that such monies (after payment of the costs, commissions and expenses of the sale of the property and discharge of the mortgage to National Australia Bank secured over the property) be paid into an interest-bearing trust account in the names of the applicant and respondent and held by solicitors for the respondent Lander and Rogers, pending joint written instruction of the parties or further order of this court. 

4. In the event that Ms Satsi fails to execute the irrevocable authorities referred to in the previous paragraph of these orders, within 48 hours of a written request, then a Registrar of the Family Court of Australia shall pursuant to section 106A of the Family Law Act 1975 execute such authorities on her behalf. 

5. Ms Satsi and Mr Benlow, their servants and agents be and are herby restrained from directing or attempting to direct, payment of the proceeds of sale of the property otherwise than in accordance with paragraph 4 of these orders.

6. That there shall be a transcript of my reasons for judgement given this day and the transcript shall remain on the court file.

7. That all questions of costs of this day shall be reserved.

8. That the preparation of these orders shall be expedited.

IT IS NOTED that publication of this judgment under the pseudonym Rooke & Benlow and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGF 2729 of 2001

MS SATSI

Applicant

And

MS ROOKE

Respondent

REASONS FOR JUDGMENT

1. The application in the case before me today is an application filed by Ms Satsi, Mr Benlow’s current wife, filed on 23 July 2008.  She is seeking orders to enable the B property to be sold in accordance with an existing contract of sale for the sum of $850,000; that the National Australia Bank first be paid $647,000 owing pursuant to a mortgage; that a loan to Ms D Benlow, the husband's mother, in the sum of $120,000 be paid; that agent's fees of about $13,000 be paid; that rates and other outstanding amounts in the sum of $4000 be paid; and, that the balance of $66,000 be paid half to her and half to the husband's former wife, Ms Rooke.

2. This application follows a very long litigation history.  There was a final hearing before Watt J in June 2005.  Judgment was given in April 2006.  The husband was ordered to pay the wife the sum of $111,000 by May 2006.  The sum was not paid.  Enforcement proceedings commenced. 

3. I am told that there were two different hearings of three days' duration each, before Bennett J.  Ultimately, on 8 and 9 November 2007, her Honour made various orders, the upshot of which was that as well as the $111,000 that was owing to the wife, the husband was also ordered to pay $11,000 in interest, and costs of $126,000.  Her Honour also made orders to effect a transfer to the wife of various of the husband's interests, and made an order that the husband’s interest in the B property, which the husband had transferred to his current wife, be transferred back to the husband, and on to the wife.

4. The wife has only received the full sum owing.  She has received about $169,000 of the $250,000 in total that was ordered.  The husband still owes her $80,000.  The various transfers in relation to the B property have not occurred.  In about April or May of this year, the National Australia Bank, the mortgagee, refused the transfers because it was then owed money.  It issued a default notice, and unbeknownst to the wife, Ms Satsi entered an agreement to sell the property in June of this year.  The settlement is due on 8 August 2008. 

5. The wife has today sought an adjournment of this application.  The adjournment is sought primarily on the basis that at an earlier time, there was agreement between the parties that $120,000 was genuinely owing to the husband's mother and that she should have priority in its payment.  What is now said is that with the understanding that the husband transferred his interest in the B property to his current wife, he effectively extinguished his mother's claim.  Accordingly, it should not be treated as a legitimate or genuine claim.  The husband’s mother should now be joined and a finding made in relation to that $120,000 purported loan.  If the loan is found not to be genuine, then there will be sufficient funds to cover the amount owing by the husband to the wife from the B property proceeds of sale. 

6. Ms Satsi has appeared unrepresented.  She asked earlier this morning to see a Legal Aid lawyer and I stood the matter down for that to occur.  Mr Benlow is also here.  He also expressed some desire to see the Legal Aid lawyer.  That request was also accommodated.  Although he is not named as an applicant, he appears to be joining Ms Satsi in the application.  He certainly does not seem to be disagreeing with any aspect of it.  To the contrary, they appear to be at one in relation to this application.

7. I am satisfied that an adjournment need not jeopardise the sale of the property, due to settle on Friday of next week.  That said, Ms Satsi, with what struck me as a degree of pique, said that she would not go ahead with that sale.  That is a matter for her at this stage, but the stakes are very high indeed.  If the bank forecloses, there is likely to be a much worse outcome for her than if she proceeds with what I am led to believe is a bona fide purchase at a good and proper market value.

8. In any event, the adjournment in itself will not preclude that sale proceeding and the orders that I need to make today are simply orders that will preserve the monies that are received from the sale, for several weeks.

9. Mr Robinson for the wife asked me to adjourn the case back to Bennett J because of her long and recent involvement in the matter.  I propose doing that.  The case will be listed in front of her Honour in the Judicial Duty List in the week of 18 August 2008. 

10. As I have already indicated, I want to make it clear that her Honour will deal with the matter on that day in the way that duty list matters are dealt with.  I am not suggesting, by adjourning it to her Honour, that it is a matter that is going to proceed on that day with any great length at all.  I am satisfied that being listed before the judge who is familiar with the case, if there is a way of proceeding in a shorter than longer manner, her Honour will be best placed to appreciate that. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  30 July 2008