Ross and Ross - [2015] FCCA 2057

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROSS & ROSS

[2015] FCCA 2057

Catchwords:
FAMILY LAW – Property – Whether accepting a fair market value would do justice and equity to parties in a long marriage where one party seeks to retain home in a rising property market.

Legislation:

Family Law Act 1975, ss.75, 79

In the marriage of De Angelis [1999] FamCA 1609
C & M [2000] FamCA 1086

Applicant:

MR ROSS

Respondent:

MS ROSS

File Number:

SYC 7593 of 2012

Judgment of:

Judge Henderson

Hearing dates:

11 & 12 May, 8 July 2015

Date of Last Submission:

8 July 2015

Delivered at:

Sydney

Delivered on:

6 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

WATTS MCCRAY LAWYERS

Counsel for the Respondent:

Mr Batey

Solicitors for the Respondent:

STIDWILL SOLICITORS

ORDERS

That each party shall do all things necessary to cause the Property S property to be listed for sale by auction to be conducted within 42 days of the making of these Orders or such other time as the selling agent recommends in order to sell the Property S property for the best price reasonably obtainable and upon sale the parties shall cause the proceeds of sale to be disbursed as follows:
(a)In payment of agents commission and advertising expenses and legal expenses of the sale;
(b)In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the NSW Division of the Australian Property Institute or his/her nominee (if any);
(c)Discharge of all mortgages and other liabilities secured on title including overdraft to (omitted) Bank; and
(d)The net balance then to be divided as follows:
(i)In payment of 52% to the husband and the balance to the wife.
That, for the purposes of Order 1 above, the Real Estate Agent and auctioneer to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Real Estate Agent and auctioneer appointed by the President of the Real Estate Institute of New South Wales or his/her nominee.
That, for the purposes of Order 1 above, the Solicitor to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Solicitor appointed by the President of the Law Society of New South Wales or his/her nominee.
That, for the purposes of Order 1 above, the sale price for the property shall be as agreed between the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be at a price determined by the President of the New South Wales Division of the Australian Property…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 2057
Decision Date: 6 August 2015

CaseChat Overview and Summary

This matter came before Judge Henderson concerning the division of property between a husband and wife. The central dispute revolved around the sale of a property and the subsequent distribution of its proceeds, as well as the division of other assets and liabilities.

The court was required to determine the terms of the sale of the property, including the timeframe for listing and auction, the method for appointing a selling agent and solicitor, and the process for determining the sale price if the parties could not agree. Additionally, the court needed to establish the wife's rights and responsibilities regarding the property's occupation pending sale, including her obligations for maintenance and facilitating inspections. The court also had to address the distribution of the net proceeds from the sale, the allocation of other personal property, shares, and financial interests between the parties, and the mechanism for enforcing the court's orders.

Judge Henderson ordered that the property be listed for sale by auction within 42 days, or as recommended by the selling agent, to achieve the best reasonably obtainable price. The proceeds were to be disbursed first for sale expenses, then for costs associated with agent, solicitor, and valuation appointments, followed by the discharge of secured liabilities. The net balance was to be divided with 52% to the husband and the remainder to the wife. The orders stipulated that if the parties could not agree on a real estate agent, solicitor, or sale price within seven days, these would be appointed or determined by nominees of the relevant professional bodies. The wife was granted sole occupation of the property pending sale, with specific obligations to maintain it, cooperate with inspections, and refrain from hindering the sale. She was also made responsible for all outgoings and indemnified the husband in respect of these. The husband was granted liberty to inspect the property upon notice, accompanied by the selling agent. The wife was permitted to bid at the auction. The court further ordered that each party would retain their separately held personal property, shares, and financial interests, subject to the property sale orders. Finally, the Registrar of the Court was appointed to execute any necessary documents if a party refused or neglected to do so, pursuant to section 106A of the Family Law Act 1975.

Orders

Orders of the court

That each party shall do all things necessary to cause the Property S property to be listed for sale by auction to be conducted within 42 days of the making of these Orders or such other time as the selling agent recommends in order to sell the Property S property for the best price reasonably obtainable and upon sale the parties shall cause the proceeds of sale to be disbursed as follows:

(a) In payment of agents commission and advertising expenses and legal expenses of the sale;

(b) In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the NSW Division of the Australian Property Institute or his/her nominee (if any);

(d) The net balance then to be divided as follows:

(i) In payment of 52% to the husband and the balance to the wife.

That, for the purposes of Order 1 above, the Real Estate Agent and auctioneer to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Real Estate Agent and auctioneer appointed by the President of the Real Estate Institute of New South Wales or his/her nominee.

That, for the purposes of Order 1 above, the Solicitor to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Solicitor appointed by the President of the Law Society of New South Wales or his/her nominee.

That, for the purposes of Order 1 above, the sale price for the property shall be as agreed between the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be at a price determined by the President of the New South Wales Division of the Australian Property Institute or his/her nominee.

Pending the sale of the Property S property, the wife shall have the right of sole occupation of the Property S property and shall:

(a) Keep the Property S property in good order and repair;

(b) Cooperate in all reasonable ways with requests by Real Estate Agents and/or prospective purchasers including but not limited to:

(i) Providing keys to obtain access; and

(ii) Doing all things necessary to facilitate access to the Property S property at all reasonable times and facilitating access for inspection without interference;

(c) Maintain the Property S property in a presentable condition so as to facilitate the sale including but not limited to presenting the Property S property in a neat and tidy condition at all times when the property is subject to inspection and to attend to such reasonable works as is recommended by the retained Real Estate Agent marketing the Property S property, in writing, with such works to be completed at a cost to be borne equally by the parties and in a timely fashion to ensure that the Property S property is marketed properly and in accordance with the timetable set within these Orders;

(d) Do all things necessary to facilitate a sale at the earliest possible time and shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the Property S property being given effect; and

(e) The husband shall have liberty to inspect the Property S property, on giving to the Wife twenty four (24) hours notice and shall attend in the company of a Real Estate Agent retained to sell the Property S property in accordance with these Orders.

Pending sale of the Property S property provided for in Order 1, the wife shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the property ('the outgoings') incurred prior to the completion date of the sale, and shall make all such payments as and when they fall due and the wife hereby indemnifies and shall keep indemnified the husband in respect of all outgoings in relation to the property whenever and however arising.

The wife be entitled to bid at the auction.

That otherwise as between the husband and the wife, and subject to the above orders, the husband shall retain all interest in and entitlement to:

(a) All personal property now in his possession or control;

(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name; and

That otherwise as between the husband and the wife, and subject to the above orders, the wife shall retain all interest in and entitlement to:

(a) All personal property now in her possession or control;

(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name; and

10.

That each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.

11.

That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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