Ruby and Ruby
[2009] FMCAfam 764
•29 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RUBY & RUBY | [2009] FMCAfam 764 |
| FAMILY LAW – Property – application to discharge order appointing the wife trustee for sale of real property – wife agreeing in principal to the order being discharged – whether the husband should be required to make any payment to the wife as a condition of the order being discharged. |
| Family Law Act 1975, ss.79, 79A, 117B |
| Moliere & Van Wyk (1980) FLC90-911 Ruby & Ruby [2003] FamCA 93 |
| Applicant: | MR RUBY |
| Respondent: | MS RUBY |
| File Number: | NCM 2924 of 2006 |
| Judgment of: | Terry FM |
| Hearing date: | 1 May 2009 |
| Date of Last Submission: | 1 May 2009 |
| Delivered at: | Darwin |
| Delivered on: | 29 July 2009 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent | In person |
ORDERS
That within twenty eight (28) days the husband pay to the wife the sum of $2,055.17.
That upon the husband complying with Order (1), Orders (2) and (insofar as they relate to ‘the [F] property’) (4), (6) and (8) of the orders made in the Family Court of Australia at Newcastle on 24 June 2002 are discharged.
That within fourteen (14) days of the wife’s discharge as trustee for sale she provide to the husband:
(i)a duly executed withdrawal of caveat (noting that the wife is not required to pay any fees or charges associated with the lodgement of the withdrawal of caveat);
(ii)the certificate of title for Property M NSW 2420 being Lot [omitted] in Deposited Plan [omitted] Local Government Area [omitted], Parish of [omitted], County of [omitted], Crown Plan [omitted] Folio [omitted] but only if the wife has the document.
That the husband shall indemnify the wife and keep her indemnified from liability for any rates taxes charges and outgoings owing in respect of Property M.
That in the event that either party refuses or neglects to comply with the provisions of these orders the Registrar of the Federal Magistrates Court of Australia at Newcastle is hereby appointed to execute all deeds and documents in the name of the defaulting party.
IT IS NOTED that publication of this judgment under the pseudonym Ruby & Ruby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 2924 of 2006
| MR RUBY |
Applicant
And
| MS RUBY |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Ruby and Ms Ruby have been involved in litigation about property matters for more than eleven years. It is to be hoped that resolution of the dispute which was before me on 1 May 2009 will finally put an end to the litigation.
The husband proposed that a 2002 order appointing the wife trustee for sale of Property M be discharged. He was opposed to paying the wife any further money. The wife agreed in principal to the order being discharged, but wanted $7,513.99 from the husband.
The litigation history
The husband and wife separated in 1996. Property and parenting proceedings were commenced not long after separation and in 1998 a hearing took place before Justice Bell in the Family Court.
As far as property was concerned, Justice Bell determined that the wife should receive one piece of real property and the husband should receive the remaining three. The properties the husband received were Properties D1 & D2 and Property M. The parties call this last property the Property M property but it is described in various court decisions as the Property F property.
At the time of the hearing before Justice Bell the parties jointly owed a debt to the Commonwealth Bank which was secured by mortgage over the two Property D properties. In his reasons for decision Justice Bell clearly envisaged the husband assuming sole responsibility for this debt. The orders which were made however did not require the husband to indemnify the wife from liability for the debt.
After the 1998 orders were made the husband defaulted on paying the mortgage and the bank commenced proceedings against both the husband and the wife in the Supreme Court of New South Wales. Judgment was entered against the wife. She applied to the Family Court to have the 1998 orders amended to make it clear that the husband was required to indemnify her from liability for the mortgage debt. The husband’s opposed the wife’s application and in what Nicholson CJ later described as an “extraordinary piece of effrontery[1]” claimed that the wife should share in liability for the debt.
[1] Rose & Rose[2003]FamCA93 paragraph 17
The wife’s application was heard by Justice Le Poer Trench. He dealt with the matter pursuant to s.79A of the Family Law Act and made an order requiring the husband to indemnify the wife from liability for the debt. He appointed the wife trustee for sale of the husband’s three real properties, and ordered that the proceeds of sale should be used to pay the debt to the bank and the costs and expenses of the sale, and then to pay various amounts to the wife. Anything left after these payments was to be the property of the husband.
The husband appealed. The Full Court in a decision handed down on 10 February 2003 varied the order concerning the amounts payable to the wife but otherwise dismissed the appeal.
The wife sold the two Property D properties. After payment of agent’s commission, conveyancing costs and $22,000.00 for arrears of rates, about $48,000.00 remained. All of this went to the bank.
It was the wife’s case that a significant debt remained owing to the bank after the Property D properties were sold. The amounts due to the wife under the 2002 order also remained outstanding.
The wife made some efforts to sell Property M but by late 2006 the property was still unsold.
In December 2006 the husband filed an application in the Federal Magistrates Court at Newcastle in which he effectively sought to have the order appointing the wife trustee for sale discharged. He contended that the bank debt had been repaid in full from the sale of the Property D properties. He proposed that he pay the wife $15,000.00 in satisfaction of the amounts due to her but he also sought reimbursement from the wife for the council rates he had paid for Property M in about 2006.
On or about 10 January 2007 the husband gave the wife a bank cheque for $15,000.00 which the wife accepted.
On 9 February 2007 however the wife filed a response in which she sought to have the husband’s application dismissed. She said that she still needed to sell Property M as the $15,000.00 was not sufficient to meet her entitlements pursuant to the 2002 orders. She further contended that the Commonwealth Bank debt had never been fully repaid and that the bank was still owed about $106,000.00.
The husband’s application was heard by Federal Magistrate Roberts on 7 May 2007. He dismissed the application.
The husband appealed. In a decision handed down on 10 October 2007 Justice Coleman allowed the appeal and remitted the matter for rehearing.
Justice Coleman expressed the view that there was no reason why Federal Magistrate Roberts should not rehear the matter. Federal Magistrate Roberts does not usually sit in Newcastle however, and the matter was reheard on 6 June 2008 by another Federal Magistrate. As a result of the subsequent ill health of that Federal Magistrate judgment was not delivered. The matter was reheard once again on 1 May 2009.
The applications and evidence at the hearing on 1 May 2009
In the husband’s case I read his final (sic) amended application filed on 19 November 2007 and his affidavits filed on 20 December 2006,
5 January 2007and 7 December 2007. I also read the Case Management document filed by the husband on 25 March 2008.
In the wife’s case I read her response filed on 9 February 2007 and her affidavits filed on 9 February 2007, 6 December 2007 and 12 March 2008.
I also read the following decisions:
i)the decision of the Full Court in Ruby & Ruby [2003] FamCA 93;
ii)the decision of Coleman J in Ruby & Ruby [2007] FamCA 1211
The outcomes sought by each party on 1 May 2009 were different to those sought in their amended application and response respectively, and were only made clear on the morning of the hearing.
The husband said that he did not now seek an order that the wife pay him any money. He sought only a finding that he did not owe her anything above and beyond the $15,000.00 he had already paid her, and an order discharging her appointment as trustee for sale.
The wife conceded that she had been advised by the Commonwealth Bank on 11 October 2007 that they were no longer pursuing the parties for any money. She maintained however that the husband owed her $7,513.99 in addition to the $15,000.00 he had paid her in January 2007. She said if she received that amount she would willingly hand Property M back to him.
Although the above seemed to be the clear positions of the parties at the hearing, they raised other issues in their affidavits and during submissions which I will also consider during the course of this judgment for the sake of completeness.
The applicable law
The husband and wife both argued that the order appointing the wife trustee for sale could be set aside or varied on the basis one provisions of s.79A(1) of the Family Law Act.
If any part of s.79A is applicable to this matter it would be s.79A(1A), which permits the Court to set aside or vary orders if both parties consent. The husband and wife both consented to the order appointing the wife trustee for sale being set aside. They did not agree on whether any other orders should then be made, but the court can set aside orders by consent even if the parties do not agree on the “making of or the form of a new order in substitution for the order set aside”[2].
[2] Bourke & Bourke (No.2) (1994) FLC92-479
I am not convinced however that it is either necessary or appropriate to deal with this matter pursuant to the provision of s.79A.
The point of the orders made by Justice Le Poer Trench on 24 June 2002 was to relieve the wife of liability for the Commonwealth Bank debt. Justice Le Poer Trench sought to achieve this firstly by making an order that the husband indemnify the wife from liability, and secondly (in the light of the husband’s past conduct which demonstrated that he could not be depended upon to pay the debt if left to his own devices) appointing the wife trustee for sale of the husband’s real properties.
In my view the orders appointing the wife trustee for sale and providing for certain amounts to be paid from the sale proceeds can properly be characterised as machinery orders.
It has long been held that in addition to the powers conferred on it by statute, the Court has some inherent powers. One of these inherent powers was discussed in Moliere & Van Wyk[3] where the Full Court said that:
“It has been decided that while the Court has no power to vary an order for property settlement, it has the power to enforce the order and to modify the machinery provisions of the order to effect enforcement provided that this does not affect the substantive rights of the parties.”
[3] Moliere & Van Wyk (1980) FLC90-911
It is logical to suppose that if the Court has the inherent power to modify the machinery provisions of an order to effect enforcement, it also has the power to modify the machinery provisions of an order when enforcement in a particular manner is no longer required.
In my view if the order I make goes no further than discharging the wife’s appointment as trustee for sale and ensuring that the wife receives the amount to which she would have been entitled pursuant to Order 3(c) to (h) of the 2002 orders had all the real properties been sold, then the power to make that order can be found in the inherent jurisdiction of the court and recourse to s.79A is not necessary.
The factual issues
Three factual issues arose during the proceedings namely:
i)whether the Commonwealth Bank debt was repaid in full upon the sale of the two Property D properties;
ii)whether the wife was diligent in her actions as trustee for sale;
iii)the amount to which the wife would presently be entitled pursuant to the orders of 24 June 2002 if Property M was sold.
Whether the Commonwealth Bank debt was repaid in full upon the sale of the two Property D properties.
As a result of an email she received from the bank on 11 October 2007 the wife now accepts that the Commonwealth Bank are no longer pursuing the parties. The issue of whether the bank debt was repaid from the sale of the two Property D properties is not however merely academic. A finding about this issue is relevant to an assessment of whether the wife was diligent in her actions as trustee for sale.
It was the husband’s case that the debt to the bank had been repaid in full when the Property D properties were sold. In support of this claim the husband relied on a letter from the bank dated 19 December 2006 which said as follows:
Dear Mr Ruby,
Please be advised that the Commonwealth Bank have the following details in relation to disbursement of funds for the above home loan, which was discharged in 2003 for property listed under [omitted] Council:
Cheque payable to Mr M $897.50
Cheques to Commonwealth Bank of Australia totalling $48,154.52 (home loan balance and interest costs) loss of $107,000.00
Cheque payable to [omitted] Shire Council $22,814.50
A letter of instruction was received and a response was sent to your Solicitor upon Discharge of your Mortgage. Should you require further information relating to the disbursement of funds, you are required to contact your solicitor directly.”[4]
[4] Annexure to husband’s affidavit filed 20 December 2006
Given that this letter refers to a loss of $147,000.00 I am uncertain about why the husband was so adamant that it demonstrated beyond argument that the debt had been repaid in full. However the husband also relied on documents obtained from the bank in answer to subpoena, which showed that in about March 2004 the ledger balance on the home loan account was reduced to zero.
The wife said that the debt to the bank was not repaid in full from the sale of the Property D properties and that until 11 October 2007 the bank were still expecting payment from the parties. The wife relied on a letter to her from the bank dated 6 February 2007 which said as follows:
“We advise that, following settlement of the Property D[sic] property and the same net proceed applied to the above account, a residual shortfall of $106,222.55 remains unpaid.
There has been no interest applied to the above amount following settlement of the security property at Property D [sic] NSW.
…….
Please note that the Bank is willing to negotiate compromised settlement in this matter if repayment is made by way of lump sum settlement.”[5]
[5] Annexure A wife’s affidavit filed 9 February 2007
In my view the evidence supports a finding on the balance of probabilities that the bank debt was not paid out in full on the sale of the two Property D properties. Justice Le Poer Trench in his 2002 decision mentioned that the bank was owed $106,000.00. Only $48,000.00 net was available from the sale of the two Property D properties. The letter dated 19 December 2006 on which the husband relied refers to a loss of $107,000.00 existing when the mortgages over the Property D properties were discharged. The mere fact that the mortgages were discharged at the time of sale or that the home loan balance was reduced to zero in March 2004 is not evidence that the mortgage debt was paid in full.
On 11 October 2007, the wife received an email from the Commonwealth Bank which said as follows:
“I now confirm that the Bank has made a decision not to actively pursue you for the remaining balance of the above loan. You are no longer required to make any payments towards this account.”[6]
[6] Annexure A wife’s affidavit filed 6 December 2007 see also letter from the Commonwealth Bank to the husband dated 6 June 2007 Annexure C to husband’s affidavit filed on 7 December 2007.
In my view it was entirely reasonable for the wife to believe, until she received the email from the bank on 11 October 2007, that there was still a debt owing to the Commonwealth Bank after the sale of the Property D properties which the Commonwealth Bank might seek to recover from the parties.
Was the wife diligent in her action as trustee for sale
Property M has been in the wife’s hands since June 2002 and has never been sold. Somewhat paradoxically, because he is happy enough to have the opportunity to retain the property in kind, the husband complained at the hearing about the fact that the wife had never sold the property, asserting that she had not made any real effort to find a buyer.
It was the wife’s case that she attempted to sell Property M a number of times but that two things made that job very difficult. The first was the peculiarities of the property itself, namely that it was a piece of vacant land, and that the access to it is a right of way over a neighbouring property.
The husband denied in oral evidence that there were any peculiarities which made the property difficult to market, but in one of his affidavits described the property as a “landlocked vacant block without water, power or sewerage.”[7]
[7] Husband’s affidavit filed 22 December 2006 paragraph 14
The second difficulty the wife faced was that she believed until October 2007 (and in my view reasonably believed) that the bank was owed at least $106,000.00. She was most reluctant to sell the property for less than this.
Given the difficulties the wife had faced in the past in trying to force the husband to meet his obligations, I consider that it was entirely reasonable for the wife to be reluctant to sell the property for less than the balance owing to the bank unless she was forced to do so.
The property is valued at $145,000.00 for rating purposes. The wife said that in 2004 a neighbour offered to pay about $120,000.00 for the property but that the sale did not proceed because the purchaser withdrew. In 2005 when the property was in the hands of a real estate agent an offer of $80,000.00 was received, with a proviso that a road be constructed at the vendor’s expense. The wife did not accept the offer.
I accept the wife’s evidence that no other reasonable offers were received.
I am not persuaded that the husband has established that the wife had been negligent in her duties as trustee for sale.
The wife’s failure to sell Property M has all worked out for the best for the husband in the end. He inherited the property and he would rather have it back in kind than receive money from its sale. He did not clearly articulate at the hearing what consequences should follow if I did find that the wife had been negligent in discharging her duties as trustee. The only possible relevance of this issue seemed to be to the way it tied in with the husband’s grievance about being required to pay arrears of rates for the property.
The husband initially sought to have the wife reimburse him for the whole of the rates he had paid. However this claim was misconceived. Although the 2002 orders provide for the wife to be reimbursed for any rates she did pay for Property M, nothing in the orders requires her pay the rates. One way or another, the rates were always going to come out of the husband’s pocket.
By the time the husband discovered in 2006 that Property M was still unsold and paid the arrears of rates, interest had accrued on the rates. The husband was aggrieved about this aspect of the matter. At the hearing before me however he did not clearly articulate any claim for compensation for the interest he ultimately had to pay, nor did he provide any concrete information about the interest paid.
In my view the husband did not establish that the wife failed in her duties as trustee and I am not persuaded that any interest which was incurred because of unpaid rates can legitimately be taken into account in determining the final outcome in this matter.
The amount to which the wife would presently be entitled pursuant to the orders of 24 June 2002 as varied by the decision of the Full Court on 10 February 2003 if Property M was sold
Order 3 of the orders made by Le Poer Trench J on 24 June 2002 (as varied by the appeal decision on 10 February 2003) provides as follows:
“3.That upon the wife exercising the powers of sale referred to in Order 2 hereof, the wife shall do all such acts and things necessary to account for the sale proceeds of the properties referred to in orders 1 and 2 hereof and shall apply such proceeds of sale in the following order and priority:
(a)in full and final payment to the Commonwealth Bank of such sum as may be required to discharge the mortgages referred to in order 1 hereof;
(b)to pay all outstanding council and water rates and charges and any outgoings levied against the said properties referred to in order 1 and 2 hereof;
(c)to pay all agents commissions and legal fees incurred on the sale of the said properties referred to in order 1 and 2 hereof and to reimburse herself in respect of outstanding council and water rates and charges and outgoings paid by her and levied against the [F] property;
(d)(omitted)
(e)to pay the wife the sum of $180.00 ordered to be paid by the husband by Registrar Boyle on 15 July 1999 together with interest thereon calculated from 16 August 1999 at the rate prescribed under the Rules for the relevant period;
(f)to pay to the wife the sum of $500.00 ordered to be paid by the husband by the Full Court of the Family Court of Australia on 7 December 2000 together with interest thereon at the rate prescribed under the Rules for the relevant period;
(g)to pay to the wife the sum of $390.00 ordered to be paid by the husband to the wife by His Honour Justice O’Ryan on 19 January 2001, together with interest thereon at the rate prescribed in the Rules for the relevant period;
(h)to pay the wife the sum of $10,702.07 being the amount paid by the wife to the law firm [B] on completion of the sale of her property;
(i)(omitted)
(j)to pay the balance to the husband.”
By bank cheque dated 8 January 2007 and which I will treat as having been effectively received by the wife on 10 January 2007 the husband paid the wife $15,000.00. It was his case that he fixed on this amount because the wife had said to him repeatedly that this was how much was due to her pursuant to the 2002 orders. It was by implication his case that the wife should not be allowed to go back on that representation.
Immediately she received the cheque for $15,000.00 from the husband the wife sent the husband a letter claiming an additional $7,513.39 made up of the following:
a)Interest on the costs required to be paid pursuant to orders (3)(e)-(h), calculated to be $2,925.00;
b)reimbursement of the rates she had paid for Property M in the sum of $4,588.39 on 29 August 2002;[8]
[8] Receipt attachment to wife’s affidavit filed 12 March 2008
I am not satisfied on the state of the evidence that there was ever any representation by the wife prior to the husband sending the wife the cheque that she would accept $15,000.00 in full settlement of her entitlements. The wife informed the husband immediately after she received the cheque that although she was happy to accept it she believed that she was entitled to more. I do not consider that any previous representation or the acceptance of the cheque mean that the wife should be estopped from enforcing a claim for an amount exceeding $15,000.00.
It is first necessary to consider therefore what the wife was entitled to pursuant to the 2002 orders as at 10 January 2007.
Pursuant to Order 3 (c) the wife was entitled to reimbursement for the rates she paid for Property M in 2002 in the sum of $4,588.39.
The wife was also entitled to $180.00 plus interest pursuant to order 3(e), $500.00 plus interest pursuant to order 3(f) and $390.00 plus interest pursuant to order 3(g).
Until 19 December 2007, the rate of interest payable from time to time was prescribed in the Family Court Rules. The interest rates applicable to the provisions of the 2002 were:
9.55% to 30 June 2000
11.3% to 30 June 2002
10.1% to 30 June 2003
9.55% to 28 March 2004
9.55% to 16 December 2004
10.25% to 30 June 2006
10.75% to 19 December 2007
I calculate the interest to which the wife was entitled as at 10 January 2007 as being:
on 180.00 137.57
on 500.00 315.92
on390.00 241.22
The wife was also entitled to $10,702.07 pursuant to Order 3(h). This was the amount the wife was forced to pay to the husband’s solicitors [B] to discharge a security they registered over the property which the wife received pursuant to Justice Bell’s orders.
The wife claimed that she was entitled to interest on this amount. In my view however the wife is not entitled to interest on this amount.
Section 117B(1) of the Family Law Act provides that:
(1) Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:
(a) the date on which the order is made; or
(b) the date on which the order takes effect;
whichever is later, on so much of the money as is from time to time unpaid.
(2) A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first‑mentioned order or may order:
(a) that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or
(b) that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).
The wife was entitled to payment of the amounts in Order 3 of the 2002 orders upon sale of the real properties. Justice Le Poer Trench ordered that the amounts in 3(e) (f) and (g) should carry interest but he did not order that any of the other amounts should carry interest. In my view the wife is not entitled to interest on the amount of $10,702.07.
Out of an abundance of caution, although it is by no means clear that the wife was making such a claim, I also note that following the same reasoning the wife is not entitled to interest on the amount of $4,588.39 which she paid to [omitted] Shire Council.
In summary therefore on 10 January 2007 when the wife received the $15,000.00 she was entitled to $17,055.17, as follows:
Council rates $ 4,588.39
$180.00 plus interest $ 317.57
$500.00 plus interest $ 815.92
$390.00 plus interest $ 631.22
[B] payment $ 10,702.07
The payment made in January 2007 thus fell short by $2,055.17.
As to the amount to which the wife would currently be entitled if Property M was sold and no other costs and expenses were incurred, Order 3 provided that the amounts set out in the Order should be paid “in the following order and priority.” The payment of $15,000.00 therefore satisfied orders 3(c) (e) (f) & (g) in full and left $2,055.17 of the amount owing pursuant to order 3(h) outstanding.
As the amount in order 3(h) does not carry interest, the amount to which the wife would be entitled pursuant to Order (3) if Property M was now sold and no other costs or expenses were incurred would still be $2,055.17.
Although the wife did not appear to be pressing her claim for any additional money at the hearing before me, out of an abundance of caution I will deal with the following claims which the wife had previously made in correspondence with the husband.
In a letter to the husband dated 4 December 2007 the wife claimed that she was entitled to reimbursement for the following amounts:
$392.00 owing to [N] Real Estate for advertising
$528.00owing to [E] Solicitors for preparation of a contract of sale.
an unspecified amount owing to [T] Real estate;
$12,425.66 owing to Mr M solicitor for his account dated 12 August 2002.
The alleged debt to [N] Real Estate was evidenced by a document headed tax invoice which listed advertising expenses almost exclusively incurred in 2003, together with a covering letter dated
3 December 2007requesting payment. This letter came into existence after the husband commenced the current proceedings.
No explanation was given by the wife about why [N] Real Estate were now requesting payment from her after the matter had lain dormant for three years. I am not convinced on the state of the evidence that the amount of $392.00 is a genuine debt.
The account from [E] is dated 12 February 2007. It simply states that it is
“re: Your proposed sale
Property: Property M
Account rendered 15 January 2007 $528.00”
The husband contended in his Case Management document filed on
25 March 2008 that this amount related to a contract the wife had prepared to enable the transfer to herself of Property M property. This was not sworn evidence from the husband but given that the date of the invoice is 12 February 2007 and that the only activity in relation to the property in the period immediately preceding that date was the wife’s proposal that the property be transferred to herself, I accept that the invoice concerns that activity.
This amount is not recoverable by the wife pursuant to any of the subparagraphs of Order (3).
There was no amount specified by the wife as owing to [T] Real Estate and I can do nothing further with that claim.
The wife provided a copy of a Tax Invoice from Mr M, a solicitor. It related to work done between February 2002 and October 2002. It includes the wife’s costs of the 2002 hearing before Justice Le Poer Trench. It also includes costs for some work done in relation to the husband’s appeal to the Full Court, although ultimately the wife represented herself at the hearing of that appeal.
The amount owing to Mr M is not recoverable under any of the subparagraphs of Order 3 of 2002 orders. There is no evidence that the wife applied for a costs order either at the conclusion of the proceedings before Justice Le Poer Trench or at the conclusion of the appeal. It would not be appropriate for me to now after all these years make an order which required the husband to pay some or all of those costs.
Conclusion
The only amount to which the wife would be entitled (absent the costs and expenses of sale) if Property M was sold is $2,055.17.
The wife said that she no objection to being discharged as trustee provided that she was paid the amount to which she was entitled.
I therefore intend to order that the husband pay the wife $2,055.17 within 28 days and that if this amount is paid the order appointing the wife trustee of the Property M property will be discharged.If the husband does not pay the amount as ordered then the wife remains trustee of the property and is at liberty to sell it to recover the amount owing to her.
For all of the above reasons the orders will be as set out at the beginning of this judgment.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Terry FM
Deputy Associate: Barbara Cameron
Date: 29 July 2009
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