Sabina & Sabina (No 2)

[2015] FamCA 514

FAMILY COURT OF AUSTRALIA

SABINA & SABINA (NO 2) [2015] FamCA 514

FAMILY LAW – PROPERTY – Enforcement of obligations under final property orders – appointment of trustee for sale of property – where proceeded on an ex parte basis

Family Law Act 1975 (Cth) ss 81, 117.

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Sabina

RESPONDENT: Mr Sabina

FILE NUMBER: SYC 5445 of 2014

DATE DELIVERED: 6 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gersbach

SOLICITOR FOR THE APPLICANT: Mr Brown of Mark Brown & Associates

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders made on 15 June 2014

1. That the matter be dealt with on an ex parte basis.

2. Orders are made in the terms sought by the applicant wife in her Application in a Case filed 2 April 2015 as follows:

   1.The Applicant wife be and is hereby appointed as trustee for sale of the property situate at and known as C Street, Suburb D in the State of New South Wales, and being more particularly described in folio identifier (…).

   2.As at the Applicant becoming a trustee for sale the Applicant may exercise the following specific powers as trustee:

   (a)The trustee shall forthwith proceed to sell the property at C Street, Suburb D being part of all that property contained in Certificate of Title … either by private treaty or public auction subject to the following provisions:

   (i)The offering price or reserve price shall not be less than a sum recommended by the President of the NSW Division of the Australian Property Institute or his nominee.

   (ii)The trustee may incur advertising expenses in respect of the proposed sale up to an amount of $2,000.00.

   (iii)The trustee may incur costs for cleaning, redecorating or improvement of the presentation of the property for the purpose of sale to an amount not exceeding $2,000.00.

   (iv)The trustee may retain an agent on the basis that the agent is to be given the sole agency for a limited period or may list the property for sale with a number of agents at her discretion or may attempt to sell the property without retaining an agent.

   (v)The trustee may enter into an appropriate Agency Agreement with an agent provided that the commission agreed upon does not substantially exceed the recommended scale of the Australian Property Institute.

   (vi)The trustee may retain a solicitor of her choice to act for the vendor on the sale.

   (vii)The trustee be authorised to enter into a contract for sale in such terms as advised by the solicitors acting upon the sale and sign a transfer for the subject property.

   (viii)The trustee may apply to the Court ex parte for further directions in the event that it proves impossible to sell the property at the asking or reserve price above referred to.

   (ix)The trustee may do all other things which she deems reasonable in pursuit of the objects of the trust namely the compliance with Order 1 herein.

   (b)That the trustee have liberty to apply to restore on 24 hours’ notice to seek any further necessary order.

   3.That within 2 weeks of the date of this order, the Respondent vacate the said property and provide to the Applicant all keys, the alarm code and including any remote control mechanism for operation of a garage door or gate, to the property.

   4.That the Respondent pay the Applicant’s costs of an incident to this application as agreed or assessed.

1. The matter is adjourned to a date to be advised for delivery of reserved judgment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sabina & Sabina (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:

Ms Sabina

Applicant

And

Mr Sabina

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 17 December 2014 final property orders were made by consent in the parties’ property proceedings following the parties’ four year marriage.

2. Pursuant to those orders the husband was to pay the wife $75,000 by 17 February 2015 and in default steps were to be taken by each party to sell the home. When the home was sold the husband was to repay the housing loan, discharge the mortgage secured against the property and pay the $75,000 plus interest to the wife.

3. By an Application in the Case filed on 2 April 2015, the wife sought to be appointed as trustee for sale of the property and other associated orders.

4. On 15 June 2015 the matter was listed for hearing before me. The husband did not appear personally or by a legal representative and for reasons given on that date the application was determined in his absence. On 15 June I made the orders as sought by the wife in her application and indicated that I would publish my reasons at a later date. There are those reasons.

Background

1. The wife who is 39 and the husband who is 38 commenced living in a de facto relationship in about mid-2003. They had two daughters, born in 2007 and in 2009 who are now eight and six respectively.

2. The parties married in 2009 and separated in March 2013. At the time of separation the wife moved with the parties’ daughters to her parents’ house and has lived there since separation. The husband has continued to reside in the former family home since separation.

3. Property settlement orders were made by consent on 17 December 2014. Pursuant to those orders the husband was to pay to the wife a sum of $75,000 within two months, that is, by 17 February 2015. Simultaneously with the payment to the wife the husband was to do all things and sign all documents and pay all monies to discharge the parties’ mortgage.

4. The orders provided that in the event that the husband failed to make the payment to the wife by 17 February 2015 each party was to take all necessary steps to cause the former family home to be sold by private treaty. In the event that the property was not sold by private treaty within four months, the parties were to take all necessary steps and execute necessary documents for it to be sold by auction at the earliest date possible, at a reserve to be agreed between the parties or to be determined by the President of the NSW Division of the Australian Property Institute. The proceeds of the sale of the property were to be disbursed as set out in the orders.

5. The orders also provided that in the event the husband failed to comply with the order to make the payment within two months, the wife was entitled to interest. The husband also had a continuing obligation to pay all instalments in respect to the mortgage and other outgoings on the property.

6. The husband failed to comply with Order 1. On that date that sum was due, 17 February 2015, the wife’s solicitors wrote to the husband’s lawyers drawing attention to the order requiring the payment of $75,000 on that date. Later that day the husband’s solicitors wrote the wife’s solicitor indicating that the husband had instructed that the payment should be received into the solicitor’s trust account by no later than 23 February 2015 and that the mortgage on the property would be discharged once payment was received.

7. On 3 March 2015 the wife’s solicitors wrote again to the husband’s solicitors indicating that the wife required an immediate sale of the property and instructions had been received to lodge a caveat on the property. The wife’s solicitors also informed the husband’s solicitors that if they did not receive a positive response within seven days, without further reference they would be filing an application for enforcement and would seek all costs associated with it. By email on 10 March 2015, the husband’s solicitor advised that the husband had instructed that settlement monies should be received by 13 March 2015 and that the following day the husband would provide details of an agent for the proposed sale.

8. The $75,000 has not ever been paid by the husband to the wife. The husband’s solicitor has not advised the name of agents proposed to be retained to market the property and the wife has no expectation that the husband will cooperate to affect the sale.

9. In about early April 2015 the wife received a letter from the parties’ lender indicating that the home loan was in default as mortgage payments had not been made. By letter dated 22 April 2015, the lender informed the wife that $7,811.68 was overdue on the loan and the entire balance of the account of $322,399.46 was due for payment.

10. The wife is unemployed following being terminated from her casual employment in November 2014 and her only income is the supporting parents benefit. The husband had paid no child support to the wife since separation even though he has been assessed for it. The wife has some health problems and supports the two children alone, one of whom is mildly autistic.

11. The mother filed her Application in the Case seeking orders that she be appointed trustee for sale and other associated order on 2 April 2015 but the husband’s former solicitors were not instructed to accept service of it and subsequently advised the mother’s solicitor that they no longer act for the husband. The husband was subsequently personally served with the application but has not appeared before the Registrar or before me on 15 June 2015.

The Law and Discussion

1. The applicant seeks an order that she be appointed as trustee for sale being an order to enforce an obligation to pay money. Under s 80(1)(k) of the Family Law Act 1975 (Cth) (“the Act”) in exercising its power under Part VIII the Court may make any other order which it thinks is necessary to do justice. Section 80(1)(e) specifically empowers the court to appoint trustees.

2. The orders provide that if the husband fails to pay the wife the nominated sum by 17 February 2015, the property is to be sold by private treaty, and if the property fails to be sold by private treaty within a period of four months, that is, by 17 June 2015, that the property be sold at auction. The husband has not taken any necessary steps to sell the property or make contact with the wife regarding the proposed sale.

3. While this matter was heard on the 15 June 2015, before the end of the four months provided for under the orders, I am satisfied that the husband has made no attempt to sell the property and it will not be sold by private treaty by 17 June 2015. Given these circumstances and the wife’s dire need, it is appropriate that orders be made as sought by the wife to give effect to the orders agreed to by the parties.

Costs

1. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Act sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial judge in subsection (2), and the Court may make an order for costs if there are circumstances that it is of the opinion justify it doing so.

2. The High Court in the matter of Penfold v Penfold[1] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [1] (1980) 144 CLR 311

3. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs. These considerations include the financial position of each of the parties, whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court and whether any party to the proceedings has been wholly unsuccessful in the proceedings.

4. Given that the proceedings were necessitated by the failure of the husband to comply with previous orders, that the wife has been wholly successful in these proceedings, and the wife’s precarious financial position, I am satisfied that the husband should pay the wife’s costs.

5. For these forgoing reasons, I made the orders as sought by the wife.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 6 July 2015.

Legal Associate:

Date:  1 July 2015