SANFORD & WEVER - [2010] FamCA 87

FAMILY COURT OF AUSTRALIA

SANFORD & WEVER

[2010] FamCA 87

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Contributions

Family Law Act 1975 (Cth) ss 75(2), 79

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Townsend and Townsend (1995) FLC 92-569
Kessey and Kessey (1994) FLC 92-495

APPLICANT:

Mr Sanford

RESPONDENT:

Ms Wever

FILE NUMBER:

SYC

247

2008

DATE DELIVERED:

12 February 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston JR

HEARING DATE:

11 & 12 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

SOLICITOR FOR THE APPLICANT:

Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Foster

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

The parties do all acts and things and sign all documents necessary to sell the property at P, New South Wales for the best price reasonably obtainable in the following manner:-
1.1list the P property for sale by private treaty within 7 weeks with such agent as the parties may agree to appoint and in default of agreement as to agent within 7 days with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
1.2the sale price at which the P property shall be listed may be mutually agreed upon by the parties or, in the absence of agreement reached within 7 days, shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the Australian Property Institute Incorporated (NSW Division) (“the valuer”) the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when same fall due;
1.3the valuer shall, if requested by either the husband or the wife at a date three calendar months after the date upon which the P property is first listed pursuant to paragraph 1.1 and thereafter at three calendar monthly intervals until the P property is sold, nominate a sale price other than the originally nominated sale price;
1.4the wife shall cooperate in every way with the agent including (without limiting the generality of the foregoing):
1.4.1making the key available to the agent;
1.4.2allowing inspection of the P property at all reasonable times requested by the agent;
1.4.3doing or saying nothing to hinder or prevent a sale being effected;
1.4.4ensuring the P property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
1.4.5signing all documents requested by the agents in relation to the listing for sale of the P property except under a contract or agreement for sale which has not…

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.

Continue reading SANFORD & WEVER

Details

AGLC: SANFORD & WEVER [2010] FamCA 87
Case: [2010] FamCA 87
Decision Date: 12 February 2010

CaseChat Overview and Summary

This matter came before Johnston JR concerning the sale of a property located in New South Wales. The dispute involved the parties' obligations and the process by which the property was to be sold, including the appointment of agents, valuers, and lawyers, as well as the conditions for sale by private treaty or public auction. The court also addressed the distribution of sale proceeds and the division of other property.

The court was required to determine the specific terms and conditions under which the parties would sell their jointly owned property. This included establishing a framework for agreeing on or appointing agents, valuers, and legal representatives, setting a listing price, and outlining the procedures for sale by private treaty, including the wife's cooperation in facilitating inspections. The court also had to determine the process for sale by public auction if private treaty failed, including the setting of reserve prices and subsequent relisting procedures. Furthermore, the court needed to specify the priority of payments from the sale proceeds and clarify the entitlement to furniture and other chattels.

The court's reasoning, as reflected in its orders, established a detailed mechanism to ensure the property was sold for the best reasonably obtainable price. It provided for mutual agreement between the parties on key aspects of the sale, with default provisions for the appointment of independent professionals (agents, valuers, lawyers) and the determination of sale prices and reserve prices. The orders also imposed specific obligations on the wife regarding the presentation of the property for inspection and provided for the husband to undertake necessary work if the wife failed to do so, with costs recoverable from sale proceeds. The court also appointed the Registrar of the Family Court of Australia as an attorney to execute documents if a party refused to do so, pursuant to section 106A of the Family Law Act 1975.

The court ordered that the parties were to take all necessary steps to sell the property by private treaty within seven weeks, with detailed provisions for listing, pricing, and sale. If the property was not sold within that period, it was to be listed for public auction, with further provisions for reserve prices and subsequent auctions at three-monthly intervals with progressively reduced reserve prices. The proceeds of sale were to be applied first to sale costs, then to discharge the mortgage and outstanding rates, followed by reimbursement for any work undertaken to facilitate the sale, with the balance to be distributed 34.647 percent to the husband and the remainder to the wife. The wife was to retain the furniture and furnishings within the property, and all other property and chattels were to be retained by the party in possession. The orders were to commence operation on 2 March 2010, with leave for parties to relist for submissions on the form of orders or implementation.

Orders

Orders of the court

The parties do all acts and things and sign all documents necessary to sell the property at P, New South Wales for the best price reasonably obtainable in the following manner:-

1.1 list the P property for sale by private treaty within 7 weeks with such agent as the parties may agree to appoint and in default of agreement as to agent within 7 days with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;

1.2 the sale price at which the P property shall be listed may be mutually agreed upon by the parties or, in the absence of agreement reached within 7 days, shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the Australian Property Institute Incorporated (NSW Division) (“the valuer”) the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when same fall due;

1.3 the valuer shall, if requested by either the husband or the wife at a date three calendar months after the date upon which the P property is first listed pursuant to paragraph 1.1 and thereafter at three calendar monthly intervals until the P property is sold, nominate a sale price other than the originally nominated sale price;

1.4 the wife shall cooperate in every way with the agent including (without limiting the generality of the foregoing):

1.4.1 making the key available to the agent;

1.4.2 allowing inspection of the P property at all reasonable times requested by the agent;

1.4.3 doing or saying nothing to hinder or prevent a sale being effected;

1.4.4 ensuring the P property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

1.4.5 signing all documents requested by the agents in relation to the listing for sale of the P property except under a contract or agreement for sale which has not been authorised by the parties lawyers;

1.5 the parties shall each execute a contract for sale in the form prepared by the lawyers having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer pursuant to orders 1.2 and 1.3;

1.6 the parties shall instruct such lawyer as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within 7 days shall instruct such lawyer as may be appointed by the President for the time being of the Law Society of New South Wales (“the lawyer”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;

1.7 neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the P property or to any commission;

1.8 if the agent certifies in writing to the parties it is reasonably necessary for the work specified in such notice to be carried out to the P property so as to assist in effecting a sale and provided the cost of any such work is less than $5,000 either party may cause such work to be carried out and the costs thereof shall be recoverable by that party from the proceeds of sale;

1.9 in the event the wife fails to ensure the P property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers, the husband may arrange for such work to be undertaken and the costs thereof shall be recoverable by the husband from the proceeds of sale;

In the event the P property is not sold by private treaty within 7 weeks from the date of the appointment of the agent:

2.1 the parties shall list the P property for sale by public auction with the agent appointed pursuant to order 1.1;

2.2 the reserve price for the purpose of such auction shall be such as the parties agree upon within 7 days after the date upon which the P property is first listed for sale in accordance with order 2.1 or in the absence of agreement a price determined by the valuer appointed pursuant to order 1.2;

2.3 in the event the bidding at the auction does not reach the reserve price the parties or such of them as attends the auction may negotiate with the highest bidders or any other interest person and effect a sale of the P property at a price which is not more than 10 percent below the reserve price or such other price as the parties agree upon in writing;

2.4 if the P property remains unsold, the parties shall do all acts and things and sign all documents necessary to continue to relist the P property for sale by public auction again at three monthly intervals, and the provisions of orders 2.1, 2.2 and 2.3 shall apply successively until the P property has been sold so that at each successive auction the reserve price shall be 10 percent less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing.

On settlement of the sale of the P property the proceeds of sale be paid in the following manner and priority:

- all costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);

- the amounts required to discharge the P property mortgage

- the amounts required to pay all municipal and water rates outstanding with respect to the P property;

- the amount required to repay to the husband or wife the cost of work carried out in accordance with order 1.8;

- the balance then remaining shall be distributed as follows:

· 34.647 percent to the husband; and

· The balance to the wife

The furniture and furnishings contained within the P property as at the date of the making of these orders shall remain the property of the wife.

Other than as is specifically provided for in these orders the parties are solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these orders.

That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Family Court of Australia is appointed pursuant to Section 106A of the Family Law Act 1975 (Commonwealth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

The above orders shall not commence operation until 2 March 2010.

That both parties have leave to re-list these proceedings for submissions about the form of the orders only at any time not later than 1 March 2010.

That both parties have leave to re-list these proceedings on 7 days notice in relation to the implementation of these orders.

10.

That all exhibits be released.

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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