Sekyi and Sokol and Anor

[2015] FamCA 650

FAMILY COURT OF AUSTRALIA

SEKYI & SOKOL AND ANOR [2015] FamCA 650      

FAMILY LAW – PROPERTY SETTLEMENT – INTERIM PROCEEDINGS – Where there was a dispute about the distribution of net proceeds from the sale of a property – Where it was found that the husband’s application for the immediate distribution of fifty per cent of the net proceeds to him is premature – Orders made that fifty per cent of the net proceeds be held on trust pending resolution of the substantive proceedings.

Family Law Act 1975 (Cth)s 79A

APPLICANT: Mr Sekyi

RESPONDENTS: Ms Sokol and Ms B as Trustees for the Estate of Ms Sekyi

FILE NUMBER: SYC 2654 of 2015

DATE DELIVERED: 7 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 27 July 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE 1^ST & 2^ND RESPONDENTS: Ms Clifford

SOLICITOR FOR THE 1^ST & 2^ND RESPONDENTS: Watts McCray Lawyers

Orders

IT IS ORDERED

1. That Order 1.7 made by consent on 7 July 2015 be discharged and in lieu thereof the following order be made:

   That the balance of the proceeds of sale of the property at C Street < Suburb D, in the State of New South Wales (after the payment of the amounts referred to in the Consent Orders made on 7 July 2015) be dealt with in the following manner and priority:

   (a)In payment of fifty per cent of the balance then remaining to be held in a controlled monies account held by Watts McCray Lawyers in trust for the applicant and the respondents and thereafter both the applicant and respondents are restrained from withdrawing funds from the said controlled monies account pending further order of the Court; and

   (b)In payment of the balance then remaining to the respondents as Trustees for the Estate of Ms Sekyi.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sekyi &Sokol and Anor 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 SYDNEY

FILE NUMBER: SYC 2654  of 2015

Mr Sekyi

Applicant

And

Ms Sokol and Ms B as Trustees for the Estate of Ms Sekyi

1^ST & 2^ND Respondents

REASONS FOR JUDGMENT

1. Before the Court is an interim application relating to the proposed distribution of the proceeds of sale of a property at C Street, Suburb D, in the State of New South Wales (“the Suburb D property”). The applicant in the proceedings, Mr Sekyi (“the husband”) married Ms Sekyi (“the wife”) in 1995. They have a daughter, E (“the child”), born in 2000 and now 14 years old.

2. On 13 August 1999 the husband and the wife purchased the Suburb D property in their joint names for $175,000. Between 1999 and 2003 the Suburb D property was rented out and the parties lived with the wife’s parents.

3. In 2006 the husband and the wife separated although they remained living together in the Suburb D property until May 2007.

4. They were divorced on 11 October 2007.

5. On 1 June 2010, Orders were made, by consent, for property settlement (“the Consent Orders”). The effect of the Consent Orders was that the wife retained the Suburb D property, with the requirement that she be responsible for the mortgage, and the husband retained a business in Country F together with real property in Country F.

6. The husband agrees that he signed the documents which were presented to the Court in contemplation of the making of Consent Orders, and the transfer for the Suburb D property, but it is his evidence that he does not read and write English and that he did not understand the effect of the documents which he signed and nor did he consent to the making of the Consent Orders.

7. On 28 July 2014, the wife died.

8. It is the husband’s evidence that when the wife died he believed that the Suburb D property continued to be jointly owned. When he discovered that this was not the case, and that the property had been transferred solely to the wife’s name after the Consent Orders were made, the husband lodged a caveat over the property. On 28 April 2015, the husband instructed solicitors to file an application with the Court seeking orders pursuant to s 79A of the Family Law Act 1975 (Cth) and consequential orders seeking the sale of the Suburb D property, the discharge of the mortgage and payment of legal costs of sale and agents commission, and a distribution of the balance, fifty per cent to the husband and fifty per cent to the Estate of the wife.

9. The respondents to these proceedings are the Trustees of the wife’s Estate.

10. The matter was listed for a Case Assessment Conference on 7 July 2015 and the parties reached agreement for orders which would provide for the husband to lift the caveat on the Suburb D property, for the sale of the property, the payment of certain debts and for the balance of the money to be held in a controlled monies account by the solicitors for the Estate pending further order. The Registrar noted that the only remaining dispute in relation to the interim application was the amount to be held in trust from the proceeds of sale of the Suburb D property.

11. The matter came before the Court on 27 July 2015 for the resolution of that dispute. The husband was not represented. On behalf of the husband a minute of orders and case outline had been filed by a solicitor, Mr G, who advised the Court in an email that he would not be appearing for the husband and that the husband had difficulty reading and writing in English and might need an interpreter to appear for him.

12. A case outline had been prepared on behalf of the respondents who were represented by counsel.

13. The husband appeared unrepresented but with the assistance of a friend, Mr H. The husband’s native language is Country F. The Court had previously been advised that there are no Country F interpreters available in the Sydney region. Accordingly, and with the consent of the respondents, Mr H spoke on behalf of the husband in the role of interpreter.

14. The orders which were sought by the husband were that the net proceeds of the sale of the Suburb D property be distributed fifty per cent to him and fifty per cent to the Estate. In the alternate, the husband asked that the whole of the net proceeds be retained on trust pending the disposition of his substantive application.

15. The respondents seek the dismissal of the s 79A application. In the alternate, the respondents argue that the husband’s entitlement is less than fifty per cent of the net proceeds of the sale of the Suburb D property.

16. The orders which were sought on behalf of the Estate were that fifty per cent of the proceeds of sale should be held in a controlled monies account pending the determination of the husband’s s 79A application and that the remainder should be distributed to the Estate.

17. The application of the husband for an immediate distribution of fifty per cent of the net proceeds of the sale of the Suburb D property is premature. Whether the Consent Orders should be set aside and, if so, what orders should be made in relation to the husband’s consequential application for property settlement will be determined at the final hearing.

18. The issue to be determined today is whether the whole of the net proceeds of sale of the Suburb D property need to be held in trust (as the husband asserts) or whether retaining one half of the proceeds would sufficiently secure the husband’s prospective claim. The husband’s claim is for fifty per cent of the net proceeds of sale of the Suburb D property after the payment of the mortgage and selling expenses. No arguments advanced on behalf of the husband addressed his position that, if the money were not to be distributed to him immediately upon sale, then the whole of the proceeds of sale should be retained pending the determination of his claim.

19. The Estate concedes that it would be appropriate to hold in trust the whole of the amount which is sought by the husband in the event that his claim is wholly successful. Nothing advanced on behalf of the husband suggested that it is necessary or proper to deprive the Estate of the balance of the proceeds of sale of the Suburb D property and accordingly the orders will be made as sought by the Estate.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 August 2015.

Associate: 

Date:  7 August 2015