SIMMS & SIMMS

[2019] FamCA 650

FAMILY COURT OF AUSTRALIA

SIMMS & SIMMS [2019] FamCA 650

FAMILY LAW – PROPERTY – application of the wife for enforcement of final property orders – where the final orders providing for repairs and the ultimate sale of the former matrimonial home have been frustrated due to conflict between the parties – where the wife seeks an order appointing her as trustee for the sale of the property – where the wife resides in the property and is the sole registered proprietor – order that the wife have sole conduct of the sale of the property –  order that the wife notify the husband of the progress of the repairs.

FAMILY LAW – COSTS – where the wife seeks costs against the husband – consideration of circumstances justifying the making of a costs order – application for costs dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

APPLICANT: Ms Simms

RESPONDENT: Mr Simms

FILE NUMBER: MLC 131 of 2016

DATE DELIVERED: 13 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamilton

SOLICITOR FOR THE APPLICANT: Nevett Ford

THE RESPONDENT: In person

Orders

1. That within 7 days the wife do all such acts and things as may be required to request the President of the Real Estate Institute of Victoria or his nominee to nominate a selling agent for the property at Suburb A. 

2. That order 4 of the Orders dated 21 November 2018 (“the Orders”) be varied to provide as follows:- 

   4.That in order to give effect to the Orders the applicant wife have the sole conduct of the sale of C Street, Suburb A in the State of Victoria (“the property”) and in doing so co-operate with the estate agent in every way including:-

   a)The method and timing of sale and in any event the property be listed for sale as and from 1 November 2019;

   b)Making a key to the house available to the agent (if necessary);

   c)Allowing inspection of the property at all reasonable times requested by the agent;

   d)At the time of inspection by the agent and prospective purchasers, ensuring the property including the grounds are maintained in a condition which is similar to the current condition or such condition as suggested by the estate agent;

   e)Signing all documents requested by the agents in relation to the sale;

   f)doing all acts and things necessary to prepare the property for sale including all repairs and modifications (“the modifications”) as reasonably recommended by the estate agent, up to $40,000 or such other sum as recommended by the agent in writing.

3. That order 5(b) of the Orders be varied to provide as follows:-

   Secondly, the costs of the modifications to be paid or refunded to any party who has already paid for the modifications pursuant to Order 4(f).

4. The wife notify the husband in writing on a weekly basis as to the progress of the repairs to the property and the sale of the property, and of any offers to purchase received. 

5. That the Application in a Case filed 23 July 2019 and the Response to Application in a Case filed 13 August 2019 be otherwise dismissed. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simms & Simms has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 131 of 2016

Ms Simms

Applicant

And

Mr Simms

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. The matter of Simms comes before the Court today in a Judicial Duty List upon an Application in a Case filed on behalf of the applicant wife on 23 July 2019.  That application is supported by her affidavit filed the same date.  The wife’s application is an application to enforce final property orders made by Macmillan J on 21 November 2018, specifically paragraphs 4 and 5 of those orders (“Final Orders”).  Those orders provide for the manner in which the parties’ property at Suburb A (“the Suburb A property”), is to be sold.

2. Paragraph 8 of the Final Orders provides liberty to either party to apply to the Court with respect to the terms and conditions of the sale and the implementation of any of the orders.  It is in reliance upon paragraph 8 of those orders that the wife brings her application. 

3. The application seeks orders, the effect of which will be to appoint the wife as trustee for the sale.  That is, that she be appointed as the person to have sole conduct of the sale of the Suburb A property.  Further, she seeks a modification of the Final Orders so as to enable her to expend an amount of up to $45,000 on repairs and modifications to the Suburb A property in anticipation of its sale.  She seeks a modification to paragraph 5B of the Final Orders to ensure that any monies expended by her in the repair or modification of the Suburb A property is paid to her from the sale proceeds.

4. That application is opposed by the husband.  He relies upon his Response to Application in a Case filed this day.  The husband’s affidavit is also filed this day. 

5. In his response, the husband seeks that the wife’s application be dismissed.  Further, he seeks to nominate another selling agent, it being his position that he is dissatisfied with the selling agent appointed pursuant to the Final Orders.  Further, he seeks orders as to the manner of sale and as to the reserve price for the sale of the Suburb A property.  As to the issue of repair and rectification to the property, the husband proposes that he contribute $12,500 towards such repairs and thereafter the wife be responsible for any additional amounts expended in preparing the property for sale.  The husband also seeks orders regarding the return of chattels to him, which he is entitled to pursuant to the Final Orders.

Background

1. The parties commenced co-habitation in 1997 and married in 2001.  Final separation occurred in about August 2014.  The parties divorced in 2017.  On any view, theirs was a long marriage. 

2. There are four children of the marriage, three of whom are under the age of 18. 

3. The subject property is registered in the sole name of the wife and that she is in occupation of that property.

4. The parties have been engaged in litigation in this Court since 2016.  That litigation concluded with the making of Final Orders by consent by Macmillan J on 21 November 2018.  Those orders provided for the Suburb A property to be sold, with the selling agents to be D Real Estate.  The order provided that the property was to be placed on the market for sale on or before 1 March 2019 upon terms that the settlement be no less than 30 days and no greater than 60 days from the date of sale unless otherwise agreed in writing.

5. The Final Orders also provided for the appointment of a conveyancer.  If there was a dispute as to the appointment of a selling agent, the parties agreed that the President of the Real Estate Institute of Victoria should be requested to make such appointment on their behalf.  Paragraph 4 of the orders provided that the parties were to have the joint conduct of the sale of the property and were to co-operate with the selling agent in respect of specified matters. 

6. Paragraph 5 provides for how the proceeds of sale are to be applied.  It states that first the expenses of the sale are to be paid.  Second, any costs of modification to the property to be paid as agreed in writing, and that such agreement to be in writing prior to the incurring of those expenses.  The Final Orders also provided for the payment of one of the parties’ children’s orthodontic works, payment for time share weeks and then the balance to be divided equally between the parties, save that from the husband’s half-share, the sum of $368,000 is to be paid to the wife’s solicitor.

7. Paragraph 6 of the orders provides that pending settlement of the sale, the wife have the right to occupy the property and she is to meet all expenses associated with that occupation.  She is also required to keep the property in good order. 

8. Paragraph 7 deals with the division of the parties’ chattels, it being agreed that the husband retain the chattels identified at Annexure A to the Final Orders.  The orders were specific as to the timing for him to receive those chattels.  The order provided that the chattels were to be delivered to him on a date agreed, and failing agreement, no later than 7 December 2018 unless the selling agent suggests that such items remain in the property pending its sale and in that event, the items to be collected by the husband and/or his nominee within seven days of settlement of the sale.

9. Although it was originally submitted by the husband that the wife had failed to comply with that order, it became apparent during discussion in the course of the hearing that indeed more than half of the list of chattels has been delivered to the husband.  Of the items remaining, it is submitted on behalf of the wife that they are items that the originally appointed selling agent had identified as being items that should remain in the home until after the sale, those items being chattels such as a lounge suite, wall mounted televisions, a washing machine, a coffee table and a pool table.

10. What is clear from the affidavit material filed on behalf of both parties is that there has been significant conflict between them as to the implementation of the orders for sale.  The wife, in her affidavit material, asserts that she has used her best endeavours in order to arrange an orderly sale of the Suburb A property.  She deposes as to her appointment of a selling agent, of her liaising with that agent in order to identify the necessary repair works, and of having endeavoured to arrange appointments with that selling agent and the husband in order to confirm arrangements for the necessary repairs to the property.  She deposes that on occasion the husband did not respond to requests to communicate regarding these matters, that he did not make himself available for appointments, and as a result the nominated date by which the property was to be listed for sale passed without the property being able to be so listed because the necessary works had not been undertaken.

11. The husband’s view as to those matters is in stark contrast to the position presented by the wife.  He maintains that he has been shut out of the sale process; that there has been no communication, that the appointments alleged to have been arranged were not so arranged, and that in a general sense the wife has been difficult and has thwarted the sale. 

12. I was at pains throughout the course of the hearing to inform the parties that in a hearing on the papers such as this, I am not in a position to make any determination as to the factual matters in dispute regarding their conduct.  What is clear from the affidavits filed by each party is that there is no ability for either of them to co-operate so as to ensure the matter is able to be brought to a conclusion and that the Suburb A property can be listed for sale and sold.

Discussion

1. It was conceded by both parties that they want the property sold.  It was conceded by both parties that they want to achieve the best possible sale price as each of them will benefit.  Having regard to the history, and doing the best I can, it seems that there is no alternative now but to make an order that one party act as trustee and have the sole conduct of the sale of the property, and that that party be appointed to liaise with the selling agent and make the necessary arrangements for the repair and rectification of the property to ensure that it is ready for sale. 

2. In circumstances where the property is registered in the wife’s name and where she is in occupation of the property, the most practical means of resolving the issue is to appoint her to have the sole conduct of the sale. This will enable her to liaise with the agent regarding the method of sale, ensure that the agent has access to the property, ensure that the property is able to be made available for inspection on short notice, and to liaise with the tradesmen necessary to bring the property to a state of readiness for that sale. 

3. There is a further issue between the parties, and that is the question of who should be the selling agent.  Although the Final Orders originally provided for D Real Estate to be that agent, it would appear from the wife’s affidavit material that there are now difficulties with that selling agent insofar as the original agent appointed no longer works at that firm.  Further, it is apparent that the agent who has subsequently assumed control of the conduct of the sale has become somewhat frustrated with the matter, and only wishes to engage with the wife regarding the sale, once the repairs to the Suburb A property have been effected. 

4. It is clear from the husband’s material that he objects to D Real Estate continuing to have involvement in the sale of the property, given the history.  The husband nominates another selling agent, that being E Real Estate.  He says they are a trusted agency and that they have previously acted for members of the parties’ extended family in relation to other property sales. 

5. The wife does not agree to the appointment of that agency.  She submits, and it is conceded by the husband, that that agency occupies retail space adjacent to the husband’s own workplace.  The wife maintains that there is a relationship between the husband and that agency.  Plainly put, it is the wife’s position that she does not trust that agency to conduct the sale, given her perception that there is an existing relationship between that agency and the husband.

6. As I observed to the parties during the course of their submissions, there is already in place a mechanism within the Final Orders for the appointment of a selling agent if there is no agreement between them as to who the selling agent should be.  During the course of submissions, it was conceded on behalf of the wife, quite properly in my view, that that mechanism should come into operation, given the impasse between the parties as to the identity of the selling agent.

7. In my view, given the dispute between the parties in relation to that aspect, it is appropriate that the parties seek a nomination from the President of the Real Estate Institute of Victoria as to a selling agent, and I propose to make an order to that effect.

8. There is also a dispute between these parties as to the amounts to be expended by them in preparing the Suburb A property for sale.  It is clear from the Final Orders that at the time those orders were made, it was then anticipated that such repairs needed to be effected.  The orders as originally drawn provided that a sum of up to $25,000 be allocated for such repairs.  It was also a matter of agreement between the parties that once agreement was reached as to the nature of those repairs that the costs of the repairs would be deducted from the proceeds of sale as agreed. 

9. It is clear from the affidavit material filed on behalf of the parties that there has been significant dispute between them as to what repairs are necessary and whether or not the wife has acted in a timely fashion in terms of obtaining quotations and the like to enable agreement to be reached with respect to these matters. 

10. The wife deposes in her affidavit as to the efforts she has undertaken to obtain quotations regarding the various repairs required.  At paragraph 36 of her affidavit, the wife sets out a table of the quotations obtained.  She provides a summary of the quotes, the agencies who have provided those quotes and the work that the quotation has been provided for. 

11. During the course of submissions, I inquired of the husband as to which, if any, of those quotes he accepted.  During the course of his submissions, the husband confirmed his acceptance of the necessity for repairs to the pool, and acknowledged and accepted the quotation provided by F Company in the sum of $7,530 plus GST.  Similarly, the husband conceded that there were necessary landscaping works at a cost of $14,370, that there were necessary carpet repairs which would cost between $2,000 and $6,000, that there was necessary cleaning and window cleaning at a cost of approximately $2,500, paint works at a cost of approximately $800, repairs to the theatre room at a cost of $1,520, and plumbing works necessary at a cost of approximately $4,000. The works conceded by the husband total approximately $38,000. 

12. Given the concessions made by the husband regarding those repairs, in my view, the only course open to the parties is that those repairs be undertaken.  Further, in my view, the appropriate course is that the costs of those repairs should be reimbursed to the party who pays for them at first instance, upon settlement of the sale of the Suburb A property. 

13. Given that some of the quotations relied upon at paragraph 36 of the wife’s affidavit are some months out of date, in my view, the ceiling that should be applied to the repair works should be capped at $40,000.  That provides some leeway in the event that there is an increase in the price as opposed to the amounts originally quoted. 

14. As to the question of the return of the remaining chattels, as I have already noted paragraph 7 of the Final Orders provides a mechanism for the return of the balance of the items.  That is that they will be available for collection by the husband and/or his nominee within seven days of settlement of the sale.  Therefore, I need make no further order in relation to those matters.

15. That being the case, the orders that I make are as follows.

ORDERS DELIVERED

Application for costs

1. In the matter of Simms, having already determined the issues arising from the application made by the wife to enforce the Final Orders made by Macmillan J on 21 November 2018, I am now asked to rule in relation to an application for costs.  It is the wife’s application that the husband should meet her costs in the sum of $1,777.48. 

2. Those are costs calculated in accordance with schedule 3 of the Family Law Rules 2004 (Cth) (“the Rules”). They are calculated on the basis that there has been an Application in a Case and affidavit filed, the costs of the preparation of those documents being approximately $771. Further, there has been an appearance at Court of four hours duration, and pursuant to item 108 of schedule 3 of the Rules, the costs of the appearance, therefore, totalling $1,006.

3. The basis for the application is that the Application in a Case has been necessary in order to enforce Final Orders made approximately nine months ago.  It is submitted on behalf of the wife that the husband has been wholly unsuccessful in the matter and, on that basis, costs should be awarded.

4. The general rule in family law proceedings is that each party should bear their own costs. Section 117(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that:

   If, in proceedings under this Act, the Court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and 6 and the applicable Rules of Court, make such order as to costs and security for costs…as the Court considers just.

5. Section 117(2A) sets out the matters that the Court should have regard to in considering whether to make an order for costs.  The relevant provisions of 117(2A) relied upon by the wife in support of her application are subsection (c), that is, the conduct of the parties to the proceedings in relation to the proceedings and, further, subsection (d), whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.  Reliance is also placed on subsection (e), which provides that the Court consider whether any party to the proceedings has been wholly unsuccessful in the proceedings.

1. As I have already noted, the original orders made provided for the parties to co-operate and jointly act in the sale of the Suburb A property.  It is clear from the material filed on behalf of both parties that that order has been incapable of implementation.  The wife sets out in her affidavit material the chronology of events since those orders were made.  She deposes as to appointments made, attendances by her on the selling agent, and efforts made to engage the husband in the process.  For his part, the husband in his affidavit material sets out quite a different version of events as to what arrangements have or have not been made to engage with the selling agent to progress the matter.

2. There has been an impasse between the parties, both in terms of engagement of the selling agent and arrangements for repairs to be effected to the property.  It is evident from the wife’s material that she has obtained quotations and sought to progress the matter.  Those efforts have failed.  Further, it is evident from the face of the orders that the intention of the parties was to engage D Real Estate to conduct the sale.  Given the conflict between the parties, D Real Estate have distanced themselves from the matter, insofar as they do not wish to be involved unless and until the repairs have been effected.

3. Paragraph 36 of the wife’s affidavit identifies quotations obtained by her and the dates upon which those quotes were obtained.  It is clear that many of those quotations were not obtained until June of 2019.  The first of the quotations obtained was not obtained until 14 January 2019, that being the quotation for a repair to the garage door.  It would seem that there is some force in the complaint of the husband that the wife has not in every respect acted in a timely fashion in ensuring that the matter is able to progress as was anticipated pursuant to the Final Orders.

4. I am not in a position to make findings as to which party’s version of events is correct insofar as the history of engagement with the selling agents and, indeed, as to the arrangements for repairs to the Suburb A property.  It has been necessary today for me to make orders regarding the future conduct of the sale in circumstances where the conflict between the parties means that they are incapable of finalising this matter, and it is on that basis that I have made those orders.

5. That being the case, I am not minded to make any orders as to costs.  In my view, the usual rule should prevail and that is that each party should bear their own costs in respect of these matters.  Therefore, I dismiss the wife’s application for costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 August 2019.

Associate: 

Date:  13 August 2019