Sovany & Hurrell

[2021] FamCA 475

FAMILY COURT OF AUSTRALIA

Sovany & Hurrell [2021] FamCA 475

File number(s):	SYC 7502 of 2017
Judgment of:	HARPER J
Date of judgment:	2 June 2021
Catchwords:	FAMILY LAW– PROPERTY – Injunction – Where parties have entered contract to sell former matrimonial home – Where husband has negotiated increase of sale price of $2,000,000 – Where wife refuses to execute varied contract at higher sale price – Where wife argues she would seek to retain the former matrimonial home in specie if existing contract of sale does not proceed – Where the husband seeks an order for the wife to execute the varied contract of sale for the former matrimonial home.
Legislation:	Family Law Act 1975 (Cth) s 114
Number of paragraphs:	8
Date of hearing:	2 June 2021
Place:	Sydney
Counsel for the Applicant	Mr Dickson QC
Solicitor for the Applicant	Broun Abrahams Burreket
Counsel for the Respondent	Mr Campton SC
Solicitor for the Respondent	Pigdon Norgate Family Lawyers

ORDERS

SYC 7502 of 2017
BETWEEN:	MR HURRELL Applicant
AND:	MS SOVANY Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	2 JUNE 2021

THE COURT ORDERS THAT:

THE COURT NOTES IN CHAMBERS THAT:

A.    The Applicant (Husband) and the Respondent (Wife) are co-owners of the property at B Street, Suburb C, being the whole of the property contained in Certificate of Title Folio Identifier … ("the Suburb C Property") which is presently the subject of a contract of sale entered into on 18 August 2020 ("the existing contract of sale").

THE COURT ORDERS THAT:

1.In the event the Applicant (Husband) submits to the Respondent (Wife) a proposed varied contract duly executed by the existing purchaser of the Suburb C property and the Applicant (Husband) within 21 days of the date of these orders, with such varied contract to include the following terms:

(a)A substitute price of $28,375,000;

(b)A substitute deposit of $2,978,125;

(c)A substitute balance of the purchase price of $25,396,875;

(d)A substitute completion date of 15 September 2021; and

(e)The removal of the existing Special Condition 9

the Respondent (Wife) take all necessary steps forthwith to execute such varied contract of sale.

2.In the event the husband does not submit a proposed varied contract of sale in compliance with the immediately preceding order, parties forthwith take all necessary steps to instruct their existing conveyancing solicitor, Mr D, to issue a notice to complete pursuant to the terms and conditions of the existing contract of sale of the Suburb C property.

3.All remaining issues for determination arising from Applicant's (Husband) Application in a Case filed on 25 May 2021 and the Respondent's (Wife) Response filed on 31 May 2021 be stood over before a Senior Registrar on a date to be advised.

4.Costs be reserved.

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

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 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

HARPER J

1. In proceedings SYC7502 of 2017, there came before me on 2 June 2021 an urgent Application in a Case filed by the husband seeking orders in the nature of mandatory injunctions, requiring the wife to participate in the execution of a varied contract of sale of a property situated at B Street, Suburb C, being the whole of the property contained in Certificate of Title Folio Identifier … .  I will refer to that property as the “Suburb C property” for the purposes of these reasons. 

2. The Suburb C property is already the subject of a contract of sale.  Both the husband and the wife have executed the existing contract of sale.  I was told the settlement date for the existing contract of sale was to be 14 May 2021, however, settlement did not take place on that date.

3. The genesis of at least part of the husband's Application in a Case is that he has negotiated variations to the existing contract of sale. He characterises the variations as follows:

   (a)Substitute purchase price or sale price of $28,375,000 being an increase of $2,000,000 over the existing sale price;

   (b)A substitute deposit of $1,978,125 being increased by $1,000,000;

   (c)A substitute balance of the purchase price increasing from $24,396,875 to $25,396,875,

   (d)A substitute completion date from 15 February 2021, subject to special condition 9, to a new completion date of 15 September 2021, and

   (e)The removal of special condition 9.

4. The husband contends that, pursuant to section 114 of the Family Law Act 1975 (Cth), the order he proposes would have the effect of increasing the assets available to the parties upon a final property adjustment. He contends that the balance of convenience favours the making of the order in circumstances where the wife has already agreed to the sale of the Suburb C property, although, her contention is that if the existing sale falls through she would seek to retain the Suburb C property in specie on a final basis.

5. The wife resists the urgent interim relief sought by the husband on the basis that there may be prejudice to her arising from a potential loss of the existing contract of sale.  There may be implications in relation to the parties' obligations or rights under the existing contract of sale in the event there is a failed negotiation for the improved terms and conditions adverted to earlier in these reasons.

6. It seems to me, having heard senior counsel for both parties, that in light of the fact that the wife has already acceded to the sale of the Suburb C property pursuant to the existing contract of sale, permitting a short period of time for the husband to procure a varied contract of sale, with the improved terms and conditions already set out above, would not occasion to her any real prejudice because even though she contends in circumstances where the existing sale falls through she would seek to keep the Suburb C property in specie, she has already committed herself to a course which, if the existing contract were to complete, the Suburb C property would not be available for her to retain on a final basis.

7. On the other hand, in circumstances where the wife seeks an order that the parties cooperate to instruct the existing conveyancing solicitor to issue a notice to complete the existing contract, it seems to me that potential for that to happen can be preserved if an order is made broadly in terms of the order sought by the husband but requiring him to submit to the wife an executed varied contract within a short period of time. 

8. On the basis of what I have been able to discern from the submissions of the parties on an urgent basis that both, if an order is made for the parties to cooperate to issue, forthwith after that short period, a notice to complete, in the event no varied contract is procured and provided to the wife by the husband, the position of both parties is satisfactorily protected.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       6 July 2021