Stoney and Stoney

[2015] FamCA 13

FAMILY COURT OF AUSTRALIA

STONEY & STONEY [2015] FamCA 13

FAMILY LAW – ENFORCEMENT OF ORDERS – Enforcement of final property orders – Alteration having regard to difficulties in achieving a resolution of the sale.

Family Law Act 1975 (Cth)

APPLICANT: Ms Stoney

RESPONDENT: Mr Stoney

FILE NUMBER: MLC 7569 of 2010

DATE DELIVERED: 22 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Spicer

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

THE RESPONDENT: In Person

Orders

1. That Paragraph 5(a) and (b) and (c) of the orders of Young J are discharged.

2. That the wife have the sole conduct and management of the sale of the unit at S Street, Suburb E as a trustee for sale.

3. That the wife be responsible entirely for the appointment of the agent to conduct the sale.

4. That the reserve price in respect of the said property is to be determined by the President of the Real Estate Institute of Victoria or his or her nominee unless the parties have reached agreement by 4.00pm on Friday 23 January 2015.

5. That the wife have the conduct and management of the sale until 16 July 2015 and if the property has not been sold by that date, the provisions of paragraph 5(a) and (b) of the orders of Young J made on 18 April 2012 shall be reinstated.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. Save as to issues of costs, the wife’s application filed 8 January 2015 and the husband’s response thereto filed 12 January 2015 are otherwise dismissed.

3. That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 23 February 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 9 March 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stoney & Stoney 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 MELBOURNE

FILE NUMBER: MLC 7569 of 2010

Ms Stoney

Applicant

And

Mr Stoney

Respondent

REASONS FOR JUDGMENT

1. On 18 April 2012, Young J made orders and delivered reasons in contested property proceedings between Mr and Ms Stoney.  In the proceedings before me which were of an enforcement nature in the Judicial Duty List, Ms Stoney (to whom I shall refer in these reasons as “the wife”) was the applicant and Mr Stoney (to whom I shall refer in these reasons as “the husband”) was the respondent.

2. Albeit that the application before me looked complicated, it was relatively simple having regard to the orders made by Young J.  Mr Spicer of counsel appeared on behalf of the wife and Mr Stoney appeared for himself.

3. In the amended application in a case brought by the wife filed on 8 January 2015, she sought a variety of orders. They included that monies held in a solicitor’s trust account be paid out in her favour in respect of costs but also that a sum of $215,000 plus interest be paid to the Westpac Bank to discharge a mortgage over a unit at Suburb E. Thereafter, the balance of the money be paid to the husband. A variety of other orders were included including that a reserve price be fixed in respect of the sale of the second unit in Suburb E but that for that purpose, the wife have the conduct of the sale for a period of six months. The wife also sought an order that to the extent the husband refused or failed to comply with the orders, a further order be made under s 106A of the Family Law Act 1975 (Cth) (“the Act”) to enable the registrar to sign any documents in the name of the husband.

4. By his response filed 12 January 2015, the husband also sought a number of orders.  Even allowing for the fact that he is self-represented, it was hard to follow exactly what orders he was seeking.  Doing the best I can however, in addition to what he wrote, he said that he wanted the proceedings to be brought to an end.

5. The dispute between the parties really revolved around two things.  The first was whether or not the wife should have the conduct of the sale of the unsold unit and secondly, if such an order was made, for what period she should have that right.

6. This matter came before Bennett J on 3 December 2014.  At that time it was before the Court on the basis of a contravention application.  Apparently after discussion with the parties, her Honour gave the husband leave to withdraw his contravention application.  She otherwise adjourned the matter to the Judicial Duty List on 14 January 2015 before me.  It was not a point taken by either party that the withdrawal of the contravention application left no live proceedings.  That problem however was rectified in any event by her Honour’s order that the parties file the respective application and response to which I have referred. 

7. There was some considerable discussion about a number of the other orders that her Honour made.  The first of those orders was that the husband and the wife do all things necessary to complete the settlement of the sale of the first of the two units in Suburb E and that the net proceeds be placed in an interest bearing account under the control of the wife’s solicitors. 

8. Her Honour then made an order that the husband communicate to the wife through her solicitors setting out the basis upon which he was to finalise the entire dispute and that the wife respond by a proposal accordingly.  Her Honour then said for the avoidance of doubt, the exchange of proposals was not to be without prejudice.  Mr Spicer of counsel indicated that he proposed not to indicate what the wife’s was and I have to confess I agreed that it was not appropriate that private communications of a negotiation nature should be disclosed in that way.  It was clear that any negotiations between the parties had broken down irretrievably and that the wife’s position was really one of an enforcement nature. 

9. Whatever else she might have wanted, the wife was simply seeking that the orders of Young J made in 2012 be enforced.  Notwithstanding some suggestion by counsel for the wife that the husband was seeking to reargue various values made by Young J, the husband specifically disavowed that position and indicated that whilst that might have been his position previously it was no longer.  Accordingly, there were really only two issues to be determined.  There is a third issue relating to costs but as I indicated to the parties, there was no agreement and I propose to deal with that by written submissions and determine that in chambers.  Those submissions will arise out of the orders made by Bennett J on 3 December 2014 wherein her Honour specifically reserved the costs of both parties of the entire day.

10. I turn then to the two issues in dispute. 

11. Young J delivered reasons which run to 350 paragraphs.  Both parties complimented his Honour on the fact that the reasons were helpful.  His Honour tried to explain why he was doing what he was. 

12. In simple form, the parties had a matrimonial home which had been valued and against which there was an encumbrance.  They otherwise had two investment properties which were the units in Suburb E.  Both of those units were encumbered by one mortgage.

13. His Honour determined that because of the necessity to sell the units, he was not able to divide the particular properties precisely but rather that the division should take place on a pooled basis and that when the pool was ultimately known, it was to be divided as to 52.5 per cent to the wife and 47.5 per cent to the husband. 

14. Some two years and nine months later, the exercise anticipated by the Court has not been completed because the parties have not been able to agree on what is in the “pool”.  That problem has arisen in my view because the husband has not sold the unit.  Notwithstanding his protestations that the six month period sought by the wife for her to endeavour to sell the property was too long, he did concede that she should have an attempt over 60 days but I suspect he really wanted to be significantly involved. 

15. Young J’s orders are very clear.  His Honour gave the husband the right to manage the sale.  However, his Honour said that upon the sale of the first of the two units, the mortgage encumbering both units was to be paid out.  To complicate matters somewhat, his Honour also understood very clearly that there was to be a subdivision of the land title because there were two separate units on the property and each title was needed for any sale.  According to the husband, that subdivision process took some eight months.  As I observed at the time, that still did not explain why it had taken him a further two years to get to where we have now reached.  His response was that there had been difficulties in respect of completing any sale.

16. I note however that when the matter was before Bennett J in December, one of the two units had been sold and was under contract but had not settled.  The second unit had not settled.  The husband complained that it was the wife’s fault that the settlement was put in jeopardy because a caveat had been lodged against the property.  He pointed to a letter written by the solicitors for the wife to the conveyancing lawyers which required that before any caveat was withdrawn, they were to confirm that they would place any money in an interest bearing account.  The caveat argument was (and remains) a red herring.  What Young J ordered is clear.  His Honour indicated that when the sale went through, the mortgage was to be paid out and the proceeds were to be paid into the solicitor’s trust account.  Nothing I read or heard would convince me that the letter written by the solicitors for the wife was inappropriate. 

17. Subsequent to the completion of the subdivision, but obviously before the sale the husband was able to move the mortgage from the unit on to the title of the second unit.  As can be seen above, the wife was seeking an order that the money now in the solicitor’s trust account arising out of the orders of Bennett J, should be used to discharge that mortgage.  The husband could hardly argue about that situation because that was what Young J ordered.  In my view, the husband’s complaint about the solicitor’s conduct in relation to the caveat is a nonsense.  The solicitor was simply asking the conveyancer to confirm money would be applied according to the order.

18. Young J ordered that in the event that there was a dispute about the terms and conditions of the sale, both parties had liberty to apply.  The husband did not apply but the wife now has.  Furthermore, his Honour’s orders are very clear.  What was to happen to the money should now be completed.

19. A dispute between the parties has also arisen in relation to the reserve price for the proposed sale of the second unit.  The wife proposed that there be a fixed sum of $500,000.  She pointed to the fact that, in his contravention application to which I have earlier referred, the husband swore that he had been agreeable to the $500,000 reserve price but in argument before me, he disputed that that was the appropriate sum and indeed, in his written document before me, indicated it was too high.  That issue too had been clearly covered by Young J’s orders.  In the event that the parties did not reach agreement about the appropriate reserve price, the correct approach was to go the President of the Real Estate Institute and have that issue determined.  That should again happen here.

20. The power to make an order to vary the machinery provisions of the property orders made by Young J in 2012 was hardly controversial.  The Court has the power to ensure that its orders are implemented.  There is much unhappiness between the parties as well as mistrust.  I have little confidence that any order I make will be expeditiously carried out by the husband.  I draw that conclusion from the fact that notwithstanding Young J indicated that he wanted the whole issue implemented as soon as practicable, nothing much has occurred over the ensuing two years and nine months.  The irony of that situation is that the pool to which I have referred cannot be ascertained. 

21. In the meantime, the wife is living in the home and does not have to pay the expected sum to the husband until he transfers the property to her as part of the final settlement.  To a very large degree therefore, the husband is prejudicing his own position.  Against that however, he has had the use and occupation of the unit apparently rent free because the mortgage was moved to the second unit.

22. I have little confidence that the husband will fulfil his obligations having regard to his somewhat lax approach in the past. There is no agreement between the parties as to how that is to be implemented. Accordingly, the correct approach is to look at the precise wording of the orders of Young J and that should be implemented. However, having regard to what I have said, I think the wife should have an opportunity over the ensuing six months to market the property as a trustee for sale and to the extent that the husband refuses to sign the transfer to her name accordingly, then an order may be made under s 106A of the Family Law Act 1975 (Cth) (“the Act”) by a registrar and documents signed in the husband’s name.

23. The reserve price does not need to be fixed by the Court because it is in dispute and Young J has fixed the issue as to how that should be determined.  As I observed however, to the extent that the parties have to go to that trouble, if there is any expense associated with it, the husband be responsible for that having regard to his previous agreement about the sum and the fact that it is a relatively modest dispute in any event.

24. I propose to make orders accordingly.  The issue of costs can be dealt with by written submissions and I have made those orders.

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 January 2015.

Associate: 

Date:  22 January 2015