Sukovsky and Veranovsky

[2019] FamCA 115

FAMILY COURT OF AUSTRALIA

SUKOVSKY & VERANOVSKY [2019] FamCA 115

FAMILY LAW – PROPERTY – injunction – s 106A of the Family Law Act 1975 (Cth) – where the wife is reluctant to assist in implementing agreed sale of property – orders giving wife opportunity to rectify her reluctance.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sukovsky

RESPONDENT: Ms Veranovsky

FILE NUMBER: MLC 4249 of 2017

DATE DELIVERED: 21 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McCreadie

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Ms Carter

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

Orders

1. All outstanding interim applications are adjourned to 10.00am on Monday 25 February 2019.

2. Certify for counsel.

3. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

4. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

5. UPON THE ORAL APPLICATION OF THE HUSBAND, that by 3.00pm on 22 February 2019, each of the parties sign all necessary documents as may be required to enable the settlement of the sale of B Street, Suburb C to be effected.

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 Sukovsky & Veranovsky 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 4249 of 2017

Mr Sukovsky

Applicant

And

Ms Veranovsky

Respondent

REASONS FOR JUDGMENT

1. This is an oral application for an order which might be seen as a machinery-type order to enable the completion of the sale of property at B Street, Suburb C.  The dilemma is that whilst the parties had agreed to the sale of the property, there has never been an order for its sale and the consequential execution of all documents to give effect to that sale. 

2. In the proceedings today was an application under section 106A of the Family Law Act 1975.  Indeed, that was the application in the first place.  That application must be fundamentally flawed because there was no order to give effect to the sale. 

3. I am now asked to make an order by consent that upon the settlement of the sale of B Street, the proceeds be applied in a particular fashion.  I could not conclude, however, that that requires an obligation for the wife to sign documents.  Logic dictates that she would have to because otherwise her consent would be meaningless because the settlement would not take place. 

4. An oral application for an order is now made that by 3 o'clock on 22 February each party sign all necessary documents as may be required to enable the settlement of the sale of B Street to be effected.  The solicitor for the wife has no instructions.  She has had difficulty getting instructions from her client and thus can say little about that oral application. 

5. I gave her an opportunity to get some instructions as to whether that application would be opposed and she could not contact the wife.  However, it makes sense that if the wife had already consented to the proceeds being distributed upon the settlement, it must mean that for that to be effected, each party have to sign all documents.  Accordingly, there is no prejudice to the wife in relation to the oral application.  There is certainly material in this case which is troubling about the wife’s stance, and I have been told that she took a particular view about a peripheral issue as the basis for not signing the documents. 

6. However that may be, the reality was that she said at least up until 16 January that she was not signing the sale documents because she had not been given sufficient information. Having looked at the correspondence, the matter does not go much further. It seems to me that the sensible solution is to make the order on the oral application and I do so with the customary warning that in the event that the order is not executed by both parties, then the matter can come back at 10 o'clock on Monday morning, 25 February, at which stage I will contemplate an order under section 106A of the Act because at that stage there will be an order to which the particular section applies. Accordingly, I will adjourn the matter to Monday.

7. The second issue is an application for costs.  It is an ambitious application having regard to what was before the court on 16 January.  The registrar then seems to me not to have had the power to make the sort of order on a contested basis that has now been the subject of consent.  I do not know why the matter did not resolve on that day.  Whilst I might be able to guess, I am not prepared to do so, and on that basis it seems to me I could not find up until that point that there were justifiable circumstances to depart from the principle in section 117 of the Act that each party pays their own costs.  That is not to say, however, that from today onwards there might not be a costs order if the wife does not comply. 

8. If she does not comply with the order I have now made, then effectively this afternoon’s hearing has been wasted, not to mention the requirement that I had made that a practitioner attend on Monday morning to tell me if the section 106A order is still required. The wife is therefore on notice that I would find, subject to any other material that I might be given, there are justifiable circumstances to make an order in respect of today’s costs and those relating to the appearance on Monday.

9. I have heard counsel’s submission as to her brief fee.  I do not consider at this stage that I could make an order for indemnity costs, but I would certainly be prepared to make an order on Monday if the evidence shows that the wife is adopting an unreasonable stance, bearing in mind her consent.  Accordingly, what I will do is I will certify for counsel.  I will adjourn the matter to 10 am on Monday, 25 February 2019.  I will make the order based on the oral application to which I have referred. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 February 2019.

Associate:

Date:  5 March 2019