Swayte and Swayte (No. 2) - [2020] FamCA 678

FAMILY COURT OF AUSTRALIA

SWAYTE & SWAYTE (NO. 2)

[2020] FamCA 678

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – Where application for stay of interim financial orders – Where consideration of applicable principles – Where conditional stay ordered.

Family Law Act 1975 (Cth) s 94AA, 114
Family Law Rules 2004 (Cth) r 22.11

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548; (2000) FLC 93-024
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jackson & Balen [2009] FamCAFC 131
Medlow & Medlow [2016] FamCAFC 34; (2016) FLC 93-692
Re Middle Harbour Investments Ltd (in Liq) (unreported, Court of Appeal (NSW), 15 December 1976)

APPLICANT:

Mr Swayte

RESPONDENT:

Ms Swayte

FILE NUMBER:

PAC

633

2020

DATE DELIVERED:

14 August 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 July 2020 and by way of written submissions last received on 24 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

Kalmath Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Coleman SC

with him Ms Dart

SOLICITOR FOR THE RESPONDENT:

Diamond Conway Lawyers

Orders

That Orders 5, 7, 8 and 9 made 5 June 2020 be stayed subject to the following conditions:
(a)That the wife do all things necessary to sell the property at X Street, Suburb Y (“the Suburb Y property”) for the best price reasonably obtainable. Upon sale the net proceeds of sale after agent’s fees and commission, legal costs on sale, contract adjustments, reasonable costs of preparing the property for sale and discharge of mortgage be paid to a controlled monies account in the name of the wife’s solicitor and that the wife be authorised to utilise such funds in the ordinary course of the parties’ business to meet property outgoings including mortgage payments, accrued liabilities, other payments necessary for the orderly conduct of the residential accommodation facility business conducted at D Street, Suburb F trading as “H Company” and the parties’ affairs;
(b)That the wife be appointed trustee for sale of the Suburb Y property for the best price reasonably obtainable and for such purpose the property be vested in the wife as trustee for sale;
(c)That the husband shall vacate the Suburb Y property within seven days of the date of these orders and thereafter the wife have sole use and occupation of the property for the purposes of sale and the husband is restrained from attending at or entering onto the said property without the consent of the wife and only for such periods as she may expressly permit; and
(d)That the wife do all things necessary to remove and store all furniture, furnishings, effects and antiques situate at the Suburb Y property to a storage facility nominated by her with the wife to pay the storage fees as and when they become due and payable from the controlled money account provided for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Swayte and Swayte (No. 2)

Details

AGLC: Swayte and Swayte (No. 2) [2020] FamCA 678
Case: [2020] FamCA 678
Decision Date: 14 August 2020

CaseChat Overview and Summary

In *Swayte and Swayte (No. 2)*, Foster J considered an application by the wife for a stay of certain orders made on 5 June 2020, which related to the sale of a property at X Street, Suburb Y. The dispute concerned the management and sale of this property and the disposition of its proceeds.

The primary legal issue before the court was whether the wife should be granted a stay of the existing orders concerning the Suburb Y property, and if so, under what conditions. This involved determining the appropriate arrangements for the sale of the property, the management of the sale proceeds, and the occupation of the property pending its sale.

Foster J reasoned that a stay was appropriate, subject to specific conditions designed to facilitate the sale of the property and manage the proceeds. The court ordered that the wife be appointed trustee for sale of the Suburb Y property and be responsible for its sale at the best reasonably obtainable price. The net proceeds were to be paid into a controlled monies account held by her solicitor, from which the wife could utilise funds for property outgoings, business expenses related to "H Company" at D Street, Suburb F, and other necessary payments. The husband was ordered to vacate the property within seven days and was restrained from attending or entering the property without the wife's consent. The wife was also directed to arrange for the removal and storage of furniture and effects from the property, with storage fees to be paid from the controlled monies account. The costs of the stay application were reserved to the final hearing or agreement.

Orders

Orders of the court

That Orders 5, 7, 8 and 9 made 5 June 2020 be stayed subject to the following conditions:

(a) That the wife do all things necessary to sell the property at X Street, Suburb Y (“the Suburb Y property”) for the best price reasonably obtainable. Upon sale the net proceeds of sale after agent’s fees and commission, legal costs on sale, contract adjustments, reasonable costs of preparing the property for sale and discharge of mortgage be paid to a controlled monies account in the name of the wife’s solicitor and that the wife be authorised to utilise such funds in the ordinary course of the parties’ business to meet property outgoings including mortgage payments, accrued liabilities, other payments necessary for the orderly conduct of the residential accommodation facility business conducted at D Street, Suburb F trading as “H Company” and the parties’ affairs;

(b) That the wife be appointed trustee for sale of the Suburb Y property for the best price reasonably obtainable and for such purpose the property be vested in the wife as trustee for sale;

(c) That the husband shall vacate the Suburb Y property within seven days of the date of these orders and thereafter the wife have sole use and occupation of the property for the purposes of sale and the husband is restrained from attending at or entering onto the said property without the consent of the wife and only for such periods as she may expressly permit; and

(d) That the wife do all things necessary to remove and store all furniture, furnishings, effects and antiques situate at the Suburb Y property to a storage facility nominated by her with the wife to pay the storage fees as and when they become due and payable from the controlled money account provided for above.

That costs of and incidental to the stay application be reserved to final hearing or agreement.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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