Terzi and Terzi (No 2) - [2019] FamCA 490

FAMILY COURT OF AUSTRALIA

TERZI & TERZI (NO. 2)

[2019] FamCA 490

FAMILY LAW – ENFORCEMENT OF ORDERS – Where orders made for the sale of property with the wife to have the conduct of that sale and the husband required to keep the property in good order and repair and provide appropriate access to the property for purposes of sale and to vacate the property 14 days before settlement – Where the husband refuses to give access to property – Whether appropriate that husband be ordered to vacate the property – Where order made appointing the wife trustee for sale Where order made for husband to vacate and remain away from the property.

Family Law Act 1975 (Cth)

Terzi & Terzi [2019] FamCA 357

APPLICANT:

Mr Terzi

RESPONDENT:

Ms Terzi

FILE NUMBER:

PAC

2690

2016

DATE DELIVERED:

19 June 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19 June 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Cairns

SOLICITOR FOR THE RESPONDENT:

Auslawyers

Orders

The Applicant wife be appointed as trustee for sale of the property B Street, Town C NSW being the whole of the land contained in Lot … in Deposited Plan … and for such purpose the said property shall vest in the wife for the purposes of facilitating a sale of the property as provided for in orders made 31 May 2019.
The Respondent husband Mr Terzi is hereby restrained from entering occupying or remaining on the Town C property, from attending at or being within 100 meters of the said property, from doing any act or thing to impede the sale of the said property and from discussing or communicating with any real estate agent appointed to sell the said property matters related to its said sale.
The Applicant wife have exclusive occupation of the property situate at B Street, Town C NSW from this date forward pending final sale of the property.
The husband pay the wife’s costs of and incidental to this application for enforcement.

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 Terzi & Terzi 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 PARRAMATTA

FILE NUMBER: PAC 2690 of 2016

Mr Terzi

Applicant

And

Ms Terzi

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before the Court is an Application in a Case filed by the wife on 7 June 2019 seeking, appropriately, further enforcement orders to facilitate implementation of orders made by this…

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 Terzi and Terzi (No 2)

Details

AGLC: Terzi and Terzi (No 2) [2019] FamCA 490
Case: [2019] FamCA 490
Decision Date: 19 June 2019

CaseChat Overview and Summary

In *Terzi and Terzi (No 2)*, Foster J of the Federal Circuit Court of Australia considered an application by the wife for orders relating to the sale of a property and the husband's conduct concerning that sale. The dispute arose in the context of proceedings between the parties, and the wife sought to enforce previous orders made on 31 May 2019 concerning the property.

The court was required to determine whether to appoint the wife as trustee for sale of the property, grant her exclusive occupation pending sale, restrain the husband from interfering with the sale process, and order the husband to pay the wife's costs of the application.

Foster J reasoned that it was appropriate to appoint the wife as trustee for sale to facilitate the disposal of the property in accordance with the prior orders. The court also granted the wife exclusive occupation of the property until its sale. To ensure the sale could proceed unhindered, the husband was restrained from entering, occupying, or remaining on the property, from attending within 100 metres of it, from impeding the sale in any way, and from communicating with any appointed real estate agent regarding the sale.

Consequently, the court ordered that the wife be appointed trustee for sale of the property, vested with the property for that purpose. The husband was restrained from various actions concerning the property and the sale process, and the wife was granted exclusive occupation. The husband was also ordered to pay the wife's costs of the application.

Orders

Orders of the court

The Applicant wife be appointed as trustee for sale of the property B Street, Town C NSW being the whole of the land contained in Lot … in Deposited Plan … and for such purpose the said property shall vest in the wife for the purposes of facilitating a sale of the property as provided for in orders made 31 May 2019.

The Respondent husband Mr Terzi is hereby restrained from entering occupying or remaining on the Town C property, from attending at or being within 100 meters of the said property, from doing any act or thing to impede the sale of the said property and from discussing or communicating with any real estate agent appointed to sell the said property matters related to its said sale.

The Applicant wife have exclusive occupation of the property situate at B Street, Town C NSW from this date forward pending final sale of the property.

The husband pay the wife’s costs of and incidental to this application for enforcement.

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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