TERZI & TERZI - [2019] FamCA 357

FAMILY COURT OF AUSTRALIA

TERZI & TERZI

[2019] FamCA 357

FAMILY LAW – PROPERTY – Undefended interim property – Where the wife filed an Application in a Case seeking urgent orders that the matrimonial home be sold – Where the husband had not made repayments on the mortgage for a period of four months – Where the husband had not filed any documents and had ceased engaging in court proceedings – Where orders were made as sought by the wife on an undefended basis.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth) r 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Harris & Harris (1993) FLC 92-378
Jarrah & Fadel [2014] FamCAFC 14
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Terzi

RESPONDENT:

Mr Terzi

INDEPENDENT CHILDREN’S LAWYER:

Mr Macdiarmid

FILE NUMBER:

PAC

2690

2016

DATE DELIVERED:

31 May 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cairns

SOLICITOR FOR THE APPLICANT:

Auslawyers

RESPONDENT – SELF-REPRESENTED LITIGANT:

Mr Terzi

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cairns, by consent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Macdiarmid Family Law Specialist

ORDERS MADE ON 15 APRIL 2019

UPON NOTING THERE IS NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT HUSBAND IN THESE PROCEEDINGS AND UPON HEARING MR CAIRNS OF COUNSEL ON BEHALF OF THE WIFE

That the Application in a Case filed 7 March 2019 by the wife proceed to undefended hearing.
That the parties shall do all acts and sign all documents, deeds and instruments necessary to list property, B Street, Town C (Lot … in Deposited Plan … (‘the Town C property’) for sale by private treaty with Company J at Town C, or other such Real Estate Agent as nominated by the wife (‘the Real Estate Agent’).
That the Wife nominate and instruct a conveyancer or solicitor of her choice to act on the sale of the Town C property.
That in the event that the Town C property has not sold by 15 April 2019, the Wife is at liberty to list the property for auction with the same Real Estate Agent and agree to the following terms:
(a)Such auction take place within one month from the date of placing the property for sale by public auction or as soon as practicable thereafter.
(b)The reserve price for such auction shall be determined by as agreed between the Wife and the Real Estate Agent.
(c)Failing agreement of the reserve price within seven days of placing the property for sale by auction, the sale price shall be determined by a valuer appointed by the Real Estate Agent Institute of NSW whose direction shall be final and binding and the cost of such appointment and valuation to be met solely by the Husband, or as otherwise agreed between the parties.
(d)In the event that the bidding at the auction does not reach reserve…

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 & TERZI

Details

AGLC: TERZI & TERZI [2019] FamCA 357
Case: [2019] FamCA 357
Decision Date: 31 May 2019

CaseChat Overview and Summary

In *Terzi & Terzi*, Foster J of the Family Court of Australia considered an application by the wife for urgent interim property orders concerning the matrimonial home. The wife sought orders for the sale of the property due to the husband's failure to make mortgage repayments for four months and his subsequent cessation of engagement with the court proceedings. The husband did not appear at the hearing.

The primary legal issue before the court was whether to grant the wife's application for an undefended interim sale of the matrimonial home, given the husband's default and the wife's stated need for urgent orders. The court was required to determine the terms of such a sale, including the method of listing, reserve price determination, and the distribution of sale proceeds.

Foster J reasoned that the husband's non-compliance with mortgage obligations and his withdrawal from the proceedings necessitated intervention to protect the wife's interests and preserve the asset. The court applied principles relating to the urgent sale of matrimonial property in circumstances of financial distress and non-engagement by one party. The court made orders for the property to be listed for sale by private treaty, with liberty to list by auction if not sold by a specified date. The orders detailed the process for setting a reserve price, the distribution of proceeds to cover the mortgage, sale expenses, legal costs, and a payment of $30,000 to the wife, with the balance to be held in trust pending further order. The husband was also ordered to maintain the property and cooperate with the sale process, and to transfer the wife's share in his business to him. The court also made provision for the Registrar to execute documents if either party failed to do so.

Orders

Orders of the court

ORDERS MADE ON 15 APRIL 2019

UPON NOTING THERE IS NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT HUSBAND IN THESE PROCEEDINGS AND UPON HEARING MR CAIRNS OF COUNSEL ON BEHALF OF THE WIFE

That the Application in a Case filed 7 March 2019 by the wife proceed to undefended hearing.

That the parties shall do all acts and sign all documents, deeds and instruments necessary to list property, B Street, Town C (Lot … in Deposited Plan … (‘the Town C property’) for sale by private treaty with Company J at Town C, or other such Real Estate Agent as nominated by the wife (‘the Real Estate Agent’).

That the Wife nominate and instruct a conveyancer or solicitor of her choice to act on the sale of the Town C property.

That in the event that the Town C property has not sold by 15 April 2019, the Wife is at liberty to list the property for auction with the same Real Estate Agent and agree to the following terms:

(a) Such auction take place within one month from the date of placing the property for sale by public auction or as soon as practicable thereafter.

(b) The reserve price for such auction shall be determined by as agreed between the Wife and the Real Estate Agent.

(c) Failing agreement of the reserve price within seven days of placing the property for sale by auction, the sale price shall be determined by a valuer appointed by the Real Estate Agent Institute of NSW whose direction shall be final and binding and the cost of such appointment and valuation to be met solely by the Husband, or as otherwise agreed between the parties.

(d) In the event that the bidding at the auction does not reach reserve price the Wife may negotiate with the highest bidders or any other interested person and effect a sale of the Town C property at a price that is not more than five per cent below the reserve price.

That upon completion of the sale of the Town C property the parties shall distribute the sale proceeds as follows:

(a) In discharge of the mortgage/s secured over the Town C property.

(b) In payment of the Real Estate Agent’s commission and expenses on the sale.

(d) In payment of proper legal costs and disbursements of each of the parties of and incidental to the sale following production of genuine receipts.

(e) In adjustment of rates, levies and taxes on the Town C property.

(f) In payment to the Wife of the sum of $30,000.00.

(g) Pending further order, the balance is held in the Trust account of the Real Estate Agent appointed in accordance with these orders.

Pending the sale of the Town C property, the Husband shall:

(a) Keep the property in good order and repair.

(b) Co-operate in all reasonable ways with requests by Real Estate Agents and/or prospective purchasers including but not limited to:

(i) Providing keys to obtain access.

(ii) Doing all things necessary to facilitate access to the property at all reasonable times and facilitating access for inspection without interference.

(c) Maintain the property in a presentable condition so as to facilitate the sale including but not limited to presenting the property in a neat and tidy condition at all times when the property is subject to inspection.

(d) Do all things necessary to facilitate a sale at the earliest possible time.

(e) Both parties shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the property being effected.

(f) And give vacant possession not less than 14 days before settlement.

Pending sale of the Town C property the Husband shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the property incurred prior to the date of the sale and shall make all such payments as and when they fall due.

That the parties shall sign all documents, deeds and instruments necessary to cause the transfer of the Wife’s share in the Husband’s business to the Husband.

That in the event that either party fails to execute any deed or instrument necessary to give effect to these orders within seven days of being requested to do so, the Registrar of the Family Court of Australia at Parramatta shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and do all acts and things as may be necessary to give validity to the operation of the deed or instrument.

The wife’s costs of and incidental to the Application in a Case are reserved.

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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