Tomkin and Tomkin

[2009] FamCA 1351

FAMILY COURT OF AUSTRALIA

TOMKIN & TOMKIN [2009] FamCA 1351

FAMILY LAW – PROPERTY – sale of property – conduct of sale

Family Law Act1975 (Cth)

APPLICANT: Mr Tomkin

RESPONDENT: Ms Tomkin

FILE NUMBER: SYC 1151 of 2007

DATE DELIVERED: 2 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 2 December 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawyers

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

Orders

1. That the orders of this Court made on 26 May 2008 in relation to the sale of the property at M in the State of New South Wales, be varied to the following effect:

   “a)That the wife will engage [Y agents] to have carriage of the sale in lieu of the current agents [W Agents].”

   b)That within 14 days from today’s date the solicitor for the wife will nominate to the solicitor for the husband 3 valuers for the purpose of identifying an appropriate reserve price for an auction of the property and the husband will nominate one of those valuers.

   c)The parties will do all things necessary and sign all documents, in particular the wife give instructions to the agents to offer the property for sale by auction in the first week in March 2010 at the reserve price, being the result of the valuation opinion given by the valuer chosen by the husband.

   d)In the first instance the husband will pay the costs of the nominated valuer.

2. Leave to either party to restore the proceedings to the list on giving 7 days’ notice to the Court and to the other party.

IT IS NOTED that publication of this judgment under the pseudonym Tomkin and Tomkin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1151 of 2007

MR TOMKIN

Applicant

And

MS TOMKIN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to the mechanism for selling a property at M.  The parties reached an agreement on 26 May 2008.  Orders were made in terms of their agreement by Le Poer Trench J of this registry, and the property at M hasn’t sold, and the parties disagreed about the impact of the wording of the orders on the requirements on them.  The background is that the property’s in the wife’s name.  They agreed to an order whereby the parties do all acts and things and sign all documents necessary to cause the property to be sold for the best price reasonably obtainable in the following manner, and the orders then dealt with the agent, the default mechanism for sale, and the option for sale in another way by agreement, a reserve price, in default of some other agreement, and a whole lot of other steps.

2. The parties, as I say, disagreed about the interpretation of it.  The reasons for the intimation I gave earlier today will appear from the discussions in the course of submissions, but the gist of it is that it seems to me that the parties’ intention was to deal with all aspects as best they could of the process of sale by reference to appointing solicitors, the obligations of the parties, the fixing of reserve prices, the timing of sale, the mechanism for sale, and the way in which the reserve price, or the price at which the property would be sold, would be determined in the event that it didn’t sell at the first hurdle.  The parties agreed to some aspects of the sale regime early on, it was offered for expressions of interest in the 7 to 7.25 range, they were told by an agent in October of last year that that was unrealistic, he recommended $6 million, there wasn’t an agreement about that, and the parties came to court today, I think they came to court on a previous occasion and the matter was adjourned.

3. The gist of it was, as I said to Mr Cumming during the course of submissions, I think the interpretation that the husband had, which placed a priority on the achievement of the best price reasonably obtainable, independent of any of the mechanisms set out in the subparagraphs of order 1, wasn’t an available interpretation.  I agree minds might differ about that.  But I put to the parties that it was essential, this was a machinery provision to achieve an outcome and the outcome hadn’t been achieved, and in the meantime I think the evidence is that the husband’s committed to a further purchase.  He’s concerned, obviously, that the wife isn’t as keen as he might be to sell the property in circumstances where she lives in it.  On the other hand, her case is that she just wants the best price obtainable because it’s the money that she’ll go forward with.  So, they’re both legitimate points of view, but the court’s obligation is to cause compliance with the order and the machinery orders needed to be fixed to do that.

4. There’s been submissions about some options and there is an agreement, albeit not fulsome agreement, about changing the agent from W Agency to Y Agency.  There’s no agreement about the reserve price.  There was an agreement about a further auction in the first week of March.  As to the reserve price, the wife’s proposal is that both parties accept a figure identified in a market appraisal she has.  The problem with that is it doesn’t bring an end to the property, it doesn’t address the husband’s concerns in relation to the realistic price, and so he proposes a mechanism, not unknown to family law, whereby an expert provides a valuation, and in this case the wife would have the opportunity of identifying three valuers, the husband would choose one.  In the first instance he’ll meet the costs.  If it doesn’t sell, or in any event if there’s an argument about who should bear the resulted cost associated with the sale, the matter can come back before the court.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  March 2010