Turner and Kemp

[2010] FamCA 697

FAMILY COURT OF AUSTRALIA

TURNER & KEMP [2010] FamCA 697

FAMILY LAW – ENFORCEMENT – Of consent property orders – Sale of property – s 106(A) – Costs

APPLICANT: MS TURNER

RESPONDENT: MR KEMP

FILE NUMBER: MLC 425 of 2010

DATE DELIVERED: 5 AUGUST 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: JUSTICE YOUNG

HEARING DATE: 5 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR BRADSHAW

SOLICITOR FOR THE APPLICANT: TOLHURST DRUCE & EMMERSON

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT the property situate at and known as K property in the State of Victoria and being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“K property”) be immediately offered for sale by public auction (“the sale”) so as to comply with paragraph 3 of the final consent orders made by this Court on 19 January 2010.

2. THAT the applicant have the sole conduct of the sale of K property and in particular she:

   (a)may appoint the real estate agent to conduct the auction and sell K property;

   (b)determine the appropriate terms and conditions of sale of K property, but so as to maximise its sale price;

   (c)negotiate a reserve price, and if appropriate have discussions with the respondent upon that issue, but in default the reserve price is to be fixed as between the applicant and the appointed real estate agent.

3. THAT the respondent co-operate in all ways with the sale and ensure that K property is presented in a clean and proper condition for sale and co-operate with all inspections from potential purchasers and on the auction day itself.

4. THAT otherwise liberty is reserved to both parties to apply to the Court, upon proper documentation served and filed for any other order necessary to enforce the s 79 orders or otherwise to comply with this order.

5. THAT pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar, or other officer of the Melbourne Registry of the Family Court of Australia be appointed to execute the contract, transfer or all other deeds or documents necessary to sell and settle the sale of K property, and to be signed in the name of Mr Kemp and otherwise do all such acts and things required to give validity and operation to this Order and the conclusion of the sale of K property.

6. THAT further to paragraph 3(c) of the Orders pronounced 19 January 2010 the respondent’s obligations to pay interest at the rate agreed upon, and on an adjusted monthly basis is to commence as and from 18 February 2010 and continue until all monies outstanding have been paid to the applicant.

7. THAT the respondent pay, from the proceeds of sale of K property, a sum of $2,600 towards the applicant’s legal costs and disbursements including such follow up action as is required to serve a sealed copy of this Order upon him.

8. THAT forthwith the solicitors for the applicant serve the respondent, both personally and by pre-paid post to K a sealed copy of this Order, together with the extempore reasons for judgment (when available) and a letter of explanation of the Orders and any further information as to the process undertaken by the applicant to sell K property.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

10. THAT the initiating application of the applicant filed 26 May 2010, both as to final and interim orders be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 425 of 2010

MS TURNER

Applicant

And

MR KEMP

Respondent

REASONS FOR JUDGMENT

1. The matter of Turner & Kemp has been listed before me on short notice as a duty list matter.  Mr Bradshaw, solicitor, appears for the applicant.  There is no appearance by, or on behalf of, the respondent.  I had the respondent called out of court and he was not present or within the vicinity of the court.  By way of background, there were consent orders pronounced in this matter by Registrar Sikiotis on 19 January 2010.  There were consent orders signed by each of the parties and presented to the court.  Those orders were dated 14 January 2010.  They were signed by both parties and, on the basis of that agreement, the orders were pronounced by consent.  Those orders provided for the respondent to receive, by way of a payment from the applicant, the sum of $35,000 within 30 days;  and, in default of payment, interest was thereafter to accrue at the rate of 11 per cent per annum, adjusted monthly.

2. Upon making that payment, the title to the jointly owned property at K was then to be transferred to the respondent, he to take over payment of all mortgage debt and liability secured against title, or owing upon that property.  He retained the ongoing use and occupation of that property.  Otherwise, the orders contained the general catch-all provisions with each party retaining their personal assets and superannuation and each being liable for their own debts and liabilities.  A further order was made for the severance of the joint tenancy in the property, though that does not discharge the respondent’s obligations to comply with the orders to pay money to the applicant and now, by way of enforcement given his failure to pay the required sum plus interest, to now sell the property.

3. The application now before the court was issued 26 May 2010. The applicant therein seeks interim and final orders for the immediate sale of that K property, she to have the conduct of the sale and for an order to be made pursuant to section 106A of the Family Law Act 1975 (Cth) for an officer of the court to be appointed to execute all documents in the name of the respondent to facilitate both the sale and the settlement of the sale of K property. In support of that application, the applicant has filed an affidavit setting out the history of the consent orders, and the subsequent correspondence between her solicitor and the respondent.

4. In particular there was a return date of this matter on 25 June of this year, and at that stage the respondent appeared in person and Mr Bradshaw represented the applicant.  On that day the proceedings were adjourned to this day to give to the applicant the opportunity to pay the required moneys owing under the consent orders.  It is on the basis that he was in court and heard and was party to the orders of Registrar Sikiotis that the procedural basis of his knowledge of the orders is established. 

5. In any event, I am advised by the applicant’s solicitor that there has both been a discussion and a letter with the applicant.  I am satisfied of service upon him and, particularly, of the notice of the hearing this day.  For whatever reason, the respondent has ignored his requirement to be at court this day to speak on his own behalf or to protect his own financial interests.  Thus the court must act.

6. I will make an order by way of enforcement that the applicant have the sole conduct of the sale of K property.  It clearly must be sold because of the default and lack of any positive conduct by the respondent.  It should be sold by public auction, unless strong advice to the contrary is received by the selling real estate agent.  I will authorise the applicant to solely select and appoint the real estate agent to conduct the auction.  It should be sold on a cash contract with the usual settlement terms of 90 days or thereabouts. 

7. As to the reserve price, it is important to maximise the price at which K property sells, and thus the applicant and the selling agent should confer, both as to the manner and terms of sale and the reserve price, and use all of their best endeavours to obtain the maximum price.  That is important because the way the orders are structured after payment of mortgage debt and liability, and then the payment to the applicant of $35,000 plus interest and cost, the balance is then to be paid out to the respondent.

8. I am asked to make an order under section 106A of the Act. I will make that order which has the effect of empowering and authorising a Registrar of this court to sign documents in the name of the respondent. I would not have made that order had the respondent been at court today or showed some interest or concern as to the orders, and the enforcement application now before me. The obligation upon the respondent is that he must co-operate with the sale, and prepare and present K property in a manner to achieve the best price. The way the orders are structured he has every incentive because he receives the sum remaining after all liabilities and payments, including interest and costs, are made. Thus, the higher the price, the greater the balance, the more money is paid to the respondent. That should be an incentive to co-operate and be actively involved in maximising the attractiveness of K property, and thus the sale price.

9. Otherwise, the current orders of the court proscribe that interest in default is to be paid at 11 per cent per annum, adjusted monthly.  That means, in the context of these orders, that the applicant will be paid interest from 18 February of this year, adjusted monthly at that 11 per cent rate.  I adopt that rate only because it was the consent order of the parties applicable to this property, notwithstanding that it may differ from the rate prescribed from time to time within the Family Law Rules.

10. I will have these brief ex tempore reasons transcribed and placed upon the court file, and made available to the parties.  I am satisfied that the enforcement orders sought follow upon the consent orders and do no injustice whatsoever to the respondent.  Indeed, he must fairly understand and contemplate the fact that his non-appearance here today identifies an acquiescence to these orders.  The unfortunate aspect is that the appearance here today, the preparation and these orders come at a legal cost to the applicant and that cost will, pursuant to the Rules, be apportioned as against the respondent.

11. I have carefully considered, in the exercise of my discretion, both the request for payment of costs and the quantum of costs.  The commencement position for the Court is set out in s 117 of the Act and that is that each party pay their own costs unless the circumstances and justice of the case are such that an order for costs should be made in favour of one party.

12. I have carefully considered the various factors identified in sub-paragraph (2A) of s 117 of the Act and in all the particular circumstances of this case it is just that a costs order be made to the benefit of the applicant.  As to the quantum I have had a submission from the applicant’s solicitor and determined a figure, less than was asked for, that is in all of the circumstances just.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: