Vadisanis and Vadisanis (No 2)

[2015] FamCA 961

FAMILY COURT OF AUSTRALIA

VADISANIS & VADISANIS (NO 2) [2015] FamCA 961

FAMILY LAW – PROPERTY – husband appointed Trustee for sale of property – Property to be sold – Proceeds to be distributed in agreement with previous orders.

APPLICANT: Mr Vadisanis

RESPONDENT: Ms Vadisanis

FILE NUMBER: SYC 6377 of 2008

DATE DELIVERED: 6 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 6 October 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No Appearance

Orders

IT IS ORDERED

1. That Mr Vadisanis (“the Husband”) be appointed Trustee for sale of the property known as W Street, Town E in the State of new South Wales (“the property”) being the land described in Folio Identifier …/...

2. That in order to implement Order 1 the husband shall forthwith:

   (a)   Appoint a real estate agent to market the property;

   (b)  Appoint a solicitor to conduct the conveyance.

3. That the husband in his capacity as Trustee for sale be authorised to sign any document required to give effect to these Orders.

4. That the proceeds of the sale of the property be distributed in the following order and priority:

   (a)   In payment of any registered encumbrance

   (b)  In payment of selling costs including but not limited to agent’s commission and solicitor’s costs

   (c)  The balance distributed in accordance with the Order 5 made 13 March 2015.

5. That the wife do all acts and things required to facilitate the sale of the property and, without limiting this order, allow the selling agent to organise inspections as required by the selling agent, maintain the property in reasonable condition for inspection and give vacant possession at the completion of the sale.

6. That the wife be restrained from doing any act or thing which might impede the sale of the property.

7. For the purpose of Order 5(e) made 13 March 2015, the rate of interest is 8 per cent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym <pseudonym> has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6377 of 2008

Mr Vadisanis

Applicant

And

Ms Vadisanis

Respondent

REASONS FOR JUDGMENT

1. In this matter, orders were made at the conclusion of a defended hearing in relation to the adjustment of property between the husband, the wife, and the husband’s mother.  On 13 March 2015, final orders were made, which provided that the wife, who told the Court that she wished to have the opportunity to retain the property owned by the parties in Town E, have three months to pay certain sums set out in the orders to the husband and to trusts to be set up for the parties’ two children.  The order of the Court was that upon the wife paying the said sums, the husband was to transfer to the wife the whole of his right, title, and interest in a property at W Street in Town E, which is held jointly.

2. The wife did not pay the sums set out in the order by the due date.  The matter came before the Court on 22 September 2015 on the husband’s application to enforce the orders of 13 March 2015 and be appointed the trustee for sale.  On that day, the wife appeared by telephone.  She told the Court that although she had received the husband’s application on 16 September 2015 at 12.56 pm, she had not looked at the documents and she asked the Court for the opportunity to put on material in response to the husband’s application.  An order was made that the wife file and serve any material upon which she sought to rely in response by not later than 4 pm on 30 September 2015.

3. When the matter came before the Court today there was no appearance by the wife, and she had made no arrangement, as she did on the prior occasion, to appear by telephone.  On 30 September 2015, the wife emailed to the husband a draft affidavit, which was neither signed nor witnessed, but that affidavit has not been filed with the Court. 

4. The orders which were made on 13 March 2015 required the wife to make the payments set out therein by 13 June 2015.  She has not done so.  Despite the husband’s requests to her that, in compliance with the orders, she proceed with the sale of the property, she has not done so.

5. No application has been received by the Court pursuant to section 79A of the Family Law Act 1975 (Cth) to set those orders aside. Accordingly, the only action which is open to the Court is to enforce the orders and the only application before the Court is the husband’s application to enforce by way of appointment of the husband as trustee for sale.

6. Both of the parties in these proceedings have represented themselves in the enforcement proceedings.  As is clear from the difficulties which the wife encountered in attempting to raise finance to comply with the orders of 13 March 2015, it is necessary for a solicitor to be instructed in relation to the conveyance, there being a number of caveats on the property, and the orders which I will make will require the husband to engage a solicitor to conduct the conveyance.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 October 2015.

Associate:

Date:  6 October 2015