VARDY & VARDY

[2013] FamCA 365

FAMILY COURT OF AUSTRALIA

VARDY & VARDY [2013] FamCA 365

FAMILY LAW ─ INTERIM PROPERTY SETTLEMENT APPLICATION ─ Where the wife sought an order that a property be sold and an amount of money be paid to her by way of interim property settlement ─ Where the husband asserted that his mother made a significant contribution to the property ─ Where it was conceded by counsel for the wife that in the event that the husband’s mother is found to have made the contribution asserted, then the wife’s entitlement to property settlement may be exhausted and thus not appropriate to make an order for interim property settlement ─ Where the husband received a notice from the bank to the effect that the mortgage on the property was in arrears and the bank wished to exercise its power of sale ─ Where the husband did not tell the wife that he had entered into an arrangement with the bank to pay an amount per month, in consideration of which the bank would hold back on the default notice ─ Where if the wife had been made aware of the arrangement which had been reached between the husband and the bank, the wife would not have pressed her interim property settlement application ─ Where in the circumstances the husband agreed that it was appropriate that the he pay at least a proportion of the wife’s costs which have been thrown away by his failure to keep her informed of the arrangements with the bank ─ Wife’s Interim Property Settlement Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Vardy

RESPONDENT: Mr Vardy

FILE NUMBER: SYC 5082 of 2012

DATE DELIVERED: 13 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 13 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sproston

SOLICITOR FOR THE APPLICANT: Alexanders Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. That the application of the wife contained in her Application in a Case filed on 12 April 2013 be dismissed.

2. That within 3 months of this date the husband pay the wife’s costs thrown away in the sum of $3000.

3. That the St George Bank is Authorised to provide to the wife as she may request copies of any correspondence between the bank or the bank’s solicitors and the husband in relation to the mortgage over the property at … B Street, Suburb C.

IT IS NOTED

1. That the address for service of the husband is … B Street, Suburb C.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vardy & Vardy 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 5082 of 2012

Ms Vardy

Applicant

And

Mr Vardy

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before the Court is an application by the wife, Ms Vardy, (“the wife”) for an order that a property be sold, and consequently that an amount of money be paid to the wife by way of interim property settlement.  The application is opposed by Mr Vardy (“the husband”).

2. The parties married in July 2008 and separated in March 2011.  They have one child, D, who was born in March 2010. 

3. The property to which the application relates is a property at B Street, Suburb C, which was purchased by the husband prior to the cohabitation of the parties.  The mortgagee bank has issued a notice seeking possession because mortgage payments are in arrears.  The evidence before the Court would suggest that the value of the Suburb C property is in the vicinity of $1.4 million, and at the present time the amount owing to the bank, taking into account the bank’s legal costs and the costs of sale, would result in a net amount available if the property were sold, of approximately $400,000. 

4. The husband says that his mother has contributed $300,000 to the current equity in the property.  That is a matter strongly in dispute between the parties, but nevertheless for the purpose of an interim application a matter to be taken into account. 

5. It is common ground between the parties that another property which was owned by the husband prior to cohabitation has been sold, and from the proceeds of sale of that property, the wife has received approximately $60,000.  It is properly conceded by counsel for the wife that in the event that the husband’s mother is found to have contributed $300,000 to the property at Suburb C, then the wife’s entitlement to property settlement may have been exhausted.  In those circumstances, it is not appropriate to make an order for interim property settlement.

6. The next matter before the Court relates to the wife’s application that the property at Suburb C be sold, consequent to the husband’s having received from the St George Bank, a notice to the effect that the mortgage is in arrears and the bank wishes to exercise its power of sale. 

7. The wife has attempted, through voluminous correspondence with the husband, to ascertain the state of the negotiations between the bank and the husband.  The husband has refused or declined to provide her with any information.  What the husband specifically did not tell the wife, prior to the matter coming to Court today, was that he had entered into an arrangement with the bank to pay an amount of $8000 per month, in consideration of which the bank would hold back on the default notice. 

8. Counsel for the wife says, and I accept, that if the wife had been aware of the arrangement which had been reached between the husband and the bank the application would not have been pressed before me today.  However, the application for the sale of the house is now proven to be premature, and that application will be dismissed.  In the circumstances which I have set out, the husband agrees that it is appropriate that the he pay at least a proportion of the wife’s costs which have been thrown away by his failure to keep her informed of the arrangements with the bank, and I order that the husband within three months pay to the wife’s solicitors the sum of $3000 on account of costs thrown away in relation to today’s proceedings. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 May 2013.

Associate: 

Date: 24 May 2013