Vico and Cavallaro

[2009] FamCA 1273

FAMILY COURT OF AUSTRALIA

VICO & CAVALLARO [2009] FamCA 1273

FAMILY LAW – PROPERTY – Enforcement

APPLICANT: Mr Vico

RESPONDENT: Ms Cavallaro

FILE NUMBER: SYF 4354 of 2005

DATE DELIVERED: 9 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 9 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cook

SOLICITOR FOR THE APPLICANT: STRATHFIELD LAW

COUNSEL FOR THE RESPONDENT: Mr Johnson

SOLICITOR FOR THE RESPONDENT: BURT & ALLEN

Orders

1. That the Application in a Case filed 2 November 2009 is dismissed.

2. That there be no order as to costs in regard to the Application in a Case filed 2 November 2009.

3. That if after 9am 18 January 2010 the Husband fails to permit any real estate agent or agents to inspect the property between 10.00am and 4pm and the agents or agents have given the Husband notice of that inspection by letter 2 days prior then the Husband shall vacate the property by 10.00am on Friday 22 January 2010.

4. That in the event that the Husband permits inspection after 9am 18 January 2010 the Husband shall vacate the property by Friday 10.00am on 29 January 2010.

5. That in the event that the Husband fails to permit inspection on failure to vacate at 10am 22 January 2010 a warrant in the form of that contained in Part C of the Enforcement Warrant filed by the Wife on 18 November 2009 shall issue to the Marshal of this Court or to such other enforcement officer of this Court as has relevant authority.

6. That in the event that the Husband does allow inspection but fails to vacate at 10am 29 January 2010 a warrant in the form of that contained in Part C of the Enforcement Warrant filed by the Wife on 18 November 2009 shall issue to the Marshal of this Court or to such other enforcement officer of this Court as has relevant authority.

7. That in the event the Husband has made a reasonable offer to purchase the former matrimonial home which has not been accepted by the Wife the Husband has leave to approach the Court on an urgent basis for further orders.

8. That the Husband is to pay the costs of the enforcement warrant on an indemnity basis as taxed such costs to be deducted out of any monies payable to him from the proceeds of the sale.

Notations:

A.That Justice Cohen has been informed by the Wife that the current market appraisal for the value of the former matrimonial home is between $1,000,000 and $1,100,000.

B.That the Husband was shaking his head on hearing the current market appraisal value suggesting that the appraisal is too high.

C.That the Husband has made an offer of $360,000 and that offer has been rejected by the Wife.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4354 of 2005

MR VICO

Applicant

And

MS CAVALLARO

Respondent

REASONS FOR JUDGMENT

1. I shall make an order that the husband vacate the property if, after 18 January at 9 am, the husband fails to permit any estate agent or agents appointed for sale of the C home by the wife to inspect the property and the agent or agents have given the husband notice of that inspection by a letter placed in his letterbox not less than two days prior to the inspection. The husband shall in that event vacate the property by 10 am on Friday 22 January 2010. 

2. In the event that he permits inspection, the husband shall vacate the property by Friday 29 January 2010 at 10 am.  And in the event of the husband failing to permit inspection, on failure by the husband to vacate the premises by 10 am on Friday 22 January, a warrant in the form of that contained in Part C of the enforcement warrant filed by the wife on 18 November 2009 shall issue to the Marshall of this court or other enforcement officer of the Court.

3. In the event that the husband does permit inspection and he has failed to vacate the premises by 10 am on Friday 29 January 2010 that warrant shall issue thereafter in accordance with the form contained in the enforcement warrant that I have already referred to.

4. The other condition in each instance for the husband to be required to vacate the premises is that the husband has made an offer that the wife has not accepted for the purchase of the property by those dates.  I shall give the husband, in the event that he has made an offer which has not been accepted, leave to approach the Court on an urgent basis for further orders. I had better warn him that any offer is not what I am talking about, it will have to be an offer which is a reasonable offer in view of what the property is worth. 

5. I will have it noted that I have been informed that the current market appraisal of the property is between one and one point one million.  I will note that the husband is nodding his head in indication that that is more than he is prepared to pay.  I will note that the husband has already made an offer of $362,000.

6. I will order that the husband pay the costs of the additional enforcement warrant which has been sought today.  Such costs, on an indemnity basis, are to be deducted from any moneys payable to him out of the sale. I should say why I have ordered indemnity costs.

7. The husband has habitually delayed or obtained the Court’s indulgence for his delay, then failed to act in the way that should have been available to him.  Once granted the Court’s indulgence, he has failed so all the way along in the proceedings since the original property orders were made.  It is very rare that enforcement orders are required.  This case has been one I am quite satisfied properly that there was a reason properly based to obtain a warrant to have the Marshall’s assistance in removing the husband from the former matrimonial home in circumstances where one could properly believe that he would be highly unlikely to vacate the premises without the assistance of the Marshall.

8. In those circumstances, to force the wife to continuously incur costs of making applications which were inevitably going to be successful and should have been known to the husband to be like that is grossly unfair and warrants an order; that is, unfair to the wife. The only just order which is warranted in the circumstances is one for indemnity costs.  So I will order the husband to pay indemnity costs of the enforcement warrant.

9. I have considered, in coming to this conclusion, the fact that the house is worth one point one million or one million and there is likely to be a net of $850,000 or more which is to be divided between the parties.  I’m not sure what the husband’s other assets are, but it seems to be that there will be money from the sale of the property which will enable the husband to be able to afford to pay an indemnity costs order.

10. The wife has been entirely successful in the application for the enforcement warrant and it has been created by the husband’s failure to comply with orders.  He does not have legal aid and he has a history of failure to comply with orders.  For those reasons I make an order for indemnity costs as taxed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:     

Date:              24 December 2009