Vu & Ton
[2021] FedCFamC1F 116
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vu & Ton [2021] FedCFamC1F 116
File number(s): MLC 7739 of 2019 Judgment of: JOHNS J Date of judgment: 10 September 2021 Catchwords: FAMILY LAW – PROPERTY – Sale of property – real property – substantial asset – appointment of selling agent – where sale is required to fulfil previous orders
FAMILY LAW – COSTS – Reserved – Fixed Amount – where the applicant’s lawyers withdrew last minute – where the hearing could not proceed as scheduled – where the respondent’s costs of the interim hearing were wasted
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 10 September 2021 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms Isaacson ORDERS
MLC 7739 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: Mr Vu
Applicant
AND: Ms Ton
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.That the applicant do all such acts and things as may be required to list the real property situate at and known as B Street Suburb C in the State of Victoria for sale forthwith.
2.That within 7 days the applicant do all acts and as may be required to appoint a selling agent registered with the Real Estate Institute of Victoria (REIV) to effect a sale of the Suburb C property and provide evidence of the appointment of the selling agent to the respondent, and in the event such evidence is not produced the respondent be permitted to request the President of the REIV or his nominee to appoint a selling agent for the Suburb C property.
3.The Application in a Case filed 15 June 2021 and the Response to Application in a Case filed 31 August 2021 be adjourned for hearing before me in the Judicial Duty List at 10.00am on 12 October 2021.
4.That the costs of the respondent of this day be reserved and fixed in the sum of $3,600.
5.That my Reasons for Judgment delivered this day be transcribed and retained on the Court file.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Vu & Ton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court today upon the Application in a Case of the applicant, Mr Vu, filed 15 June 2021. That application raises, essentially, four issues:-
·Firstly, whether there should be a discharge of orders made by me on 18 November 2020 regarding the application of the proceeds of sale of a property owned by him at B Street, Suburb C;
·Second, the applicant seeks orders in relation to the disbursement of the proceeds of sale of Suburb C;
·Third, he seeks orders requiring the respondent to withdraw caveats over properties owned by him at 2 J Street & 4 J Street, Suburb K (“the Suburb K properties”), and in G Street, Melbourne;
·Fourth, he seeks an order permitting him to register a mortgage in favour of his mother over the titles to the Suburb K properties.
That application is met by a Response to an Application in the Case filed on behalf of the respondent, Ms Ton, who also seeks orders in relation to the sale of the Suburb C property and the application of the sale proceeds from that property. She also seeks injunctive relief including, injunctions restraining the applicant transferring or remitting monies to China or other overseas bank accounts.
At the commencement of the day, the lawyers for the applicant sought and were granted leave to withdraw from the proceedings. The result of that application meant that the applicant, who is from China and requires the assistance of an interpreter, was left to represent himself.
Initially, it was his position that he sought to proceed with his application listed this day, it being his case that he is in dire financial circumstances and requires the capacity to deal with his assets so as to meet his day-to-day living expenses as well as his business expenses.
The hearing commenced. I spent some time explaining to the applicant, with the assistance of the interpreter, the hearing process. I then invited the applicant to identify the documents upon which he relies. Part of the documents relied upon by him included annexures to his affidavit filed 15 June 2021. There are some 14 documents identified in that affidavit which are to be annexed to the affidavit.
Those documents have not been provided to the Court by his former solicitors and the Court is not in a position to receive those documents from him, these proceedings being conducted by way of virtual hearing as a result of the current lockdown in Melbourne. Given the challenges the applicant faced representing himself virtually through an interpreter, and in circumstances where it is clear that all of the documents upon which he seeks to rely are not before the Court and are not capable of being put before the Court this day, I formed the view that it was inappropriate to continue with the hearing. I indicated to the parties that I was inclined to adjourn the applications for hearing before me in the Judicial Duty List on 12 October 2021.
Counsel for the respondent indicated, given that position, there were two matters she wished to agitate. The first matter raised is her client’s application that there be an order that the Suburb C property be sold. It was submitted on behalf of the respondent that in circumstances where it is common ground between the parties that the property is to be sold, orders should be made to give effect to those matters to ensure that the sale is not delayed by virtue of the adjournment.
The applicant conceded in his oral submissions that orders could be made for the sale of the property. However, he opposes the orders sought by the respondent as to the terms and conditions of the sale.
The applicant submitted that he has a selling agent for the Suburb C property, albeit he was reluctant to identify the agent whom he proposes to sell the property. Given the position between the parties is that the property should be sold, and in circumstances where the applicant seeks orders in relation to the disbursement of proceeds of sale, I am satisfied that it is appropriate that an order for sale be made.
To enable that order to be implemented, it is necessary therefore that arrangements be made for the appointment of a selling agent. I have significant concerns as to the applicant’s bona fides in relation to the sale in circumstances where he refuses to identify a selling agent. It is imperative that a selling agent be appointed in order for the sale to proceed; the Suburb C property is a substantial asset. The selling agent should be licensed real estate agent in the state of Victoria and a registered agent with the Real Estate Institute of Victoria.
To that end, I will make orders for the sale of the property and a further order that the applicant do all such acts and things within seven days to appoint a selling agent registered with the Real Estate Institute of Victoria. In the event that he does not so appoint a selling agent, I will provide that the respondent be permitted to request that the President of the Real Estate Institute of Victoria nominate a selling agent. That order will afford the applicant the opportunity to appoint an agent of his choosing. However, if he does not comply with the order, then another agent can be appointed using what is a standard nomination provision to ensure that an agent is so appointed to enable the sale to progress.
As to the other terms and conditions proposed by the respondent with respect to reserve prices, enabling the respondent to liaise with the selling agent and the like, I propose to stand those issues over to the adjourned hearing to ensure that the applicant has the opportunity to advance his submissions in relation to those matters through a lawyer and with all documents necessary to support his case.
The second issue raised by the respondent was the question of costs. She seeks an order that her costs of this day be reserved and fixed in the sum of $3,600. That application is made in circumstances where she did not have notice of the withdrawal of the applicant’s lawyers until shortly prior to the commencement of the hearing this morning.
The applicant opposes that order. I am satisfied, having regard to the late withdrawal of the applicant’s lawyer, which occurred this day that an order fixing and reserving the applicant’s costs is appropriate. I am not determining whether or not costs should be awarded; I am simply reserving the respondent’s entitlement to argue that she should be paid those costs at the adjourned hearing date.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Dated: 8 October 2021
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