VURNIK & VURNIK - [2020] FamCA 1007

FAMILY COURT OF AUSTRALIA

VURNIK & VURNIK

[2020] FamCA 1007

FAMILY LAW – PROPERTY – where respondent husband has consistently failed to participate in proceedings and to file documents – where applicant wife seeks to ready one property for sale and sell that property – where proceeds of sale will form part of capital in parties’ superannuation.

FAMILY LAW – INJUNCTIVE RELIEF – it is just and convenient as between the parties for the wife to be able to secure and ready the Suburb J property for sale and to be reimbursed for those expenses from the proceeds of sale of that property and to apply the proceeds in payment of specified liabilities.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Vurnik

RESPONDENT:

Mr Vurnik

FILE NUMBER:

MLC

12678

2018

DATE DELIVERED:

10 November 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

10 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Vurnik in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

No appearance by or on behalf of the husband

SOLICITOR FOR THE RESPONDENT:

Orders

The wife’s amended Initiating Application filed 3 November 2020 be adjourned to the Judicial Duty List on 15 February 2021 at 10.00 am.
The wife be and is hereby authorised to execute any documents and do any things in her capacity as a director of F Pty Ltd ACN …54 as trustee for H Super Fund (“the superannuation fund”) and in the place of the husband Mr Vurnik who is also a director of F Pty Ltd to sell the property at G Street, Suburb J (“the Suburb J property”).
The wife have sole conduct of the sale of the Suburb J property on such terms and conditions as she considers appropriate.
The wife be and is hereby entitled to enter and remain at the Suburb J property for the purpose of effecting any works necessary to reasonably ready the Suburb J property for sale.
Pending further order of the Court, the wife be entitled to sole use and occupation of the Suburb J property and the husband be and is hereby restrained by injunction from attending at or entering or remaining in the Suburb J property other than as provided for in paragraph 6 of this Order.
Within 30 days of service upon the husband of this Order, the husband notify the wife in writing of a date and time in December 2020 at which he proposes to attend the Suburb J property and remove from the Suburb J property any goods, chattels, or personalty in the Suburb J property.
In the event that the wife does not receive notice from the husband in accordance with paragraph 6 of this Order, the wife be and is hereby entitled to dispose of any goods, chattels, or personalty in the Suburb J property as she considers fit and not necessarily for value.
In the event that the wife receives notice from the husband in accordance with paragraph 6 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: VURNIK & VURNIK [2020] FamCA 1007
Case: [2020] FamCA 1007
Decision Date: 10 November 2020

CaseChat Overview and Summary

In the matter of *Vurnik & Vurnik*, Bennett J of the Family Court of Australia considered an application by the wife concerning property division. The dispute arose from the husband's consistent failure to participate in the proceedings and file necessary documents. The wife sought orders to prepare a specific property, the "Suburb J property," for sale and to manage the sale process, with the proceeds intended to form part of the capital in the parties' superannuation.

The primary legal issues before the court were whether it was just and convenient to grant the wife sole conduct of the sale of the Suburb J property, to authorise her to take steps to ready the property for sale, and to permit her reimbursement for expenses incurred in this process from the sale proceeds. The court also considered the husband's right to remove his personal belongings from the property and the subsequent disposal of any remaining items.

Bennett J reasoned that it was just and convenient to grant the wife significant control over the sale of the Suburb J property due to the husband's non-participation. The court authorised the wife, in her capacity as a director of the trustee company for the superannuation fund, to execute documents and take all necessary actions to sell the property. She was granted sole conduct of the sale, the right to enter and remain at the property to prepare it for sale, and sole use and occupation pending further order. The husband was given a limited window to remove his personal effects, failing which the wife was authorised to dispose of them. The court also detailed how the proceeds of sale were to be applied, including costs of sale, outstanding liabilities related to the property, reimbursement for insurance, payment of ASIC liabilities for the trustee company, and the balance to be held pending further orders. Liberty was reserved for the husband to apply to vary or set aside the order within 14 days of service.

Orders

Orders of the court

The wife’s amended Initiating Application filed 3 November 2020 be adjourned to the Judicial Duty List on 15 February 2021 at 10.00 am.

The wife be and is hereby authorised to execute any documents and do any things in her capacity as a director of F Pty Ltd ACN …54 as trustee for H Super Fund (“the superannuation fund”) and in the place of the husband Mr Vurnik who is also a director of F Pty Ltd to sell the property at G Street, Suburb J (“the Suburb J property”).

The wife have sole conduct of the sale of the Suburb J property on such terms and conditions as she considers appropriate.

The wife be and is hereby entitled to enter and remain at the Suburb J property for the purpose of effecting any works necessary to reasonably ready the Suburb J property for sale.

Pending further order of the Court, the wife be entitled to sole use and occupation of the Suburb J property and the husband be and is hereby restrained by injunction from attending at or entering or remaining in the Suburb J property other than as provided for in paragraph 6 of this Order.

Within 30 days of service upon the husband of this Order, the husband notify the wife in writing of a date and time in December 2020 at which he proposes to attend the Suburb J property and remove from the Suburb J property any goods, chattels, or personalty in the Suburb J property.

In the event that the wife does not receive notice from the husband in accordance with paragraph 6 of this Order, the wife be and is hereby entitled to dispose of any goods, chattels, or personalty in the Suburb J property as she considers fit and not necessarily for value.

In the event that the wife receives notice from the husband in accordance with paragraph 6 of this Order that the husband fails or neglects to remove any goods, chattels or personalty from the Suburb J property in accordance with the notice, the wife be and is hereby entitled to dispose of any goods, chattels, or personalty in the Suburb J property as she considers fit and not necessarily for value.

The notice provided for in paragraph 5, to be given by the husband to the wife, be in writing and be sent electronically by email to the wife’s address, ...

10.

Upon settlement of the sale of the Suburb J property, the wife apply the proceeds of sale as follows:

(a) To pay costs of and incidental to the sale;

(b) To pay all non statutory outstanding liabilities of and with respect to the property, which do not form an adjustment on the settlement of the sale of the property, including but not limited to electricity, gas, rubbish removal, building and works to ensure that the property is safe and not hazardous, or council fees. All such reasonable costs and expenses be supported by a receipt or other proof of payment;

(c) To reimburse the wife in relation to monies paid to insure the Suburb J property any such reimbursement to be supported by a receipt from the insurance company or other proof of payment;

(d) To pay any outstanding liabilities of F Pty Ltd ATF the superannuation fund owing to ASIC;

(e) To pay the balance into an account in the name of the applicant wife and trustee for the superannuation fund pending further Order of the Court.

11.

For the avoidance of doubt, the adjustments on settlement of the sale of the Suburb J property will include outstanding rates, water charges, land tax and any other statutory charges attributable to the property.

12.

I reserve to the wife liberty to make application subsequently for reimbursement of all reasonable costs and disbursements incurred by her, on behalf of the trustee of the superannuation fund, to ready the Suburb J property for sale.

13.

The wife effect service of this Order on the husband by sending same electronically by email to the husband’s address (per the notice of address for service filed 25 March 2019) being ... . In due course the wife file and serve an affidavit of service having been effected in compliance with this Order.

14.

I reserve to the husband liberty to apply to vary or set aside this Order or as he may be advised by filing and serving an application in a case not later than 14 days following service of this Order upon him by the wife.

15.

The wife file any further amended initiating application upon which she seeks to rely, which complies with the Family Law Rules 2004 in that it specifies with precision the final orders sought in relation to an alteration of property interests and the husband file and serve any response thereto within 28 days of service upon him of that amended initiating application, such service to be effected by electronic means, that is, by email.

16.

I reserve to the wife and/or to the husband and the wife by consent, liberty to secure an administrative adjournment of the hearing in the Judicial Duty List on 15 February 2021 in the event that the Suburb J property has not been sold. For the purpose of securing an administrative adjournment the wife contact my Associate, ... .

17.

I reserve liberty to the parties or either of them to seek that any future interim application for compliance or implementation of this Order be listed before me within 7 days for directions.

18.

For the avoidance of doubt, the wife is at liberty to provide a sealed copy of this Order to any person connected with the marketing or sale of the Suburb J property or the readying of the Suburb J property for sale.

19.

My reasons for decision be transcribed and when transcribed be settled and distributed to the parties, by email to their respective address for service.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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