Wallace and Wallace - [2012] FamCA 654

FAMILY COURT OF AUSTRALIA

WALLACE & WALLACE

[2012] FamCA 654

FAMILY LAW – PROPERTY – Injunctions - Sole occupancy to husband to enable sale of home to avoid mortgagee’s sale - Wife to vacate.

Family Law Act 1975 (Cth)

Blomley & Ryan (1956) 99 CLR 362
Hoult & Hoult [2011] FamCA 1023

APPLICANT:

Mr Wallace

RESPONDENT:

Ms Wallace

INTERVENOR:

H Pty Ltd

INTERVENOR:

W Pty Ltd

FILE NUMBER:

MLC

9861

2009

DATE DELIVERED:

30 July 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 July 2012

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INTERVENORS:

Ms Rozner

SOLICITOR FOR THE INTERVENORS:

Galilee Solicitors

Orders

That the wife vacate the property at Property M by 4.00 pm on 28 September 2012.
That from the date of the wife vacating the said property, the husband have sole occupancy thereof.
That the wife be restrained from injunction from further attending at the property after vacating it without written permission of the solicitors for the husband or if he is not represented, by written permission from the husband himself.
That the husband be responsible for the appointment of an agent for the sale of the real property.
That upon the settlement of the sale, the proceeds be applied as follows:
(a)      first, to pay all costs, expenses and commission of the sale;
(b)     secondly, to discharge the mortgage encumbering the property to the Bank of Queensland;
(c)      thirdly, to discharge the mortgage to H Pty Ltd and W Pty Ltd; and
(d)     fourthly, to deposit the balance in an interest bearing account in the joint names of the parties until further order.
That pursuant to s 106A of the Family Law Act 1975 (Cth), in the event that any party does not comply with the terms of these orders to give effect to a sale of the said property, the Registrar may sign any such documents as may be required in the name of the husband and the wife and for the purposes of this order, the Registrar may be satisfied upon receipt of an affidavit by the solicitor for either of the parties that such compliance has not been provided.
That all outstanding interim applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallace & Wallace 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 MELBOURNE

FILE NUMBER: MLC 9861 of 2009

Mr Wallace

Applicant

And

Ms Wallace

Respondent

And

H PTY LTD
(Intervenor)

And

W PTY LTD
(Intervenor)

REASONS FOR JUDGMENT

These are proceedings concerning a house owned by the husband and wife at N. The husband wants the court to sell it to prevent a mortgagee’s repossession. The wife opposes the orders for sale. She is currently residing in the property and on a rent-free basis.
This morning and by leave, the interveners were joined to the proceedings.…

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.

Continue reading Wallace and Wallace

Details

AGLC: Wallace and Wallace [2012] FamCA 654
Case: [2012] FamCA 654
Decision Date

CaseChat Overview and Summary

In *Wallace & Wallace*, the Family Court of Australia considered an application by Mr Wallace (the applicant husband) for orders to sell the parties' jointly owned home to avoid mortgagee repossession. Ms Wallace (the respondent wife) opposed the sale, seeking to retain the property as part of her settlement. Intervenors, H Pty Ltd and W Pty Ltd, who held a mortgage over the property, were joined to the proceedings.

The court was required to determine whether to grant orders for the sale of the property, despite the wife's opposition, and whether to grant sole occupancy of the property to the husband to facilitate the sale. A key issue was the wife's assertion that a guarantee she provided in relation to a mortgage was entered into under duress, rendering it unconscionable. The court also considered the wife's application for injunctions to prevent the third-party mortgagees from enforcing their rights.

Justice Cronin found that a sale of the property was necessary to protect the asset from mortgagee action, given the husband's changed financial circumstances and the default notice served by the third-party mortgagees. The court applied principles of unconscionability, referencing *Blomley & Ryan* and *Commercial Bank of Australia Ltd v Amadio*, but concluded that the wife, despite her admitted limited resources, had been legally represented and had voluntarily executed the guarantee. Consequently, the court found no unconscionability to prevent the sale. The wife's application for injunctions against the third parties was dismissed due to a lack of evidence supporting the application of Part VIIIAA of the *Family Law Act 1975* (Cth).

The court ordered the wife to vacate the property by a specified date, after which the husband would have sole occupancy and responsibility for arranging the sale. The proceeds of the sale were to be applied first to sale costs, then to discharge the mortgages, with any balance to be deposited into an interest-bearing account pending further order. The court also made orders pursuant to s 106A of the *Family Law Act 1975* (Cth) to facilitate the execution of necessary documents by the Registrar if a party failed to comply with the sale orders.

Orders