WARRICK & MIA - [2020] FamCA 365

FAMILY COURT OF AUSTRALIA

WARRICK & MIA

[2020] FamCA 365

FAMILY LAW – INJUNCTION – Application for removal of caveat – Where application dismissed on terms as to sale or refinance.

FAMILY LAW – SECURITY FOR COSTS – Application by the wife that the deceased husband’s estate provide security for costs – Where consideration of applicable principles – Where application dismissed.

FAMILY LAW – INTERIM PROPERTY – Application by the husband’s estate for sale of property – Orders made that should the property sell a sum representing 40 per cent of the net proceeds of sale be held in an interest bearing controlled money account in trust for both parties pending further orders.

Family Law Act 1975 (Cth) ss 79, 114
Family Law Rules 2004 (Cth) r 19.05

Searle Holdings Pty Ltd & Pencious and Anor (Security for Costs) [2014] FamCAFC 58
Warrick & Mia [2018] FamCA 426

APPLICANT:

Mr Y Warrick as Executor of the Estate of the Late Mr Warrick

RESPONDENT:

Ms Mia

FILE NUMBER:

PAC

845

2017

DATE DELIVERED:

14 May 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Fong of Just In Case Legal

COUNSEL FOR THE RESPONDENT:

Mr Todd

SOLICITOR FOR THE RESPONDENT:

Du And Associates

Orders

That the respondent wife’s application for removal of caveat be dismissed.
That the respondent wife’s application for security for costs be dismissed.
That the wife shall be and is hereby permitted to sell the property at D Street, Suburb M for the best price reasonably obtainable provided that the sale price shall be not less than $1,500,000 without the consent in writing of the applicant and that upon sale the gross proceeds of sale be paid as follows:
(a)      In payment of agent’s commission on sale and selling legal costs;
(b)      In payment of any contract adjustments;
(c)In payment of 40 per cent of the balance then remaining to an interest bearing controlled money account in the joint names of the parties’ solicitors in trust for the parties with the sum of $100,000 to be paid out therefrom to the applicant or as he may direct in writing and the balance to remain pending further order; and
(d)      As to the balance then remaining to the wife or as she may direct,
provided always that the applicant shall upon settlement of the sale provide on settlement a duly executed withdrawal of caveat so as to facilitate the sale completing.
That the wife, should she otherwise elect to do so, is hereby permitted to mortgage the said property for a total sum not exceeding $500,000 provided that from any sum borrowed she pay to the applicant, or as he may direct in writing, the sum of $100,000 by way of partial property adjustment with the remaining funds borrowed to be disbursed as the wife may direct provided always that the applicant as caveator shall consent to the registration of such mortgage in…

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 WARRICK & MIA

Details

AGLC: WARRICK & MIA [2020] FamCA 365
Case: [2020] FamCA 365
Decision Date: 14 May 2020

CaseChat Overview and Summary

The parties to this proceeding were the wife and the deceased husband's estate, represented by the applicant. The dispute concerned interim property orders and the removal of a caveat. The matter came before Foster J.

The court was required to determine whether to grant the wife's application for the removal of a caveat, her application for security for costs from the deceased husband's estate, and the estate's application for the sale of a property.

Foster J dismissed the wife's applications for the removal of the caveat and for security for costs. The court made orders permitting the wife to sell the property at D Street, Suburb M, provided the sale price was not less than $1,500,000 without the applicant's consent. Upon sale, after payment of sale costs and adjustments, 40 per cent of the remaining proceeds were to be held in a controlled money account in trust for both parties, with $100,000 to be paid to the applicant and the balance to remain pending further order. The remaining balance of the sale proceeds were to be paid to the wife. The applicant was ordered to provide a withdrawal of caveat upon settlement to facilitate the sale. Alternatively, the wife was permitted to mortgage the property for up to $500,000, provided $100,000 of the borrowed sum was paid to the applicant, with the remaining funds to be disbursed as the wife directed. The applicant was required to consent to the mortgage in priority to his caveat. Costs were reserved.

Orders

Orders of the court

That the respondent wife’s application for removal of caveat be dismissed.

That the respondent wife’s application for security for costs be dismissed.

That the wife shall be and is hereby permitted to sell the property at D Street, Suburb M for the best price reasonably obtainable provided that the sale price shall be not less than $1,500,000 without the consent in writing of the applicant and that upon sale the gross proceeds of sale be paid as follows:

(a) In payment of agent’s commission on sale and selling legal costs;

(b) In payment of any contract adjustments;

(c) In payment of 40 per cent of the balance then remaining to an interest bearing controlled money account in the joint names of the parties’ solicitors in trust for the parties with the sum of $100,000 to be paid out therefrom to the applicant or as he may direct in writing and the balance to remain pending further order; and

(d) As to the balance then remaining to the wife or as she may direct,

provided always that the applicant shall upon settlement of the sale provide on settlement a duly executed withdrawal of caveat so as to facilitate the sale completing.

That the wife, should she otherwise elect to do so, is hereby permitted to mortgage the said property for a total sum not exceeding $500,000 provided that from any sum borrowed she pay to the applicant, or as he may direct in writing, the sum of $100,000 by way of partial property adjustment with the remaining funds borrowed to be disbursed as the wife may direct provided always that the applicant as caveator shall consent to the registration of such mortgage in priority to his caveat.

That costs be reserved.

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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