WEBB & WEBB

[2014] FamCA 148

FAMILY COURT OF AUSTRALIA

WEBB & WEBB [2014] FamCA 148

FAMILY LAW – ENFORCEMENT OF ORDERS – Parties consented to sale at a reserve price – Price offered after many months – Husband reluctant to sell and wishes to vary the order by oral application – Wife seeks s 106A order for sale – Husband unsuccessful – Order for costs.

Family Law Act 1975 (Cth)

Kohan and Kohan (1993) FLC 92-340
Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197

APPLICANT: Ms Webb

RESPONDENT: Mr Webb

FILE NUMBER: MLC 3776 of 2011

DATE DELIVERED: 14 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Ms Walker

SOLICITOR FOR THE RESPONDENT: Thexton Lawyers

Orders

1. That pursuant to s 106A(1) of the Family Law Act 1975 (Cth), the Court appoints Ms Webb to execute all documents to facilitate the sale of the property situate at J Street, Town P in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … in the name of Mr Webb.

2. That the husband pay the wife’s costs of these proceedings fixed in the sum of $3050.

3. That the wife’s application in a case filed 31 January 2014 be otherwise dismissed.

4. That the oral application of the husband this day be otherwise dismissed.

5. That the reasons this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Webb & Webb 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 3776 of 2011

Ms Webb

Applicant

And

Mr Webb

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the wife on 31 January 2014 in which she sought an order under s 106A of the Family Law Act 1975 (Cth) (“the Act”), to take the execution of documents out of the hands of the husband.

2. Today counsel for the wife has pursued that order, but has indicated that rather than have the Registrar put into that position, the Court authorise his client to sign the necessary documents based on the powers in s 106A of the Act.

3. The husband, who I note is absent because his daughter is receiving medical attention today, has indicated through his solicitor that if the Court was minded to make an order, there would be no opposition to the wife actually being the signatory rather than the registrar.

4. I turn then to the substance of this dispute.  This matter arose out of orders made by the court on 24 June 2013.  The relevant substantive order was very simple and, more importantly, an order that the court made at the request of the parties and with their consent.  It ordered that the parties’ real property be sold with an agent to be agreed with a default clause and then it to be sold by private sale or such method of sale as might be recommended by the agent, with a reserve price of $1.3 million or such other price as was recommended by the selling agent.

5. The first point to note is that, on the very day of the orders being made, the parties asked the court to note that they had reached agreement in relation to the selling agent, and the evidence is that since that day, there has been no sale of the property for a protracted period of time. 

6. These proceedings began with the wife seeking to vary the order on the basis that the reserve price had not been reached by negotiations.  Subsequent to the application being filed, there was, indeed, a proposed purchaser who offered $1.3 million.

7. Today, the formal contract indicates that that proposed purchaser is prepared to pay $1.3 million on an unconditional basis and has signed the necessary transfer of land to effect that sale.  There can be little doubt that the reserve price has now been reached.

8. There is evidence before the court as to the impecuniosity of the wife, but that is irrelevant because under the orders made in June 2013, she was entitled to the proceeds of the ultimate sale.

9. The husband did not file a response to the application, but his practitioner has made an oral application seeking that the wife’s application be dismissed and that paragraph 2 of the orders of June 2013 be varied such that a specified agent be nominated and that that agent have the conduct of the sale.

10. There are two important things that the husband says in his affidavit.  The first is that the parties had a sworn valuation with a valuer, an organisation named B Valuers, as at 5 June 2013, and that that valuation came in at $1.38 million.  This is not in the affidavit, but as counsel for the wife points out, the valuers for the parties met and compromised the value, and in 2013, the court was told that the agreed value was $1.3 million.

11. It is inappropriate for the husband not to mention that compromise and it troubles me that a practitioner drew this affidavit who would have presumably been well aware of those circumstances.

12. The second issue relates to a second statement that the husband makes that a firm, C Firm, has provided him with a range of $1.35 million to $1.5 million and he attaches a copy of that appraisal.

13. How I can reply upon that when it is not tested and, indeed, is provided by a person who simply says he is as a real estate agent and confirms that it is an appraisal, I am unsure.  The practitioner for the husband does not articulate that I should give any particular weight to that particular statement.  I propose, indeed, to ignore it completely on the basis that it has no probative value in circumstances where, not only was there a sworn valuation, but the parties told the court what the agreed value was.

14. On 24 June 2013 it was quite clear that the court was making an order that the property was to be sold and that if the agent recommended a reserve price of $1.3 million then the parties had to accept that.  It may have been their good fortune if they received an offer of more than $1.3 million but the order of the court is quite straightforward and simple.  If a $1.3 million offer is made and the agent does not come up with anything better, that is the sale price of the property.

15. The evidence of the husband does not assist me at all to indicate how the court might get around its own order that requires sale at that price.  There is, therefore, no basis for me to make the order sought by the husband to vary the orders of June 2013 and I propose to dismiss his oral application.

16. The husband’s other oral application is to dismiss the wife’s application.  It is hard to see how I can do that, having regard to the fact that the order is clear and she says she cannot get cooperation from the husband because he does not accept what he agreed to in 2013.  On that basis, I propose to dismiss the husband’s oral application for a dismissal of the wife’s application.

17. That leaves me with only the wife’s application.  As it seeks the enforcement of the order of the court, there is no reason proffered why I should not exercise the enforcement discretion and make the order sought by the wife. 

18. It seems logical that rather than involve the court registrar in trying to come to grips with this, there is no objection to the wife actually being the party authorised under s 106A of the Act to sign in the name of the husband, and I propose to make those orders.

RECORDED  :  NOT TRANSCRIBED

1. I now have an application for costs arising out of these proceedings. Section 117 of the Act provides that in proceedings in this court each party shall bear their own costs unless there are circumstances shown that justify a departure from that principle. If the court considers there are such justifying circumstances, before making an order for costs, it must take into account the matters set out in s 117(2A) of the Act.

2. The wife’s position is that she had little choice but to bring these proceedings on the basis that there was no movement to complete the sale.  The husband’s position is that this was premature, but I take into account that these orders were made in June 2013 and that up until only a few days ago an offer of $1.3 million was certainly not on the table.  However, having said that, on 13 January 2014 the solicitors for the wife wrote to the solicitors for the husband indicating that if the husband wanted to buy the property for $1.3 million himself and then continue on with the sale process, providing he indicated that he would protect the wife’s interests at that level, he could do so.

3. That became somewhat obsolete because on 7 February, the solicitors acting for the proposed purchaser made an open offer of $1.3 million with a settlement to be effected in 60 to 90 days.  In my view, this application was not premature.  Indeed, having regard to the fact that the orders were made on 24 June 2013, it seemed to be the only sensible course of action open.  It sounds very much to me like the husband was adopting a position where he was desperate to try and do better than what he had bargained for in June, and thus I find there are justifying circumstances here that would enable the court to move away from the principle that each party pays its own costs.

4. I can take into account, for the purposes of s 117(2A), that neither party is impecunious. Both parties are going to be having some money in their pocket arising out of the proceeds of the sale and, in any event, impecuniosity is not a basis not to make an order for costs.

5. There is some consideration here about whether documents were filed.  I am not prepared to say that the husband has been less than diligent in his approach but, certainly, on any view of the facts he has been wholly unsuccessful today in circumstances where there was an offer made on 7 February.  Whilst that offer may not necessarily have come to his hands on 7 February, no doubt he could have found out had he been diligent enough to make the appropriate inquiries around that time.  This is a clear case where an order for costs is warranted because otherwise the wife would never have been able to have the fruits of what she agreed to in June 2013.

6. The application for costs is for $3600, being $1650 for counsel’s fees and $1100 for solicitor.

7. To make an order for $1950 for the solicitor would require the court to move away from its scale and, effectively, indemnify the wife from the husband’s entitlement.  As the Full Court has said in both Kohan and Kohan (1993) FLC 92-340 and also more recently in Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197 there have to be special circumstances to entitle a court to do that. Whilst I have not heard any argument about that, the circumstances in this case do not seem to me to be at all extraordinary. I will fix the wife’s solicitors costs at $1400. The scale fee for counsel is slightly above $1650 for a disputed hearing, so I can see no reason why the order should not be made for $1650 for counsel’s fees. So on the basis of that, I will make an order for $3050.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 February 2014.

Associate: 

Date:  17 March 2014