Wenz v Archer

Case [2008] FMCAfam 1119


FEDERAL MAGISTRATES COURT OF AUSTRALIA

WENZ & ARCHER [2008] FMCAfam 1119

FAMILY LAW – Injunctions – orders relating to property – relevant considerations – sale of matrimonial home intended by wife and husband’s trustee in bankruptcy.

FAMILY LAW – Property and maintenance of parties – specific powers of court in relation to property, spousal maintenance and maintenance agreements – to make permanent or fixed order or order pending disposal of proceedings – relevant considerations – sale of matrimonial home by wife.

Family Law Act 1975, ss.79, 114
Federal Magistrates Act 1999
Barry v Barry [1992] Fam 140; [1992] 3 All ER 405; [1992] 2 WLR 799
Bearup and Bearup [1993] FamCA 72; (1993) 16 Fam LR 797; (1993) FLC ¶92-412
Blueseas Investments Pty Ltd v Mitchell and McGillivray [1999] FamCA 745; (1999) 151 FLR 298; (1999) 25 Fam LR 65; (1999) FLC ¶92-856
Bonisoli and Bonisoli [1996] FamCA 45
Burridge and Burridge (1980) FLC ¶90-902; (1980) 6 Fam LR 513
Carson & Carson [1999] FamCA 53; (1999) FLC 92-835; (1999) 24 Fam LR 360
Connor & Connor [2007] FamCA 623
Crest & Oates [2007] FamCA 549
Gelb & Gelb [2007] FamCA 514
Harris and Harris [1993] FamCA 49; (1993) FLC ¶92-378; (1993) 16 Fam LR 579
Hatton & Hatton [2007] FamCA 551
HMT & FHL [2006] FamCA 206; (2006) 197 FLR 335
Inch & Inch (No. 2) [2007] FamCA 806
Jess & Jess [2008] FamCA 30
Kearney and Kearney (1991) FLC ¶92-208; (1990) 102 FLR 233
M & DB [2006] FamCA 1380; (2006) ¶FLC ¶93-293; (2006) 36 Fam LR 454
Pedersen and Pedersen [2003] FamCA 625
Pitte & Pitte [2008] FamCA 316
S & S [2006] FMCAfam 396
Samuels & Shaw and Ors [2007] FamCA 833
Spoke & Spoke [2008] FamCAFC 59
Sterling & Sterling and Ors [2008] FamCA 119
Stowe and Stowe (1980) 6 Fam LR 75; (1981) FLC ¶91-027
Strahan & Strahan [2007] FamCA 139
Wicks v Wicks [1999] Fam 65; [1998] 1 All ER 977; [1998] 3 WLR 277
Yunghanns & Ors v Yunghanns & Ors; Yunghanns [1999] FamCA 64; (1999) 149 FLR 247; (1999) 24 Fam LR 400; (1999) FLC ¶92-836
Zschokke and Zschokke [1996] FamCA 79; (1996) FLC ¶92-693; (1996) 20 FamLR 766
Applicant: MS WENZ
Respondent: MR ARCHER
Intervenor: MR SOUTTER
File Number: MLC 2912 of 2008
Judgment of: Riethmuller FM
Hearing date: 15 July 2008
Date of Last Submission: 15 July 2008
Delivered at: Melbourne
Delivered on: 14 October 2008

REPRESENTATION

Counsel for the Applicant: Ms Smallwood
Solicitors for the Applicant: Pearsons Barristers & Solicitors
Counsel for the Respondent: Mr Ham
Solicitors for the Respondent: Westminster Lawyers Pty Ltd
Counsel for the Intervenor: Mr Mahony
Solicitors for the Intervenor: Piper Alderman

ORDERS

  1. The Applicant Wife and Mr Soutter (the ‘Trustee’), as Trustee of the bankrupt estate of the Respondent, proceed to sell the property at Property R (the ‘property’) by public auction.

  2. That an agent be appointed by the…

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Wenz v Archer [2008] FMCAfam 1119
Case
[2008] FMCAfam 1119
Decision Date

CaseChat Overview and Summary

The case of Wenz v Archer involved the applicant, the Wife, and the respondent, the Husband, in a dispute concerning the sale of their matrimonial home. The matter was heard by the Federal Magistrates Court of Australia. The Wife sought to sell the property, which was opposed by the Husband’s trustee in bankruptcy. The court had to determine the appropriate course of action regarding the sale of the property and the distribution of the proceeds.

The legal issues before the court included the consideration of the Wife’s application for an injunction to proceed with the sale of the property, the appointment of an agent for the sale, the distribution of the proceeds, and the classification of certain payments for the purposes of the Family Law Act 1975. The court had to balance the Wife’s need to sell the property against the interests of the Husband’s bankrupt estate and the equitable distribution of the proceeds.

In its decision, the court ordered that the Wife and the Husband’s trustee proceed to sell the property by public auction. It also mandated the appointment of an agent for the sale and outlined the steps for distributing the proceeds. The court directed that the proceeds be used to discharge mortgages, cover sale costs, pay the trustee to annul the Husband’s bankruptcy, and hold the remaining balance in trust for the parties. Additionally, the court reserved the classification of certain payments for the trial judge and authorised the Registrar to execute necessary instruments in case of non-compliance.

The court's final orders mandated the sale of the property by public auction, the appointment of a sale agent, and the distribution of proceeds according to specified priorities. It also provided mechanisms for resolving disagreements over the sale and enforcement of the orders.

Orders

Orders of the court

1.

The Applicant Wife and Mr Soutter (the ‘Trustee’), as Trustee of the bankrupt estate of the Respondent, proceed to sell the property at Property R (the ‘property’) by public auction.

2.

That an agent be appointed by the parties for the sale of the property and the terms and conditions of the sale be agreed between the Applicant Wife and the Trustee. In the event that the parties are unable to reach agreement then the President of the Real Estate Institute of Victoria be engaged to appoint the said agent and determine the method of sale.

3.

Upon settlement of the sale of the Property, the proceeds of such sale be paid as follows:

(a) First, in discharge of all mortgages, charges and other encumbrances secured over the property;

(b) Second, in payment of the costs associated in the sale of the property;

(c) Third, in payment to the Trustee of such amount as is necessary to procure the annulment of the respondent’s bankrupt estate pursuant to section 153A of the Bankruptcy Act 1966.

(d) Fourth, upon annulment of the respondent’s bankruptcy, the Trustee pay the balance to the solicitor for the applicant to be held on trust for the applicant and respondent in their joint names in an interest bearing account maintained by the applicant’s solicitors for the applicant and respondent and be distributed only as agreed in writing by the applicant and respondent or as ordered by the Court.

(e) Fifth, from the money held on trust on behalf the applicant and respondent, payment of the presently outstanding school and college fees for the children of the parties, and the debts of the parties in no greater amount than the sums outstanding at the date of separation

4.

That the determination of the classification of the payments to the trustee in bankruptcy, to discharge debts and for the school and college, for the purpose of s.79 of the Family Law Act 1975 be reserved to the trial judge.

5.

That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of these orders made herein the Registrar of the Federal Magistrates Court of Australia be appointed to execute such deed or instrument in the name of the said party and do all such acts and things necessary to give validity and operation to this said deed or instrument.

6.

That the Registrar of the Federal Magistrates Court of Australia is authorised to execute any such necessary instrument upon being satisfied by Affidavit that neglect or default as the case may be has occurred.

7.

That liberty be reserved to any of the parties to apply.

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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