West and White

[2015] FamCA 1088

FAMILY COURT OF AUSTRALIA

WEST & WHITE [2015] FamCA 1088

FAMILY LAW – CONTEMPT – Contravention of Court order – Where the husband’s application alleges two counts of contravention of orders for sale of a property – Where the wife denied both alleged breaches –Where the Court found that the wife did not contravene the orders – Application dismissed.

Family Law Act 1975 (Cth) – s 117

Brisbane Water County Council v Commissioner of Stamp Duties [1979] 1 NSWLR 320

APPLICANT: Mr West

RESPONDENT: Ms White

FILE NUMBER: NCC 3 of 2007

DATE DELIVERED: 16 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 3 September 2014 and 29 January 2015

REPRESENTATION

FOR THE APPLICANT: Mr West in person

SOLICITOR FOR THE RESPONDENT: Mr Fox of Attwaters

Orders

1. That the husband’s contravention application filed on 4 June 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym West & White 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 SYDNEY

FILE NUMBER: NCC 3 of 2007

Mr West

Applicant

And

Ms White

Respondent

REASONS FOR JUDGMENT

1. These are enforcement proceedings.  The parties are Mr West and Ms White.  For convenience I shall refer to them as “the husband” and “the wife”.

2. On 4 June 2014 the husband filed a contravention application alleging that the wife breached property orders under the Family Law Act1975 (Cth) (“the Act”) made on 16 December 2008. A necessary precursor to the Court hearing these proceedings was the necessity for the husband to obtain the Court’s leave to file any application. This is because in 2005 an order had been made by Mullane J pursuant to s 118(2)(c) of the Act against the husband to the effect that any future application by him could not be filed without specific leave of the Court. I have previously given reasons for judgment supporting an order which I made on 3 September 2014 providing the Court’s leave to the husband to file his contravention application. It is unnecessary to repeat the matters contained in those reasons.

3. The husband was self-represented and I explained to him the procedure I proposed to adopt, namely that it would be necessary for him to establish a prima facie case for one or more of the alleged breaches and that if he was to do so, then the wife would be given an opportunity to put a case for reasonable excuse before the Court.  Noting the husband’s long involvement in litigation against the wife, I asked him whether he understood the process of examination, cross examination and re-examination and he assured me that he did.

4. There were numerous objections to the husband’s affidavits, these being affidavits which he prepared himself.  In respect of each of the rulings where I declined to admit his material, I explained to the husband the difficulties with the material and the reasons why I was not admitting that material into the evidence.

5. The parties have a very long history of litigation between them about matrimonial matters in various courts including this Court.  On 16 December 2008 final property orders were made by consent for sale of their former matrimonial home and payment of the sale proceeds.  The orders which are relevant to the immediate proceedings are as follows:

   1.By way of alteration of property interests pursuant to Section 79 of the Act, the parties and each of them do all acts and things and execute all deeds and instruments necessary or convenient to effect the following:

   1.1The sale by private treaty for the best price reasonably obtainable in the current market of the land and premises situate at and known as [V] in the State of NSW being the land more particularly described in Certificate of Title folio identifier … (“the home”);

   7A.That in the event of any disagreement between the parties as to any aspect of the listing for sale, or sale, or auction of the home, then the Chief Executive Officer for the time being of the Real Estate Institute of NSW or his nominee (hereinafter referred to as “the CEO”) shall be and is hereby appointed to determine any such disagreement, and any costs incurred shall be borne equally between the parties, and the solicitors for the wife are authorised and directed by these orders to make any necessary adjustment from the parties’ respective shares of the proceeds of the sale pursuant to order 1 hereof.

   8.The wife shall keep the husband informed of the progress of the marketing and sale of the home.

6. The wife arranged for the sale of the property through R Real Estate, V. It was sold in August 2009 for $530 000.

7. At the outset of the contravention hearing I orally informed the wife about the matters which were complained about.  I informed her that the husband alleged that without reasonable excuse she contravened Order 1.1 of the Orders made on 16 December 2008 in that she did not do all things and execute all deeds and instruments necessary or convenient to effect the sale by private treaty for the best price reasonably obtainable in the then current market of the property at V.  In respect of that alleged breach I recorded a denial.  I also orally informed the wife about the second alleged breach namely, that without reasonable excuse she contravened Order 8 of the said Orders in that she failed to keep the husband informed of the progress of the marketing and sale of the said property. In respect of that alleged breach I recorded a denial.

Alleged Contravention of Order 1.1

1. In his contravention application the husband alleged:

   The respondent sold the matrimonial home below market value.

2. As indicated above, what the order required was “the sale by private treaty for the best price reasonably obtainable in the current market” of the property. In essence what the husband alleged was that the sale price of $530 000 was not the best price reasonably obtainable in the then current market.  

3. He asserted that the wife “had arranged all dealings for the commission and conditions of sale with the agent”, R Real Estate, without his knowledge.

4. The husband provided evidence of an opinion of value by Mr H, a certified practising valuer dated 28 May 2010.  Mr H assessed the value of the property as at 14 August 2009 (the date of sale) as being $575 000.  This opinion was based on what Mr H described as being comparable sales in the area between April and September 2009. 

5. This valuation was objected to on two bases.

6. The first basis was that the valuation was an assessment of the market value of the said property whereas the order did not require the property to be sold at market value but rather “for the best price reasonably obtainable in the current market”.  Learned solicitor for the respondent wife objected to the valuation being received into the evidence on this basis.

7. The second basis of objection was that in fact the valuation was contained in a hearsay document because there was no affidavit by Mr H, rather his valuation was annexed to the husband’s affidavit.  In view of the fact that the husband was self-represented I indicated that I did not regard this in itself as a basis for the document being ruled as inadmissible and I suggested to the husband that he could possibly cure the hearsay difficulty if he could arrange for Mr H to be able to give evidence via telephone.  This the husband was then able to arrange and I received Mr H’s evidence by telephone on the day.  I was not persuaded that the second basis for objection was sustainable.

8. I return to the first basis of objection and to the evidence of Mr H generally.  As indicated in the valuation report, Mr H is a certified practising valuer.  In my view he went about his task in a professional manner.  He based his opinion about the value of the property on the sale prices of what he regarded as comparable residential properties located within 1.2 kilometres of the subject property which sold between April and August 2009.  In my view there was nothing about the manner in which Mr H went about his professional task which, of itself, would cause the Court to be less than confident about his opinion.

9. On the basis of the opinion evidence by Mr H that the property as at the sale date had a value of $575 000, I formed the view that the husband had established a prima facie case for a breach.  But I also informed him that I thought that in the event that the wife was able to tender evidence of a credible and appropriate marketing campaign and evidence to the effect of difficulty in achieving a sale price of anything like $575 000, it would be possible that the wife would succeed in her case.  The husband made it clear that he proposed to push on with his application in relation to Order 1.1.

10. The wife relied on an affidavit by Mr Y.  Mr Y was the real estate agent who acted on behalf of R Real Estate in relation to the sale.  This affidavit described the marketing and promotion of the property undertaken by Mr Y which included the following:

    –    a display sign in the window of the R Real Estate office at V;

    –    a sign erected on the front lawn of the property;

    –    listing on at least six internet sites including domain.com and realestate.com;

    –    at least six advertisements in the Saturday real estate section of The Newcastle Herald; and

    –    at least 20 advertisements in the mid-week property section of The Newcastle Post.

11. Mr Y also indicated that all marketing included professional quality photographs and a description of the property which highlighted its attractive aspects.

12. Mr Y said that his recommendation to the wife in October 2008 was that the property should be offered for sale initially at $550 000 to $560 000.  He said that the wife informed him that the husband had told her to present it for sale at $575 000.

13. There is no issue that the property went on the market for sale at the price of $574 000.  Mr Y annexed to his affidavit his report of buyer inspections.  This indicated that the property was either open for inspection or the subject of private inspection on 26 occasions between 29 November 2008 and 1 August 2009.  On 1 April 2009 the price at which the property was presented for sale was reduced from $574 000 to the range from $535 000 to $559 000.  This was on the advice of the agent following feedback from persons who had inspected the property at that time.  A further 62 groups of persons inspected the property between that time and 1 August 2009.  Following further feedback from persons who had inspected the property, the price at which it was presented for sale was further reduced on 2 August 2009, this time to the range from $520 000 to $539 000.  On 3 August 2009 a Mr and Mrs S offered to purchase the property for $530 000.  This was accepted by the wife in circumstances to which I shall refer in more detail below.

14. Mr H was cross-examined by telephone by learned solicitor for the wife.  During his cross-examination, the wife’s solicitor asked him to make various assumptions about a marketing program for the subject property and various historical matters relevant to the sales campaign which had been arranged by the wife using R Real Estate. These were as follows:

    –the property initially went on the market in November 2008 at an asking price of $574 000;

    –three groups of prospective purchasers inspected the property on 29 November 2008 and one suggested that they thought the property was worth $520 000;

    –there was a further inspection at the asking price of $574 000 in March 2009 and one of the prospective purchasers said that they thought the property was worth $500 000;

    –on 1 April 2009 the wife reduced the asking price to a range of between $535 000 and $559 000;

    –on 4 April 2009 seven groups of prospective purchasers attended of which one was the ultimate purchaser;

    –between 14 April and 1 August 2009 the property was inspected by 43 groups and private inspections were arranged for 10 individuals who might or might not have been in the groups;

    –during the period from 14 April to 1 August 2009 the only indication of interest was from one prospective purchaser who said that they thought the value was in the low $500 000’s;

    –by approximately 1 August 2009 the selling agent suggested to the wife that there was no sign of interest in the price range at which the property was being offered for sale namely $535 000 to $559 000 and that the price needed to be reduced;

    –on 2 August 2009 the price was reduced to the range from $520 000 to $539 000;

    –that would suggest that so far as interested purchasers were concerned, the value of the property was less than $575 000; and

    –there was a Court order in existence which required the property to be sold by private treaty for the best price reasonably obtainable in the current market.

15. Mr H was asked whether, assuming all of those matters, it had been reasonable for the vendor to have accepted the offer of $530 000 for the sale of the property. Mr H responded that on the basis that the property had been on the market for as long as it had been and that it had been inspected by multiple groups of prospective purchasers, then that was “a fair call”.

16. Mr H went on to explain that when he looked historically at comparable sales he discovered some comparable sales and determined on the basis of such sales that the market value of the property at the time was $575 000.

17. In my view, there are difficulties with Mr H’s evidence which stand in the way of the Court being persuaded by his valuation that the property had not been sold at “the best price reasonably obtainable in the (then) current market”.

18. Before coming to those difficulties, I note that there was a submission by learned solicitor for the wife that Mr H was asked to, and did, provide his opinion about “market value” not about “the best price reasonably obtainable in the (then) current market”. It was submitted that this in itself was a problem.  But the husband made reference to certain authorities, such as Brisbane Water County Council v Commissioner of Stamp Duties [1979] 1 NSWLR 320 at 324 in support of a submission that “market value” equates with “the best price reasonably obtainable”. I consider it unnecessary to determine whether there is a significant difference between these terms because in my view there are other areas of Mr H’s evidence which cause me real difficulty in being able to accept that as at August 2009 the property would have been able to achieve a higher sale price than it did.

19. Firstly, as indicated above, when provided with the details of marketing, including the program of inspections made as well as price feedback from persons who had inspected the property, Mr H conceded that on the basis that the property had been on the market for as long as it had been and that multiple groups had inspected it, it was reasonable for the vendor to have accepted $530 000.

20. Secondly, Mr H placed great emphasis on the importance to his valuation of comparable sales.

21. Amongst those sales referred to in his valuation report was the property at V2 which sold in June 2009 for $560 000.  Mr H described this as an excellent comparable sale being located in the next street from the subject property.  Yet Mr Y said that he was the second listing agent for that property.  He said that in his opinion that property was superior to the subject property because it had been individually designed by an architect rather than being a project-style home and it backed onto bushland reserve close to walking tracks leading down to the beach which he thought would make it more attractive to prospective purchasers.

22. Mr H also adopted the property at V3 which sold for $530 000 on 31 July 2009, describing it also as an excellent comparable sale. Mr Y also regarded this as highly comparable.  He said that although it was approximately five years older than the subject property it had a landscaped swimming pool and backed onto bush reserve.  He considered such features sufficient to compensate for the fact that the subject property was approximately five years younger.

23. It is the husband who bears the onus of establishing each of the elements required to enable the Court to find a contravention of the order.  On the face of Mr H’s evidence that at the time of sale of the subject property, in Mr H’s opinion it had a market value of $575 000, there might have been a basis for considering that a sale price of $530 000 was not the best price reasonably obtainable in the then current market.  But I accept Mr Y’s evidence of the professional efforts undertaken by him in his endeavours to achieve the sale of the property.  In my view, in all the circumstances, those efforts appear to have been appropriate.  Mr H conceded as much.  In addition, Mr Y’s evidence about the two properties used by Mr H as “excellent comparable sale(s)” at least casts some doubt on the conclusions of Mr H in relation to those being “excellent” comparators.

24. In all these circumstances, in my view, the husband has failed to establish that the price of $530 000 achieved on the sale of the subject property was not the “best price reasonably obtainable in the (then) current market”.  Accordingly, in my view, his contravention application alleging a breach of paragraph 1.1 of the orders must fail and will be dismissed.

Alleged Contravention of Order 8

1. As indicated above, Order 8 provides as follows:

   The wife shall keep the husband informed of the progress of the marketing and sale of the home.

2. As indicated above, this order was made on 16 December 2008.  The wife had previously listed the home for sale with R Real Estate.  She had done so pursuant to earlier orders made on 1 September 2005.  Those orders had required the parties to sell the home at market value by public auction.  The orders had empowered the wife to have conduct of the sale on behalf of the parties and had appointed her as the husband’s attorney to sign all necessary documents on his behalf to give effect to the order for sale.  The wife’s listing with R Real Estate took effect from approximately 12 March 2008 at an asking price of $589 000.  The husband had suggested this asking price.  The listing was for three months.  Shortly before the end of the three month period the husband contacted the wife and said to relist the home at the same price which the wife did.  The parties have had numerous conversations about listing the home for sale since 2006 but in particular since March 2008.

3. Although the above material is not strictly relevant to the alleged breach of Order 8, I have included it because in my view it demonstrates some history of the wife being the party who gave the instructions to the agent and the husband having been involved in giving advice to the wife about the details of those instructions.

4. Returning to Order 8, on approximately 16 October 2008, that is a couple of months prior to the making of Order 8 on 16 December 2008, the wife again engaged R Real Estate as the selling agent.  As I have said R Real Estate had been engaged to sell the home as from March 2008. I understand the agency agreements were for a period of three months and that at the end of each three month period the agency agreement was renewed for the next three months until the home was sold in August 2009.

5. I accept that none of the agency agreements were made available to the husband. The wife said that the husband never asked for a copy of the agency agreement. But she said that the husband knew from conversations between him and her that the home was listed for sale with R Real Estate. The wife said that in or shortly before October 2008 the husband had said to her during a telephone conversation that the home should be listed for sale at $575 000, although the actual listing appears to have been at $574 000.

1. The husband said that he did not know that the home had been listed for sale with R Real Estate. But he conceded that he “could have mentioned figures” and that $575 000 “rings a bell”. Accordingly I accept that the husband was involved in discussions with the wife at least about the price at which the home would be listed for sale and that at the time the wife accepted his view about the price and acted accordingly.

2. The wife said that both generally after the time of separation and, in particular, after 16 December 2008 and before 23 October 2009 it had been the husband’s practice to telephone her at least twice per week. And generally more often. She said that the purpose of the telephone calls was supposedly for the husband to speak with the parties’ children.  The wife said that on virtually every single occasion of such calls, the husband initiated conversation with her in relation to the marketing and sale of the home. She said that this was particularly the case when the end of each of the three month agency agreement periods was approaching at which times the husband would discuss with her what price the home should be listed for sale at.

3. The husband agreed that after the orders were made on 16 December 2008 he had a practice of ringing the wife “on average twice a week” to speak to their younger children. He did not agree that in virtually every such conversation he sought to engage the wife in discussion about where things were up to in relation to the sale of the home.  But he conceded that he did discuss this with the wife “every now and then”.

4. The wife said that the conversations between 16 December 2008 and August 2009 included the husband saying things to her in relation to the then asking price and her informing him about the level of interest at the most recent “open house” inspection or the like. She said that the conversations included the husband saying to her words to the effect of “You start at a high figure and work your way down.” and her saying words to the effect of “There have been no inspections at that price.” or “There were a few people there but most of them just walked in and just walked straight out again.” 

5. The wife said that during the period between about April and August 2009 she was having telephone conversations with the husband at least fortnightly and certainly every three months in the light of his practice of contacting her shortly before the time that each agency agreement was due to be renewed.  She said that one such conversation, the precise date of which she could not recall, was to the following effect:

   Husband:       Change to [C Real Estate], use [Mr L].

   Wife:I’m not fussed on [C Real Estate].  I’ve had [Mr L] in for a view and I wasn’t happy with his attitude.  He was bagging out the other agents.  I found him very arrogant.  On the other hand I’m very happy with the way [R Real Estate] run the inspections.  I’ve been present when some of them have occurred.  They were very professional.  I intend to continue with him.

6. The wife said that she also recalled a telephone conversation with the husband in 2009 in which she said to him in respect of the agent Mr N words to the effect of:

   He made a comment to me that the buyer was not going to budge on his offer which suggested to me that he was favouring the buyer not us.

7. The wife also said that between April and August 2009 she had various telephone conversations with the husband to the effect of:

   Wife:We’re going to have to look at reducing the price.

   Husband:We’ve got to sell it for more.

   Or to the effect of:

   Wife:The agent is saying it’s over-priced, and buyer feedback is indicating low five hundreds.  There is buyer resistance because it’s been on the market for so long and is over-priced.

   Husband:This is my super you’re playing with.  We’ve got to get more.  You can’t just give it away.

8. The wife said that she also had a clear recollection of having received a telephone call from the husband on 1 April 2009, or the evening prior thereto, which was to the following effect:

   Wife:There have been no inspections at that price. We need to consider a new tactic, we need to have a price range. I’m suggesting something around the five hundred and thirty-five thousand dollar mark.

   Husband:If we’re going to have a price range make it five hundred and thirty-five to five hundred and fifty-nine.

9. The wife said she then contacted the agent and instructed him accordingly.

10. The husband denied that he had suggested to the wife a price range of five hundred and thirty-five to five hundred and fifty-nine thousand dollars.  He said that he was “aghast” when he learned that the property was to be sold at $530 000.

11. The wife caused her solicitors to write a letter to the husband dated 4 August 2009.  I note that this was 10 days prior to the date when contracts for sale of the property were exchanged.  The letter included the information that the wife had been offered $530 000 for the home, that she intended to enter into a contract to sell it at that price and that the writer anticipated that contracts would be exchanged shortly.  The letter also said that this information was being provided as part of the wife’s ongoing compliance with Order 8 to keep the husband informed of the progress of the sale.

12. The letter was addressed to the husband at K.  The husband said that he never received the letter.  He said that this was not his address for receiving mail at the time.  But he did concede that he had lived at this address “for short periods of time”, “a week or two” at a time and that he only stayed there on a casual basis.  He said that he had friends living at this address.  But he also suggested in his questions to the wife about this during cross-examination that he would not be able to trust his mail to that address because K was “unsavoury” the inference being that there was a likelihood that mail would be removed from the letter box before he could retrieve it.

13. The husband also conceded that in a contravention application filed by him in the Federal Magistrates Court on 14 August 2009 he inserted his address as being “[K]”.  In my view, this would appear to be inconsistent with the husband’s assertions about unreliability of such address.

14. On 9 October 2009 the wife’s solicitor wrote to the husband in response to a letter from the husband dated 1 October 2009.  The wife’s solicitor’s letter contained details of the purchasers, their solicitor, the sale price ($530 000) and the completion date of 23 October 2009.

15. On 11 November 2009 the wife’s solicitor wrote to the husband informing him that the sale had been completed (this having been on 4 November 2009), setting out details of the completed sale and forwarding him a cheque for $128 760.

16. On 17 November 2009 the wife’s solicitor wrote to the husband responding to a telephone conversation the previous day and providing him with details of the rates adjustment on sale.

Discussion

1. The husband’s case for a breach of Order 8 was as follows.  

2. In his contravention application the husband alleged:

   In 2009 ongoing The respondent has not informed me of progress of the marketing and sale of the matrimonial home.  

3. He said that keeping him informed of the progress of the marketing and sale of the home would require the wife to notify him about the sale price at which it was proposed to sell the home, the conditions of sale, the person to be retained as the conveyancer, a description of any fixtures or accessories included in the sale and the level of negotiated agent’s commission.

4. It is clear that there is issue between the parties about the extent of the conversations between them about matters relevant to the marketing and sale of the home.  But there is no issue that they had such conversations.  And the husband conceded that amongst matters discussed was the price at which the agent would market the home for sale.

5. I must say that in terms of their credit, I regarded the wife as a more reliable witness than the husband.  She gave responsive answers and gave me the impression that she had a much more reliable memory for details and events than the husband.  But of course she was also the person directly involved in dealing with the agent so she would be expected to recall the details. However, notwithstanding this advantage, generally where their evidence differs I would prefer that of the wife to that of the husband.

6. The husband’s assertion that he did not receive the letter from the wife’s solicitor dated 4 August 2015 causes me some concern.  This was a most important letter because it informed the husband that the home was about to be sold and for $530 000 which clearly was a price well below that which the husband said he would have wanted to accept.  But in my view, this aspect of the case should be approached on the basis of considering whether the wife acted reasonably in the circumstances.  There is no evidence before the Court which would indicate that K was an inappropriate address at which to send mail to the husband.

7. Given the nature of the husband’s application namely, an application in which he has alleged that the wife has contravened a Court order, the onus is on the husband to establish each element of the alleged breach.  In my view, the wife has established that prior to and following the making of order 8, she had conversations with the husband about the price at which the home would be offered for sale, about the results of inspections by prospective purchasers and finally her solicitor’s letter informing the husband that the home was about to be sold and at $530 000.  It is not her fault that the husband did not receive the letter, if indeed that was the case.

8. In all the circumstances, in my view, the Court is unable to find that the husband has established that the wife has failed to “keep the husband informed of the progress of the marketing and sale of the home” as required by Order 8.

Conclusion

1. Accordingly, the husband’s contravention application will be dismissed.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 16 November 2015.

Associate:     

Date:              16 November 2015