WHITTLE & WHITTLE
[2005] FMCAfam 358
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHITTLE & WHITTLE | [2005] FMCAfam 358 |
| FAMILY LAW – Liberty to apply – final orders by consent – functus officio – no power to order monetary compensation – words construed ejusdem generis – listing of home at realistic sale price. |
| Family Law Act 1975 (Cth), s.79 |
| Page v Skelt [1940] 1 K.B. 778 Cristel v Cristel [1951] 2 K.B. 725 |
| Applicant: | yvonne norma whittle |
| Respondent: | KERRY JOHN WHITTLE |
| File Number: | LNM1026 of 2003 |
| Judgment of: | Roberts FM |
| Hearing date: | 15 March 2005 |
| Date of Last Submission: | 15 March 2005 |
| Delivered at: | Launceston |
| Delivered on: | 29 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. M. Brett |
| Solicitors for the Applicant: | Doolan & Brothers |
| Counsel for the Respondent: | Mr. P. McVeity |
| Solicitors for the Respondent: | McVeity & Associates |
ORDERS
That pursuant to the provisions for liberty to apply contained in the Orders of this Court of 14th October 2004 (“the Orders”):
(a)The parties must within seven days jointly instruct L.J. Hooker at Devonport (“the agent”) to reduce the listing price of the home referred to in the Orders to two hundred and eighty thousand dollars ($280,000.00).
(b)The parties must do all things necessary to accept any unconditional offer received by the agent for the purchase of the home at $270,000.00 (“the reserve price”) or any unconditional offer in excess of that sum.
(c)That if the home is not sold within seventy days of listing pursuant to subparagraph (a) hereof, the agent is at liberty to nominate another listing price and another reserve price, and those shall become the listing price and the reserve price, provided that the agent has not received any written objection from either party within seven days of the relevant party being notified in writing by the agent of the nominated listing and reserve prices.
(d)That in the event that either party makes an objection in accordance with subparagraph (c) hereof, that party shall within the seven days referred to that subparagraph seek from the President of the Real Estate Institute of Tasmania (“the REIT President”) his/her opinion or the opinion of his/her nominee as to the listing price and reserve price for the home.
(e)That in the event that the REIT President or his/her nominee provides such an opinion, the listing and reserve prices shall be in accordance with that opinion.
(f)That the parties shall each be responsible for the payment of half the reasonable costs of the REIT President or his/her nominee in relation to obtaining the opinion as to the listing and reserve prices.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNM1026 of 2003
| YVONNE NORMA WHITTLE |
Applicant
And
| KERRY JOHN WHITTLE |
Respondent
REASONS FOR JUDGMENT
Background and applications
KERRY JOHN WHITTLE (“the Husband”) and YVONNE NORMA WHITTLE (“the Wife”) were married in 1972 and divorced in 2003.
The court file shows that the Wife filed an Application for a property settlement on 10th September 2003 and the Husband filed a Response on 15th December 2003. The parties attended a Conciliation Conference on 6th February 2004 and the matter was resolved on the basis that consent orders were to be brought in. The matter was listed for mention on a number of occasions after that before consent orders were made on 14th October 2004 (“the Consent Orders”).
The terms of the minutes of consent orders signed by the parties were as follows:
RECITALS
(a) The parties have agreed that the jointly owned property at 67 Sunbeam Crescent, East Devonport in Tasmania comprised in Certificate of Title Volume 63529 Folio 257 (the home) be sold as set out in accordance with Order 1.
(b) The parties are agreed that the following assets constitute the entirety of the asset pool:(1) The home – sale price to be determined pursuant to order 1 N.K.
(2) One 1995 Nissan 2000 SX Coupe registered number EJ7478 (the Nissan) registered solely in the name of the husband – value $16,000.00
(3) Furniture and chattels (furniture and chattels) in or about the home.
(4) Miscellaneous presents (the presents) given to the parties during the course of the marriage.
(5) The Husband and Wife’s joint Westpac account divided on separation as follows:
(i) The Husband’s retained sum (the Husband’s Westpac bank account) - $4,600.00
(ii)The Wife’s retained sum (the Wife’s Westpac bank account) - $2,000.00
(6) Husband’s Bass and Equitable cheque account as at date of separation (the Husband’s Bass and Equitable account) - $1,000.00
(c) The parties are also agreed that there be a division of all the assets set out in the preceding recital as to 55 per cent to the Husband and 45 per cent to the Wife.
ORDERS
1. That the Husband and Wife will jointly and severally use their best endeavours to sell the home in the following manner:
1.1 Jointly instruct LJ Hooker at Devonport (the agent) to market and sell the home by private contract, within sixty (60) days of the date of order, with a listing price of $350,000.00 and a reserve price in the absolute discretion of the agent.
1.2 If the home is not sold within seventy five (75) days of the date of order, the home shall be marketed and sold by way of auction, such auction to take place within one hundred and five (105) days of the date of order.
1.3 If the home is not sold in accordance with the preceding two sub-paragraphs, either party shall have liberty to apply generally and without limiting the foregoing as to choice of agent, advertising costs, auction or any other matter reasonably necessary to sell the home.
1.4 That on settlement of the sale of the home in accordance with this order, the balance of proceeds shall be utilised in the following priority:(a) Payment of all reasonable legal costs associated with the conveyancing, agent’s commission and advertising costs.
(b) As to the residue, it is to be paid to an account held by Bass and Equitable Building Society in trust for the parties (the Trust account).
1.5 Pending the sale of the home, the Husband shall:
(a) Have sole occupation of the home.
(b) Pay all rates and house insurance in respect to the home.
(c) Keep the home and grounds tidy and in good and tenantable repair for the purposes of sale.
1.6 That the parties shall have liberty to apply on short notice in relation to all aspects of the sale of the home, including but not being limited to sale price.
2.1 That the Husband and Wife shall either by direct negotiation, negotiation via their solicitors or mediation settle the distribution of the furniture and chattels and the presents within thirty (30) days of the date of order.
2.2 If not so settled as set out in the previous order, either party shall have liberty to apply on short notice in relation to all aspects of the distribution and sale or otherwise of furniture and chattels and the presents set out in recital (b).
3. That the Trust account shall be distributed between the parties, taking into account all the assets set out in Recital (b), equating to a distribution of fifty five percent (55%) to the Husband and the forty five percent (45%) to the Wife, factoring in the retention:
3.1 By the Wife of:
(a) the Wife’s Westpac Bank Account;
(b) the value attributable to the Wife’s furniture and chattels and the presents.
3.2 By the Husband of:
(a) the Husband’s Westpac Bank Account;
(b) the value attributable to the Husband’s furniture and chattels and the presents;
(c) the Husband’s Bass and Equitable Account;
(d) the Nissan.
4.1 That contemporaneously with the payment referred to in Order 3, the Wife shall transfer to and vest any right, title and interest she has in the following to the Husband.
(a) The Nissan.
(b) The Husband’s Westpac Bank Account.
(c) The Husband’s Bass and Equitable Account.
4.2 That contemporaneously with the payment referred to in Order 3, the Husband shall vest in the Wife, the Wife’s Westpac Bank Account.
5.1 Unless otherwise specified in these Orders, each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose, age or working future provides the conditions of payment out of such entitlement.5.2 Unless otherwise specified in these Orders, each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
6. That the terms of these Orders shall be binding upon the heirs, executors, administrators and assigns of each party respectively.
7. That the Husband and Wife will respectively do all acts and things and execute all necessary documents, instruments and authorities to give effect to these Orders, in accordance with the timetable set out herein.
AND THE COURT IS ASKED TO NOTE:(1) It is the parties’ intention to divide the furniture and chattels and presents by agreement.
(2) If there is no agreement, the furniture and chattels and presents shall be jointly valued at the joint expense of the parties and distributed in accordance with Orders 2 and 3.
(3) That the Terms of these Orders are intended to be in full and final satisfaction of either parties claim against the other for matrimonial property settlement pursuant to the provisions of the Family Law Act 1975. “
On 8th March 2005, the Wife filed an Application (which is incorrectly described as an Amended Application). In that document she sought the following orders:
1.That pursuant to Order 1.3 of the Orders made 14 October 2004, Peter Colgrave of Roberts Real Estate, Devonport in Tasmania be instructed to market and sell the former matrimonial home at 67 Sunbeam Crescent, East Devonport in Tasmania (the home) by private contract, within sixty (60) days of the date of the Order, with a listing price of $280,000.00 and a reserve price at $255,000.00.
2.From the date of Order, until the settlement of the sale of the home, the husband shall pay to the wife the sum of $95.00 per week.
3.That the husband shall transfer to and vest in the wife absolutely, the following:
(a) The items included in the Webster list set out as Annexure “GG” in the wife’s accompanying affidavit.
(b) The missing pieces of dinner sets referred to in Annexure “FF” in the Wife’s accompanying affidavit;
(c) Additional photographs of the parties’ son;
(d) The missing antique books;
(e) The wife’s personal paperwork;
(f) The items set out in paragraph 67 of the wife’s accompanying affidavit.
4.That unless already provided by the husband to the wife, the items set out in the preceding Order shall be delivered to the wife’s nominated agent, within seven (7) days of the date of Order.
5.That the husband pay the costs of and incidental to this application.”
The Wife relied upon affidavits by herself, her partner and Peter Colgrave of Roberts Real Estate. Those documents were filed on 10th March 2005.
The Husband relied upon an affidavit filed 9th March 2005. Although he did not file a Response, it was clear from his affidavit that he opposed the orders sought by the Wife. His proposal as set out in his affidavit was that the Wife should pay him $1,400 to compensate him for items taken by the Wife, or that chattels be divided on a basis set out in a letter forwarded to the Wife’s solicitors in September 2004. He went on to say: “If neither of the proposals above find favour with this Honourable Court then I propose that all household contents be auctioned by a registered and reputable agent and the proceeds be divided in accordance with the Orders. I further propose that both myself and (the Wife) be given the opportunity to bid for any items at the auctions.”
The Husband is living in the former matrimonial home and the Wife is now living in Western Australia.
Relevant law
It is clear that the Consent Orders were final property orders pursuant to Section 79 of the Family Law Act 1975. Consequently, if the Court has any jurisdiction in relation to the property of the parties, it must be as a result of the “liberty to apply” provisions contained in the orders themselves. This is because the Court is otherwise functus officio.
The authorities to which I have had regard all make it clear that “liberty to apply” means liberty to make such orders as will interpret or apply the intentions of the parties. For example in Page v Skelt [1940] 1 K.B. 778, Clausen LJ said as follows:
In the Chancery Division it is not uncommon to say to the learned judge when the action is coming on, "We have settled this action; will you please stay all proceedings and put an end to the action, but with this limitation, that the desire of all parties that if a question arises on the construction, or the working out of the enforcement, of the terms of settlement, it should be dealt with as though the action were for that purpose still alive?"
The object thus to be attained is effected by an order staying proceedings on the terms of settlement-and they are usually scheduled to the order-with liberty to apply to the judge. It is not liberty to apply to the judge to give judgment in the action, but liberty to apply to the judge to make such order as, having regard to the terms of the settlement the parties consensually agree should be made in order to enforce their intentions
Similarly, Somerville LJ in Cristel v Cristel [1951] 2 K.B. 725 said:
Prima facie the words “liberty to apply” refer to the working out of the actual terms of the Order.
It is clear therefore that the Court is limited in its jurisdiction by the express terms of the liberty to apply.
Evidence and Findings
Chattels
Over the Christmas 2004 break, the Husband had a holiday overseas. During that time, the Wife came back to Tasmania with her partner and entered the former matrimonial home. She took a significant proportion of the chattels from the former matrimonial home.
There is no dispute that the Wife broke into the former matrimonial home in order to remove those chattels. However, there was some dispute as to how much damage was done by the Wife and her partner in order to gain entry to the home. The Husband stated that the Wife had damaged the laundry door, front door and security door, whereas the Wife’s partner states in his affidavit that there was only a “very minor scratch on the inside of the security door”. I note that the Wife’s partner was not cross-examined, so I conclude that the Husband is not particularly concerned about the extent of any damage. In any event, I am not asked to make any specific orders about any damage, nor do I have the power to do so.
The Husband says that when he was informed that the Wife and her partner had broken into the house, he altered his plans and returned home earlier than was his original intention.
He says that when he got back, he found that in addition to the claimed damage, the Wife had removed $620 from a drawer in the kitchen. He says that $120 of that was the property of a club with which he is associated and the remaining $500 was money that he had withdrawn from his bank.
The Wife emphatically denies taking any money and her partner’s evidence is that none was taken.
I do not need to make any findings in relation to that. It is clear that the Husband is alleging that a crime has been committed and this Court does not have jurisdiction to deal with criminal matters. Certainly, that is not a matter that is before the Court under any liberty to apply provisions of the Consent Orders.
Paragraph 2.1 of the Consent Orders provides that the parties “shall either by direct negotiation, negotiations by their solicitors or mediation settle the distribution of the furniture and chattels and the presents” within thirty days of the date of the Order. It is quite clear that that did not happen.
One or other of the parties should have made an Application under the liberty to apply provision in paragraph 2.2 of the Orders. However, the Wife decided to take matters into her own hands by forcing entry to the home and removing chattels at a time when she knew that the Husband would not be there. Clearly, her actions were inappropriate.
The parties, through their counsel provided to me a list of chattels, showing those chattels taken by the Wife that the Husband was happy for her to retain, and those that he was not happy for her to retain. There appeared to be agreement between counsel that only fourteen chattel items were in dispute.
In a submission to me, counsel for the Husband said:
If an order is made for the return of those fourteen items, that order ought to be made at the cost of the Wife for self-evident reasons. If an order is made for the return of those fourteen items, the Wife is entitled to an appropriate adjustment to make up the value from other items in that list.”
That submission suggests that the Consent Orders provided for a distribution of chattel items on the basis of 55% by value to the Husband and 45% to the Wife. However, they did not provide for such a distribution of chattels. They provided for an overall distribution of their assets on the basis of 55% by value to the husband and 45% to the Wife. That is clear from Recital (c) and Order No. 3.
The Consent Orders provided that the parties should settle the distribution of chattels within thirty days but they did not specify the proportions that each would receive. Further, if that did not happen (and clearly it did not), the parties had “liberty to apply on short notice in relation to all aspects of the distribution and sale or otherwise” of the chattels.
It is clear that even if the if the parties had agreed that Wife should receive chattels worth 90% by value, “the entirety of the asset pool” would, by virtue of the operation of Order No. 3, still be divided between them by value in the proportions of 55% to the Husband and 45% to the Wife. It is quite clear from Order No. 3 that the parties intended to give effect to the 55/45 division by an appropriate adjustment from the net proceeds of the sale of the home.
From the list provided to me, I calculate that the disputed items taken by the Wife are worth approximately $1,700. Although the liberty to apply in relation to the chattels refers to “the distribution and sale or otherwise”, it is my view that the word “otherwise” must be construed ejusdem generis with the words “distribution and sale” that preceded it. Consequently, it is also my view that the Consent Orders do not allow the Court to provide for a payment to the Husband to compensate him for any perceived loss by him because certain chattels were taken by the Wife.
While the Court does have power to order the “distribution” of those disputed chattels to the Husband, I am of the view that the Wife should retain the chattels that she has taken. However, that view is not based upon any notion that she has a better entitlement to the disputed items, nor does it condone her actions in obtaining them. It is simply a pragmatic solution to a difficulty that the parties have been unable to resolve by negotiation.
In view of this, I do not propose to make any order under the liberty to apply provision contained in paragraph 2.2 of the Consent Orders. In due course, a proper operation of Order No. 3 will provide the parties with the 55/45 division to which they agreed.
The sale of the home
It is clear from the evidence that L.J. Hooker have been the agents responsible for the sale of the property. That is in accordance with paragraph 1.1 of the Consent Orders.
It is also clearly accepted by both parties that the listing price of $350,000 was too high. Indeed, the parties were able to reduce that by agreement, but that still did not bring about a sale.
The Wife now wishes to change the real estate agents to Roberts Real Estate. The provisions for liberty to apply in relation to the sale of the home are found in paragraphs 1.3 and 1.6 of the Consent Orders and there is clearly some overlapping in those provisions.
In their submissions to me, both counsel appeared to agree that the price needs reducing. However, they were not in agreement as to the listing price or the reserve price. In relation to this, I take the fixing of a reserve price to mean that if unconditional offers are received that are at that price or better, the parties must accept the offer and sell the home.
The Wife relies upon an affidavit sworn by Peter Colgrave, a sales consultant with Roberts Real Estate. His evidence was that he was familiar with the home, having inspected it on two occasions in February and March this year from the exterior of the home. He believes that the home should sell for between $270,000 and $280,000 within sixty to seventy days if properly marketed.
The home has not sold, either by private treaty or by auction at the prices set out in the Consent Orders or at the agreed reduced listing price.
Both counsel appeared to accept Mr Colgrave’s evidence that the property should sell between $270,000 and $280,000 within sixty to seventy days. However, they are not agreed upon how that evidence should be used to determine the listing and reserve prices.
Counsel for the Husband suggested that the listing price should be between $289,800 and $292,000. He submitted that the home should be listed at a figure between 3.5% and 4.5% more than the higher figure in the range suggested by Mr. Colgrave. He also submitted that the reserve price should be between $270,000 and $280,000.
That approach was not an approach recommended by Mr. Colgrave when he was cross-examined by the Husband’s counsel. The gist of his oral evidence was as follows:
a)he recommends that prospective vendors list properties at the top of the sales range suggested by their agents;
b)the majority of vendors choose to list at prices higher than those suggested by their agents; and
c)the percentage above the top of the suggested sales range that vendors choose is generally between 3.5% and 4.5%.
Counsel for the Wife submitted that the listing price should $280,000, in accordance with the recommendation of Mr. Colgrave.
It is clear that this particular property has been on the market at an unrealistic price for some time. In order to achieve a sale within a reasonable time, it is important to list the property at a realistic price. The parties accept that $280,000 is a realistic sale price, being the top of the range suggested by Mr. Colgrave. In my view, there is no reason for an upward adjustment of between 3.5% and 4.5% simply because a majority of vendors adopt that approach. The listing price should be $280,000 in accordance with the recommendation of Mr. Colgrave.
Using the same reasoning, the reserve price should be $270,000 in accordance with the advice of Mr. Colgrave.
The Husband is opposed to a change of agent from L.J. Hooker to Roberts Real Estate. His reasons are that, in his opinion L.J. Hooker have been doing a very good job, and the parties owe L.J. Hooker approximately $990, being their fees associated with advertising and the unsuccessful auction. Although the Wife appears prepared to meet her half of those costs now, the Husband is not prepared to do so.
In his submissions, counsel for the Husband stated that there is nothing in the material before me to impugn the efforts of L.J. Hooker in relation to the sale of the property. He commented that they are reputable agents just as Roberts Real Estate are reputable agents.
On the other hand, counsel for the Wife submitted that because there had been no meaningful offer for the property and that there was no bid at the auction, there is no basis to retain L.J. Hooker as the agent in preference to Roberts Real Estate.
He added that because counsel for the Husband appeared to accept the opinion of Mr. Colgrave as to the sale price range, that was an additional reason for a change to Roberts Real Estate.
Having considered the competing submissions, I am of the view that the parties should retain L.J. Hooker as the agent. In coming to that conclusion, I took into account the following:
·There is no evidence to suggest that L.J. Hooker have been less than professional in the way that they have been marketing the property;
·The probable cause for L.J. Hooker’s inability to find a purchaser has been the listing at unrealistic prices; and
·The evidence is that L.J. Hooker will wait until the property is sold before seeking payment of what is owed to them in relation to advertising and an unsuccessful auction.
From the submissions, it appears that the parties are in agreement that, if the property does not sell within sixty to seventy days, the listing and reserve prices should then be as nominated by the agent. However, that is subject to each party having a right to object within seven days of such prices being nominated by the agent. In that event, the objecting party must seek the opinion of the President of the Real Estate Institute of Tasmania (“the REIT President”) or his/her nominee at the joint cost of the parties.
Conclusions
This matter comes before me solely under the liberty to apply provisions in the Consent Orders. The Court is functus officio in relation to all other matters.
Order No. 3 of the Consent Orders sets out that there shall be payments to the parties to effect a distribution of 55% by value of all their assets to the Husband and 45% to the Wife. I do not have any power to vary that.
I have commented above that the liberty to apply provisions do not enable me to order any monetary compensation in the form sought by the Husband. Similarly, I do not have any power to order that the Husband pay $95 per week to the Wife. This is because the Consent Orders were final orders and were “intended to be in full and final satisfaction of either parties claim against the other”.
In view of what I have said above, I need only make orders that provide for the following:
a)That the parties jointly instruct L.J. Hooker at Devonport to reduce the listing price of the home to $280,000
b)That the parties must accept any unconditional offers at or above $270,000 (“the reserve price”).
c)That if the home is not sold within seventy days, L.J. Hooker be at liberty to nominate both the listing and reserve prices, and they shall become the listing and reserve prices if L.J. Hooker have not received an objection from either party within seven days of that party being notified of those nominated prices.
d)That in the event that either party does so object within that seven day time period, that party shall within those seven days also seek the opinion of the REIT President or his/her nominee as to the listing price and reserve price for the home.
e)That in the event that the REIT President or his/her nominee provides such an opinion, the listing and reserve prices shall be in accordance with that opinion.
f)The reasonable costs of the REIT President or nominee shall be borne equally by the parties.
In my view, the liberty to apply that is provided in the Consent Orders in relation to the sale of the home is sufficiently wide to enable the parties to bring this matter back to Court in the event that there is some further difficulty or disagreement in relation to the sale of the home.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Roberts FM
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