WILKIE & WILKIE - [2014] FamCA 1207

FAMILY COURT OF AUSTRALIA

WILKIE & WILKIE

[2014] FamCA 1207

FAMILY LAW – Enforcement – Wife refuses to sign contract for sale of house – Orders clear – Costs

Family Law Act 1975 (Cth)

Prantage & Prantage [2012] FamCAFC 84

APPLICANT:

Mr Wilkie

RESPONDENT:

Ms Wilkie

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4560

2014

DATE DELIVERED:

26 November 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

26 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Royston

SOLICITOR FOR THE APPLICANT:

Landers & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Lipshutz

SOLICITOR FOR THE RESPONDENT:

Berry Family Lawyers

Orders

That the wife forthwith sign the contract of sale dated 22 November 3014 in relation to the property at B Street, Suburb C.
That the wife pay the husband’s costs of this application on a scale basis by agreement and failing agreement as assessed.
That the reasons this day be transcribed.
That the application filed 26 November 2014 is otherwise dismissed.
That forthwith the wife sign the contract of sale dated 22 November 2014 providing for the sale of the property at B Street, Suburb C;
That the reasons this day be transcribed;

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkie & Wilkie 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: MEL 4560 of 2014

Mr Wilkie

Applicant

And

Ms Wilkie

Respondent

REASONS FOR JUDGMENT

On 3 October 2014, in the judicial duty list, based upon an application brought by the husband relating to the disputed sale of the property at B Street, Suburb C, Thornton J dealt with a variety of orders – some of which were by consent and some of which were not – it seems common ground that the prelude to that application was that the property had been on the market since January of this year and had not been sold.
It is, therefore, of some significance that her Honour made the orders that she did on 3 October. Those orders included the specific appointment of D Agents. I note that that was not an order by consent and, indeed, I have had the advantage today of reading some of the background material. It was quite clear that the wife wanted a different agent to whom she also makes reference in the affidavit she has relied on today. In any event, her Honour made the order and no appeal resulted.
Her Honour then made a second order which clearly is marked as being by consent of both parties. That order provides that the property was to be sold by public auction on terms and conditions to be agreed and, failing agreement, as determined by the selling agent. Those last words were not by consent but, rather, orders of the Court. Again, there has been no appeal against that order. I do not have the reasons that…

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.

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Details

AGLC: WILKIE & WILKIE [2014] FamCA 1207
Case: [2014] FamCA 1207
Decision Date: 26 November 2014

CaseChat Overview and Summary

In the matter of *Wilkie & Wilkie*, Cronin J of the Federal Circuit Court of Australia considered an application concerning the sale of a property at B Street, Suburb C. The dispute arose between a husband and wife, with the wife being the respondent to an application filed on 26 November 2014.

The primary legal issue before the court was whether the wife should be compelled to sign a contract of sale dated 22 November 2014 for the property. The court was required to determine the enforceability of this contract and the appropriate orders to be made in relation to the property's sale.

Cronin J ordered that the wife forthwith sign the contract of sale dated 22 November 2014 in relation to the property at B Street, Suburb C. The court also ordered that the wife pay the husband’s costs of the application on a scale basis, to be agreed or assessed. The application filed on 26 November 2014 was otherwise dismissed.

Orders

Orders of the court

That the wife forthwith sign the contract of sale dated 22 November 3014 in relation to the property at B Street, Suburb C.

That the wife pay the husband’s costs of this application on a scale basis by agreement and failing agreement as assessed.

That the reasons this day be transcribed.

That the application filed 26 November 2014 is otherwise dismissed.

That forthwith the wife sign the contract of sale dated 22 November 2014 providing for the sale of the property at B Street, Suburb C;

That the reasons this day be transcribed;

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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