Wilson v Barker
[1998] QSC 205
•1 October 1998
IN THE SUPREME COURT
OF QUEENSLAND No. 666 of 1995
Brisbane
[Wilson v Barker]
BETWEEN:
ANITA RACHEL WILSON
Plaintiff
AND:
PETER JOSEPH MICHAEL BARKER
Defendant
AND:
BETWEEN:
PETER JOSEPH MICHAEL BARKER
Plaintiff
by Counterclaim
AND:
ANITA RACHEL WILSON
First Defendant
by Counterclaim
AND:
DANLISA PTY LTD
Second Defendant
by Counterclaim
CATCHWORDS: CASE APPRAISAL - Decision of a case appraiser - time at which case appraiser’s decision becomes binding upon parties - whether, in the absence of draft orders of the case appraiser, the Court is able to make orders to give effect to case appraiser’s decision - whether judicial discretion under Supreme Court of Queensland Act permits orders to be made.
Solicitors:Robbins Watson for the plaintiff/applicant
The defendant/respondent appeared on his own behalf
Hearing Date: 18 September 1998
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 1 October 1998
This case arose from the breakdown of a de facto relationship between the parties. During the course of their relationship there was some significant intermingling of their financial affairs, each of them having come to the relationship with some separate estate. Each sought relief regarding the disposition of the property on the breakdown of their relationship.
On 10 September 1997 the Court referred the matter to case appraisal pursuant to s. 102 of the Supreme Court of Queensland Act 1991 (“the Act”). The case appraisal was held on 6 May 1998. On 18 May 1998, the case appraiser’s certificate and the case appraiser’s decision were filed with the Registrar under s. 109 of the Act. Under O. 99 r. 26(1) a case appraiser’s decision must be in writing, but the case appraiser need not give reasons for the decision. On 11 June 1998, the case appraiser, at the request of the parties, dealt with the question of costs and clarified some aspects of the original decision.
Subsection 97(2) of the Act provides that the case appraiser’s decision is not binding on the parties until -
(a)the time prescribed under the rules for filing and election to go to trial has passed; and
(b)the Supreme Court, by order, gives effect to the decision.
Section 111 provides that a party may apply to the Supreme Court for an order giving effect to the case appraiser’s decision after the time prescribed under the rules for electing to go to trial has past. In those circumstances the Court may make any order it considers appropriate in the circumstances. Under O.99 r.30 a party who is dissatisfied with the case appraiser’s decision may elect to have the dispute go to trial in the ordinary way by filing an election in Form 522 with the Registrar. Such election must be filed within twenty-eight days after the case appraiser’s certificate is filed in the Registry. Unless such an election is made, under O.99 r.28 the case appraiser’s decision becomes final.
In this case, no election was made by either party to go to trial. By notice of motion the plaintiff has applied for specific orders to give effect to the case appraiser’s decision.
The only difficulty appears to be in working out how best to give effect to the decision of the case appraiser since he did not provide draft orders although he gave reasons for the decision. The result of the case appraiser’s decision in this case involves the disposal of a number of properties including a business. In such a case where the orders are likely to be complex, it would in my view be preferable for the case appraiser to include draft orders in the decision to provide certainty to the parties, so that they know how to give effect to the decision, whether or not they should file a notice of election and for the use of the trial judge after judgment if the matter does go to trial in order to determine the appropriate disposal of costs.
In this instance, the respondent, who was represented by a solicitor at the case appraisal but was self-represented by the time the matter came to court, opposed the making of the orders sought in some matters of detail, particularly with regard to the sale of the business. These matters would have been less likely to have been in dispute had draft orders been made by the case appraiser.
However, in the absence of draft orders, it has not been impossible to give effect to the decision, particularly given the wide discretion reposed in the Court under subsection 111(3) of the Act which provides that the Court may make any order it considers appropriate in the circumstances. The reasons for the orders are to be found in the decision of the case appraiser filed on 18 May 1998 and the additional clarification provided on 11 June 1998. Accordingly I make the following orders -
1.That the plaintiff and the defendant act jointly to sell:
(a)the property situated at 15 Jarrahdale Drive, Elanora in the State of Queensland, being Lot 43 on Registered Plan No. 224395, County of Ward, Parish of Tallebudgera, Title Reference 17315111 (“the Jarrahdale Drive property”)
(b)the property situated at 31 Kalmia Court, Elanora in the State of Queensland, being Lot 30 on Registered Plan No. 817766, County of Ward, Parish of Tallebudgera, Title Reference 18752046 (“the Kalmia Court property”)
2.That the proceeds of sale of the Jarrahdale Drive property be applied in the manner and order as follows:
(a)in the repayment of any loan secured by registered mortgage given over the Jarrahdale Drive property prior to 18 September 1998;
(b)in payment of the costs associated with the sale;
(c)in payment to the plaintiff and the defendant of actual payments made by them in reduction of any loan referred to in subparagraph (a) hereof until the date of the completion of the sale of the Jarrahdale Drive property;
(d)in payment of the balance:
(i)to the plaintiff, the sum representing 43 per cent;
(ii)to the defendant, the sum representing 57 per cent
3.That the proceeds of sale of the Kalmia Court property be applied in the manner and order as follows:
(a)in repayment of any loan secured by registered mortgage given over the Kalmia Court property prior to 18 September 1998;
(b)in payment of the costs associated with the sale;
(c)in payment to the defendant of half of the result of the following:
(i)the total of the defendant’s payments to the first registered mortgagee of the Kalmia Court property in respect of the loan secured by registered mortgage over the property, made since 23 February 1998;
(ii)plus the amount of $18,238.00;
(iii)minus any sum received by the defendant from tenants of the Kalmia Court property since 23 February 1998;
(iv)minus the amount of $11,800.00;
(d)in the event that there are further proceeds of sale after repayments referred to in this order, in payment of half of the balance to each of the plaintiff and the defendant;
(e)in the event that there are insufficient funds available from the proceeds of sale of the Kalmia Court property to enable the payments required by the provisions of subclauses (a), (b), and (c) of this clause, then half of the amount of the deficit is to be deducted from the amount otherwise payable to each party pursuant to clause 2.
4.That the net proceeds of the sale of the hairdressing business located at Shop 9A, Palm Waters Shopping Centre, 19th Avenue, Elanora (“the hairdressing business”), such business including all the chattels located upon those premises and liabilities of the business, but excluding the motor vehicle, Ford Festiva, registration number ARW 75, be applied in the manner and order as follows:
(a) in payment of the costs of sale;
(b)in payment to each party of half of the balance.
5.The plaintiff and the defendant must forthwith do all acts and things, including the execution of all documents, necessary or reasonably convenient for the sale of the properties.
6.The plaintiff and the defendant shall each list the properties for sale by private treaty with an agent or agents of their choice listed at a price of:
(a)in the case of the Jarrahdale Drive property, TWO HUNDRED AND THIRTY THOUSAND DOLLARS ($230,000.00);
(b)in the case of the Kalmia Court property, ONE HUNDRED AND TWENTY FIVE THOUSAND DOLLARS ($125,000.00).
7.The plaintiff and the defendant must list the properties at the price set out in clause 6 hereof for a period of three months from the date of this order, and should the property not be sold, the plaintiff and the defendant must follow the procedure set out in clause 8 hereof.
8.The plaintiff and the defendant must do all acts and things including the execution of all documents, necessary or convenient for the sale of the properties by public auction and in particular:
(a)place the properties with a real estate agent for auction to be agreed in writing between the parties and failing agreement such auctioneer as may be nominated by the president of the Real Estate Institute of Queensland for the time being, with the sale of the properties by public auction to take place not earlier than two months after the date the property is listed for sale by auction, and not later than five months;
(b)execute all documents requested by the auctioneer for the sale of the properties;
(c)request the auctioneer to recommend reserve prices be placed on the properties for the purpose of the auction sale and accept such recommended reserve prices;
(d)pay the auctioneer equally any sums requested for any advertising expenses in relation to the auctions;
(e)co-operate with the auctioneer in relation to the auction of the said properties;
(f)attend at the auction sale(s) and negotiate with the highest bidder in respect of each property and in the event that the reserve price is not reached in respect of either or both properties, accept the advice of the auctioneer as to the acceptance of a price less than the reserve price;
(g)execute the contracts for sale and all other documents necessary to complete the sales.
9.Notwithstanding any other orders, the proceeds of sale arising out of the sale of 15 Jarrahdale Drive, Elanora and 31 Kalmia Court, Elanora, shall, after payment of the items referred to in orders 2 and 4 shall be paid into the trust account of the plaintiff’s solicitors, Robbins Watson, for the purpose of carrying out the division of the remaining sale proceeds in accordance with these orders.
10.That there be no order as to costs.
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