Yang and Gian and Anor

[2013] FamCA 1062

FAMILY COURT OF AUSTRALIA

YANG & GIAN AND ANOR [2013] FamCA 1062

FAMILY LAW – PROPERTY – Interim – Where the wife seeks orders for the appointment of a trustee for sale of the former matrimonial home – Where the property is encumbered –Where the mortgagee stated that, in the event the order is not made, it proposes forthwith to take possession of the property and sell it to recover its mortgage – Where the court determined that it is appropriate to make the orders sought by the applicant for the sale of the property.

Family Law Act 1975 (Cth)

APPLICANT: Ms Yang

FIRST RESPONDENT: Mr Gian

SECOND RESPONDENT: Westpac Banking Corporation

FILE NUMBER: SYC 4390 of 2012

DATE DELIVERED: 19 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 19 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Yau & Wang Lawyers

THE FIRST RESPONDENT IN PERSON: Mr Gian

SOLICITOR FOR THE SECOND RESPONDENT: Kemp Strang Lawyers

Orders

1. That leave is granted to the wife to file in Court this day an Affidavit of Mr I affirmed on 17 Dec 2013.

1. That the matrimonial property contained in Real Property Act 1900 folio identifier … situate at B Street, Suburb C in the State of New South Wales (“the Property”) shall be sold.

2. That Mr I be appointed as the Trustee for the sale of the Property.

3. That the Trustee shall have all powers and authority to conduct the sale of the Property and appoint an agent to sell the Property.

4. That I make orders in accordance with paragraphs 11 and it’s sub-paragraphs as amended and 12 and it’s sub-paragraphs of the application in a case filed 10 December 2013, as set out herein:

   11.        Order that the property be sold:

   a.   In the first instance, by way of private treaty at any price agreed in writing between the Applicant Wife and the 1^st Respondent Husband or in failing such agreement within fourteen (14) days of the date of these orders at no less than the price of $410,000; or

   b.   In the event that contracts have not been exchanged for a sale by private treaty within six (6) weeks of the date of these orders, Order that the sale by way of auction, with a reserve price of $400,000 (“Reserve Price”) and such auction to occur within ten (10) weeks of the date of these orders; or

   c.   In the event that the property is passed in at auction, Order that the Property be sold in such manner and such price as determined by the Trustee for sale.

   12.      Order that from the proceeds of sale of the land, the Trustee may deduct:

   a.Firstly, in adjustment of municipal and water rates;

   b.Secondly, the agent’s commission and other associated expenses;

   c.Thirdly, the expenses of the Trustee in respect of the sale;

   d.Fourthly, any legal expenses of transferring the Property to the purchaser; and

   e.Fifthly, to discharge mortgage with Westpac Banking Corporation, being mortgage number ...

5. That upon the distribution of the sale proceeds as set out in the preceding order, the balance of the sale proceeds shall be paid into an interest bearing controlled monies account, to be held by the solicitor for the Westpac Banking Corporation on behalf of the parties jointly, with such amount not to be disbursed pending further order of the Court.

6. That, in the event of any difficulties with these Orders, liberty is granted to the parties, Westpac Banking Corporation and to the Trustee for Sale, to seek to relist the matter upon giving forty-eight (48) hours’ notice to the other parties and to the Court, by arrangement with my Associate. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yang & Gian & Anor 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: SYC 4390 of 2012

Ms Yang

Applicant

And

Mr Gian

First Respondent

And

Westpac Banking Corporation

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. By an Application in a Case filed 10 December 2013, the applicant seeks orders for the appointment for the trustee for sale of a property at B Street, Suburb C (“the Suburb C property”).  The Suburb C property was acquired by the respondent in September 2006.  The purchase price was some $370,000, and he borrowed some $200,000 from the bank.  When the matter was before me in September of this year, the parties agreed that the property was valued at $410,000.  I am informed that the mortgage currently stands at some $310,000. 

3. Pursuant to orders of the court, the applicant presently resides in that property with the child of the relationship.  The mortgage has not been paid.  The bank has appeared before me, being the second respondent to the present application, and informed the court that it supports the application for the appointment of a trustee for sale, and that in the event the order is not made, it proposes itself forthwith to take possession of the property and sell it to recover its mortgage.  If the order is made, the bank has agreed with the applicant that if contracts for the sale of the property have not been exchanged by March, it will then, regardless, take possession of the property and sell it as mortgagee in possession. 

4. To that end, the applicant has agreed to give the bank vacant possession on 4 April 2014 if the property is not sold by then. 

5. It is clear therefore that the mortgage is not being paid.  Earlier this year the first respondent agreed to orders to use his best endeavours to pay the mortgage but he has not been able to do so.  The first respondent tells me today that his parents would assist him to pay the mortgage, but only if he were to retain ownership of the property, and the property would not go to the applicant.  In those circumstances, the outcome is that the property will be sold either by the bank or by the trustees for sale if the wife’s application succeeds. 

6. The first respondent was served with the application.  In response he filed an affidavit on 10 December 2013, to which the court has had regard.  He is presently in Country J.  When the matter first came before the court he did not appear and was not able to be contacted.  The matter was adjourned until today, and the first respondent has attended by telephone with the assistance of an interpreter.  The first respondent says that the matter should be adjourned until his return in February 2014 because it is not fair for the matter to proceed whilst he is in Country J and that if he returns in February he will go to the bank and try and come to an arrangement with it. 

7. That ignores the fact that some time that has passed during which the mortgage has not been paid and the bank has been taking steps to enforce its rights.  Further, no discussions have taken place with the bank. The application for an adjournment also ignores the present view of the bank that if the orders are not made, it will forthwith take steps to sell the property. 

8. The first respondent further opposes the order on the basis that the property was acquired by him prior to the relationship and there was no relevant reduction of the mortgage during the relationship.  That may be so and those facts will no doubt be relevant in due course to the court in determining what is an appropriate property distribution. 

9. Contributions to a property are one of the things that the court takes into account when making the final determination.  However, the needs of the parties and their capacity for future work and their obligation to care for and look after children of the relationship are also matters that are taken into account.  Accordingly, the applicant clearly has an interest in preserving the matrimonial property.  Although there is no evidence to this effect, it is notorious that mortgagee sales can attract a lower sale price than a properly conducted sale apparently being undertaken not under compulsion. 

Conclusion

1. Given these matters, it is appropriate to make the orders sought by the applicant for the sale of the property today. Because of matters I raised on the last occasion the applicant proposed that Mr I, a solicitor who has been in practice for 16 years, be appointed the trustee for sale.  He has no apparent connection to the parties in this matter.  The first respondent said that if the sale is to proceed, the proceeds of sale should continue to be held by the solicitor for the bank who has agreed that that is an appropriate course and it is not opposed by the applicant. 

2. The applicant has proposed that there be orders in the first instance fixing the price the property which is to be sold based upon the agreed value of $410 000.  In those circumstances, that seems reasonable.  However, liberty will be granted to the parties, which for this purpose will include the bank, or to the trustee for sale to apply in relation to these orders on relatively short notice.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 19 December 2013.

Legal Associate: 

Date:  15 January 2014