Younan and Younan (No 2)

[2014] FamCA 996

FAMILY COURT OF AUSTRALIA

YOUNAN & YOUNAN (NO 2) [2014] FamCA 996

FAMILY LAW – PROPERTY – Agents appointed for sale

FAMILY LAW – COSTS

APPLICANT: Ms Younan

RESPONDENT: Mr Younan

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8961 of 2012

DATE DELIVERED: 3 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 3 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schetzer

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Mr Salamanca

SOLICITOR FOR THE RESPONDENT: Pryles & Co

Orders

1. That the husband and the wife do all such acts and things and sign all necessary documents to appoint Q Agents as sole selling agents of Suburb L and that inter alia:

   (i)Such sale be by public auction to be conducted within 45 days of such appointment;

   (ii)That the reserve sale price be as agreed between the parties after consultation with the selling agent and in default of agreement the reserve sale price shall be:

   (a)as determined within 7 days of default of agreement by the parties’ valuers Mr R of S Valuers and Mr T of U Property Group and in default of agreement, such reserve sale price shall within 7 days of default of agreement be determined by the President of the Real Estate Institute of Victoria or his/her nominee;

   (b)that no later than 4.00 pm of the Thursday immediately preceding the auction date the said valuers or the President of the Real Estate Institute of Victoria or his/her nominee determine such reserve sale price having regard to the marketing program to that date.

   (iii)In the event the said property fails to sell at the nominated reserve sale price, within 28 days after the said auction, Suburb L be marketed by way of private sale for a further period of 30 days thereafter at the nominated reserve sale price or such other reserve as determined by the President of the Real Estate Institute of Victoria or his/her nominee.

2. Reserve liberty to the parties to apply.

3. The wife’s Amended Application in a Case filed 28 August 2014 and the husband’s Response filed 1 September 2014 be otherwise dismissed.

4. Certify for counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Younan & Younan 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: MLC 8961 of 2012

Ms Younan

Applicant

And

Mr Younan

Respondent

REASONS FOR JUDGMENT

1. After the making of orders disposing of the interim applications which address issues as to the mechanism for sale of a property in Suburb L, I have before me applications by both the husband and the wife seeking costs against the other arising from their competing applications.

2. It is said on behalf of the wife that the husband's application has failed, that the wife has been put to considerable expense by virtue of his refusal to engage in discussion and negotiation, and ultimately a finalisation of arrangements for the sale of the Suburb L property, that property having been ordered to be sold pursuant to final property orders that were made on 3 February 2014.

3. The difficulty with that submission is that a central part of the wife's application is her application to reduce the reserve price to an amount that is some $487,000 below the reserve price agreed between the parties on the basis of expert valuations obtained by them when the final property orders were made.  Further, that part of the wife's application is compromised by the evidence that she places before the court that the selling agent nominated by her would set that reserve at $2.9 million.

4. The husband says that indeed it is he who has been largely successful in his application before the Court today because the mechanism for sale that I have ordered is largely in keeping with the orders sought by him at paragraph 4 of his Response to an Application in a Case, which was filed on 2 September 2014.  The difficulty with that application is that in paragraph 2 the husband sought an order, the effect of which would have been to vary the final property orders which are, I note, final orders of this Court.

5. At the start of the day I had robust discussion with counsel for both parties, firstly as to the merits of the husband's application with respect to the proposed variation of the final property orders and, subsequent to that, robust debate and discussion as to the appropriate mechanism for setting a reserve price for the sale of the property.

6. Ultimately I made rulings in relation to those matters.  Those rulings do not accord with either party's application.  In the circumstances neither party has been successful or wholly successful in their claim.  Section 117(1) of the Act provides that subject to subsection (2) and other sections of the Act, each party to the proceedings under the Act shall bear his or her own cost.

7. Section 117(2A) sets out the matters I should take into account in order to assess whether there should be an order for costs.  Having regard to those provisions, particularly the fact that neither party has been successful in their application, I am satisfied that this is not a matter appropriate from departing from the usual practice that each party should bear their own costs. 

8. Accordingly, I dismiss the parties' applications seeking orders for costs.

9. I will therefore make the orders in the terms of the minute that has been provided by counsel in accordance with my direction.  I make the orders for the reasons which I think have emerged from the discussion.  That is, clearly there is a need for this property to be sold to give effect to the final property orders that have been consented to by these parties, which were made by his Honour Justice Cronin on 3 February 2014.  They provide a sensible and fair mechanism for a determination of the reserve price to enable this property to go to auction and to bring a conclusion to these proceedings.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 September 2014.

Associate:  Alison Power

Date:  3 September 2014