ZAMANI & WALDERA

[2020] FCCA 1639

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAMANI & WALDERA [2020] FCCA 1639

Catchwords:
FAMILY LAW – Property – application for sole use and occupation of former matrimonial home – where previous consent orders made – where the orders provided for the property to be sold if the husband could not refinance – where the wife has left the property and the husband has remained in occupation but ceased paying mortgage – satisfied that the husband is not taking reasonable steps to assist in the sale of this property.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS ZAMANI

Respondent: MR WALDERA

File Number: DNC 172 of 2019

Judgment of: Judge Young

Hearing date: 29 May 2020

Date of Last Submission: 29 May 2020

Delivered at: Darwin

Delivered on: 29 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Holtham

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: Ms Tregear

Solicitors for the Respondent: Hunt & Hunt

ORDERS

1. That the affidavit filed by the wife on 28 May 2020 be disallowed.

2. That the respondent pay the applicant’s costs associated with obtaining the Registrars signature on the Sales Agency Agreement in accordance with order 9 of the orders made 20 August in the amount of $1,254.00

3. That the husband vacate the property within 28 days to today’s date leaving the property in good order and clean and thereafter the wife have sole use and occupation of property.

4. That husband pay the wife’s cost of this application in the sum of $2,467.00.

5. That all extant applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Zamani & Waldera is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 172 of 2019

MS ZAMANI

Applicant

And

MR WALDERA

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for sole use and occupation of a former matrimonial home of the parties.  Consent orders were made on 20 August 2019.  Order 1 of 20 August 2019 provided for the applicant wife, I will call her the wife, to transfer her interests to the respondent husband in the former matrimonial home.  He was to pay her $25,000 and simultaneously, as is normal, refinance the mortgage registered on the title of the property under his name.

3. The order is a little inaccurate perhaps, for reasons that aren’t entirely clear to me, in that it appears there are in fact two mortgages registered over the property. I do not understand this to be in dispute.  Each party has secured their own personal borrowings, not joint borrowings, against the property so there are two mortgages with one in the name of each party.  Presumably one is a first mortgage and one is a second mortgage.

4. Order 2 provided that for the purpose of Order 1, that is the transfer to the respondent by the applicant of her interest in the jointly owned property, the respondent shall refinance the “mortgage” registered on the title of the property into his name on or before 1 December 2019.

5. I take that order to mean as there was already a mortgage in the husband’s name, that what was proposed was that the mortgage given by the applicant wife for the borrowings in her sole name will be discharged and there is a time limit of 1 December 2019 for that to happen.  In other words the husband was given a reasonable period within which to seek the refinancing of the property and raise the $25,000, given a period of approximately three months to do so.

6. He has failed to obtain finance but nevertheless has remained in the property.  Up until about December 2019 he was paying both mortgages.  The wife had left the property, she was renting, and he was in occupation of the former matrimonial home.  As is often considered equitable in those circumstances he was taking complete responsibility for the mortgage debt, as was probably appropriate, given that he had the sole use of the jointly owned asset and the wife was forced to rent elsewhere. 

7. The husband ceasing to pay the wife’s mortgage was significantly prejudicial to her, because her mortgage debt is in the region of $275,000 and there would be a considerable interest charge accruing, even at three or four per cent or whatever the mortgage rate is now.

8. The orders also provided for the property to be sold if the husband could not refinance so once it was apparent, at least to the applicant wife, that the husband had not refinanced within the period given to him, the wife’s lawyers wrote an email to the husband’s solicitors on 15 January 2020 asking him to sign the sales agreement within seven days.  There was no reply to that email for the next month in which time the wife, having not received any application for an extension of time, obtained the registrar’s signature, as the orders provided, to the sales agreement appointing a sales agent.

9. In the husband’s affidavit that he has filed in opposition to the wife’s application filed on 22 May he baldly asserts that he actually signed the sales agreement.  Of course, he did as he altered it in a significant way to say that the property would be sold without vacant possession.  In other words, notwithstanding the fact that he was legally represented at the time, he effectively imposed a condition on the sales agreement that would be unacceptable to any purchaser, one would expect.

10. One wonders what the motivation in all of that was, whether it was misunderstanding or something else, I do not know.  But the fact is that the sales agreement was returned late without any request for an extension of time and the agreement was modified in a way that probably made sale impossible.

11. Whether the husband was being deliberately obstructive in that or not I do not know but I am satisfied that the failure to respond to the request within the time limit was unreasonable.

12. Ms Tregear, who appears as counsel for the husband today, said that the error was made in her office and it wasn’t passed on to Mr A.  There is nothing in the affidavit that tells me the details of that.  There is no offer by the firm of solicitors to pay the costs that I am satisfied were reasonably incurred and which I order be paid by the husband, nothing at all including no details about how that error happened.

13. I am left with a bald statement from the bar table by Ms Tregear that it was an error in her office but I am not given any details about it.  I do not know how the error caused the delay, why there wasn’t a request for an extension of time, nothing at all. 

14. I satisfied in all of the circumstances, where there is an order providing for sale if the property could not be refinanced by 1 December, where the husband ceased paying the mortgage and the unexplained delay or refusal in listing the matter for sale or responding to the request to sign a sales agreement, that the husband is not taking reasonable steps to assist in the sale of this property in conformity with the consent orders.

15. In my view, the mere fact that he ceased paying the mortgage is in itself a proper ground, notwithstanding that there is now a belated offer to resume payment, for making the sole use and occupation order that the wife seeks and accordingly I propose to make a further order granting the wife sole use and occupation of the property.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 19 June 2020