HUSBAND SEEKS TO SELL THE PROPERTY OCCUPIED BY THE WIFE AND THEIR CHILD
Manfield & Scriver [2020] FCCA 3088 (17 November 2020)
This case involves the applicant-husband seeking to sell the property occupied by the wife and their child asserting that he has been unable to make repayments on the mortgage.
Facts:
In 2012 the Applicant and the Respondent purchased a property. The Property was purchased with a deposit of $53,270 and the balance of $276,73.88 was funded by way of a mortgage with the National Australia Bank Limited.
Since final separation the parties have made numerous attempts to reach a property settlement. The Applicant continued to pay the Mortgage payments and the Council rates until about February 2019. Since separation the Respondent has not made any payments towards the Mortgage or the Council rates. The Applicant is therefore now in default in paying the moneys owing pursuant the Mortgage.
The Applicant seeks to sell the Property in circumstances where he asserts that he has been unable to make repayments on the mortgage since February 2019. The Respondent lives at the Property with the parties’ child and she seeks to retain the Property, however she is not agreeable to meeting the mortgage repayments or paying the arrears on the mortgage.
Issue: Should the court allow the husband to sell the property?
Held:
The Court has before it credible evidence that payments pursuant to the Credit Contract are in default and that the NAB is threatening to exercise its rights as Mortgagee pursuant to the Mortgage.
No payments have now been made pursuant to the Credit Contract for a period of some 19 months. If the NAB exercises its rights as Mortgagee, further expenses will be incurred which will cause loss potentially to both the Applicant and the Respondent.
In the circumstances it is unfortunate, particularly with the manifestation of the COVID-19 pandemic, there is little else that the Court can realistically do but order the sale of the Property to prevent the NAB exercising its rights as Mortgagee. In so ordering, the court intends to make orders that will protect the Respondent’s interests, whilst taking into account the parties are self-represented, that there is a high degree of animosity between them and the legal reality is that the Applicant is the sole registered proprietor of the Property.
The Respondent is to have the right to remain living at the Property until settlement of the sale of the Property. This is because X lives with the Respondent and the Respondent receives little financial support from the Applicant. The Applicant also presently has accommodation at his parent’s home for which he has not disclosed any financial expenses relating to this accommodation. I therefore infer that the Applicant is living rent free at his parents’ home. After settlement of the sale of the Property the proceeds of the sale will be held in trust on behalf of the Applicant and the Respondent pending final orders of the Trial Judge. It will then be open to the Respondent, pending the final hearing to apply to the Court for an interim property settlement, should the Respondent find herself in need of a partial distribution of funds.
Conclusion: Court orders that The Applicant Husband (Applicant) do all such acts and things and sign all necessary documents as may be required to sell the real property situate at and known as B Street, Suburb C in the State of Victoria.
