Clayton v Clayton (No 2) [2015] QDC 214

DISTRICT COURT OF QUEENSLAND CITATION: Clayton v Clayton (No 2) [2015] QDC 214 PARTIES: NICHOLAS DEAN CLAYTON (applicant) v GEMMA CLAYTON (first respondent) AND LINDA CAROL CLARK (second respondent) FILE NO/S: 2756/15 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 25 August 2015 ex tempore DELIVERED AT: Brisbane HEARING DATE: 25 August 2015 JUDGE: Samios DCJ ORDER: 1. Application dismissed. 2. His Honour orders each party to pay their own costs including those costs reserved. CATCHWORDS: FAMILY LAW – JURISDICTION – MAINTENANCE AND PROPERTY – where the applicant and the first respondent owned a piece of real property together – where the applicant and the first respondent divorced – where the applicant sought to have his name removed from the line of credit shared with the first respondent – where the applicant applied under section 38 of the Property Law Act 1974 (Qld) to appoint a statutory trustee for the sale of the property – where the first respondent’s mother was joined as the second respondent to the application – where the first respondent, the first respondent’s children and the second respondent continued to reside at the property – where the first respondent submitted that the matter should be dealt with in the Family Court as opposed to the District Court due to aspects of family law – whether the District Court has jurisdiction to hear the application – whether the application -- 1 of 5 -- 2 should be granted Legislation Property Law Act 1974 (Qld) s 38 COUNSEL: Mr N Clayton (self-represented) for the applicant Ms G Clayton (self-represented) for the first respondent Ms L Clark (self-represented) for the second respondent SOLICITORS: The applicant was not represented by solicitors The first respondent was not represented by solicitors The second respondent was not represented by solicitors [1] HIS HONOUR: This matter initially came before me on the 5th of August 2015. The applicant sought an order pursuant to section 38 of the Property Law Act 1974 (Qld) that a trustee be appointed for the sale of real property at Riverhills, and that the property vest in the trustee for the purposes of sale. A number of other orders were sought. Included in those orders were orders that the trustee could but was not obliged to seek a valuation of the property. In addition the trustee was authorised to spend money on the property in preparation for its sale using the recommendations of any agent in that regard and for its marketing or advertising and that the amount of such expenditure be paid for equally by the applicant and the respondent. [2] In addition the applicant sought an order that pending sale the respondent pay or cause to be paid all outgoings on the property including rates, local authority charges, body corporate charges, if any, and maintain adequate fire and general insurance on the property, and provide evidence of same to the trustee as requested by him from time to time. The effect of the orders were that the costs of this exercise would come out of the proceeds of sale. Those costs could be those including the costs of the trustee and other costs that I have mentioned. -- 2 of 5 -- 3 [3] On hearing the application it became apparent to me that the applicant’s former mother-in-law, that is, the respondent’s mother, could be a relevant party to these proceedings. That is because it seemed to be accepted that during the relationship between the applicant and the respondent, who were married and then divorced, the applicant’s former mother-in-law had contributed at least about $200,000 to the property. It seemed to be accepted that the property might be valued at about 400,000 to 430,000 dollars. The effect, as I saw it initially, was that the applicant would not be getting any actual money out of the sale. It seems his concern was that he was on the title as a mortgagor and that he wanted to get on with his life, and he couldn’t obtain finance because he was still on the title to the property at Riverhills. [4] The respondent, on that hearing, told me that she thought the most appropriate place to resolve the concerns of the parties as indicated in their affidavits is the Family Court. Bearing in mind that even the Family Court would have its costs and expenses to try and resolve the parties’ dispute, I hoped that by adjourning the matter for a number of weeks to allow the parties to talk about the matter a resolution might be reached. In the meantime, of course, the applicant’s former mother-in-law could be served with the application, and she could become a party to the proceedings. [5] In the interim one thing has happened. That is the applicant’s former mother-in-law has become a party to the proceedings, and she has filed an affidavit in this matter. I have read her affidavit. I have read also the updated affidavits from the applicant, and I have reread the affidavit of the respondent that was before me on the last occasion. It is clear that the applicant’s position simply is he wants to get off the title. He says for his part the actions of his former wife and former mother-in-law have been -- 3 of 5 -- 4 unreasonable. Of course, for their part they say his actions over about four years have also been unreasonable. Clearly the parties today have not got a resolution to the matter. The applicant wants orders that the property be sold. [6] There are a number of cases dealing with section 38 of the Property Law Act 1974 (Qld) which indicate that, generally speaking, an order should be made on such an application; however, in my view those cases are quite different to the case before me. This case has, inextricably tied up in it, the potential disadvantage to the children of the marriage if an order were made in the terms sought by the applicant. That is, any money that is to be gained from a sale may be reduced significantly by, for example, trustees costs, real estate agent’s costs, refurbishment costs, valuation costs, etcetera. There is also the former mother-in-law’s interests. They have to be considered, and as the respondent submitted last time to me, the Family Court has the machinery to deal with the concerns that do arise when children are involved. [7] I am satisfied that the respondent and her mother, the second respondent, have sought to reasonably resolve this matter. I come to the view that the applicant is simply dogged about wanting a sale despite what it might do for the interests of his children, and, of course, he has no concern whatsoever for the interests of his former wife and his former mother-in-law in trying to see that if orders were made of the kind sought that those orders did not denude or disintegrate the financial interest that his former wife and former mother-in-law have in the property. In one sense I see the applicant as coming before the court seeking this order in this court as having nothing to lose but everything to gain. What he could gain is get his name off the title. He has -- 4 of 5 -- 5 nothing to lose financially. It seems to me he has been offered reasonable opportunities to get off the title, and he has not availed himself of those opportunities. [8] It seems to me the Family Court is the appropriate forum for the dispute between the parties. This is not just about selling a house and get on with it. It may be that, as the applicant points out, the dispute has been going on for about four years, but there are children involved. As he says, when all this is over he’s going to apply to the Family Court to get access to his children. My response to that is that he could have applied long before now to get access to his children and to resolve these property issues. I am not satisfied that it is right to make the orders that he seeks in this application. I agree with the first respondent, his former wife, that the Family Court is the appropriate jurisdiction for these orders to be dealt with where the court can deal with children’s issues, property issues, and trying to resolve the rights of the parties with the machinery the Family Court is experienced in using. To my mind to just simply make this order and all the other orders that are sought is not to recognise that this is a different case than the usual case where section 38 of the Act is employed. For those reasons, then, I dismiss the application, and I order – is there anyone who wants to make any submission about costs? Do you want to make any submissions as to costs? [9] HIS HONOUR: I order each party to pay their own costs including those costs reserved. Yes. Nothing further? Thank you. I’ll just give that to my Associate. Mr Bailiff, attend the court so we can resume in criminal jurisdiction. -- 5 of 5 --