A Court Order was issued for Property Settlement between my ex-wife and myself 2 years ago. In the settlement I was to receive the equity in a unit that we owned jointly with our daughter and son-in-law (25% each). My ex-wife was to receive the transfer of our family home and use this to take out a loan to purchase the unit and then pay me out. My wife was to have an independent valuation on the unit. She never had the unit valued. Some months later I was asked to sign a Sales Contract for the unit as the other 3 had decided to sell. I signed. I am now told I am in contempt of the Court Order and as such I have no further claim to the money my ex-wife owes me. I also have no way of determining the equity owed due to the property never being valued. It sold for $421000 and the overall cost of land and construction $304000. Have I lost out or is there another recourse to what is rightfully mine? In the overall settlement my ex-wife received 62% and I got 38% but now it is 35% to 65%.
Lawyer who has taken on my case but does not give me clear information especially re pitfalls such as not signing the unit over fro sale. She is now recommending I pay for a barrister's opinion at considerable cost. This would lead to a court hearing at huge cost. I don't feel I've done the wrong thing but can't get what is rightly mine without all the rigamorole and COST.
I don't understand the problem.
There would be no need to have the unit valued, if it was sold, as it's value is set at the sale price of $421,000. The equity in the unit is then calculated by subtracting the balance of the loan which was secured by mortgage over the property. The solicitor who acted in the sale of the property would have sent correspondence to your wife setting out how the settlement figures were calculated for the sale of the unit and what cheques were provided at settlement.
What exactly does your court order say? It appears that it would be a simple matter to enforce the court order. I would need the exact wording.
1. The husband shall forthwith transfer to the wife all his right, title and interest in the family home. 2. On the transfer of the property the wife will permit the property to be encumbered by the Mortgage to the ANZ to secure the loans for the purpose of building of the 3 units. 3. Is to do with selling units 2 and 3 and disbursing profit 25% to each. 3(iii) the husband shall transfer to the wife all his right, title and interest in unit 1 in accordance with paragraphs 4 and 5 herein: 4. In determing the value of unit 1 for the purpose of the transfer pursuant to para 2(iii)(sic) herein the wife, at her own expense will have unit 1 valued by independent valuer, copy to husband. 5. The wife shall pay to the husband one quarter of the net equity in unit 1 such equity to be calculated on the value of the property following the discharge of the ANZ mortgage. I signed the transfer of family property promptly but my lawyer at the time held it "as leaverage" and it was not released for 7 months. The ex-wife's lawyer says I contravened the court order by doing this. I was asked by my family - daughter and son-in-law to sign the sale contract for unit one and at that time believed this was ok as they were having trouble selling it in a falling market. I had not been warned not to do this by my lawyer at any stage. My ex-wife's lawyer then said I had contravened the court order in signing as: "In relation to paragrapg 3(ii) (sic) 4 and 5 of the orders where these orders provgide for our client his daughter and son-in-law to retain unit 1 your client (me) was always aware of the sale of the unit1 to athird party. He signed the Offer and Acceptance and Transfer of Land. The names of purchases were clearly there and he can't assert that he was under any misapprehension as to the sale to a 3rd party. Does this help or is it too complicated? I have a file 2 inches thick as it has been on going for 2 years. I might add it started as a simple property settlement. You have this and I have that!
The question then is - where did the sale proceeds from the unit go?
Did you receive 25% and the Wife receive 25%. I assume that Unit 1 was owned 25% by you, 25% by the Wife and 25 % by each of your children. If that is the case, the Wife would have signed the sale contract as well. The problem arises, if your ex-wife did not have an interest in Unit 1 and instead of transferring the unit to her in accordance with the orders, you sold it instead. Please clarify for me.
All 4 of us signed to sell unit one. The profits were then split 25% each. This is not the issue for me as I should have received the equity in unit one which is a whole lot more than the profit in unit 1. I have not accepted the profits in unit 1 as my lawyer believes we should go to court and fight for the equity on the grounds that the inequal break up of the property has been further exacerbated by ahat has transpired. However, my lawyer is wanting me to get a barrister's advice as to where I stand and this will be extremely expensive. I get the feeling from you that I should take the 25% profit and get on with life. Is this where you are coming from or if not do I have any grounds on which to pursue my claim from my ex-wife?
I strongly recommend that you just accept the 25% profit from the sale, as there is no better way to determine what the equity was, then what the property sold for in the open market.
There does not appear to be any basis for trying to argue that the equity was a different amount. For you to be successful for that argument you would have to have evidence of what the value of the unit was at the time that it was supposed to be transferred to you (this is evidence from a registered valuer) and evidence of the balance of the loan that was outstanding at that time.
I don't think it is worth purusing any further on the information you have provided, and would recommend you accepting 25% of the net sale proceeds.
However your solicitor obviously has access to more information then I do and may have a good reason for advising you to consider the claim. I cannot see it though.
Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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