Smirski v Macandar (No 2) [2011] NSWSC 373

Supreme Court New South Wales

Medium Neutral Citation: Smirski v Macandar (No 2) [2011] NSWSC 373 Hearing dates: 25 March 2011 Decision date: 03 May 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: The Court orders that (a) Within 28 days of this date, the Plaintiff, by her solicitor shall: (i) serve, by post, upon the Defendant, a copy of these reasons for Judgment, together with a sealed copy of the orders, as well as a letter drawing attention to the orders that have been made and entered; (ii) provide a Transfer, in registrable form, to the Defendant, the effect of which, when signed and registered, will be to transfer all of the Defendant's right, title and interest, in the jointly owned property at Croydon Park, to the Plaintiff; (iii) advise the Defendant, in writing, that, simultaneously with the handing over, to the Plaintiff, of the Transfer, duly executed by the Defendant, she will cause the joint mortgage on title of the Croydon Park property, to be discharged; (iv) nominate a time and a place for the duly executed Transfer to be delivered, by the Defendant, to the Plaintiff, and when the joint mortgage registered on title to the Croydon Park property will be discharged. (b) Within 14 days of the date of the letter advising that the Plaintiff is ready, willing and able, to cause the joint mortgage to be discharged, the Defendant shall advise the Plaintiff, by her solicitors, in writing, whether he is ready, willing and able, to sign the Transfer. (c) Within 14 days of the date of the Defendant's letter, or within such other time as the parties agree in writing, the Defendant shall cause the Transfer, in registrable form, to be delivered to the Plaintiff and simultaneously the Plaintiff will cause the joint mortgage registered on title to the Croydon Park property to be discharged. (d) Pursuant to s 39 of the Act that upon the Plaintiff filing an affidavit, by her solicitor, proving service of the Judgment and these Orders upon the Defendant, and proving that the Defendant has not complied with order 2 above, and proving that the joint mortgage has been, or will be discharged, the Transfer in registrable form, shall be executed by the Registrar in the name, and on behalf, of the Defendant. (e) The costs and expenses of and incidental to the preparation of the Transfer shall be borne by the Plaintiff. The costs and expenses of and incidental to its execution shall be borne by the person executing the document. (f) As between the Plaintiff and the Defendant, and subject to the above orders, each party shall retain all right, title, and interest in and entitlement to, personal and other property in her and his, respective possession or control. (g) Either party is to have liberty to apply in respect to the implementation of these orders. (h) These orders shall be entered forthwith. (i) Otherwise, make no order as to either party's costs to the intent that she, and he, will pay her, and his, own costs of the proceedings. (j) The exhibits may be returned to the Plaintiff. Catchwords: Application for property adjustment order under Property (Relationships) Act 1984; ex parte application Legislation Cited: Civil Procedure Act 2005 Family Law Act 1975 (Cth) Property (Relationships) Act 1984 Uniform Civil Procedure Rules 2005 Cases Cited: AGnVET Services v Carter [2009] NSWSC 753 Anton Fabrications (NSW) Pty Ltd, Re; Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186 Bilous v Mudaliar [2006] NSWCA 38 Black v Black (1991) 15 Fam LR 109 Bourdon v Outridge [2006] NSWSC 491 Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360 Commonwealth Bank of Australia v Gaszewski [2006] NSWSC 772 Davey v Lee (1990) 13 Fam LR 688 Evans v Marmont (1997) 42 NSWLR 70 Fletcher v Furnance [2008] NSWSC 132 Howlett v Neilson [2005] NSWCA 149; (2005) 33 Fam LR 402 Hughes v Egger [2005] NSWSC 18 Jeloudev v Lohman [2010] NSWSC 1229 Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711 Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 Kosanovic v Lazic [2011] ACTSC 52 Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96 RD v DB [2011] QSC 83 Rose v Richards [2004] NSWSC 315 Ryan v Kalocsay [2010] NSWSC 620 Saric v Steward [2006] NSWCA 260 Savage v Norton [1908] 1 Ch 290 Smirski v Macandar [2010] NSWSC 929 Sullman v Sullman [2002] NSWSC 169 WB v GSH [2008] QSC 346 Category: Principal judgment Parties: Kamila Theresa Smirski (Plaintiff) Zygmunt Macander (Defendant) Representation: Counsel: Mr N Kirby (Plaintiff) No appearance (Defendant) Solicitors: Otto Stitcher & Associates (Plaintiff) File Number(s): 2010/44692