Property – section 90SN – less than anticipated sale of properties – no miscarriage of justice

In Demeny & Ogden [2021] FedCFamC1A 21 (27 September 2021), Strickland, Ainslie-Wallace and Aldridge JJ considered consent orders that required the sale of four properties to discharge loans, with the balance to be divided equally between the parties.

The properties sold for unexpected amounts, which resulted in a property which the husband was to otherwise retain remaining encumbered.

At first instance, Mr Ogden sought a variation to achieve an equal division. Judge Kari varied the original orders to reduce the amount payable to Ms Demeny on the ground that the orders were impracticable, and that the orders had not achieved the intended division of property, such that a miscarriage of justice had occurred.

Ms Demeny appealed, arguing that any shortfall in repayments was to be borne by Mr Odgen.

The Full Court said (from [26]):

“This case is an example of the difficulties that arise when orders require property to be sold and where the orders divide the proceeds not by way of percentage entitlements, but by payment of a fixed sum. …

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(…)

[48] We are comfortably satisfied that the intention of the parties … was for an equal division of their property. Whilst the parties turned their minds to how that would be achieved if the properties sold for more than what was expected, they did not, in the consent orders at least, address the issue of a shortfall.

(…)

[69] … The orders are still capable of being carried out.

[70] It is well established that orders which can be put into effect are not rendered impracticable simply because they produce a different outcome to that which was intended (Rohde and Rohde [1984] FamCA 41…; La Rocca and La Rocca [1991] FamCA 97; Cawthorn v Cawthorn [1998] FamCA 37 and Sanger & Sanger [2011] FamCAFC 210).

[71] It follows that a finding that it was impracticable to carry out the consent orders could not have been made.”

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The Full Court allowed the appeal, remitted the enforcement application for rehearing and ordered costs certificates.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).