This was a judgment from one of our more recent Division 2 appointments, Judge Colquhoun.  Her Honour had made property settlement Orders on 7 February 2024 (“the 2024 Orders”) however, the parties were now in dispute as to the interpretation of one of those Orders – The Trustee is empowered to take possession of the [Suburb C] property and require vacant possession in order to effect a sale of the [Suburb C] property.  The applicant wife sought for the matter to be relisted, as had been provided for in the 2024 Orders and for a variation to the Orders pursuant to the ‘Slip Rule’, so that the Orders properly reflected the Court’s intention.  Essentially, it centred on whether ‘vacant possession’ meant that the respondent husband was required to vacate the property.  The wife’s view, having been appointed as Trustee for Sale, was that the husband was required to vacate so that she could prepare the property for sale, noting that there was a final apprehended violence order against the husband for the wife’s protection.  The husband’s view was that he was only required to provide vacant possession on settlement of the sale.  

It is noteworthy that the husband was self-represented and with that in mind he made some very reasoned submissions.  The 2024 Orders also required him to maintain the mortgage on that property pending settlement and the husband submitted that if he was required to vacate immediately, he would also incur the costs of temporary housing for himself.  The difficulty with that part of his submissions, however, was that the husband had not maintained the mortgage for some four months prior to the matter being relisted.  He also argued that the variation sought by the wife was more than a mere clerical error and that it in effect was a s79A application.  This was, in part, successful as the wife sought to extend the Order to provide her with exclusive occupancy pending settlement of any sale, which had not been argued at trial.

Rule 10.13(1)(e) permits the change, rather than the Slip Rule.  That is, varying the Order as sought by her to reflect the intention of the Court.  Her Honour ultimately decided to vary the Order to require the husband to vacate the property, taking his belongings with him, within a date that was 14 days from Judgment.  In different circumstances, it may have been arguable that costs certificates ought to be issued however, the Order in question was in fact precisely the Order that had been sought by the wife at hearing and therefore any misunderstanding as to its meaning could not be slated home to the Court.

The precise wording of the amended Order was – The Trustee is empowered to take possession of the [Suburb C] property and require vacant possession in order to effect a sale of the [Suburb C] property and for the purpose of this Order, the husband shall vacate the Suburb C property, including removal of all belongings he wishes to retain, by 5pm on 11 April 2025.  The highlighted portion being the additional text.

This case highlights the importance of properly drafted Orders in circumstances where it is not unusual for a Judicial Officer to simply adopt the drafting of one of the parties.