Adams & Marchenko
[2025] FedCFamC1F 225
•7 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adams & Marchenko [2025] FedCFamC1F 225
File number MLC 8845 of 2024 Judgment of WILSON J Date of judgment 7 April 2025 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – ANTI-SUIT INJUNCTION – an application made by the applicant for a short-term injunction to restrain the wife from continuing proceedings commenced in Country B – allegedly about $300m in assets in dispute – the applicant has sat on his rights with regards to the Country B proceeding – held, injunction application dismissed.
FAMILY LAW – QUIA TIMET INJUNCTION – test to be applied – held, test not satisfied.
Legislation Family Law Act 1975 (Cth) ss 75(2), 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 8.14
Women’s Charter 1961 (The Republic of Singapore)
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965
Cases cited A v Hayden (1984) 156 CLR 532
Apotex Pty Ltd v Les Laboratories Servier (No 2) [2012] FCA 748
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425
Beecham Group Ltd v Briston Laboratories Pty Ltd (1968) 118 CLR 618
Bendigo & County Districts Trustees & Executors Co Ltd v Sandhurst and Northern District Agency Co Ltd (1909) 9 CLR 424
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Hillam v Barrett [2019] FamCA 193
Henry v Henry (1996) 185 CLR 571
Hooper v Rogers [1975] 1 Ch 43
Incitec Ltd v Alkimos Shipping Co (2004) 138 FCR 496
Lin v Yew (2020) 62 Fam LR 244
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Rainer & Lopez [2025] FedCFamC1F 214 (31 March 2025)
Scarffe v Obannon [2020] FamCA 77
Stanford v Stanford (2012) 247 CLR 108
Sun & Yeng (No 5) [2024] FedCFamC1F 702
Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Division Division 1 First Instance Number of paragraphs 42 Date of hearing 4 April 2025 and 7 April 2025 Place Melbourne Counsel for the applicant Mr M. Bartfeld KC Solicitor for the applicant Lander & Rogers Counsel for the respondent Mr L. Glick KC with Ms H. Renwick Solicitor for the respondent Coote Family Lawyers ORDERS
MLC 8845 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR ADAMS
Applicant
AND MS MARCHENKO
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
7 APRIL 2025
THE COURT ORDERS THAT –
1.The injunction application sought by the husband in paragraphs 2 and 3 of his application in a proceeding sealed 2 April 2025 is dismissed.
2.The further hearing of this proceeding is adjourned to 10.00am on 26 May 2025.
3.Costs are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Adams & Marchenko has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
By order of the Chief Justice made on 2 April 2025, the husband’s application for an injunction to restrain the wife from prosecuting a proceeding she has commenced in Country B was returnable before me at 9.30am on 4 April 2025.
I heard the injunction application as ordered by the Chief Justice at 9.30am on 4 April 2025. By reason of the volume of documents including the number and magnitude of the authorities on the subject of anti-suit injunctions, after debate I informed the parties I would stand the matter over to Monday, 7 April 2025. On that day I heard further debate and now deliver judgment. These are my reasons.
OUTCOME
For the reasons set out below, I dismiss the husband’s injunction application.
RELEVANT BACKGROUND
The wife is a citizen of Country B and a permanent resident of Australia, currently 57 years of age. The husband was born in Country C, is now aged 58 and is a permanent resident of Australia. He is a citizen of Country D although he said in an affidavit made on 31 March 2025 that he has not lived in Country D since 1989.
The wife currently lives in Country B.
The parties met in Country C in 1996 then married in City E in early 1999 and then commenced living together. In 1999 or 2000 or thereabouts the couple began living between Australia and Country B. They do not have children. They separated in February 2025.
The evidence in relation to the parties’ assets was very imprecise. In Australia, since 2015 they have owned F Street Suburb G, being the parties’ former matrimonial home. The husband deposed to he and the wife being shareholders in various companies in Australia. Those were –
(a)H1 Pty Ltd;
(b)H2 Pty Ltd;
(c)H3 Pty Ltd;
(d)H4 Pty Ltd;
(e)H5 Pty Ltd;
(f)J Pty Ltd;
(g)K Pty Ltd; and
(h)L Pty Ltd.
The precise terms of the shareholding of each of the husband and the wife in the companies mentioned immediately above was not stated nor was it said who were the office holders of each of those companies. It seems that H1 Pty Ltd owns the real property known and described as M Street, Suburb N because the husband stated that he proposed moving into the Suburb N property in early April 2025.
The husband deposed to the wife holding a 50% interest in real property located in Suburb P, the other 50% interest being held by the wife’s mother. Precisely how the husband knew those matters he did not say. He did not exhibit a copy of the relevant title search in the way he did for the Suburb G property.
THE EXTENT, VALUE AND LOCATION OF THE PARTIES’ ASSETS
During the submissions by counsel for the husband on 4 April 2025 I asked Mr Bartfeld KC the value, in broad terms, of the parties’ assets. Mr Bartfeld’s response was guarded. He submitted that the parties’ assets in Australia were made up of real property (the Suburb G property and the Suburb N property) and that the evidence presently before the court did not disclose very much more. Mr Bartfeld submitted that no valuation evidence is yet before the court and that in or about two weeks time the husband will complete his valuation evidence. Mr Bartfeld relied on the evidence in paragraphs 23 to 29 of his client’s 31 March 2025 affidavit in which the husband stated that –
(a)he and the wife own the Australian incorporated business;
(b)he and the wife own the Suburb G premises, the Australian incorporated business and H1 Pty Ltd which owns the property in Suburb N;
(c)the wife and her mother own the property at O Street, Suburb P; and
(d)on the wife’s estimate, the parties’ assets in Australia are approximately $20,500,000 in value.[1]
[1] The husband deposed to the wife’s estimate in the dollar perfect figure of $20,595,629 which was scarcely “an estimate”.
A debate emerged between Mr Bartfeld KC and Mr Glick KC, King’s Counsel for the wife, about the source of the evidence for the amount propounded by the husband. Mr Bartfeld said it was in the wife’s 20 February 2025 affidavit. Mr Glick KC submitted that the wife’s 20 February 2025 affidavit was prepared for an altogether different application to this injunction application and that the 20 February 2025 affidavit was therefore inadmissible on this injunction application having regard to the strictures of rule 8.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the court rules”) which provides that an affidavit filed with an application may be relied on only for the purposes of the application for which it has been filed. Mr Glick submitted that the wife’s 20 February 2025 affidavit was filed in respect of some other application beyond the husband’s present injunction application so it was inadmissible for use in this injunction application. In making that submission Mr Glick relied on the very recent decision in Rainer & Lopez.[2]
[2] [2025] FedCFamC1F 214 (31 March 2025).
Faced with that state of the law, Mr Bartfeld sought a general dispensation with compliance with rule 8.14 of the court rules. I pointed out to Mr Bartfeld that the burden of proof fell to his client to discharge on this urgent interlocutory application and that his client was at risk of failing to discharge that evidentiary burden if leave to rely on the wife’s 20 February 2025 affidavit was refused having regard to the operation of rule 8.14 of the court rules. That prompted Mr Glick to withdraw resistance to the use of the wife’s 20 February 2025 affidavit on this injunction application, in consequence of which the husband relied on paragraph 40 of the wife’s 20 February 2025 affidavit. In that paragraph the wife deposed to the state of the parties’ assets. She estimated that the value in Australian dollars of the parties’ corporate assets was over $16,000,000. She estimated that the value of the parties’ personal assets in Australia was almost $5,000,000. She estimated the parties’ total assets in Country B was more than $254,000,000 and that the overall total of the parties’ net assets, whether personal or corporate, was over $295,000,000 Australian dollars.
The figures given by the wife, it must be said, were estimates only and in respect of values, she is not a valuer so she is not qualified to give evidence of values as an expert. Mr Glick conceded as much.
The wife asserted that the value of assets in dispute between the parties substantially exceeded the value attributed to the same assets by the husband. However, it must be acknowledged that it will be relevant in this litigation, wherever the case is contested, to address the value of and enforceability of sums described as gifts and inheritances. It is alleged that during the parties’ marriage a significant amount of money was received by the wife that took the form of gifts or inheritances and that under Country B law, gifts and inheritances cannot be taken into account for the purposes of Country B family law property issues. In debate Mr Bartfeld handed up to me an extract of the 1961 Women’s Charter, legislation operative in Country B. However, being evidence of the law of a country foreign to Australia, foreign law should have been proved in the proper manner by being the subject of evidence from an expert in Country B foreign law, rather than an extract of a Country B statute being handed up without more. If evidence of Country B law is to be relied on in the hereafter in this litigation it must be proved in accordance with proper evidentiary principles surveyed by me in Sun v Yeng (No 5).[3]
[3] [2024] FedCFamC1F 702.
I was not willing to attempt to construe the provisions of the Country B Women's Charter in the absence of evidence from a Country B expert about its operation.
It will be recalled that the husband proffered no evidence of the value of the parties’ Suburb G property or of the property in Suburb N. Instead, he relied on the wife’s estimates of valuations which the husband said was in the vicinity of $20,500,000. That figure of $20,500,000 (or thereabouts) was not reliably verified and no valuation evidence was before the court to substantiate it.
The husband made no endeavour on this application to adduce evidence of contributions. It must not be overlooked that it was foundational to his injunction application that he should be permitted to pursue his s 79 application in this proceeding in this court and that the litigation brought by the wife in Country B should be stayed. Yet on this injunction application, according to the husband’s evidence it is well nigh impossible to assess, even in the most embryonic manner, such things as –
(a)the parties’ existing legal and equitable interests in property in the manner espoused in Stanford v Stanford;[4]
(b)the contributions of a direct and indirect nature, whether of a financial or non-financial nature; and
(c)s 75(2) factors.
[4] (2012) 247 CLR 108.
HOW THE TWO PROCEEDINGS AROSE
On 19 July 2024 this proceeding in this court was commenced upon the husband’s filing of his initiating application. In his 31 March 2025 affidavit the husband deposed to service of the initiating application having been effected pursuant to the Hague Service Convention[5] having regard to the fact that the Commonwealth of Australia and Country B are signatories to that convention. The husband deposed to first contacting this court on 21 August 2024 requesting service of his initiating application in accordance with the Hague Service Convention and that service was in fact effected on 17 December 2024, nearly four months later. The husband deposed to the wife’s solicitors filing a notice of address for service on 27 November 2024 (erroneously stated as 27 November 2025 at paragraph 32 of the husband’s 31 March 2025 affidavit) thereafter consenting to an adjournment of a directions hearing from 2 December 2024 to 24 February 2025. He stated that he and the wife agreed on consent orders on 29 November 2025 (another erroneous reference to 2024) pursuant to which consent orders the wife was required to file her response to the initiating application by 20 January 2025. He stated that the wife filed her response on 20 February 2025. He purported to place a construction on the reason for her delay which I do not accept as it is not a statement of fact but rather is a conclusion, a submission or worse, a guess, which he is not permitted to do.
[5] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965. This court is the designated authority for the purposes of the court rules and regulations.
The husband then deposed to filing an application for divorce on 6 March 2025 in this proceeding which he said was sent by email that same day to the wife’s Australian solicitors Coote Family Lawyers. He said he received no response to that email of 6 March 2025. He said his solicitors then attempted to serve the wife’s Country B legal representatives with the husband’s divorce application on 14 March 2025. He said that on 18 March 2025 his Australian legal representatives received a response from the wife’s Country B legal representatives stating that the Country B legal representatives did not have instructions to accept service of the divorce application.
On 20 March 2025 the husband said he attempted to enliven the procedure in the Hague Service Convention using the services of a judicial registrar of this court. The husband said at paragraph 38 of his 31 March 2025 affidavit that by 28 March 2025 he had received no update from the court in respect of his attempt to use the court’s facilities in his endeavour to invoke the Hague Service Convention.
At paragraph 41 of his affidavit the husband deposed to his estimate in the value of the parties’ joint pool in both Country B and Australia. He said it was $308,437,984. That was to be contrasted with the wife’s estimated value of the joint pool of $20,595,629 worth of assets in Australia. Both figures are estimates and no attempt was made to substantiate them. The husband said he is seeking 40% of those assets together with spousal maintenance. He said, without verifying, that his financial circumstances are precarious.
THE WIFE'S LITIGATION IN COUNTRY B
The husband exhibited a collection of documents, mostly documents served on him, in respect of a proceeding commenced by the wife on 17 February 2025 in the family courts of Country B. Having carefully examined those documents exhibited as exhibit MA1 of the husband’s 31 March 2025 affidavit, several matters emerged, namely –
(a)the documentation stated that the family courts of Country B had jurisdiction in the case of the wife’s divorce application because the wife was domiciled in Country B at the time of the application and she was a Country B citizen;
(b)in item 6 of the wife’s divorce application the Country B documentation expressly stated that the husband had commenced initiating application MLC 8845/2024 in which he sought property and maintenance orders and according to the Country B documentation, the husband had not filed a divorce proceeding against the wife in Australian courts;
(c)in item B of the wife’s divorce application the Country B documentation she stated that the total gross value of matrimonial assets which the Country B court is required to determine is $5m Country B currency;
(d)in Annexure B (page 5 of the Country B document), the wife revealed that the wife brought to the attention of the court the Suburb G property as well as the property in which the wife and her mother had a joint tenancy; and
(e)the wife contended that the husband had subjected her to verbal and psychological abuse throughout the course of the parties’ marriage caused by the husband’s overindulgence in alcohol leading to the wife consulting a psychiatrist, to sleep in separate bedrooms and to the wife requesting the husband to leave the Suburb G property following which the wife departed Australia for Country B.
As part of the documentation from the Country B court that the husband exhibited was a notice addressed specifically to the husband. In the document called “notice of proceeding to respondent (general)” the document gave the husband the opportunity to oppose the wife’s application for divorce. The document provided that in order to oppose the divorce application, the husband was required to file a notice of contest within 14 days and reply within 28 days if the husband wished to contest the jurisdiction of the Country B court.
To this day the husband has not filed the notice contesting jurisdiction of the court of Country B. He has had that form since a date in or around 20 February 2025. He has deliberately done nothing to notify the Country B court that he challenges the jurisdiction of that court to hear and determine any aspect of the family law litigation between the parties.
Among the exhibits to the husband’s 31 March 2025 affidavit is a marked up draft but presently undespatched letter to Mr Q of R Lawyers for him to be engaged as an expert in relation to Country B law. No evidence before me disclosed the final version of any retainer addressed to an expert in Country B law.
It is readily apparent that each party is suspicious of the other about why the other has failed to agree to the divorce application going forward –
(a)in Australia as the husband wants; or
(b)in Country B as the wife wants.
THIS INJUNCTION APPLICATION
The husband’s application in a proceeding dated 3 April 2025 is an application for an injunction that will operate for a limited time. The orders sought do not spell out the precise date over which the injunction sought is to run. However, in debate with Mr Bartfeld he told me the injunction is only for such a limited period that I can hear and determine the husband’s anti-suit injunction in which he will contend that Country B is the clearly inappropriate forum for the hearing of the parties’ property dispute. Mr Bartfeld agreed with me when I said the urgency of the injunction sought by his client necessarily diminishes if I am able to fix the speedy hearing of the anti-suit injunction application. I have managed to rearrange my court calendar to fix this anti-suit injunction for one day on 26 May 2025.
The core of the husband’s injunction application is a restraint until further order preventing the wife from continuing with proceeding … in the family court of Country B other than to seek an adjournment, discontinuance or stay of that proceeding. There is no evidence that the wife has attempted to progress any application in any court outside Australia beyond the litigation in the family court of Country B so paragraph 3.1 and 3.2 of the husband’s application in a proceeding is irrelevant. Costs will not be determined now. Accordingly, only paragraph 2 of the husband’s application in a proceeding dated 3 April 2025 is relevant.
The husband’s evidence in support of the application has already been recited.
THE PARTIES’ CONTENTIONS
As the husband is the moving party on this injunction application, it is convenient to address first his submissions and contentions. Those in writing were in the husband’s undated outline of contentions in which he submitted –
(a)the wife filed a notice of address for service on 27 November 2024 in this proceeding and on 20 February 2025 the wife filed a response in this proceeding;
(b)the wife has participated in appearances on 29 November 2024, 24 February 2025 and 14 March 2025, on each occasion consent orders being made there being no assertion at any time that jurisdiction of the court was under challenge;
(c)the wife seeks orders in this proceeding as set out in her response staying the husband’s application;
(d)on an ex parte basis the wife obtained an order from the Country B court for substituted service of the wife’s divorce application;
(e)the steps set out in the Country B divorce application require the husband to submit to the jurisdiction of the Country B court which, so the husband says, he should not be required to do until the Australian proceeding is determined;
(f)in reliance upon Incitec Ltd v Alkimos Shipping Co[6] a party should not be vexed over the same subject matter in two courts at the same time;
(g)the wife “blatantly” (the husband’s word) orchestrated the commencement of the Country B proceeding because she issued that litigation knowing that she had participated as a party to the Australian proceeding and her application for substituted service was made without notice;
(h)the husband has demonstrated that he has an arguable case; and
(i)he says the balance of convenience favours the husband.
[6] (2004) 138 FCR 496, 508.
The wife opposed the husband’s application for the limited injunction that he seeks. The wife submitted the application was misconceived. She submitted that –
(a)the Country B court will control its own process in progressing proceeding … irrespective of the parties’ conduct in taking steps in that proceeding;
(b)the husband’s urgent application has been brought on the basis that any challenge by him to the jurisdiction of the Country B court first requires him to complete the notice of contest document, steps he – not the wife – is required to undertake; and
(c)if the husband seeks to challenge the Country B’s jurisdiction he must take a positive act to do so in the court in which jurisdiction is being challenged.
When the fully contested interlocutory anti-suit injunction is ventilated before me, consideration will be agitated over statements of principle from key cases in the field. They include Oceanic Sun Line Special Shipping Co Inc v Fay,[7] Voth v Manildra Flour Mills Pty Ltd,[8] Henry v Henry,[9] CSR Ltd v Cigna Insurance Australia Ltd,[10] Hillam v Barrett,[11] Scarffe v Obannon,[12] and Lin v Yew.[13] However, consideration of those cases awaits another day.
[7] (1988) 165 CLR 197.
[8] (1990) 171 CLR 538.
[9] (1996) 185 CLR 571.
[10] (1997) 189 CLR 345.
[11] [2019] FamCA 193.
[12] [2020] FamCA 77.
[13] (2020) 62 Fam LR 244.
CONSIDERATION
The first issue is the husband’s apprehension that by participating in any shape or form in the Country B proceeding, even to contest jurisdiction, he is submitting to the jurisdiction of the Country B court. He has elected not to contest the jurisdiction of the Country B court in the manner required by the Country B court. Rather than doing as the Country B court requires in completing a form in the manner prescribed by the court, the husband takes the view that he will seek an in personam remedy against the wife in an Australian court in an endeavour to prevent the wife from further prosecuting the Country B proceeding yet he will not do as the Country B court requires in order to agitate the Country B court’s jurisdiction.
No evidence exists of the likely events if the husband actually completed the documents in which he asserted that jurisdiction was being challenged. For example, it was not said –
(a)whether the husband was entitled as a matter of Country B law to complete the document asserting a jurisdictional challenge but to do so without prejudice, and if jurisdiction was found, then to subsequently bring an anti-suit injunction applicable to Country B;
(b)what the likely time frame was for the hearing of any challenge to jurisdiction in Country B, assuming the husband completed the Country B form putting the Country B court’s jurisdiction in issue;
(c)what the state of the law in Country B was about demonstrating that Country B in fact and in law lacked jurisdiction to hear the dispute between the husband and wife and the legal basis for that proposition; and
(d)whether in fact and in law the husband may be precluded from later challenging the jurisdiction of the Country B court if he completed the form indicating his challenge to jurisdiction and the Country B court dismissed the challenge to jurisdiction.
No evidence was before me about the law and practice of the Country B courts on a challenge to jurisdiction of the sort raised in this case.
The wife’s contention that no urgency applies to this application for an injunction has considerable merit, in my view. The husband has known since mid February 2025 of the existence of the Country B proceeding. Yet he filed this present injunction application on 2 April 2024 asserting he needed it determined by not later than 7 April 2025. In other words between mid February 2025 and 7 April 2025 the husband could have, but failed to, indicate to the Country B court that he challenged the jurisdiction of the Country B court. He now asserts that it is urgent that he obtains the injunction he seeks against the wife.
I do not accept the husband’s characterisation of the so-called urgency. If urgency ever attended his application, he has sat on his rights by failing to diligently and promptly pursue the exercise of his rights. It may well have transpired that he could have filed the notice challenging the Country B Court’s jurisdiction then adjourned the hearing of that debate until the full inter-partes debate on the anti-suit injunction application in this court had been heard and determined. Yet no evidence of Country B practice and procedure was before me so I could not say whether such an outcome was likely. It fell to the applicant to prove his case including aspects of Country B law as well as Country B practice and procedure.
The applicant asserted that he has demonstrated the existence of a serious issue to be tried and that the balance of convenience was in favour of the grant of the injunction. That, of course, is the test applied by a collection of High Court decisions in applications for an injunction.[14]
[14] Beecham Group Ltd v Briston Laboratories Pty Ltd (1968) 118 CLR 618, Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425, Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283, A v Hayden (1984) 156 CLR 532 and Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.
What then is the serious issue to be tried in this case? In my view the husband did not prove that one existed. He does not show that the wife will, unless restrained, push ahead immediately to prosecute the Country B proceeding. At best he asserts the existence of a suspicion held to the effect that the wife is likely to press the divorce case in Country B without notice to him because she served process in that proceeding by substituted service. In other words, the husband casts his case as a quia timet injunction application. In any quia timet injunction application, the applicant (here, the husband) must show that what the respondent (here, the wife) is threatening and intending to do will cause imminent and substantial damage to the applicant. So much was held in Bendigo & County Districts Trustees & Executors Co Ltd v Sandhurst and Northern District Agency Co Ltd.[15] Given that the word “imminent” is used, the quia timet injunction must not be granted prematurely as was held in Hooper v Rogers[16] and in Apotex Pty Ltd v Les Laboratories Servier (No 2).[17]
[15] (1909) 9 CLR 424, 478.
[16] [1975] 1 Ch 43, 50.
[17] [2012] FCA 748.
There was no evidence of the imminence of damage to the applicant if the injunction were refused. For that matter, the next step in the Country B proceeding was the husband’s challenge to jurisdiction. No evidence existed that the current status quo would change at all if the injunction application were not granted or even sought.
As to the requirement for proof that the balance of convenience favours the granting of the injunction, there is no proof of that phenomenon. The husband’s written submissions merely said on this issue that the injunction sought will not prejudice the wife as she is free to argue the Australian proceeding at any time she sees fit. The criteria about balance of convenience calls for an examination about the prejudice caused by the order sought being made. To say that the wife will not be prejudiced is only part of the relevant enquiry. The more expansive enquiry includes the reason why the injunction being sought should be ordered at all if the husband cannot point to a risk of some right being infringed. The position is all the more in a quia timet injunction by reason of the need for an applicant for the injunction to point to imminent and substantial damage. No proof that the wife will do anything to progress the Country B proceeding has been adduced let alone has the husband demonstrated the existence of a risk of imminent and substantial damage to him unless the injunction is granted. In those circumstances, the balance of convenience for the grant of the injunction does not favour the husband. To the contrary, the grant of the injunction sought by the husband will prejudice the wife especially in circumstances where the main argument on a contested anti-suit injunction will be heard and determined very soon into the future, a matter of weeks only away.
I refuse to make the injunction sought by the husband. The formal orders are as follows –
(1)The injunction application sought by the husband in paragraphs 2 and 3 of his application in a proceeding sealed 2 April 2025 is dismissed.
(2)The further hearing of this proceeding is adjourned to 10.00am on 26 May 2025.
(3)Costs are reserved.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 9 April 2025
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