FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Agnarsson & Agnarsson (No 2) [2023] FedCFamC1F 1066
File number: CAC 491 of 2023 Judgment of: AUSTIN J Date of judgment: 13 December 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Property – Where the wife seeks review of a selection orders of a senior judicial registrar (“the registrar”) – Where an aspect of the dispute concerns three parcels of real property – Where the registrar made orders requiring the wife to transfer to the husband all her proprietary interest in the properties, subject to him re‑financing the debt encumbering the properties – Where the wife seeks the sale of the properties – Where the wife is the exclusive legal owner of two of the properties and may sell and discharge the mortgages of those properties if she wishes – Where the orders of the registrar are discharged – Where the parties shall lease the jointly owned third property and apply the net rent in payment of the loan secured by mortgage against the property – Where the wife seeks to vary an order made by the registrar by broadening the terms of her permissive redactions in disclosed documents – Where there is no reason to disturb the order made by the registrar – Where the registrar made orders requiring the wife to place certain valuable into safe custody and for the parties to appoint a single expert to value it – Where the wife seeks replacement orders enabling the sale of some valuables and the valuation of any retained valuable – Where the orders were made to preserve assets and their value, pending the determination of the proceedings and need not be disturbed – Where the review application was partially successful – Costs reserved for 28 days. Legislation: Family Law Act 1975 (Cth) Pt VIII, s 114 Cases cited: Gabel v Yardley (2008) FLC 93-386; [2008] FamCAFC 162
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 11 December 2023 Place: Newcastle (via MS Teams) Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Farrar Gesini Dunn Counsel for the Respondent: Ms Haughton Solicitor for the Respondent: Elringtons Lawyers ORDERS
CAC 491 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AGNARSSON
Applicant
AND: MS AGNARSSON
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1.Orders 11, 12, 13 and 14 made by the senior judicial registrar on 26 October 2023 are discharged.
2.The parties shall forthwith do all acts and things necessary to lease the jointly-owned real property at B Street, Town C, NSW and to apply the net rent in payment of the loan secured by mortgage against…
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- AGLC
- Agnarsson & Agnarsson (No 2) [2023] FedCFamC1F 1066
- Case
- [2023] FedCFamC1F 1066
- Decision Date
CaseChat Overview and Summary
In the matter of Agnarsson & Agnarsson (No 2), the wife applied to review certain orders made by a senior judicial registrar concerning property and valuables disputes in the context of the parties’ matrimonial separation. The central issues before the court included the disposition of three parcels of real property, the maintenance of insurance policies, the terms of redactions in disclosed documents, and the preservation and valuation of certain valuables. The wife sought to modify the registrar’s orders to compel the sale of the properties, discharge certain orders, and vary the terms of her permissive redactions. She also sought to discharge orders requiring her to place valuables into safe custody and sought new orders to allow for the sale of some valuables and the valuation of any retained valuables.
The court carefully considered the wife’s application for review, focusing on the specific proposals she had made. Regarding the real properties, the wife initially sought supplementary orders for the sale of the properties if the husband failed to maintain mortgage repayments but later reverted to her original position of seeking the outright sale of the properties. The husband opposed this but ultimately conceded to the wife’s revised proposal. Concerning the insurance policies, the wife sought to discharge the relevant order, which the court granted. The court found no reason to vary the terms of the wife’s permissive redactions in disclosed documents, as the registrar’s order was appropriate. In relation to the valuables, the court upheld the orders requiring their safe custody and the appointment of a single expert to value them, as these orders were necessary to preserve the assets and their value pending the final determination of the proceedings.
The court concluded that, aside from discharging certain orders regarding the properties and insurance, the wife’s review application was largely unsuccessful. The court dismissed all other antecedent applications brought by the parties. Consequently, the wife’s application was partially successful, and neither party had a competent claim to recover their costs of the review hearing, though they were granted leave to apply for costs if they considered it appropriate. The court made orders discharging certain orders, requiring the parties to lease the jointly owned property and apply the net rent to maintain the mortgage, and dismissing the various applications brought by the parties. Costs were reserved for 28 days.
The court carefully considered the wife’s application for review, focusing on the specific proposals she had made. Regarding the real properties, the wife initially sought supplementary orders for the sale of the properties if the husband failed to maintain mortgage repayments but later reverted to her original position of seeking the outright sale of the properties. The husband opposed this but ultimately conceded to the wife’s revised proposal. Concerning the insurance policies, the wife sought to discharge the relevant order, which the court granted. The court found no reason to vary the terms of the wife’s permissive redactions in disclosed documents, as the registrar’s order was appropriate. In relation to the valuables, the court upheld the orders requiring their safe custody and the appointment of a single expert to value them, as these orders were necessary to preserve the assets and their value pending the final determination of the proceedings.
The court concluded that, aside from discharging certain orders regarding the properties and insurance, the wife’s review application was largely unsuccessful. The court dismissed all other antecedent applications brought by the parties. Consequently, the wife’s application was partially successful, and neither party had a competent claim to recover their costs of the review hearing, though they were granted leave to apply for costs if they considered it appropriate. The court made orders discharging certain orders, requiring the parties to lease the jointly owned property and apply the net rent to maintain the mortgage, and dismissing the various applications brought by the parties. Costs were reserved for 28 days.
Orders
Orders of the court
CAC 491 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR AGNARSSON
Applicant
AND:
MS AGNARSSON
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1. Orders 11, 12, 13 and 14 made by the senior judicial registrar on 26 October 2023 are discharged.
2. The parties shall forthwith do all acts and things necessary to lease the jointly-owned real property at B Street, Town C, NSW and to apply the net rent in payment of the loan secured by mortgage against the property.
3. Otherwise:
(a) the Application in a Proceeding filed on 25 August 2023 is dismissed;
(b) the Application in a Proceeding filed on 19 September 2023 is dismissed;
(c) the Response to an Application in a Proceeding filed on 6 October 2023 is dismissed;
(d) the application for the orders contained within the Minute of Orders filed on 20 October 2023 is dismissed;
(e) the Application for Review filed on 9 November 2023 is dismissed; and
(f) the Application in a Proceeding filed on 28 November 2023 is dismissed.
4. Costs are reserved for 28 days.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Presently before the Court for determination are, first, the wife’s application to review a selection of those orders, and secondly, her application to stay some of the registrar’s orders until they are reviewed. The second application is superfluous as the first application is now being determined.Background These proceedings for financial relief between the parties were commenced by the husband in March 2023, following matrimonial separation in late 2022. Numerous interim orders were made with the parties’ consent in March, April and May 2023. On 25 August 2023, the husband filed an Application in a Proceeding seeking more interlocutory relief. Then, on 19 September 2023, the husband filed a second Application in a Proceeding seeking even more interlocutory relief. On 6 October 2023, the wife filed a Response to an Application in a Proceeding, which was intended to respond to both of the husband’s applications. She sought the dismissal of the husband’s applications and the grant of interlocutory relief in relation to a slew of other issues not covered by the husband’s two applications. However, in advance of the interim hearing before the registrar, the wife revised the form of relief she sought by filing a Minute of Orders dated 20 October 2023, which was intended to substitute for the Response. The registrar heard the dispute on 25 October 2023 and pronounced judgment the next day. The review application, filed by the wife on 9 November 2023, seeks to review the registrar’s orders, but only in these limited ways:(a)in respect of Orders 11, 12 and 13 (which require the wife to transfer to the husband all her proprietary interest in three parcels of real property, subject to him re-financing the debt encumbering the properties, or in the event he cannot re-finance, compelling him to lease two of the properties and apply the rent to maintain the mortgages), the wife:(i)initially wanted supplementary orders compelling a trustee to sell the properties if the husband fails to maintain the mortgage repayments (Application for Review, proposed Orders 1, 2 and 3); but then(ii)reverted to her original position of seeking the sale of the properties (Minute of Orders, proposed Order 9).(b)the discharge of Order 14 (which requires the husband to maintain insurance policies of certain values over the three properties) (Application for Review, proposed Order 4);(c)the variation of Order 16 (which gives the wife permission to redact entries in her bank account statements disclosed to the husband) by broadening the terms of her permissive redactions within disclosed documents (Application for Review, proposed Order 5); and(d)the discharge of Orders 17, 18, 19 and 20 (which require the wife to place certain valuables into safe custody, the parties to appoint a single expert to value it, and the husband to pay for the storage and valuation fees) and their replacement with other orders enabling the sale of some of the valuables and the valuation of any retained valuables (Application for Review, proposed Orders 6, 7, 8 and 9).
Evidence
Evidence Before The Court
The review hearing requires the de novo consideration of the parties’ anterior applications, as modified by their current proposals, the ambit of which hearing is limited by the extent of the review sought by the wife.Evidence The wife relied upon:(a)her financial statement filed on 25 September 2023; (b)her affidavit filed on 6 October 2023; (c)her affidavit filed on 24 October 2023; (d)her affidavit filed on 9 November 2023; and(e)the State family violence order made against the husband for her protection in mid‑2023 (Exhibit W1). In accordance with the husband’s objection, the wife was refused leave to rely upon another affidavit she filed on 28 November 2023. The wife could not articulate what important evidence it supposedly provided over and above her multiple other affidavits. The husband relied upon:(a)his affidavit filed on 25 August 2023; (b)his affidavit filed on 19 September 2023; (c)his financial statement filed on 23 October 2023; and(d)a bank letter dated December 2023 confirming his approval for finance (Exhibit H1).Real properties This aspect of the dispute concerns three parcels of real property, being: D1 Property (“the first property”); D2 Property (“the second property”); and the Town C property (“the third property”). The wife is the sole legal proprietor of the first and second properties. The parties are the joint legal proprietors of the third property. Each property is encumbered by mortgage. The evidence is less than clear, but the husband seems to be at least a guarantor of the loans secured over the first and second properties, but he is presumably one of the primary debtors in respect of the third property. The combined value of the encumbrances approximates $5.2 million. The husband is interested in retaining the three properties (subject to their encumbrances) as part of his ultimate share of the property settlement, whereas the wife wanted the properties sold and the net sale proceeds used to retire debt. However, her position at the commencement of the review hearing was to retain the orders made by the registrar, but subject to additional orders compelling the sale of the properties if the husband defaults in maintaining repayments on the mortgages and other liabilities. During the review hearing, the wife reverted to her application for the three properties to be sold. The husband also altered his position during the hearing by submitting to the additional orders sought by the wife in her review application (which he initially opposed), but he maintained his opposition to the sale of the properties. The husband complained of his denial of procedural fairness in having to deal with the wife’s amended proposal on the run, so the hearing was suspended for 30 minutes to enable him to confer with his lawyers. Upon resumption of the hearing, the husband disavowed the need for any further adjournment, as had been mooted, and was content to press ahead with his submissions to finalise the dispute. Accordingly, the wife wanted the three properties sold, whereas the husband wanted to retain the orders made by the registrar and for the Court to make the extra orders the wife proposed in her review application (but subject to his re-finance of the properties only having to occur contemporaneously with the wife’s transfer of title in them to him, rather than within seven days). The husband was well able to meet the wife’s amended position because it was the same proposal she advanced before the registrar.
Decision
Reasons for decision
It follows that the application made by the wife on 28 November 2023 to stay Orders 17, 18, 19 and 20 may now be dismissed.Conclusion Aside from the discharge of Orders 11, 12, 13 and 14 made by the registrar and their replacement with an order concerning only the third property, the review application is dismissed. All other antecedent applications brought by the parties are also dismissed. Accordingly, the review application was partially successful. On that basis, neither party seems to have a competent claim to recover their costs of the review hearing, though they should have leave to apply for costs if they consider it appropriate.
Ratio Decidendi
Legal Principle Established
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