Agnarsson & Agnarsson (No 4)

Case [2024] FedCFamC1F 407

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Agnarsson & Agnarsson (No 4) [2024] FedCFamC1F 407

File number: CAC 491 of 2023
Judgment of: AUSTIN J
Date of judgment: 17 June 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Property – Where the husband seeks review of a selection of interim orders made by a senior judicial registrar (“the registrar”) concerning the treatment of six properties pending trial – Where the husband sought to rely upon an Amended Application for Review circulated late on the last business day before the hearing – Where it would be procedurally unfair to expect the wife to meet the amended application – Where the husband was confined to his initial Application for Review – Where the wife opposed the husband’s review application and was content to abide by the registrar’s orders – Where the husband does not presently hold a proprietary interest in the six properties – Where the wife should not be compelled to complete the purchases of the six properties – Where the contract to purchase one of the properties has been rescinded – Where the wife will be the sole registered proprietor of the properties if the purchases are completed – Where the wife intends to sell the properties and seeks to retain responsibility for the sales – Where there is no need for an order appointing the wife as trustee for sale of properties when she will be the exclusive owner – Where the husband seeks appointment of professional trustees to manage the sale of the properties due to his distrust of the wife – Where appointment of professional trustees is not a sensible solution – Where the wife is free to use the net proceeds of sale to retire debt and place any residue in trust with her solicitors – Where certain orders by the registrar are set aside – Where the husband’s application to substitute proposed orders for some of those set aside is dismissed – Husband’s stay application consensually dismissed – Wife’s costs application dismissed.
Legislation:

Evidence Act 1995 (Cth) s 57

Family Law Act 1975 (Cth) Pt VIII, ss 79, 80 and 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 6.1, rr 6.02, 14.05 and 14.07

Cases cited:

Agnarsson & Agnarsson (No 2) [2023] FedCFamC1F 1066

Bevan v Bevan (2013) 279 FLR 1; [2013] FamCAFC 116

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

Lin & Ruan (2021) FLC 94-024; [2021] FamCAFC 90

Sarto & Sarto (2022) 65 Fam LR 605; [2022] FedCFamC1A 16

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: 65
Date of hearing: 17 June 2024
Place: Newcastle (via Microsoft Teams)
Counsel for the Applicant: Ms Gillies SC
Solicitor…

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AGLC
Agnarsson & Agnarsson (No 4) [2024] FedCFamC1F 407
Case
[2024] FedCFamC1F 407
Decision Date

CaseChat Overview and Summary

Mr Agnarsson sought to review a number of interim orders made by a senior judicial registrar concerning the treatment of six properties pending trial. The wife opposed the husband's review application and was content to abide by the registrar's orders. The husband did not presently hold a proprietary interest in the six properties and the wife should not be compelled to complete the purchases of the six properties. The contract to purchase one of the properties had been rescinded. If the purchases were completed, the wife would be the sole registered proprietor of the properties and intends to sell the properties and retain responsibility for the sales. There was no need for an order appointing the wife as trustee for sale of properties when she will be the exclusive owner. The husband sought the appointment of professional trustees to manage the sale of the properties due to his distrust of the wife, but this was not a sensible solution. The wife was free to use the net proceeds of sale to retire debt and place any residue in trust with her solicitors.

The court addressed several issues arising from the husband's application for review. The court held that the husband's application to file and rely upon an Amended Application for Review was dismissed as it would be procedurally unfair to expect the wife to meet the amended application. The husband was confined to his initial Application for Review. The court set aside certain orders made by the registrar and dismissed the husband's application to substitute proposed orders for some of those set aside. The husband's stay application was consensually dismissed and the wife's costs application was dismissed. The court found that the wife should not be compelled to complete the purchases of the six properties and that the wife could sell the properties and retain responsibility for the sales. The court held that there was no need for an order appointing the wife as trustee for sale of properties when she will be the exclusive owner. The appointment of professional trustees was not a sensible solution, and the wife was free to use the net proceeds of sale to retire debt and place any residue in trust with her solicitors.

The court made the following orders: the husband's oral application to file and rely upon the Amended Application for Review was dismissed; Orders 2, 3, 4 and 6 made by the senior judicial registrar were set aside; the husband's Application for Review was otherwise dismissed; the Application in a Proceeding was dismissed; and the wife's application for costs was dismissed. The respondent does not require the publication of Reasons for Order 5. The form of the order is subject to the entry in the Court’s records. This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

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:

17 JUNE 2024

THE COURT ORDERS THAT:

1. The applicant’s oral application to file and rely upon the Amended Application for Review dated 14 June 2024 is dismissed.

2. Orders 2, 3, 4 and 6 made by the senior judicial registrar on 13 May 2024 are set aside.

3. The Application for Review filed on 15 May 2024 is otherwise dismissed.

4. The Application in a Proceeding filed on 24 May 2024 is dismissed.

5. The respondent’s application for costs is dismissed.

NOTATION

A. The respondent does not require the publication of Reasons for Order 5.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Comparing the positions adopted by the parties in respect of the reviewed orders, they agreed the five issues which arise are these:(a)should the parties, or either of them, be compelled or authorised to settle the purchases of the first, second, third, fourth and fifth properties?(b)if so, given the parties agree the second, third, fourth and fifth properties should then be sold immediately upon the completion of their purchases, should those sales be handled by the wife (as she proposes) or by independent trustees (as the husband proposes)?(c)what should become of the first property, as the wife wants it sold but the husband does not want the property sold unless he is unable to meet the retention costs?(d)should any proceeds realised on the sales of the properties be held in trust by the solicitors proposed by the wife or by the trustees proposed by the husband?(e)what should become of the sixth property, if Order 3 is set aside as the husband wants?Evidence The husband relied upon his:(a)affidavit filed on 26 April 2024 (selected paragraphs);(b)affidavit filed on 9 May 2024 (selected paragraphs); (c)financial statement filed on 1 May 2024; and(d)numerous tendered documents (Exhibit A). Initially, Exhibit A was only received provisionally (s 57 of the Evidence Act 1995 (Cth)), but the contents proved to be relevant to the husband’s application and helped demonstrate why his application should be dismissed, so its tender was later confirmed over the wife’s objection. The husband tendered some 30 pages of correspondence between the parties’ solicitors, but the tender was rejected. It was only likely to expose how the parties gave their lawyers quite different instructions about how the litigation was being conducted and how it should be properly conducted, in which event it would not likely be probative, even if relevant to a fact in issue. The wife relied upon her:(a)affidavit filed on 4 April 2024 (selected paragraphs);(b)affidavit filed on 3 May 2024 (selected paragraphs); (c)affidavit filed on 8 May 2024; and (d)financial statement filed on 13 June 2024.First issue The wife contracted to purchase the first, second, third, fourth, fifth and sixth properties “off the plan” in early 2020, before the parties separated in late 2022. The purchases are due for completion on dates later this year or in early 2025. The wife has so far paid deposits and contract variations approximating $2 million. According to the evidence, about another $15 million is payable upon completion of the contracts for the balance of the purchase prices and the payment of stamp duty. The wife deposed to presently owning property worth just over $6 million in aggregation, but having liabilities totalling just over $5 million. Given the limited amount of her net equity, her completion of the contracts to purchase the first, second, third, fourth, fifth and sixth properties is entirely dependent upon her ability to procure loans to do so, which loans would presumably be secured against those properties and any other property she has. Her solicitor stated she needs to obtain bridging finance of about $10 million, which she expects to be able to do.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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