ARKIN & BLASBERG
[2019] FamCA 476
•23 July 2019
FAMILY COURT OF AUSTRALIA
| ARKIN & BLASBERG | [2019] FamCA 476 |
| FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION TO VACATE TRIAL – respondent suffering malignant cancer – respondent asserting his case was not ready for commencement of trial fixed for 30 July 2019 – case previously fixed for trial on a date prior to 30 July 2019 – trial date for that hearing vacated – considerations of fairness or otherwise of forcing respondent on for trial when he was not ready – considerations of balancing the applicant’s interests in holding the respondent to the 30 July 2019 trial date – trial date vacated to 28 October 2019. FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR MANDATORY INJUNCTION – relevant principles – detailed examination of equitable principles and their application to injunctions under s 114 of the Family Law Act. FAMILY LAW – PROPERTY – SUPERANNUATION – application to compel respondent to create fresh binding death benefit nominations in favour of the respondent’s legal personal representative so that the proceeds of the respondent’s superannuation were dealt with under his will rather than those proceeds being disbursed to the nominated beneficiaries – consideration of aspects of part VIIIB of the Family Law Act – consent orders on that point ultimately reached. |
| Corporations Act 2001, Ch 2D Evidence Act 2004, s 79 Family Law (Superannuation) Regulations 2001 Family Law Act 1975, ss 4, 79, 90XB, 90XC, 90XT, 90XV, 114 Family Law Legislation Amendment (Superannuation) Act 2001 Family Law Rules 2004, r 16.03 Insurance Contracts Act 1984, s 48A |
| A v Hayden (1984) 156 CLR 532 AM & MM [2005] FamCA 443 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65 Cardile v LED Builders Pty Ltd (1999) 198 CLR 38 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Coghlan & Coghlan (2005) 33 Fam LR 414 Commonwealth v Clark [1994] 2 VR 333 Commonwealth v Verwayen (1990) 170 CLR 394 Evans v Public Trustee (WA) (1991) 14 Fam LR 646 Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385. Grimshaw v Dunbar [1953] 1 QB 408 Grusauskas v Deputy Commissioner of Taxation [2005] VSCA 49 Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 In the Marriage of Burridge (1980) 6 Fam LR 513 In the Marriage of Coulter (1989) 13 Fam LR 421 In the Marriage of Crapp (1979) 5 Fam LR 47 In the Marriage of Georgeson (1995) 19 Fam LR 302 In the Marriage of Harris (1991) 15 Fam LR 26 In the Marriage of Harrison (1996) 20 Fam LR 322 In the Marriage of Law-Smith & Seinor (1989) 13 Fam LR 397 In the Marriage of Martin (1986) 11 Fam LR 65 In the Marriage of Prestwich (1984) 9 Fam LR 1069 In the Marriage of Walters (1986) 10 Fam LR 1006 In the Marriage of Waugh (1999) 27 Fam LR 63 Jabour & Jabour [2019] FamCAFC 78 Moore & Moore [2014] FamCAFC 113 National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 Paxton v Paxton [2016] FCCA 1689 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Re Bell; Ex parte Lees (1980) 146 CLR 141 Redland Bricks Ltd v Morris [1970] AC 652 Seminara v Ferguson (1993) 16 Fam LR 410 Stewart v Gladstone (1877) 7 Ch D 394 Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Pty Ltd [2015] FCA 612 Taylor v Taylor (1979) 143 CLR 1 Wright v Gibbons (1949) 78 CLR 313 |
| Charles Rowland, Bonnie Allan, Jason Wenning and Francis Charles Hutley, “Life Insurance Policies and Superannuation”, Hutley’s Australian Wills Precedents (LexisNexis Butterworths, 7th ed, 2009) I. C. F Spry, The Principles of Equitable Remedies, Specific Performance, Injunctions, Rectification and Equitable Damages (Law Book Company Ltd, 4th ed, 1990) The Hon. J. Dyson Heydon AC QC, Mark J Leeming and Peter G Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2014) Lawrence McCredie, Administration of the Estates of Deceased Persons in Victoria (Butterworths, 1979) |
| APPLICANT: | Ms Arkin |
| RESPONDENT: | Mr Blasberg |
| FILE NUMBER: | MLC | 4182 | of | 2016 |
| DATE DELIVERED: | 23 July 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 11 July 2019, 19 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A Strum QC and Mr A Barbayannis in written submissions, Mr A Barbayannis on 11 and 19 July 2019 |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| COUNSEL FOR THE RESPONDENT: | Mr P O'Shannessy |
| SOLICITOR FOR THE RESPONDENT: | Glezer Lanteri & Associates |
Orders
By 4pm on 25 July 2019 the parties are to bring in agreed minutes that give effect to these reasons for judgment.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arkin & Blasberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4182 of 2016
| Ms Arkin |
Applicant
And
| Mr Blasberg |
Respondent
REASONS FOR JUDGMENT
Introduction
By application in a case filed on 3 July 2019 the applicant sought orders vacating the trial of this proceeding listed for 30 July 2019 and other orders. The respondent opposed the making of all orders sought.
Before addressing the precise terms of the orders sought it is useful to set out in very brief terms the facts giving rise to the present applications.
On 14 December 2018 orders were made by consent by Registrar Mestrovic fixing this proceeding for trial on 18 June 2019 for four days. That trial date was subsequently moved to 30 July 2019 before me. On 14 December 2018 the registrar made orders for the parties to do various things preparatory for trial. Not all were relevant to this application. Those that were are recorded below.
Synopsis
For the reasons set out below, in my judgment –
a)the trial of this proceeding fixed for 30 July 2019 is vacated;
b)the trial is fixed for four days commencing on 28 October 2019;
c)any further affidavit material on which the respondent wishes to rely is to be filed and served by 4pm on 16 August 2019;
d)Any further affidavit material on which the applicant wishes to rely is to be filed and served by 4pm on 30 August 2019; and
e)I direct that the warehouse at B Street Suburb A is to be sold by public auction.
Vacating the trial
In essence, the respondent asserted that he was diagnosed with cancer in May 2018. In support of the application to vacate the trial date the respondent made an affidavit on 2 July 2019 in which he deposed to the following –
a)he travelled to Country C between late April and 14 May 2019;
b)while in Country C he was very unwell with impaired vision and extreme thirst;
c)on returning to Australia he was diagnosed with diabetes;
d)he underwent a ten session course of intensive radiotherapy between 28 May 2019 and 11 June 2019;
e)he was hospitalised on 15 and 16 June 2019; and
f)during the month of June 2019 he had not been physically or emotionally able to provide instructions in the lead-up to a 30 July 2019 trial.
The respondent was referred to Dr D for consideration of palliative radiotherapy for symptomatic cancer. Dr D provided a letter to the respondent dated 3 July 2019. Mr O’Shannessy of counsel for the respondent relied on Dr D’s letter. Two paragraphs of that letter were of particular relevance. They were as follows –
It is common to have these significant side effects for at least four to six weeks after completion of abdominal radiotherapy and it is quite likely that an element of these symptoms will persist for at least two to three months. No doubt the psychological component of dealing with an incurable malignancy and the consequences of treatment do impair your ability to cope with other activities of daily life and are ongoing with an active malignancy. The disease and recent treatment are particularly likely to impact over the two to three months after radiotherapy. I hope by around the eight week mark you may start to notice a benefit from radiotherapy but as we discussed, many … carcinomas are relatively resistant to treatment and progression in the short to medium term over six to twelve months is the commonest outcome.
As you know unfortunately your … malignancy is incurable.
The two to three months during which adverse symptoms would be apparent, according to Dr D, meant that the respondent was unlikely to be of sound mental fabric to instruct his solicitors, let alone suffer the rigours of cross examination until October 2019 or thereabouts.
The applicant opposed the vacating of the trial date. On her behalf Mr Barbayannis contended in written submissions on which he relied before me on 11 July 2019 that Dr D did not offer an opinion about the likelihood of the respondent’s health improving. Some support for that contention emerged from the passage of Dr D’s letter set out above, especially Dr D’s statement that he hoped to notice a benefit from radiotherapy by eight weeks from 3 July 2019. That translated to 3 September. Dr D qualified any such prognosis stating that many carcinomas are relatively resistant to treatment and that progress over six to 12 months is most common. Yet the point remained that at no stage did Dr D state that the respondent’s health will improve. Mr Barbayannis was correct in contending that no material existed by which I could be persuaded that the respondent will at some later date be in a better position to provide instructions or to participate in the trial of this proceeding than he is at present.
The issue seemed to me to distil into one of procedural fairness. The respondent had not done several of the things he had been ordered to do on 14 December 2018 with a view to advancing this proceeding to trial. That much was true. However, I accept unreservedly Dr D’s evidence about the respondent’s treatment, the impact of that treatment on the respondent and about progression in the period between six to 12 months being the commonest outcome. Dr D stated that the respondent’s malignancy was incurable.
The respondent’s health cannot be gainsaid in the months to come. It seems readily apparent that by reason of his poor health he is not in a position to adequately instruct or to participate in the trial presently fixed later this month.
Neither party’s counsel took me to authority in support of the application to adjourn or, for that matter, to the resistance of the adjournment application. In the end, the decision on whether to grant or to refuse an application to adjourn, whether described as an application to vacate a trial date or to adjourn more generally, is discretionary.
At common law, a superior court of record possesses an inherent power to direct that any matter coming before it should stand over for a period in order to do justice between the parties. That proposition is of some antiquity, a version of it being restated in Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman.[1] That proposition does not have automatic translation to the Family Court of Australia because this court’s inherent jurisdiction is more circumscribed than is a common law court’s, as was held by the High Court in Taylor v Taylor[2] and R v Ross-Jones; Ex parte Green.[3]
[1] [1941] Ch 32
[2] (1979) 143 CLR 1
[3] (1984) 156 CLR 185
Rule 16.03 of the Family Law Rules confers power to vacate the first day before a judge when the case has been set down before a judge. Rule 16.03(2) of the Family Law Rules provides that the first day before the judge will only be vacated for “substantial and significant reason”. That phraseology has a loose connection to wording traceable to Chancery practice where a party seeking to adjourn needed to show “some strong and good reason” for the adjournment, as was canvassed in Stewart v Gladstone.[4]
[4] (1877) 7 Ch D 394
In Taylor v Taylor Mason J referred to the prima facie right of each party to have the proceeding heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case. His Honour relied on the observations of Jenkins LJ in Grimshaw v Dunbar[5] to that effect. It seems to me that where one party’s ability to present his or her case is impaired by reason of the existence of an incurable malignancy then that is a matter calling for careful consideration. The Court of Appeal of the Supreme Court of Victoria held in Grusauskas v Deputy Commissioner of Taxation[6] that it is of fundamental importance for a court (me, in this case) to ensure that each party has an equal and proper opportunity to present his or her own case which involves a full and proper challenge to the opposite party’s case. A similar approach was adopted in Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd.[7]
[5] (1953) 1 QB 408
[6] [2005] VSCA 49
[7] [1978] VR 385
Of course, the mere fact that one party to the litigation asserts prejudice if the adjournment is not granted is not the end of the investigation because the opposite party may, quite properly, contend that a greater prejudice will befall him, her or it if the adjournment is granted.
Here, the respondent was diagnosed with cancer in or about May 2018. The case had been earlier fixed for trial in October 2018. By reason of the deterioration in the respondent’s health the case was then brought before the registrar on 14 December 2018. It was refixed. That date was subsequently refixed again to 30 July. The respondent travelled in April and May of this year. He said while travelling he became very ill. The submissions of Mr Barbayannis to the effect that the respondent’s health is unlikely to improve may be accepted. However, during important weeks prior to the refixed trial day of 30 July 2019 the respondent was not present in Australia to provide instructions for the preparation of his case at trial. His case remains in a state of unpreparedness. Mr Barbayannis did not go so far as to suggest or submit that the respondent behaved irresponsibly in travelling overseas when he may have been preparing his case. Quite properly, Mr Barbayannis put his submissions on the basis that no certainty existed that, if an adjournment were granted, this case would not be in precisely the same situation two to three months hence. I agree. Yet the important date for present purposes is 30 July 2019. The respondent is not ready for a trial on that date. Whether he should have been ready for trial is in part a philosophical question as it must not be forgotten that his diagnosis with cancer was given in May last year after which, understandably, he visited overseas relatives no doubt being uncertain of the speed at which his malignancy (as Dr D described it) would progress.
Viewed from the applicant’s perspective, this adjournment application is the latest in several such applications. That much can be said with some certainty. However, to force the respondent on for trial on 30 July given the current state of his preparation would be to risk denying the respondent the opportunity to present his case as best as he can. Such an approach is antithetical to the views expressed by the High Court in Taylor v Taylor.
In those circumstances, reluctantly I accede to the respondent’s application to vacate the trial date of 30 July 2019. The case will be refixed on the same duration not less than three months hence on 28 October 2019.
Retrospective valuation
Pursuant to paragraph 3 of the respondent’s application in a case he sought an order that the respondent have leave to appoint a valuer to obtain a retrospective valuation of the properties owned by him either in his name or in the name of entities controlled by him at the commencement of his relationship with the applicant. The applicant opposed that application. In her affidavit sworn 29 May 2019 the applicant provided details of matters that were not controversial. Those included –
a)the applicant was aged 65 and the respondent 67;
b)the marriage between the two was the applicant’s second marriage and the respondent’s third;
c)they did not have children together although the applicant has two adult children from her earlier marriage and the respondent has two children from an earlier marriage;
d)she estimated that the net value of assets excluding superannuation that fell for division was $8 932 445 and, with superannuation, assets totalled a value of $17 142 729;
e)non-business related real estate mentioned by the applicant included E Street, Suburb F, J Street, Suburb G, K Street, Suburb H, L Street, Suburb F, M Street, Suburb N;
f)other real estate was occupied in the conduct of the applicant’s and respondent’s business operations, mostly pursuant to leases in which a particular corporate entity was tenant;
g)the land and improvements at B Street, Suburb A has at all relevant times been used as a warehouse for the business operations previously conducted by the applicant and respondent.
h)the warehouse at B Street, Suburb A was purchased in April 2009 by P Pty Ltd for $3.5m.
In support of the respondent’s application for retrospective valuation of properties, his solicitor Ralph Glezer made an affidavit on 2 July 2019 in which Mr Glezer stated that the respondent has at all times contended in this case that he brought into the relationship substantially more by way of assets than did the applicant. Mr Glezer pointed out in his affidavit that his request for agreement to the retrospective valuation of three properties had been refused by the applicant. The three properties he mentioned were –
a)O Street, Suburb Q;
b)R Street, Melbourne; and
c)1 T Street, Melbourne.
Mr Glezer stated in his affidavit that without those retrospective valuations the respondent would be unable to put before the court details of the contributions he made. In resisting this aspect of the application, the applicant’s solicitors have stated that no probative value exists in engaging in that retrospective valuation.
Taking first the respondent’s assertion that at all times in this litigation he has said his contributions were greater than the applicant’s, when this proceeding was commenced in May 2016 the respondent’s affidavit of 29 July 2016 spoke of two properties at R Street, one at 2 T Street and one at E Street. But focusing on those properties rather than the three mentioned by Mr Glezer, since July 2016 the respondent has asserted that he contributed certain properties to the relationship. He must be taken to have known of the need for valuation evidence about all property he says he contributed to the relationship. I find it very difficult to understand how, in July 2019, three years after he was first embroiled in this litigation, the respondent had taken no steps to obtain valuation evidence about the prices of real estate that he says he contributed to the marriage. The respondent has made several affidavits in this case prior to and since his solicitors S Firm ceased acting in November 2018. None of those affidavits descended to the detail of the contributions the respondent says he made especially in relation to real property. Instead, the respondent’s focus has been on the value of the business enterprise he and the applicant once operated. Further, in February 2019 the applicant made wholesale amendments to her initiating application to which on 26 March 2019 the respondent responded by amended response. Nowhere since 26 March 2019 has the respondent maintained in court documentation filed by him the contention to which Mr Glezer adverted, namely, that at all times the respondent contributed in greater measure than did the wife by introduction of various real estate to the marriage.
That may be little more than an historical statement. The real issue is whether, at this very late juncture of the interlocutory phases of this litigation, the respondent should be permitted to adduce the evidence he seeks to adduce about parcels of real estate he brought to the marriage.
Understandably, the applicant seeks to prevent the adduction of the evidence that the respondent now wishes to adduce, if for no other reasons than the forensic advantage that she will enjoy by the absence of that evidence. Since the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University[8] trial judges have been bound to address the real issues in the proceeding, irrespective of rules of court governing case management. In this case one of the real issues in the proceeding is the determination of the parties’ contributions for the purposes of s 79(4) of the Family Law Act.
[8] (2009) 239 CLR 175
It was held by the Full Court of the Family Court in AM & MM[9] that issues surrounding the value of assets as at the commencement of cohabitation that were dependent upon opinion evidence could only be resolved if admissible evidence is before the court. The expression by one party of his or her own lay view of the value of such real estate as comprised of initial contributions will be of limited assistance to the court. In that case the husband expressed his view that certain real estate was estimated to be valued at $300 000. The Full Court held that the husband was not an expert so by force of s 79 of the Evidence Act he was not permitted to give that evidence. That is not to say that a lay witness could not give evidence of the sum he or she actually paid to acquire one or more parcels of land that was or were introduced to the marriage. Where the value of land is disputed, conventionally, evidence to establish value is given by a licensed valuer as was canvassed in In the Marriage of Georgeson.[10]
[9] [2005] FamCA 443
[10] (1995) 19 Fam LR 302
Here, it seems to me that the respondent should be permitted to adduce such evidence as he wishes about the extent and value of what he says are his initial contributions. To have his lay evidence of the value of the three parcels of real estate of which his solicitor spoke would be of little utility – or at least of lesser utility than it will be to have expert evidence of the value of those parcels of real estate from a valuer in the manner canvassed in AM v MM.
That then invited a consideration of the date by which that retrospective valuation is to be adduced. The applicant has said through her solicitors that she will not agree to a single expert for any retrospective valuation. Accordingly, if the respondent wishes to adduce further valuation evidence in the manner he contends, I will require that to be done within the date offered consensually in debate before me on 19 July 2019, namely 16 August 2019. Ideally, the additional evidence of retrospective valuations should be given by a single expert under the Family Law Rules. The respondent has sought the indulgence of such evidence at this late phase so he must be solely responsible for the costs of that extra evidence. The extent to which any such evidence is probative and utile will depend on matters that go beyond the mere attribution of a value of the parcels of land as at the date of cohabitation. Mr Barbayannis submitted, correctly in my view, that it will be additionally necessary to know the extent of the respondent’s indebtedness to lenders over each parcel of land and how the sale prices were applied. I hasten to add that those matters should have been addressed long before now in the context of litigation that was commenced in May 2016.
Updated valuation of companies
A large number of companies make up the Blasberg Group of companies. Despite that, a substantive report was prepared on 13 April 2017. Accounts subsequent to that date can quickly be examined and a supplementary report prepared. I will allow a supplementary report to be prepared, filed and served within the date agreed, 16 August 2019 and, to the extent it may be necessary, any response evidence by 30 August 2019.
Sale of the warehouse
Neither the applicant or the respondent wish to retain the warehouse. Both agree it must be sold. The parties are at odds as to several issues, none of which in my view pose insurmountable obstacles.
The respondent has contended that he wants certain improvements of a relatively minor extent to be undertaken prior to the property being offered for sale. Mr Barbayannis told me the property will most likely be demolished by a purchaser. On that state of affairs, little point is served in undertaking the repairs contemplated as the value in the asset lays in its unimproved state as a block of land. Mr O’Shannessy disputed that the property will be demolished.
The respondent contended that he wanted to select the real estate agent who will conduct the sale. He parties previously instructed U Group to undertake a joint valuation of the warehouse which that agent duly prepared. It makes sense that U Group remain connected with the warehouse and its sale. They will be able to nominate the reserve price as they are familiar with the property if the parties are unable to agree on the reserve price.
Self-evidently, the respondent must vacate the warehouse and remove his personal effects.
Mr O’Shannessy advanced the argument that an order for the sale of the warehouse should not be made at the present time but rather any such order should only be made following full hearing at trial. He so argued because the respondent took the view that the value of the warehouse was rising (albeit slowly) and that an early sale would reduce the amount realisable at sale because, so the respondent says, the longer the time before a sale, the greater the improvement in the price.
Mr O’Shannessy pressed for the making of an order for the sale of the warehouse only after trial. Conversely, Mr Barbayannis contended that, consistent with consent orders made on 14 December 2018, the property should be sold forthwith. It was said that the decision of the Full Court in Jabour & Jabour,[11] judgment in which was handed down on 10 May 2019 was pertinent to the point.
[11] [2019] FamCAFC 78
In my view there is real force in the submissions of Mr Barbayannis. He correctly contended that no evidence existed to support the respondent’s submission that the property market was rising and that any delay in the sale would produce an enhancement in the price obtained on sale. Mr Barbayannis submitted that on the evidence, since separation the warehouse had sat idle not generating investment income.
As to the method of sale, in my view a public auction is appropriate. It is transparent. It overcomes any suspicion that the sale might be effected to a person who is not an arms-length buyer willing to pay the best possible price.
The respondent has previously supported an order being made for the sale of the warehouse. In my view, the warehouse should be sold at public auction conducted by U Group with a reserve price determined by that real estate agency if the parties are unable to agree on the reserve.
Binding death benefit nominations
When this matter was debated before me on 11 July 2019 Mr O’Shannessy and Mr Barbayannis were not ad idem on several aspects of the issues relevant to the binding death benefit nominations (“BDBN”) that arose for consideration. Yet factually, certain issues were agreed.
The applicant stated in her 9 July 2019 affidavit that the respondent’s superannuation entitlement as at 30 June 2018 stood at $5 202 486.87 and the applicant’s entitlement at the same date was $3 195 659.36. She stated that those sums required updating. She swore that the respondent had previously executed a BDBN in favour of his children X and Y pursuant to which X and Y would receive an aggregated amount totalling 50% of the respondent’s entitlement in his superannuation fund. The applicant swore that in this proceeding she had applied for orders the effect of which would produce an equal split of the superannuation assets. She said if an adjournment of the trial were to be ordered, she sought orders that the respondent execute a BDBN in favour of his legal personal representative thereby ensuring that his superannuation entitlements remained among the matrimonial assets to be divided after the trial of this proceeding.
The applicant relied on s 114 of the Family Law Act as the source of my power to make the orders sought concerning the execution of the BDBN in favour of the respondent’s legal personal representative. In debate with Mr Barbayannis I canvassed with him the jurisprudential basis for the making of the order sought. He directed my attention to the decision of Tracey J in Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Pty Ltd.[12] In debate I asked Mr Barbayannis whether, in effect, the applicant was seeking a mandatory injunction to which principles set out by the House of Lords in Redland Bricks Ltd v Morris[13] applied. Both Mr O’Shannessy and Mr Barbayannis agreed that the question was complex and they acceded to my suggestion that they should have a few days to research the issue and to make fuller submissions on point. Somewhat on-the-run, Mr Barbayannis mentioned but did not develop an argument about the decision of the Full Court in Moore & Moore,[14] judgment in which was handed down on 27 June 2014. It appeared to me that the decision of the Court of Appeal of the Supreme Court of Victoria in Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria[15] may also assist in the resolution of the point. The proper determination of the point as a matter of law was important having regard to the magnitude of the amounts involved.
[12] [2015] FCA 612
[13] [1970] AC 652
[14] [2014] FamCAFC 113
[15] (2006) 15 VR 65
The issue on which Mr O’Shannessy and Mr Barbayannis disagreed concerned the legal operation of the BDBN. In a nutshell, during the application on 11 July the respondent advanced the proposition that the BDBN did not operate in such a way that the superannuation funds were carved out of the body of assets that fell for division under s 79 of the Family Law Act. Mr O’Shannessy submitted on 11 July 2019 that the BDBN executed by the respondent can only operate on so much of the superannuation funds as is determined by court order to be divided in favour of the respondent. Mr Barbayannis told me on 11 July that where the BDBN compels the trustee to comply with that nomination, so much of the superannuation fund as is covered by the BDBN ceases to be available for division between the parties to this litigation.
On 11 July 2019 at the conclusion of that interlocutory hearing I gave the parties until 4pm on Monday 15 July for Mr Barbayannis to file further submissions on the BDBN point, for Mr O’Shannessy to file further submissions by 4pm Wednesday 17 July 2019 and further viva voce argument being heard at 8.30am on Friday 19 July 2019.
In debate on 11 July 2019 I told counsel that if I were minded to adjourn the trial of this proceeding I would relist it for four days commencing on 28 October 2019.
Counsel duly filed written submissions on the question of the BDBN. For the applicant those written submissions were prepared by Mr Strum QC with Mr Barbayannis. They most helpfully distilled a collection of concepts that arose in debate. It is utile to set out, although obviously not verbatim, some of the more important issues that emerged from those submissions.
At a factual level, the relevant entities were set out. P Pty Ltd was at all relevant times the trustee of the P Pty Ltd Employees Superannuation Fund, the members of which fund were the applicant and the respondent who were also the directors of the trustee and its shareholders as to two ordinary issued shares held by the respondent and one by the applicant. Self-evidently, as directors of P Pty Ltd the applicant and respondent owe and continue to owe the duties set out in Chapter 2D of the Corporations Act. Unless the applicant and respondent otherwise dispose of their shares in P Pty Ltd it might fairly be expected that the shares each held at their date of death will pass in accordance with the terms of the will of each.
Paragraph 4(b) of the applicant’s submissions made on 15 July 2019 seemed to proceed on an expectation of impending conflict concerning the shareholding of P Pty Ltd. In that paragraph counsel stated that the respondent’s shares in P Pty Ltd will, on his death, pass to his legal personal representative, X. That much might be true to the extent that it corresponds with the terms of the respondent’s will, although in the absence of evidence of his will I cannot say with certainty. If X is the beneficiary of those two shares under the respondent’s will then she will likely acquire the legal and beneficial interest in them absolutely. X will not acquire the legal and beneficial interest in the shares in her capacity as the respondent’s legal personal representative. She will, in that capacity, hold them only in a representative capacity pending transfer of the legal and equitable interest in them under the respondent’s will. That much seemed uncontroversial.
In paragraph 4(b) of their submissions the applicant’s counsel stated that X could disrupt the operation of the trustee by attempting to pass a member’s resolution by bringing a shareholders action or, so they argued, X as the majority shareholder in P Pty Ltd could “vote the wife out of office”. Reference to voting the wife out of office must be taken to be a reference to the applicant’s office as a director because the applicant could not be “voted” out of her status as a shareholder. Whether all or any of those concerns were well-founded or achievable in fact or in law remain to be seen. That said, it must be acknowledged that the applicant fears that upon the respondent’s death his daughter X will be in disputation with the applicant over, among other things, the ongoing running of P Pty Ltd and the superannuation fund.
The genesis of the applicant’s agitation for orders in relation to the BDBN is her stance that superannuation will not form part of the respondent’s estate. In their written submissions counsel for the applicant relied on Stock and argued that superannuation is not an asset. In my view it is erroneous to contend that in Stock v N.M Superannuation Pty Ltd Tracey J held that superannuation is not an asset of the estate of the deceased member of the superannuation fund. In that case his Honour referred at paragraph 16 of his Honour’s reasoning to paragraph 44 of the reasons of the Superannuation Complaints Tribunal in which the tribunal stated that even if superannuation is specifically mentioned in a will, that does not make it an asset that is subject to the terms of the will. In the same paragraph the tribunal stated that superannuation is not an asset of the estate. Tracey J then adjudicated on two grounds of appeal from the tribunal’s decision, neither of which involved paragraph 44 of the tribunal’s reasons. In fact, his Honour identified that paragraphs 48 and 50 of the tribunal’s reasons were relevant to ground 1 of the appeal. So far as ground 2 was concerned, that ground addressed the adequacy of the tribunal’s reasons. At no stage did Tracey J endorse, agree with, apply or support the tribunal’s propositions at paragraph 44 of its reasons. It follows that in my view Stock is not authority for the proposition advanced by counsel for the applicant.
They relied on the decision of the Full Court in Evans v Public Trustee (WA).[16] Naturally that case was decided prior to the legislative amendments to superannuation law that became operative on and from 28 December 2002. In Evans, the plurality canvassed earlier decisions such as In the Marriage of Crapp[17] where it was held that an interest in a superannuation fund was not “property” for the purposes of the Family Law Act and instead was a contingent interest only because the superannuation fund member was unable to alienate his entitlement and, in the event of his death prior to retirement, his right to receive payment of his entitlement under the fund did not pass to his estate. In Evans the plurality took the view that the observations set out above from In the Marriage of Crapp were no longer true. Yet the court in Evans identified a trend then emerging from decisions in this court of not normally treating superannuation entitlements as “property” for the purposes of s 79. In Evans, the plurality also referred to a body of authority to the effect that the entitlement to the fund held by a superannuation fund member is a chose of action and therefore it is property for the purposes of s 79, consonant with the observations of the High Court in Official Receiver in Bankruptcy v Schultz.[18]
[16] (1991) 14 Fam LR 646
[17] (1979) 5 Fam LR 47
[18] (1990) 170 CLR 306
The complexity surrounding the status of superannuation entitlements upon the death of a member of a superannuation fund is compounded by s 79(8). By way of minority judgment, Nygh J held that an interest in a superannuation fund is property so long as that interest has vested at which time orders under s 79 in relation to it may be made. So too was a similar finding made in In the Marriage of Harris.[19] Overwhelmingly, the authorities pointed to the conclusion that superannuation entitlements were not property. They are too many to record in total yet among those authorities are In the Marriage of Law-Smith & Seinor,[20] In the Marriage of Coulter,[21] In the Marriage of Walters,[22] In the Marriage of Martin,[23] In the Marriage of Prestwich,[24] and In the Marriage of Harrison.[25]
[19] (1991) 15 Fam LR 26
[20] (1989) 13 Fam LR 397
[21] (1989) 13 Fam LR 421
[22] (1986) 10 Fam LR 1006
[23] (1986) 11 Fam LR 65
[24] (1984) 9 Fam LR 1069
[25] (1996) 20 Fam LR 322
Wholesale alteration to most of that learning was orchestrated by the provisions of the Family Law Legislation Amendment (Superannuation) Act 2001, operative on and from 28 December 2002. By its terms it introduced a new Part VIIIB into the Family Law Act to be read in conjunction with the provisions of the Family Law (Superannuation) Regulations 2001. Section 90MC provided that a superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in s 4. Section 90MC has since become s 90XC of the Family Law Act. This is not the place to devote a detailed examination to the treatment given by a five member Full Court to the provisions of s 90MC (now s 90XC) in Coghlan & Coghlan[26] in which the majority held, relevantly, that superannuation interests are not synonymous with property for the purposes of a proceeding under s 79. The question may be open whether a clear ratio was provided by the decision in Coghlan & Coghlan, mirroring the observations of Fullagar J in Commonwealth v Clark[27] where Fullagar J declined to follow the High Court’s decision in Commonwealth v Verwayen [28] on the basis that no clear ratio was provided by the High Court. That said, suffice it to say that in practice, in this court and in the Federal Circuit Court of Australia, every day orders are made in applications made under s 79 for the division of assets in which superannuation entitlements are addressed. It is not my place on this application to pass upon the legitimacy of that approach nor whether, in so doing, “property” is being divided.
[26] (2005) 33 Fam LR 414
[27] [1994] 2 VR 333
[28] (1990) 170 CLR 394
In any event, in their written submissions counsel for the applicant did not so much debate the status of superannuation entitlements being properly described as property as they debated whether superannuation entitlements could be devised under the respondent’s will. They advanced two propositions. First, they submitted that the respondent’s superannuation does not and will not form part of his estate if he dies before this court makes final orders as to property, assuming his legal personal representative continues this litigation under s 79(8) of the Family Law Act. Second, counsel for the applicant submitted that the situation that currently presents itself is analogous to that of real property which was earlier held by the deceased as a joint tenant. In that situation, by reason of the doctrine of survivorship, on the death of one the joint estate was severed. That doctrine was canvassed by the High Court in Wright v Gibbons.[29] There, Latham CJ held as follows –
The interests of each joint tenant in the land held are always the same in respect of possession, interest, title and time. No distinction can be drawn between the interest of any one tenant and that of any other tenant. If one joint tenant dies his interest is extinguished. He falls out, and the interest of the surviving joint tenant or joint tenants is correspondingly enlarged.
[29] (1949) 78 CLR 313, 323
In the same case Sir Owen Dixon (prior to his elevation to Chief Justice) held as follows –
In contemplation of law joint tenants are jointly seised for the whole estate they take in land and no one of them has a distinct or separate title, interest or possession.
In the leading text book on estates, Professor Lawrence McCredie in 1979 made an important contribution to this field of law. He said –
The most important feature of joint interests is the right of survivorship. When one of the several joint tenants dies his interest passes to the survivors and this process continues until there is but one survivor who then becomes entitled to the whole interest in the property. This right of survivorship takes precedence over any disposition made by the will of any deceased joint tenant or the right of the next of kin of a deceased joint tenant who died intestate.[30]
[30]Lawrence McCredie, Administration of the Estates of Deceased Persons in Victoria (Butterworths, 1979) 131
When sitting as a member of the Federal Circuit Court, I made various observations about those statements, to which I presently adhere, in Paxton v Paxton.[31] Accordingly, I agree with the submissions of counsel for the applicant about the operation of the doctrine of survivorship.
[31] [2016] FCCA 1689
One of the important issues in this case is whether the respondent’s superannuation entitlements will form part of his estate. Counsel for the applicant argued that it will not, yet they offered no authority for that proposition. So far as a policy of life insurance is concerned the proceeds of such a policy do not form part of a deceased person’s estate and any nomination of a beneficiary of that policy takes precedence over the terms of a will, as s 48A of the Insurance Contracts Act provides. As for superannuation proceeds, the following has been written in Chapter 17 of Hutley’s Australian Wills Precedents –
The proceeds of superannuation are paid on the death of the member either to the member’s nominees or to those persons designated by the trustees of the superannuation fund in accordance with the trust deed of the fund. In practice, this means that the proceeds may be paid to the estate and be governed by the will or intestacy; or they may be paid directly to particular people from among the member’s nominees, family or dependants without passing through the estate. In the latter case these payments fall outside the scope of, and are not controlled by, the will. The proceeds of superannuation may be considerable, and may seriously distort the testator’s scheme of distribution if they are not taken into account. It is therefore important for the will drafter to ask the testator what her or his superannuation arrangements are and to establish the ultimate destination of the proceeds, so that the testator can properly plan the overall scheme of distribution.[32]
[32] Charles Rowland, Bonnie Allan, Jason Wenning and Francis Charles Hutley, “Life Insurance Policies and Superannuation”, Hutley’s Australian Wills Precedents (LexisNexis Butterworths, 7th ed, 2009)
In this case the applicant fears that the operation of the respondent’s existing BDBN in favour of his two adult sons from an earlier marriage will cause the superannuation proceeds payable upon the respondent’s death to be paid to those two adult sons and will not be available for division in this case. The applicant’s counsel put the position in the following terms –
It is the Wife’s position that if the Husband fails to execute a BDBN in favour of his LPR, and if the Husband passes away before this matter is finally determined, then the Husband’s entitlement in the Fund is likely to be beyond the reach of the Family Court exercising power under Section 90XT of the Act to make splitting orders with respect to superannuation, which would severely prejudice the Wife’s case.
It seems tolerably plain that a person entitled to receive superannuation benefits may nominate a payee of those entitlements so long as the terms of the trust governing the superannuation fund allow for that. In this case it was common ground that the respondent’s superannuation entitlements could be the subject of nomination under the terms of the trust governing the relevant fund. That said, some debate emerged about whether the BDBNs lapsed by operation of the three year provision for validity. The respondent chose to make the BDBNs as to a very large portion of his entitlements in favour of his two children of a previous marriage. It seemed to me that a legitimate basis existed for the applicant’s apprehension that those BDBNs would take effect in such manner that upon the respondent’s death the trustees of the relevant fund would be bound to pay the respondent’s entitlements in accordance with the BDBNs. That would have effect of enabling those superannuation entitlements to be disbursed to the respondent’s two adult children and not to be dealt with by orders of this court. The amounts in issue are very large.
On 19 July 2019 Mr O’Shannessy advanced an extremely valuable collection of submissions about the operation of Part VIIIB. He commenced by contending that by force of s 90XB, Part VIIIB overrode any other law of the Commonwealth, of a State or Territory or of any provision in a trust deed or other instrument. He submitted that a trust deed of a self managed superannuation fund was included in that catch-all provision. It followed, he contended, that the powers conferred by Part VIIIB prevailed and governed the disposition of this application. While that point had been made in addresses on 11 July 2019 when this matter was first before me, the respondent’s position was fortified by the time Mr O’Shannessy addressed on 19 July 2019.
On 11 July 2019 the applicant told me through Mr Barbayannis that she sought an order in the nature of a mandatory injunction requiring the respondent to make a new BDBN in favour of the respondent’s legal personal representative so that the respondent’s entitlements under the superannuation fund were dealt with under the respondent’s will. A minute of the precise order sought was not handed up by counsel for the applicant.
It was common ground that the source of power to make an order in the nature of an injunction, whether prohibitory or mandatory, is s 114 of the Family Law Act. The provisions of that section merely record the legislative basis for the making of the order and provide no definition of the type of injunction the legislation is intended to confer power to grant. As Dr I.C.F Spry QC pointed out in his masterful treatise The Principles of Equitable Remedies, Specific Performance, Injunctions, Rectification and Equitable Damages[33] injunctions take a variety of forms. Those include quia timet injunctions, perpetual injunctions, statutory injunctions, interlocutory injunctions, interim injunctions, ex parte injunctions, mareva injunctions and mandatory injunctions. They all possess a very substantial body of authority concerning the legal principles associated with the making of orders of any of those types of injunctions.
[33] I. C. F Spry, The Principles of Equitable Remedies, Specific Performance, Injunctions, Rectification and Equitable Damages (Law Book Company Ltd, 4th ed, 1990)
The injunction for which power to grant is conferred by s 114 is described as a statutory injunction. The basis on which the court is to proceed when determining an application for the grant of an injunction under that statutory power is therefore a matter of statutory construction. That seems to have been the approach adopted by the High Court in its construction of s 114 in Re Bell; Ex parte Lees[34] in which the court held that the word “injunction” when used in s 114 connoted orders in both positive and negative terms.
[34] (1980) 146 CLR 141
Section 114 gives no insight into the principles of law on which any consideration can be given about the basis on which the injunction may be granted. In such situations, Dr Spry QC in his book on equitable remedies at page 436 stated that in cases of statutory injunctions, where the court has a general equitable jurisdiction (as does the Family Court) it is generally to be inferred that ordinary considerations applied by courts of equity apply to the statutory power to grant the injunction subject to any statutory intention that special equitable doctrines should not apply or that other particular matters should or should not be taken into account.
Counsel for the applicant referred me to several authorities that they said on one view pointed to some differences between a statutory injunction and a more conventional injunction ordered by a court of equity. Whatever may be those apparent differences, and I was unable to divine any, the following may be said –
a)in Re Bell; Ex parte Lees Gibbs & Stephen JJ held that s 114 contemplated a mandatory injunction;
b)nothing in the observations of Nygh J in In the Marriage of Burridge[35] contradicts that position;
c)the observations of Young J in Seminara v Ferguson[36] is entirely consistent with the observations of Dr Spry QC in Equitable Remedies and expressly embraces the notion that in the grant of a statutory injunction under s 114 of the Family Law Act, the same principles of equity are applied as would be applied by a court exercising its inherent power to grant an injunction.
[35] (1980) 6 Fam LR 513
[36] (1993) 16 Fam LR 410
Several decisions of the High Court have provided instruction on the test to be applied to the determination of an application for the grant of an injunction. The comments that follow are of application to both a prohibitory as well as to a mandatory injunction. That said, in the case of a mandatory injunction a stream of learning indicates that at trial the test is fractionally higher. I have canvassed that below.
Conventional orthodoxy identifies as the test for the grant of an injunction whether the applicant has identified a serious issue to be tried and whether the balance of convenience favours the grant of the injunction. Even if those two elements are made out by an applicant, on discretionary grounds a court may refuse to make such an order. Those discretionary factors include but are not limited to such things as whether the applicant has failed to be full and frank, whether the applicant is guilty of delay and whether damages are an adequate remedy. Naturally, there are others.
Modern jurisprudence in Australia concerning the basis for the grant of an injunction was formulated by the decision of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd.[37] Restatements of the test were offered in cases such as A v Hayden,[38] Castlemaine Tooheys Ltd v South Australia,[39] Cardile v LED Builders Pty Ltd,[40] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[41] and Australian Broadcasting Corporation v O’Neill.[42]
[37] (1968) 118 CLR 618
[38] (1984) 156 CLR 532
[39] (1986) 161 CLR 148
[40] (1999) 198 CLR 38
[41] (2001) 208 CLR 199
[42] (2006) 227 CLR 57
Mr O’Shannessy very usefully brought to my attention the decision of the Full Court of the Family Court in In the Marriage of Waugh,[43] a case concerning a mareva injunction. There, the Full Court held that it was “constructive” for the court to have regard to principles of law developed in other jurisdictions concerning injunctions. If I may say, in my view that is an understatement, especially in relation to binding authority of the High Court. Lest it be necessary to pronounce on point, I do not share Mr O’Shannessy’s enthusiasm for the proposition that a decision of the High Court is merely persuasive on a single judge of this court. I canvassed the doctrine of stare decisis in Paxton v Paxton and repeat here what I said there. According to that doctrine, a decision of the High Court binds this court for the reasons I gave in Paxton.
[43] (1999) 27 Fam LR 63
In the context of an application for a mandatory injunction, as the applicant sought in this case, the test for the grant of such species of injunction was canvassed authoritatively by the House of Lords in Redland Bricks Ltd v Morris. There, the House of Lords held that a mandatory injunction should be granted only when the applicant for the order shows a very strong probability upon the facts that grave damage will occur in the future. Where the application for a mandatory injunction is made on an interlocutory and not on a final basis, the authors of Meagher, Gummow & Lehane[44] opine that the test is exactly the same as is the test for the grant of an interlocutory prohibitory injunction, there being no different or exacting test. In this case I have proceeded on the basis that at this interlocutory juncture, the test to be applied for the grant of a mandatory injunction is the same as for a prohibitory injunction.
[44] The Hon. J. Dyson Heydon AC QC, Mark J Leeming and Peter G Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2014)
The real issue in relation to the injunction application was twofold, it seemed to me. First, and in my view most importantly, was the fact that the making of the order sought affected two persons not yet heard on the subject, namely, the persons currently named in the existing BDBN. True, doubt abounded about whether the BDBNs remained valid or whether they had lapsed. But they were directly affected by the applicant’s proposal. If I acceded to the applicant’s application for the grant of a mandatory injunction without hearing from them, those persons would be denied the benefit of the proceeds of the BDBN (potentially in the sum of many millions of dollars) without taking into account whatever they may wish to say on point. At the present time there is no evidence before me that they even know of the applicant’s proposal for the grant of the mandatory injunction, still less its terms.
In addressing this application for an injunction I have carefully considered the prima facie case asserted by the applicant and therefore the serious issue to be tried, as well as the strength of the probability of ultimate success, as required by Australian Broadcasting Corporation v O’Neill. When properly analysed, the applicant does not advance –
a)any case against the trustees of the superannuation fund that would, for example, support an order restraining them from disbursing the respondent’s entitlements; or
b)any contention that the current beneficiaries under the existing two BDBNs have acted in any way wrongly, whether in law or in equity nor does the applicant suggest they are guilty of any moral turpitude.
Instead, the applicant says that the amount to be divided in this case will be diminished by a sum in excess of $5 000 000 unless orders are made preventing that sum from being disbursed to the beneficiaries currently named in the two BDBNs. Ultimately, the applicant’s injunction application, howsoever characterised as being mandatory or prohibitory, fell to be determined by –
a)whether the applicant should be entitled to have the totality of funds to be divided in this case enhanced by the inclusion of the sums covered by the BDBNs; or
b)whether the respondent’s inter vivos wishes for the disposition of his superannuation entitlements should be given effect by permitting the amounts covered by the BDBNs to be paid in accordance with the regime that, absent of court order, currently applies.
An affirmative answer to the first question posed immediately above would point to the grant of the injunction sought by the applicant yet an affirmative answer to the second question posed immediately above would point to the refusal of the injunction sought.
Uppermost in my assessment of the serious issue to be tried in this application was the reality that the persons who stand to be most adversely affected have not been heard. Ex parte applications can in some circumstances be justified where, for example, by the giving of notice of the proposed application the respondent will do the very thing for which the restraint is sought thereby defeating the whole purpose of the bringing of the application. That usually occurs in cases where a prohibitory injunction is sought. Conversely, where a mandatory injunction is sought the grant of orders on an ex parte basis has the effect of conferring relief in favour of the applicant where the person ultimately affected by the order not only is not heard but has no notice of the bringing of the application. Ex parte applications for mandatory injunctions are rare. This case does not warrant the making of orders on that basis. After all, the respondent is alive (although unwell), the beneficiaries under the BDBNs are likewise alive, there is no suggestion that an imminent impending risk exists to the fund or that the trustees will behave otherwise than properly in their management of the fund.
To the extent that the persons most adversely affected by the grant of the orders sought have not been heard, it is also significant that the applicant has not volunteered to give an undertaking as to damages in respect of the loss she says she may suffer in case, after a full ventilation of the case after trial, it turned out that the injunction relating to the BDBNs was wrongly made. The giving of an undertaking as to damages as the price for the grant of an injunction is of such undeniable correctness that it scarcely needs mentioning, as the Full Court of the Supreme Court of Victoria covered in its extensive examination of the point in National Australia Bank Ltd v Bond Brewing Holdings Ltd,[45] especially in the reasons for judgment of Brooking J where his Honour traced the historical development of the equitable jurisprudence in the issue over many centuries.
[45] [1991] 1 VR 386
Another relevant matter is the balance of convenience. Naturally, embarking on an examination of the balance of convenience presupposes that the applicant for an injunction has demonstrated to the requisite degree that a serious issue to be tried exists. In Australia Broadcasting Corporation v O’Neill, Gleeson CJ and Crennan J in a joint judgment and Gummow and Hayne JJ in a separate joint judgment canvassed the underlying theory behind the need for an applicant for an injunction to show that the balance of convenience favours the applicant. In the same year (2006) the Court of Appeal of the Supreme Court of Victoria in Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria[46] considered the issue and endorsed a test of “lower risk of injustice”, irrespective of whether a prohibitory or mandatory injunction had been sought.
[46] (2006) 15 VR 65
Here, aside from the question whether all interested persons have been heard on this injunction application, it seemed to me that I was required to assess whether a lower risk of injustice presented itself by granting or refusing the application for the injunction. It is possible to say that if I grant the injunction thereby requiring the respondent to create new BDBNs in favour of his legal personal representative, the present beneficiaries named in the existing BDBNs will be permanently disadvantaged.
No evidence exists that the respondent is at immediate risk of death. The urgency for the determination of this application therefore is abated to a certain extent.
On 19 July 2019, Mr O’Shannessy and Mr Barbayannis agreed to resolve the issues associated with the BDBN. By consent they, on behalf of their clients, agreed that pursuant to s 90XV(1)(a) of the Family Law Act, the trustee of the superannuation fund was directed not to make any splittable payments out of the interest of the respondent in the fund without leave. In my view, that was a most sensible way forward in the resolution of an extremely thorny issue.
Where to from here?
Based on the foregoing, I direct the parties by 4pm on Thursday 25 July 2019 to bring in agreed minutes that more precisely give effect to these reasons.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 23 July 2019.
Associate:
Date: 23 July 2019
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