AUSTIN & HONG

This matter came before Kent J of the Family Court of Australia concerning orders sought by the Wife against the Husband. The dispute centred on the payment of a sum of $20,000 by the Husband to the Wife, and the subsequent release of a caveat lodged by the Wife on real property located at B Street, Suburb A, Queensland. The orders also contemplated the potential sale of this property should the Husband fail to make the payment.

The primary legal issues before the court were the enforceability and terms of a Loan Agreement between the parties, the amount secured by a mortgage registered over the Husband's property, and how the value of this property should be assessed for the purposes of property settlement, particularly in light of the secured liability. The court was required to determine which of the amounts claimed by the Husband, as detailed in his mother's affidavit, constituted part of the Loan Agreement secured by the mortgage, and which were unsecured liabilities.

Kent J reasoned that while the Husband's mother's affidavit indicated additional liabilities owed to her by the Husband, not all of these formed part of the Loan Agreement that was secured by the mortgage. The court accepted that certain listed amounts were indeed liabilities owed to Ms M Austin, but found that at least some of these were unsecured. The court noted the wife's submission that the value of the property should be determined by deducting the secured liability from its gross value, as per the principles in *Biltoft and Biltoft*.

The court ordered that the Husband pay the Wife $20,000 within 90 days, at which point the Wife was to release her caveat on the B Street property. Provision was made for interest on any outstanding amount and for the appointment of a trustee for the sale of the property should the Husband fail to comply with the payment order. The proceeds of any sale were to be applied first to sale costs, then to discharge the registered mortgage, then to pay the Wife the $20,000 plus accrued interest, with any balance to be paid to the Husband.