Barnes and Barnes and Anor

[2016] FamCA 453

FAMILY COURT OF AUSTRALIA

BARNES & BARNES AND ANOR [2016] FamCA 453

FAMILY LAW – INJUNCTIONS – Application by the wife for an ex parte injunction restraining the husband from destroying documents – where the wife alleges that the husband colluded with his associates to influence the single expert property valuer – where the property the subject of final orders sold for almost double than the value ascribed by the single expert – where the wife alleges that the husband deliberately concealed the sale price of the property – balance of convenience favours the making of the injunction – interim orders made as sought by the wife

Family Law Act 1975 (Cth)

Mullen & De Bry [2006] FamCA 1380; (2006) FLC 93-293;
Waugh & Waugh [2000] FamCA 1183; (2000) FLC 93-052

APPLICANT: Ms Barnes

FIRST RESPONDENT: Mr Barnes

SECOND RESPONDENT:  Mr Harris

FILE NUMBER: MLC 4997 of 2016

DATE DELIVERED: 6 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 6 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nedovic

SOLICITOR FOR THE APPLICANT: Nedovic Lawyers

THE FIRST RESPONDENT: No appearance

THE SECOND RESPONDENT: No appearance

Orders

1. That the applicant have leave to proceed ex-parte with her Application in a Case filed 1 June 2106.

2. That the husband be restrained from:

   (a)       Destroying; or

   (b)       Doing any act which restricts the availability of; or

   (c)Directing any person to do any act which restricts the availability of; or communicating with or causing any other person to communicate with Mr Harris or any employee or agent of Mr Harris in relation to the availability of:

   any document which:

   (d)Evidences any request by him or his agents to produce any statement as to the value of the property situate at and known as B Street, Suburb C in the State of Victoria;

   (e)Constitutes or evidences any communication between any of the following persons in relation to the value of the property situate at and known as B Street, Suburb C in the State of Victoria:

   (i)The husband;

   (ii)Mr Harris;

   (iii)Mr D of E Pty Ltd.

3. That the applicant this day serve the following documents upon the Respondents:

   (a)       A sealed copy of this Order;

   (b)       The application filed on 1 June 2016;

   (c)       The affidavit of the applicant sworn on 1 June 2016; and

   (d)       The Undertaking of the applicant dated 6 June 2016.

4. That this matter be listed for hearing before me at 10.30am on 9 June 2016.

IT IS DIRECTED

1. That the Reasons for Judgment be transcribed and place on the Court file.

2. That all questions of costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barnes & Barnes and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4997 of 2016

Ms Barnes

Applicant

And

Mr Barnes

First Respondent

And

Mr Harris

Second Respondent

REASONS FOR JUDGMENT

1. The matter of Barnes & Barnes and Anor comes before me today upon an application to proceed on an ex parte basis with respect to interim orders sought in an Initiating Application filed on behalf of the wife on 1 June 2016.  That application is supported by an Affidavit of the wife filed the same date.  The matter pressed before me today is paragraph 3 of the interim or procedural orders sought in the initiating application.  That application is an application that the husband and the second respondent Mr Harris each be restrained from;

   a)destroying; or

   b)doing any act which restricts the availability of; or

   c)directing any person to do any act which restricts the availability of:

   any document which:

   a)evidences any request by him or his agents to produce a statement as to the value of the property at B Street in Suburb C; or

   b)constitutes or evidences any communication between any of the following persons in relation to the value of that property,  those persons being  the husband, Mr Harris and Mr D of E Pty Ltd;  and finally,

   c)constitutes or evidences any material relied upon by him in support of any application for finance to any bank or like lending institution since 1 January 2015. 

2. The order as sought in the application is not pressed today in respect of the second named respondent Mr Harris. 

3. The background to the matter is as follows.  The wife is aged 40 years.  She is engaged in home duties.  The husband is a company director aged 47 years. 

4. The second respondent Mr Harris is the single expert valuer who was engaged by these parties in the context of their s79 proceedings and was engaged to prepare property valuations, particularly the valuation in relation to the former matrimonial home at B Street in Suburb C. 

5. The parties commenced their cohabitation in 2002, they married in 2005 and separated in September of 2012.  They were divorced in April of 2014.  There are three children of the marriage who continue to reside with the wife. 

6. The substantive relief sought by the wife in her Initiating Application is an application to vary final property orders that were made by consent on 28 August 2015.  The wife in her initiating application seeks an additional payment of some $1.565 million.    

7. The wife deposes in her Affidavit material that the parties engaged Mr Harris as a single expert valuer in March of 2014.  He prepared an initial valuation of the Suburb C property in April of 2014 and assessed the value of the property at that time as being $4.7 million.  A further updated valuation was prepared by Mr Harris in July of 2015.  He then valued the Suburb C property as having a value of $4.9 million.

8. The parties attended a mediation on 21 August 2015, and on 28 August 2015 following that mediation orders were made by consent for final property settlement.  Those orders provided inter alia that there be a payment to the wife and that the husband otherwise retain the property at B Street, Suburb C.

9. What transpired following the making of those orders was that in February of 2016 the husband listed the Suburb C property for sale.  The wife deposes at paragraph 16 of her Affidavit that she was telephoned by the husband on 25 February 2016 and he informed her then that he had in fact entered into a contract to sell the property and that the settlement would be happening within a matter of weeks following that date.

10. The wife deposes at paragraph 19 of her Affidavit that in the course of discussions with the husband following the sale of the property that the husband refused to divulge the sale price on the property.  She deposes as to her observations of a Facebook post placed by the firm of agents who conducted the sale, being the firm of agents of which the husband is a director.  That Facebook post noted that the property had sold and that the vendor’s expectations were well and truly exceeded and further that the house was “highly contested over by an avalanche of buyers”.

11. At paragraph 21 of her Affidavit the wife deposes that on 6 March 2016 she again asked the husband what the property had sold for.  She deposes that “He initially refused to answer me, but then said that it had been sold for ‘north’ of $6 million”.   

12. At paragraphs 22 to 25 of her Affidavit the wife deposes as to information she has received from a friend, a Mr F, who is the director of another real estate agency in Suburb C.  He provided information to the wife about conservations said to have occurred with a third agent, a Mr D, in relation to the preparation of a market appraisal of the Suburb C property.  The thrust of that evidence is that it is asserted that Mr D was asked by the husband to prepare a market appraisal of the Suburb C property in the sum of $4.7 million and that that appraisal was then provided to the single expert valuer Mr Harris in preparation of the valuation for the Suburb C property.

13. At paragraph 27 of her Affidavit the wife deposes that she again approached the husband with information she had received that the property had sold for $8 million.  She deposes that the husband “laughed” and said that Mr G, the selling agent had told everyone $8 million so as to “stir the pot” and upset her.  At paragraph 28 of her Affidavit the wife deposes that on 27 April 2016 she again questioned the husband as to the price obtained on the sale of the Suburb C property and was told by the husband that it had sold for $6.2 million.  Subsequent to that conversation the wife instructed her solicitor to obtain a copy of the transfer of land in respect of the sale of the property.

14. At paragraph 29 the wife deposes that in fact the property sold for the sum of $8,030,000, and this is reflected in the transfer of land which was lodged on 18 March 2016,  that being annexure KEB9 to the wife’s Affidavit.  The sale price therefore is some $3,130,000 more than the single expert valuation that had been obtained by these parties in July of 2015, that being some eight or so months prior to the sale of the property.   

15. Having regard to the alleged secrecy the husband has maintained in relation to the sale price, coupled with the information the wife has received that there has been some sort of collusion as between the husband and his associates in order to influence the single expert valuer as to his valuation assessment of the Suburb C property, the wife seeks an order today restraining the destruction or disposal of communications as between the husband and those agents which might provide a clear picture as to what transpired in the period leading up to the preparation of Mr Harris’s valuation. 

16. The order sought by the wife is an order sought pursuant to s 114 of the Family Law Act 1975 (Cth). In determining whether to make an order, the court may, where it appears just or convenient, make such order as it considers appropriate. The matters that are to be considered are whether there is a serious issue to be tried in the sense of a serious or arguable claim for relief; whether, objectively assessed, absent the making of the order sought, there may not be property available to satisfy a determination; and also whether the balance of convenience favours the making of the order sought. It is also clearly established that any injunctive orders made by a court should go no further than is necessary to prevent the abuse or frustration of process in relation to property proceedings currently on foot between the parties. I rely upon the authorities such as Waugh & Waugh [2000] FamCA 1183; (2000) FLC 93-052 and Mullen & De Bry [2006] FamCA 1380; (2006) FLC 93-293 for clear statements of principle in relation to injunctions.

17. I am cognisant of the fact that there may be a plausible explanation for the circumstances of the sale; the husband and the second respondent have not yet had the opportunity to respond to the wife’s allegations.

18. The wife offers an undertaking through her solicitor, an undertaking as to damages; I accept that undertaking.  The orders sought are for a very limited time only, it being the position that I am able to relist this matter for further hearing before me on 9 June 2016.  Having regard to the concerns articulated by the wife, given the history that I have provided, I am satisfied that the balance of convenience favours an order in the terms sought by the wife with respect to the restraint on the destruction or disposal of documents, until the matter returns to Court and the husband has the opportunity to file material. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 June 2016.

Associate: 

Date:  6 June 2016