BEACH & BEACH

[2009] FamCA 1049

FAMILY COURT OF AUSTRALIA

BEACH & BEACH [2009] FamCA 1049

FAMILY LAW – INJUNCTIONS
FAMILY LAW – PRACTICE AND PROCEDURE - Discovery
FAMILY LAW – COSTS

APPLICANT:   Mr Beach

RESPONDENT:   Ms Beach

FILE NUMBER: MLC 9445 of 2008

DATE DELIVERED: 22 October 2009

PLACE DELIVERED:   Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF:  Mushin J

HEARING DATE: 22 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Parker

SOLICITOR FOR THE APPLICANT:	Gillian Coote Family Law
COUNSEL FOR THE RESPONDENT:	Mr Dickson

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

IT IS ORDERED THAT

1.The husband’s Application in a Case filed this day be and is hereby dismissed.

2.The husband pay the wife’s costs of this day in the sum of $1500 with a stay of 45 days or settlement of the auction of the property known as “F”, whichever first occurs.

3.General liberty be reserved to both parties to apply.

IT IS CERTIFIED

4.Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Beach & Beach is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9445 of 2008

MR BEACH

Applicant

And

MS BEACH

Respondent

REASONS FOR JUDGMENT

1.This is an urgent application brought before me this afternoon seeking injunctive relief against the conduct of an auction of plant and equipment at a farming property in Victoria pursuant to previous orders of the court. Both parties have been represented by Counsel. In November 2007, the parties entered into consent orders finalising their competing applications for alteration of property interest pursuant to section 79 of the Family Law Act 1975.  The proceedings concerned a farming property and related matters, plant and equipment, stock and the like.  The husband was required to pay money to the wife in return for the transfer certain assets and has failed to do so. 

2.Earlier this year enforcement proceedings were commenced by the wife, who was authorised by orders of the court to conduct sales to realise assets in order to discharge the judgment debt which the husband owes to her and particularly with respect to one or more encumbrances on a piece of reality which he owns, together with other third party debts.

3.In the first instance it is not alleged in any way that the wife is acting contrary to any order or any Rule of Court or any legislative provision in conducting herself as she is.  The proceedings have been before the Court on several occasions, I think lastly before Cronin J on 29 September 2009, at which time his Honour recorded the husband as having sought an indulgence in relation to obligations, which are:

…obligations that he has under a variety of orders.  This is a longstanding case in which orders were made for the husband to pay the wife some money.  Essentially there are two properties, one is a home in [D] and the other is a farm at [F].  The wife has been magnanimous in delaying the obligations of the husband but there comes a point in time where enough is enough. 

4.The wife actually commenced the enforcement proceedings on 15 May 2009 and by way of orders, to which the husband consented, there was what Cronin J described as:

…a significant regime of obligations and sadly even those obligations could not be met.  The husband then filed an application in a case seeking effectively to delay what now seems inevitable.  I have had the carriage of the matter on a couple of occasions and on one occasion suggested that the prejudice to the wife was minimal other than in relation to costs and even those matters seem now to have been covered. 

That was also an application to restrain the wife from proceeding with an auction of the realty.  That realty was in fact auctioned in September 2009. 

5.In an affidavit in support of his application today, the husband has sworn that the wife had been aware that:

I held a sworn valuation of the property which valued the property at $2,000,000.  Further the wife had also provided me with an auction authority in relation to the impending auction of the property with the reserve price noted as being $1,750,000.  Notwithstanding this, on the day of the auction, the wife instructed the selling agent to accept a bid of $1,420,000. 

Further, the wife specifically instructed the auctioneer to reject a bid which was being placed by a Miss [R] through her company [P] Pty Ltd for $1,800,000.  The auctioneer was specifically instructed to reject and not accept that bid.  The bid was a genuine one.  Miss [R] had deposited the sum of $180,000 as the deposit in the trust account of HWL Ebsworth Lawyers.  The wife’s conduct deliberately compromised my position by underselling the property for at least $380,000 and indeed, if the sworn value had been achieved, by some $580,000.

6.On further inquiry it is evident that the contents of that paragraph last quoted from the husband’s affidavit is at least first-hand hearsay, if not second-hand hearsay.  The husband did not attend the auction.  It would appear that Miss R had a buyer’s advocate bidding for her.  The only sources of the information for that paragraph which the husband could have are either that buying agent or Miss R. 

7.I have been informed by Counsel for the husband, who has appeared today, that the husband used to be in a relationship with Miss R.  That may be an explanation for the wife’s objection to her, if it was an objection.  However, I am informed by counsel for the wife that in fact no bid was placed at that auction by or on behalf of Miss R and that is not – and the husband does not swear to the contrary.  That is disputed on behalf of the husband whose counsel referred to the statement by the husband, “further, the wife specifically instructed the auctioneer to reject a bid which was being placed by Miss [R],” which suggests that a bid was placed.

8.It is submitted on behalf of the husband that there has not been a sufficient marketing campaign in respect of the plant and equipment.  In the circumstances, I am unable to say what a proper marketing campaign would be as there is no evidence other than from the husband with regard to that and he is the person who has been in default on so many occasions.  There is an offer on behalf of the wife, which is contained in Ex SGB3 to the affidavit of the husband on which he relies today, which does not appear to have been taken further. 

9.In addition to that, on 22 September 2009, the parties consented to orders providing for the husband to file and serve an affidavit by one Mr O confirming an offer of finance to the husband and to provide a letter from a finance company; that was not done either, so that material could not be before Cronin J.

10.In the circumstances, I am not satisfied that the wife is acting improperly. I refer again to the concession, which I noted at the beginning of these reasons for judgment, that it is not asserted that the wife is acting contrary to any order or legislative provision, including the Family Law Rules, and in those circumstances the husband’s application will be dismissed.

I certify that the preceding eleven (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.

Associate: 

Date:  5 November 2009