Buxton & Buxton
[2022] FedCFamC2F 1102
Federal Circuit and Family Court of Australia
(DIVISION 2)
Buxton & Buxton [2022] FedCFamC2F 1102
File number(s): BRC 2307 of 2022 Judgment of: JUDGE GLASS Date of judgment: 22 April 2022 Catchwords: FAMILY LAW – PROPERTY – where a party seeks to set aside parts of Final Orders – where opposing party seeks summary dismal of Application to set aside – where injunctive relief is sought to restrain sale of property – where there is a dispute in value of property – where there is reasonable prospect of succeeding – whether it is just and equitable to vary final Orders – whether it is reasonable and just to warrant making the injunction – whether the balance of convenience favours making Orders Legislation: Family Law Act 1975 (Cth) ss 79A, 114
Federal Circuit and Family Court of Australia Act 2021 s 143
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.01
Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
AJW v JMW (2022) FLC 93-103
Beecham Group Pty Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Castlemain Tooheys Ltd v South Australia (1986) 161 CLR 148
Farr & Farr (1976) FLC 90-133
Lysaght Building Solutions Pty Ltd (T/As Highline
Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27
Lindon v Commonwealth (No2) (1996) 136 ALR 251
Sieling & Sieling (1979) FLC 90-627
Spencer v Commonwealth (2010) 241 CLR 118
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 22 April 2022 Place: Melbourne Counsel for the Applicant: Mr Page QC Solicitor for the Applicant: Hopgood Ganim Lawyers Counsel for the Respondent: Mr Jordan Solicitor for the Respondent: Waller Family Lawyers ORDERS
BRC 2307 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BUXTON
Applicant
AND: MS BUXTON
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.All extant interim applications are dismissed.
2.The parties attend upon a private mediation as agreed between the parties, with the Respondent’s solicitor to provide the Applicant’s solicitor with a list of three proposed mediators and the Applicant to select one mediator from that list.
3.The costs of the private mediation be shared equally between the parties.
4.The Applicant pay the Respondent’s costs thrown away on 19 April 2022 fixed in the sum of $1,917, within 28 days.
5.The parties’ costs be otherwise reserved.
6.All extant applications are adjourned to 1 August 2022 at 12:00pm for a Directions Hearing before Judicial Registrar C.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Buxton & Buxton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS
On 25 January 2022, final orders were made determining a dispute between Mr & Ms Buxton pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”). Those orders were amended on 1 May 2002 and varied on appeal by the Full Court on 15 November 2002.
Mr Buxton now seeks to set aside certain parts of those orders pursuant to section 79A of the Act. Ms Buxton seeks the summary dismissal of that application. If that application is unsuccessful, Mr Buxton seeks injunctive relief seeking to restrain Ms Buxton from selling her interest in a property in D Street, Town E.
It is necessary to traverse some further relevant background. The final property orders provided for Mr Buxton to pay Ms Buxton a sum of approximately $618,000. In exchange for that payment, she was to transfer to him her interest in two farming properties, a family trust and a named company. She was to otherwise retain her interest in one real and other specified property. Those parts of the orders have been complied with.
What has not been, is an order that provided for the sale of Mr Buxton’s 50 per cent interest in a property situated at D Street, Town E. The Court’s Orders provided for that interest to be transferred to Ms Buxton for the purpose of facilitating the sale. Upon the sale, the net proceeds were to be divided as to 50 per cent to each of the parties. It is relevant to recite two paragraphs that were contained in Schedule ‘A’ to the orders which prescribed for the mechanism of sale:
iii) The wife forthwith, upon transfer to of the husband’s interest in the [D Street, Town E] land shall take all necessary steps to present that interest for sale by public auction at such time and after such exposure to the market at (sic) she is advised, and as is agreed upon the husband in writing and in default of agreement as determined by the president, for the time, being of the Real Estate Institute of Queensland or his nominee, provided that, at her sole discretion the wife may, in lieu of presentation of the husband’s present interest in the said land for sale as aforesaid commence proceedings in a Court of competent jurisdiction to force the sale of the entirety of the interests in the [D Street, Town E] land.
(iv) The husband shall have the right to bid at any auction of his present interest in the [D Street, Town E] land or of the entirety of that land.
Those Orders were made in circumstances where there was a substantial dispute between experts giving evidence at trial as to the value of the D Street, Town E property. In circumstances where Mr Buxton then sought the right to retain the property, he was afforded the opportunity to acquire it at auction.
The parties’ interests in the D Street, Town E property have not been sold despite more than 19 years having now elapsed since the appeal judgment in November of 2002. The parties’ 50 per cent interest in the land is co-owned with three other owners who each own a one-sixth interest in the land.
Summary Dismissal Application
Pursuant to s143 of the Federal Circuit and Family Court of Australia Act 2021, I have a discretion to give judgment in favour of Ms Buxton if I am satisfied Mr Buxton has no reasonable prospect of successfully prosecuting the proceeding. As the High Court held in its 2010 decision in Spencer v Commonwealth, no reasonable prospect cannot be paraphrased or defined and full weight must be given to the expression as a whole.[1] The High Court also held that it is a power not to be exercised lightly and also one to be exercised with caution.[2] In the 2013 Victorian Court of Appeal decision in Lysaght Building Solutions Pty Ltd trading as Highline Commercial Construction v Blanalko Pty Ltd, the Court held that the power should only be exercised where there is no real or no reasonable question to be tried.[3]
[1] Spencer v Commonwealth (2010) 241 CLR 118, 141 [58] [60].
[2] Ibid 131 [24] (French CJ and Gummow J).
[3] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, 38 [27] 40 [35].
As Kirby J held in his Honour’s 1996 decision in Lindon & The Commonwealth of Australia:
It is a serious matter to deprive a person of access to the courts with the result that summary relief should be rarely and sparingly provided.[4]
Relevantly, for present purposes his Honour held:
If there is a serious legal question to be determined it should ordinarily be determined at a trial, for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked, and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.[5]
[4] Lindon v Commonwealth (No2) (1996) 136 ALR 251, 254 [5].
[5] Ibid [15].
Here, Mr Buxton relies on two paragraphs of subsection 79A(1) as the basis for his claim. The first provides a discretion to the Court to vary or set aside and make a new order under section 79, wherein the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out. It is by no means clear to me on what basis it is contended that it is impracticable for the parties’ interest in the D Street, Town E property to now be sold. Indeed, the property is listed for sale. Further, implicit in the fact that Mr Buxton now seeks an injunction to restrain the sale, it appears to be a concession that the property is amenable to being sold.
The second relevant paragraph under subsection 79A(1) provides a discretion to the Court to vary or set aside and make a new order under section 79 where a person has defaulted in carrying out an obligation imposed on the person by the order, and in the circumstances that have arisen as a result of that default it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
On the face of Mr Buxton’s documents, Ms Buxton failed to comply with the order for sale of the property either forthwith if that obligation attached, or as soon as practicable as was otherwise required by the Court’s Rules. During the elapsed period, Mr Buxton has continued to make use of the property on holidays and contributed to insurance premiums, local council rates, legal costs and the cost of amenities. Further, interest has accrued at a disputed rate to a mortgagee and sand has been removed from the property and sold to an overseas purchaser to the benefit of Ms Buxton.
Curiously, despite those matters, Mr Buxton does not seek to vary the percentage distribution of the parties’ interests in the D Street, Town E property, although he does seek to preserve the option of further particularising the relief he seeks at a later time. I accept Ms Buxton’s submission that if the percentage distribution of any sale proceeds is unaltered, any increase in the value of the property is unlikely to cause justice and equity to lead to a variation of the Orders, given both parties will benefit equally from that increase. Whilst I also accept Ms Buxton’s submissions that Mr Buxton’s evidence is bare, I am not satisfied it is so bare as to be without a reasonable basis. The circumstances that have arisen since the default to the execution of the orders may lead the Court to conclude that it is just and equitable to vary them.
On balance, I am not satisfied that Mr Buxton has no reasonable prospect of prosecuting his claim pursuant particularly to paragraph 79A(1)(c) of the Act. I note further that a determination of the facts will assist in determining the legal question arising in these proceedings. I will accordingly dismiss Ms Buxton’s summary dismissal application.
Injunction application
The next issue arising for determination is whether Ms Buxton should be restrained from disposing of the parties’ interest in the D Street, Town E property pending further Order of the Court. Pursuant to section 114 of the Act, I have a discretion to grant such injunction as I consider proper. The 1976 Full Court in Farr held that proper, in this context, means that it is reasonable and just in the circumstances to warrant making the injunction.[6] The 1979 Full Court in Seiling held that it is a power not to be exercised lightly and I must balance the hardship to each party of granting or refusing an order.[7]
[6] Farr & Farr (1976) FLC 90-133, 75,636.
[7] Sieling & Sieling (1979) FLC 90-627, 78,264.
The 1968 High Court in Beecham Group Pty Ltd v Bristol LaboratoriesPty Ltd, held that there are two main inquiries. The first is whether the plaintiff has made out a prima facie case. The second is whether the inconvenience or injury which the plaintiff would likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.[8] As the High Court subsequently held in 2001 in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[9] it is for Mr Buxton to demonstrate the balance of convenience favours the making of the orders sought, including a danger or risk of dissipation of or dealing with assets which will frustrate any judgment in his favour.
[8] Beecham Group Pty Ltd v Bristol LaboratoriesPty Ltd (1968) 118 CLR 618, 622–623.
[9] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 218 [13]; Castlemain Tooheys Ltd v South Australia (1986) 161 CLR 148 [153].
Mr Buxton seeks to acquire the parties’ half interest in the D Street, Town E property and pay Ms Buxton half the value of that interest. In other words, 25 per cent of the overall value of the property. The existing orders permit him to do just that. He is entitled to bid at and acquire the property at auction. He may do so individually or cooperatively with others, including any of the existing owners. On its face it is hard to see how his claim would be frustrated by a refusal to grant the injunction he seeks.
Mr Buxton deposes to the fact that he has transferred his farming business and adjoining land to his son, Mr F, and is no longer able to borrow against that property to acquire the land. I place little weight on that evidence in circumstances where it has been open to Mr Buxton at all times to bring an application to enforce the previous orders. Further, he deposes to the following:
If the [D Street, Town E] property proceeds to auction I understand from conversations with [Mr F] that he intends to bid and raise the necessary funds by borrowing against the farms I transferred to him in 2016.[10]
[10] Applicant’s Affidavit filed 22 April 2022, paragraph 12.
That evidence is also inconsistent with any judgment in favour of Mr Buxton being frustrated by a sale of the property. The original orders provided for Ms Buxton to have the sole discretion whether to sell just the parties’ interest in the D Street, Town E property or seek to force the sale of the entirety of the property. She embarked upon the latter course in proceedings that were brought in the Queensland Supreme Court. Those proceedings were consensually resolved on the basis that the property would be sold in its entirety. Mr Buxton’s claim is now premised on the other owners of the property continuing to retain their interest in it. That premise is inconsistent not only with the agreement reached in the Supreme Court proceedings last year, but also their instructions to a selling agent to list the property for auction tomorrow and previously by way of expressions of interest in 2018.
Given that background, I consider it to have been necessary for Mr Buxton to adduce evidence in support of any suggestion that the other co-owners are willing to retain their respective interests in the property to demonstrate that the balance of convenience favours the granting of the injunction he now seeks. He has not done so. On the contrary, he deposes to the fact that the other co-owners refuse to engage with him in relation to the possibility of him buying back an interest in the property, and to repeat, they have entered into a deed for the sale of the property. If nevertheless one or more of them seek to retain an interest in the property, they of course can cooperate with Mr Buxton or his son to seek to retain an interest in the property as part of the sale process. It is surprising that no undertaking as to damages is offered by Mr Buxton in support of his application given the likelihood of damage arising not only to Ms Buxton, but potentially also other co-owners and a mortgagee.
There is one further matter that suggests the balance of convenience does not favour the granting the injunction. There remains, as there was in 2002, an unresolved dispute as to the value of the D Street, Town E property. It was valued in the Supreme Court proceedings by a licensed valuer at $7 million. Mr Buxton considers that value to be inflated. In 2002, Warnick J with respect, adopted an entirely orthodox approach to the resolution of the controversy, namely, to provide for the auction of the property, preserving the interested parties’ right to bid at the auction.[11] To refuse to grant the injunction will have the additional benefit of permitting the resolution of the controversy as to the property’s value by being put to auction. The market will then determine its value.
[11] AJW v JMW (2022) FLC 93-103.
Mr Buxton generally submits that he does not have the knowledge necessary to have confidence that the sale will be an appropriate one. It is unclear to me what additional knowledge he is entitled to that would weigh in favour of the granting of the injunction. I am accordingly not satisfied that the balance of convenience favours the granting of the injunction sought by Mr Buxton. Other interlocutory relief that was sought in Mr Buxton’s documents was abandoned. For those reasons I propose to dismiss all extant interim applications.
Costs
An application is brought by the respondent for her costs thrown away on 19 April 2022. That application is rested by the Applicant. Pursuant to section 117 of the Act, each party is to bear their own costs of proceedings under the Act. Nevertheless, the Court retains a discretion to make such order as to costs as it considers just if there are circumstances justifying doing so, having regard to the matters prescribed by subsection 117(2A) of the Act. The circumstances that gave rise to an adjournment of the otherwise scheduled interim hearing on 19 April 2022 were that interested parties had not been formally served with the Application. Rule 3.01 of the Court’s rules is in the following terms: a person whose rights may be directly affected by an issue in a proceeding and whose participation as a party is necessary for the Court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
Despite that Rule, Mr Buxton sought Orders that would have the effect of restraining the otherwise agreed upon sale of a parcel of land in D Street, Town E, which as previously indicated was co-owned with a number of people. The Court raised with Mr Buxton during the hearing on 19 April whether service had been effected, and it was clear that it had not been. It was that fact and that fact alone that necessitated the hearing on that occasion being adjourned to this day for determination. Whilst it is true to say that it was an issue raised with the parties by the Court at least on 19 April, it should have been apparent to Mr Buxton or his advisors that it was necessary for formal service to be undertaken upon those interested parties, at the very least, indeed, the Rules seem to contemplate that they would have otherwise been joined as a party. I am satisfied that that circumstance is a sufficient basis for costs to be ordered, and I am satisfied that the costs should be ordered and that it is just to do so. No dispute is raised with the quantum sought which, as I apprehended, is calculated by reference to the Court’s scale, and I am satisfied that the amount is appropriate.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 22 April 2022
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