Cabelo & Cabelo

In the matter of *Cabelo & Cabelo*, McEvoy J of the Federal Court of Australia considered an application by the wife for interlocutory injunctive relief pending the final hearing of property proceedings. The parties, who operate a complex farming business, were in the midst of a contentious separation. The wife alleged that the husband had failed to provide full and frank disclosure, had entered into loan agreements with his brother without her consent, and had sold parcels of land and transferred shares in a profitable company at undervalue to entities controlled by his brother. She further contended that these transactions were uncommercial and that the husband and his brother were engaging in such dealings.

The primary legal issues before the court were whether to grant interlocutory injunctive relief, specifically in the nature of freezing orders, to preserve the parties' assets pending final determination. This involved assessing whether there was a serious issue to be tried and whether the balance of convenience favoured the wife. The court also considered the significance of the husband's alleged failure to provide full and frank disclosure and the principles applicable to provisional and protective relief within the context of the *Family Law Act 1975* (Cth), including the implications of refusing to provide an undertaking as to damages. Additionally, the court addressed the wife's application for costs in a fixed sum, considering the principles outlined in *Kohan and Kohan*.

McEvoy J reasoned that the disputed evidence regarding the wife's concerns could not be resolved on an interlocutory basis, establishing a serious issue to be tried. The court found that the balance of convenience favoured the wife, particularly given the husband's alleged conduct and the potential dissipation of assets. Applying the principles for granting protective relief, the court determined that injunctions were warranted to preserve the status quo. The court also ordered that the wife be paid her costs of and incidental to her application on a party/party basis, noting that the fixed sum sought was not significantly less than costs on an indemnity basis.

Consequently, the court made orders substantially in the terms sought by the wife, restraining the husband, both personally and in his capacity as an officeholder of any company, from selling, encumbering, or otherwise altering his interests in real estate, plant, equipment, and other assets without the wife's prior written consent. The husband was also restrained from entering into or extending loan facilities or borrowing funds, except in the ordinary course of business, and from entering into transactions that would create or increase indebtedness in favour of his brother or associated entities, without the wife's consent.