Costello & Anor and Condi & Anor

The case involved applications by a husband and wife for the summary dismissal of proceedings initiated by a judgment creditor of the husband and the receiver of a former legal partnership in which the husband was a partner. The judgment creditor and the receiver sought to set aside a consent property order made between the husband and wife under section 79 of the *Family Law Act 1975* (Cth) and to invalidate or set aside a financial agreement between them under sections 90G and 90K of the Act. The court was required to determine whether the judgment creditor and the receiver had standing to bring these applications, whether they had shown a reasonable cause of action, and whether their applications had a reasonable likelihood of success.

The court considered whether the judgment creditor and the receiver were persons affected by the property order and financial agreement, and whether they had demonstrated a miscarriage of justice due to fraud, duress, suppression of evidence, false evidence, or other circumstances. The husband and wife argued that the proceedings had no reasonable likelihood of success and therefore should be summarily dismissed. The judgment creditor alleged that the husband was aware of his impending judgment debt when the financial agreement was signed and the property order was made, and that the transfer of assets was likely to prevent the debt from being paid. The receiver alleged that the husband was aware of the likely appointment of a receiver, the extent of partnership creditors, and his own unauthorised drawings, and that the transfer of assets would prejudice these creditors.

The court dismissed the application for summary dismissal of the proceedings brought by the judgment creditor, finding that he had shown a reasonable cause of action and that his application had a reasonable likelihood of success. However, the court allowed the application for summary dismissal of the proceedings brought by the receiver, finding that his applications under sections 90G and 90K, and his application to set aside the section 79 order, had no reasonable likelihood of success. The court also granted an interlocutory injunction restraining the wife from dealing with the matrimonial home, subject to her ability to demonstrate that any dealings would preserve the husband's former interest until trial. Directions were also given for pleadings, disclosure, and financial statements, and the matter was listed for a trial directions hearing.