Dickinson & Packam

In this matter before McClelland DCJ, the wife sought interim orders for the exclusive occupation of the former matrimonial home, located at B Street, Suburb C, NSW, and for authorisation to undertake necessary repairs to the property. The husband opposed these orders, seeking exclusive occupation for himself to carry out repairs or, alternatively, seeking exclusive occupation of a different property. The dispute arose in the context of ongoing NSW Civil & Administrative Tribunal (NCAT) proceedings concerning the property, following a Deed of Settlement and Release entered into between the parties and the Body Corporate regarding repair works.

The court was required to determine whether to grant the wife exclusive use and occupation of the former matrimonial home and whether to authorise her to arrange and oversee the necessary repairs. A key legal issue was the allocation of responsibility for undertaking these repairs, particularly in light of the parties' non-compliance with previous agreements and the existence of insurance monies designated for the work. The court also considered the appropriate interim orders to manage the parties' interests in both the Suburb C property and another property at H Street, Suburb J, pending final resolution.

McClelland DCJ applied principles relating to interim injunctions concerning the matrimonial home, noting that such orders are serious and should only be granted in exceptional circumstances, requiring a proper factual basis. The court considered the means and needs of the parties, the needs of the children, and the conduct of the parties, balancing the hardship of making or refusing the order. In this instance, the court found it appropriate to grant the wife exclusive occupation and to empower her to arrange and oversee the renovations, reasoning that she should be the beneficiary of the order for exclusive occupation. The court also determined that the husband should be restrained from dealing with the properties and that the parties should seek to adjourn the NCAT proceedings.

The court made orders granting the wife sole and exclusive use and occupation of the Suburb C property, restraining the husband from entering it. The husband was ordered to provide irrevocable authorisation for the wife to access and direct the use of insurance monies held for repairs and to deal with the Owners Corporation on his behalf. The wife was authorised to instruct tradespersons to undertake the repairs and was restrained from using the funds for any other purpose. The husband was also ordered to pay for any shortfall in repair costs up to a specified amount if the insurance monies were insufficient. Both parties were restrained from selling or encumbering the Suburb C property or the Suburb J property pending further order, and were directed to seek an adjournment of the NCAT proceedings.