Ebner and Rakes

[2018] FCCA 3269

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBNER & RAKES [2018] FCCA 3269

Catchwords:
FAMILY LAW – Interim property settlement issue – application for sale of property – application refused.

Legislation:

Family Law Act 1975 (Cth), ss.79, 80

Applicant: MS EBNER

Respondent: MR RAKES

File Number: ADC 3720 of 2015

Judgment of: Judge Mead

Hearing date: 10 May 2018

Date of Last Submission: 10 May 2018

Delivered at: Adelaide

Delivered on: 15 May 2018

REPRESENTATION

Counsel for the Applicant: Mr McGinn

Solicitors for the Applicant: Rebecca McDougal

Counsel for the Respondent: Mr Richards

Solicitors for the Respondent: Alan Oxenham Barrister & Solicitor

ORDERS

1. That the respondent produce, within 7 days, the following documents pertaining to the real property situated at Property A (“the Property A property”):

   a.lease or other tenancy agreement;

   b.Bond Lodgement Receipt;

   c.Residential Property Management Agreement;

   d.an itemised account of the gross rent receipts from the date of commencement of the rental to date (“period of the rental”);

   e.copy of relevant bank statements showing receipt by the respondent of rental income for the period of the rental;

   f.an account of expenses incurred by the respondent in preparing the said property for rent;

   g.copies of all invoices and/or receipts for expenses incurred by the respondent in preparing the said property for rent.

2. That the applicant, upon production, be at liberty to inspect and copy the documents referred to in order 1 herein.

3. That pending the sale and settlement of the Property A property the order made herein on 18 December 2015 do continue.

4. That paragraphs 3, 4, 5, 6, 7, 8 and 9 of the said application be dismissed.

5. That paragraphs 1, 3, 4, 5, 6, 8, 9, 10, 11, 12 & 13 of the wife’s application in a case filed 31 January 2018 be dismissed.

6. That until further order the husband be restrained and an injunction is hereby granted restraining him from selling, transferring, drawing down on any loan secured over the Property B property or borrowing any further funds using the said property as security without the consent of the wife first had and obtained.

7. That the two responses filed herein by the husband on 1 May 2018 to the said applications in a case both be otherwise dismissed.

8. Liberty to either party to apply with respect to the outstanding issue contained in paragraph 7 of the wife’s application in a case filed 31 January 2018 by way of joint letter from the parties solicitors to the Associate to Judge Mead.

9. Directions only be adjourned to 17 September 2018 at 9:15am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3720 of 2015

MS EBNER

Applicant

And

MR RAKES

Respondent

REASONS FOR JUDGMENT

1. The parties in this matter are the applicant wife, the respondent husband and there is also a second respondent, who is the applicant’s father.  For the purposes of these reasons, he is not an important part of the equation and indeed, his counsel Ms Kari, was given leave to withdraw prior to the argument occurring last Thursday.  The substantial proceedings before the Court are for property settlement, and they were commenced on 7 October 2015 by way of an application by the wife.

2. The matter has been in the system for a lengthy time due to the need to await the outcome of Supreme Court proceedings as between the respondent husband and the second respondent, with respect to the ownership and occupation of property at Property B.  That dispute was finalised in the Supreme Court in December 2017 upon the conclusion of an appeal by the second respondent in relation to the first instance judgment, which was handed down some 12 months previously.  That appeal was dismissed.

3. The second respondent to these proceedings has now sought leave to appeal to the High Court in relation to that matter, but in practical terms the respondent husband took vacant possession of the property in April 2018.  The second respondent was joined to these proceedings on 23 February 2018.  The current applications before the court and the matters to which these reasons pertain are the applications contained in applications in a case filed by the wife on each of 20 November 2017 and 31 January 2018.  The nub of the application filed on 20 November 2017 was that an order be made for the sale of the parties’ jointly owned home at Property A.

   RECORDED   :   NOT TRANSCRIBED

4. She also sought the production of various documents pertaining to the rental of that property, inspection of same, orders directing the husband to pay the rental income into a particular account, and an order continuing an earlier order of 18 December 2015 requiring the respondent husband to pay the mortgage payments.  She also sought an order that pending the sale and settlement of the Property A Property, the husband pay all expenses incurred with respect to the maintenance of that property, that each party pay one-half of the selling costs of the property, and that until further order and upon the sale of the Property A property the nett proceeds be paid into a joint Bank 1 interest-bearing account in the joint names of the parties requiring both parties to sign.  She sought that the matter be listed for directions in relation to the applicant’s alleged equitable interest in the whole of the land comprised and described in Certificates of Title, Volume, Folios, situate at Property B, South Australia.

5. In the wife’s original application for property settlement filed on 7 October 2015, she had sought as an interim order the sale of the Property A property.  On the first return date of the application, an order was made by consent providing for the husband to pay at least $250 a week towards the Property A mortgage, as well as all other outgoings in relation to that property until further ordered.  He was also to keep the property and its contents insured. 

6. The application in a case filed on 20 November 2017 was listed for argument on 23 February 2018.  By then, the wife had filed an amended originating application on 25 January 2018 and a further application in a case on 31 January 2018.  This judgment relates to the two applications in a case to which I have referred. 

7. In her second application in a case the wife sought orders in relation to leave to amend an initiating application, leave to forward the application in a case and an affidavit to the second respondent, and a hearing as a matter of urgency.  She sought an inclusion in the earlier order for mediation to include the second respondent, valuations in respect of the Mr H land and the Property C property and that a valuation dated 4 April 2016 be agreed as the value of the Property A property.  She further sought an order that if the Court did not order Property A to be sold, Mr W of (Real Estate) provide a valuation of same.

8. In relation to the Property A property, the applicant sought that the husband provide disclosure by way of an itemised account of the gross rent receipts from the date of commencement of the rental of Property A to the current date, and a copy of the relevant bank statements showing receipt by the husband of rental income from the Property A property for the period of the rental. 

9. In relation to the Property B property, she sought that the husband provide particulars of the costs incurred by him in the Supreme Court proceedings and the source from which they were met.  She sought details as to any further or other steps as to the nature of any application for leave to appeal the Supreme Court decision, the amount and/or recovery of costs awarded in favour of the husband and any consequential adjustments to be made between the husband and the second respondent given that the second respondent has continued to work the Property B property while the Supreme Court litigation has been on-going on.

10. She then sought that the proceeds of sale of the crop and all other income arising from Property B be paid into a joint account of the husband and wife’s names as joint signatories, to await further order of the Court or the written agreement of the parties.  Further she sought both parties do all things necessary to cause moneys disbursed from the joint account to be paid in respect of various expenses relating to the Property B property, and that all and any damages and compensation payable to the husband by the second respondent get paid into a joint account of the husband and the wife pending an order of this Court or their written agreement.

11. By way of injunctive relief, she sought that until further order the husband be restrained and an injunction be granted restraining him from selling, transferring, drawing upon any loan secured by or encumbering or otherwise dealing with the Property B property (including removing or causing the removal of the second respondent from the Property B property) without the prior written consent of the wife first had and obtained or an order of this Court.  She sought a further order that until further order the second respondent be restrained from selling, transferring, drawing upon any loan secured by or encumbering or otherwise dealing with, including removing or causing the removal of the second respondent husband from the Property B property, and the Mr H land without the prior written consent of the wife, first had and obtained or an order of the Court.

12. On each of 20 November 2017 and 25 January 2018, the applicant filed affidavits in relation to the two applications in a case.  On 1 May 2018, significantly later than was ordered, the respondent husband filed a response to the application filed on 22 November 2017, and a further response to the application in a case filed on 31 January 2018.  In the first response – and this is the response to the application in a case filed 20 November 2017, the husband sought that paragraphs 3 to 9 of the applicant’s orders sought in that application a case be dismissed, that the order of 18 December 2015 to which I have referred, in terms of his responsibility for the payment of the mortgage and the upkeep of Property A be discharged, that the Property A property be placed on the residential market for lease and leased for such sum per week as may be sufficient to cover in full all moneys required to be paid with respect to the mortgage, together with outgoings.  In the alternative he sought that the parties pay the mortgage on an equal basis.

13. In the second response, he sought that paragraphs 5, 6, 7, 10, 11 and 12 of the orders sought by the applicant in her application in a case filed on 31 January 2018 be dismissed.  On the same day, the respondent filed an amended response to the wife’s amended initiating application and an affidavit in relation to all outstanding interim issues. 

14. Some history of the parties’ acquisition of real estate assets is necessary to understand the current competing interim applications.  The parties commenced cohabitation in about 2008 or 2009 and married on 2012.  They separated in April 2014 and they have no children. 

15. The wife is aged 32 and the husband is aged 38.  At the commencement of cohabitation the husband owned a rural property at Property C.  The parties initially lived in rental accommodation.  In late 2009 they purchased the property the subject of the current application in a case, at Property A.  In 2010 the husband purchased property at Property B.  The property had been owned by the applicant’s father who had fallen on hard times had been repossessed.  The purchase followed upon a mortgagee sale.

16. The property covered six separate titles.  There is a house on one of the titles, as well as various other out-buildings.  The property came with a water licence in the name of the wife’s father, the second respondent in these proceedings.  The property is irrigated from Lake (omitted) via a series of pipes, some over land owned by other persons.  Bank 1 provided the finance to the husband to purchase the property.  The parties are in dispute as to arrangements between the husband and the wife’s father in relation to the use of the property and intended eventual ownership.

17. The property is both dry-farmed and farmed with irrigation, and is partly divided and utilised for raising sheep as well as crops.  The parties separated in January 2015.  The husband and the wife’s father fell out.  The husband took proceedings in the Supreme Court of South Australia against the wife’s father for unlawful occupation of the property at Property B, and conversion of the proceeds of produce arising from the farming enterprise on the property.  Save as to any possible hearing in the High Court, those proceedings have been finalised in favour of the husband, save as to damages and costs.

18. By way of final property settlement, the wife seeks, as per her amended application, a declaration that property held by her father be declared to be held upon trust for her, and that he then do all things and execute everything necessary to transfer the whole of his interest in that property to the wife, and that he discharge any mortgage over that property.  That is, to some degree, a side issue to this matter, but essentially upon the death of the wife’s grandfather, there was some apparent dispute as to his will and the provision or otherwise for the wife.  There was a block of land that became the subject of a Deed of Family Arrangement, the terms of which were that it was to be transferred to the wife.  That has never happened, and in addition, it has been mortgaged by the wife’s father over the time since. 

19. She also sought that the husband transfer the Property B property to the wife, pursuant to section 79, and that she refinance the Property B property, retain for her sole use and benefit the Mr H land, transfer all of her interest at law and equity in the Property C property to the husband, and that he indemnify the wife in relation to any mortgage or liabilities over that property. She further sought that the husband and the wife do everything necessary to sell the Property A property, and that there be accounting between the husband and the wife as to the collection and retention by the husband of rental income of Property A and payment of outgoings, such that the husband pay the wife one half of any amount by which the rental income exceeded those expenses.

20. Contemporaneously with the transfer of the husband’s interest in Property B to her, she proposed that she pay the husband such sum as this Court deems just and equitable, and that any damages and compensation and costs payable to the husband arising out of the Supreme Court proceedings be paid to each of the husband and the wife in these proceedings in proportions as the Court deems just and equitable.  She proposed they otherwise each keep what they have by way of personalty. 

21. In his amended response, the husband sought a general order for settlement of property, but he agrees that the wife retain the Mr H land and that her father transfer that land to her freehold.  He sought that he keep the Property C property and its liabilities, and otherwise each party keep what they have. 

22. In the wife’s most recent statement of financial circumstances, she deposes to Property A having a value of $350,000, with a mortgage of $207,000.  In the husband’s financial statement filed on 1 May 2018, he deposed to Property A having a value in the same amount with a similar mortgage liability of (approximately) $205,500.

23. He deposed to the Property B property having a value of about $2.2 million, with a mortgage of $588,000.  The Property B property was operated by the wife’s father until late April 2018, with the husband now having taken possession of the property following upon the Supreme Court proceedings.  The husband is now farming the land and has recently harvested the 2018 crop.  I do not think it appeared in the evidence, but in submissions Mr Richards talked of the husband having received 40 per cent of the 2018 crop proceeds in the sum of $207,000.  He expects a further $80,000 in the month of June, and the balance in September of about $20,000.

24. At separation between the parties, the husband remained living in the former matrimonial home at Property A.  After the order of 18 December 2015, to which I have referred in paragraph 5 hereof, there were no further substantive orders until 23 February 2018, as the parties were awaiting the outcome of the Supreme Court proceedings.  This would, one way or another, substantially impact on the value of the asset pool in these proceedings. 

25. In support of her application in a case filed on 20 November 2017 wherein the wife sought, inter alia, the sale of the Property A property, she deposed to those particular issues in paragraphs 36 to 47 of her supporting affidavit.  Reading those paragraphs she deposed to the following, starting at paragraph 36:

    On or about 1 February 2017, my solicitor received a letter from Mr Oxenham dated 1 February 2017, informing me that:

    (i) the husband intended to move out of Property A in the short to medium-term.

    (ii) the husband proposed to rent the property and pay the rent into the offset account to pay the mortgage;  or

    (iii) to sell the property.

    The Property A house is in our joint names. 

    Initially my preference was to sell the house, subject to certain conditions, or rent it out and pay the nett rental proceeds into the home loan account, and I advised my husband of this through my solicitor’s letter to Mr Oxenham dated 10 February 2017. 

    After further consideration of my current poor financial circumstances, I instructed Ms McDougal to write to Mr Oxenham and confirm by letter dated 21 February 2017 that I no longer consented to the Property A house being rented if the husband moved out, rather that it should be sold as I could not afford to make any contributions to the mortgage, outgoings or repairs and maintenance, and as I was concerned about the risk of damage to the property if it was rented.  Annexed hereto and marked with the letter ‘C’ as a true copy of my solicitor’s said letter. 

    I didn’t hear anything further from the husband or his solicitor. 

    Then on 24 June 2017, having heard that the husband no longer lived in the Property A house, I attended at the Property A house and knocked on the door.  I was greeted by two young people who identified themselves as Ms B and Mr J (siblings) who told me that they lived in the house with another person and that the house was rented by their mother, Ms A and that they paid a rental of $360 a week. 

    The Property A house was let without my consent. 

    By my solicitor’s letter dated 26 June 2017 to the husband’s solicitor, I sought disclosure as to the management agreement, lease, bond lodgement receipt and copy of relevant bank statements showing nett rental payment/profits from the start of the lease to present.  Annexed hereto and marked with the letter ‘D’ is a true copy of the said letter. 

    The husband has not provided the documents that I have requested, save that Mr Oxenham’s letter to my solicitor dated 18 August 2017 states “the rent is $330 per week, $250 of which is used to pay the mortgage, with remainder going to pay rates, insurance, emergency services levy and other outgoings” and “there is a six-week bond in the sum of $1980 paid by the tenant which has been lodged with the Office of Business and Consumer Affairs”.  Annexed hereto and marked with the letter ‘E’ is a true copy of Mr C’s said letter. 

    I do not presently agree to reimburse the husband half of the costs he claims he has incurred in preparing the Property A house for rent. 

    It is my preference to instruct (Real Estate Agent) to sell the Property A property. 

    I have no capacity to make any contribution to the Property A property outgoings and maintenance expenses pending the sale.  I propose that:

    (a) with respect to the mortgage and outgoings, that the order made by consent 18 December 2015 continue, pending the sale of the property;

    (b) the husband pay all other expenses incurred with respect to the maintenance of the Property A property pending the sale;  and

    (c) that the parties share equally the costs of the sale, such as advertising.

1. Accordingly, by letter dated 21 February 2017, the husband had been advised that the wife wanted to sell Property A and did not agree to renting it out if the husband vacated the property. 

2. The husband disputed, in his affidavit in response, the wife’s assertion that he would agree to sell the house.  He deposed to it being a mistake on his solicitor’s behalf.  In the husband’s affidavit filed on 1 May 2018, he responded to the wife’s paragraphs in relation to the Property A property.  The end result was that the husband rented out Property A without the wife’s consent.  It is currently vacant, or almost so, but with other prospective tenants waiting to take up occupation.

3. Counsel for the wife submitted, quite correctly, that in the wife’s original initiating application she had sought by way of interim order for Property A to be sold.  She did not pursue that interim application on 18 December 2015, but by then was no longer contributing to the mortgage or outgoings, and the husband consented to an order to cover both. 

4. There is no doubt that the husband rented out the property without reference to the wife and in full knowledge of her wish to sell the property.  The wife’s counsel argued that the husband is not complying with the order that he pay the sum of at least $250 per week towards the mortgage, as well as the outgoings.  He further argued that the husband has failed to account to the wife for the rent received.

5. He submitted that the wife is entitled to insist on the sale of the house as a joint owner, and that she requires capital to conduct this litigation.  In the husband’s financial statement filed 1 May 2018, he deposed to weekly rental of $330 per week from Property A and weekly rental commitments of $250 per week.  The husband’s position is that the property should be retained until a final settlement is reached in circumstances where the wife seeks to retain Property B subject to its liabilities, keep the Mr H land and pay an as yet undisclosed amount to the husband. 

6. The husband’s counsel argued that although it is beyond doubt that orders for interim property settlement can be made by the Court, and frequently are, there still needs to be some reason, not necessarily a compelling reason, to make interim orders to avoid numerous applications in many of the matters that come before the Court, simply because one or other of the party wants the property sold earlier than the other.  The usual basis on which orders for interim property settlement are made are to ensure that a party who is in control of the majority of the assets has not gained an advantage over the more impecunious party in being able to obtain and pay for legal representation. 

7. This is not, of course, the only circumstance in which interim orders can be made, and where an interim distribution is made, the character of that interim payment is often a matter for trial.  In neither of the applications in a case filed on 20 November 2017 or the 31 January 2018, does the wife seek a distribution of the proceeds of sale of Property A on an interim basis.  In the application filed on 20 November 2017, she seeks an order for the nett proceeds of sale to be placed in an interest-bearing account in the parties’ joint names.  No reference to nett proceeds or distribution of same is mentioned in the application filed on 31 January 2018.

8. In both of her original initiating application and her amended initiating application, the wife seeks distribution of the sale of proceeds as part of the interim orders sought.  She did not pursue that application prior to the application in case filed 20 November 2017. 

9. In her amended initiating application filed 25 January 2018, she sought sale of the property, with the nett sale proceeds to be divided equally between the parties, subject to any final order for settlement of property.  The only evidence the wife puts before the court as to why there should be an interim order for sale and division of the nett proceeds is that contained in her first affidavit filed on 7 October 2015, prior to the hearing on 18 December 2015. 

10. In paragraph 79 of that affidavit, the wife deposed as follows:

    As the husband is unwilling to pay the mortgage, I seek an interim order that the Property A property is sold:

    (a) the Property A property is registered in the joint names of the husband and me as joint tenants;

    (b) there are no third party interests in the Property A property, save for the Mortgagee Bank;

    (c) the property was valued at $350,000 by Valuation Services on 17 March 2015 – see Annexure 4;

    (d) the property appears from the outside to be maintained.  I have not seen the interior of the property since October 2014;

    (e) if the property is not sold and the mortgage instalments are not paid, the husband and I will continue to lose the equity that we have accrued in the property at the rate of $1775 per month;

    (f) if the property is sold, the husband will need to find alternative accommodation.

11. She also referred to the issues that I have already spoken of when reading out paragraphs 36 to 47 of her affidavit filed on 20 November 2017.  These essentially relate to her concern that the house was let without her consent, that the husband was not properly accounting for the rent, and that she has no capacity to contribute to outgoings. 

12. The house has been rented out for an amount in excess of the mortgage payments for some 12 months or more.  There are new potential tenants waiting in the wings.  Neither party is contributing to the mortgage or outgoings from their own funds.  The husband argues that he has had to pay the costs of preparing the property for rent.

13. The wife has not proffered any cogent reason why the house should be sold and the proceeds divided equally on an interim basis.  The wife’s counsel’s submission as to the need for litigation funds was not contained anywhere in the wife’s evidence.  The asset pool is still uncertain.  If the second respondent is granted leave to appeal to the High Court and is successful, there will be a reduction in the value of the asset pool potentially of $1.6 million.  The husband may also be liable for costs and damages.  The Property C property and Property A are of modest value.  The wife may obtain freehold title to a property of significant value.  There are many unknowns in this matter.  In those circumstances, I decline to make the order for the sale of the Property A property as sought by the wife. 

14. I now turn to the question of injunctions.  On 21 February 2018, certain injunctive orders were made.  The particular issues in dispute at this time are the injunctive orders contained in paragraphs 7.1 and 7.4 of that order.  Paragraph 7.1 is in the following terms:

    Not by consent but not opposed by the husband during the period of the adjournment, that subject to the order of any other Court during the period of the adjournment, the husband be restrained and an injunction is hereby granted restraining him from selling, disposing of, encumbering or otherwise dealing with the proceeds of any crop and other income arising from the Property B property, other than to pay all reasonable expenses and outgoings in the ordinary course of business in relation to the Property B property, including but not limited to, rates and taxes, irrigation expenses, electricity expenses, mortgage instalments as and when they fall due, insurance premiums, harvest contractors, machinery hire fees and freight.

15. Paragraph 7.4 is in the following terms:

    That until further order, the husband be restrained and an injunction is hereby granted restraining the husband from selling, transferring, drawing upon any loan secured by, or encumbering or otherwise dealing with the Property B property without the prior written consent of the wife, first had and obtained or order of this honourable Court.

16. Those orders were made firstly during the period of the adjournment, and the second order until further order, on the basis that they were not opposed by the husband.  Since the order was made, the husband has taken possession of the Property B property following upon the Supreme Court orders.  In the wife’s application in a case filed on 31 January 2018, she sought injunctive relief in the terms of paragraphs 12 and 13 of her application in a case.  That, together with the terms of paragraph 10 of the said application formed the basis of the unopposed order made during the period of the adjournment.

17. In the husband’s response to that application filed on 1 May 2018, he sought a dismissal of the applications sought inter alia in paragraphs 8, 10, 11 and 12 of the said application in a case.  It was submitted by counsel for the wife that the wife sought a continuation of the injunctive orders in circumstances where, on her case, there had been previous non-compliance with orders as referred to earlier herein in relation to the Property B property, by way of lack of disclosure and dealing with that property without reference to the wife.  Mr McGinn referred to the husband’s evidence that proceeds from crop sales would be available to him in April, June and September 2018.  He submitted that he should not have carte blanche access to those funds where he may be required to pay Supreme Court legal fees or certain farming expenses.

18. He submitted that there were strong dynastic reasons why ultimately the wife should retain that property, and that everything to be done on the property pending final resolution of these proceedings must be by agreement with the wife or she may be prejudiced - for example - if a house on the property is leased by the husband which then binds the wife. 

19. In his submissions, the husband’s counsel said that on his instructions the confusion between the husband’s affidavit in support of his response and his statement of financial circumstances in relation to the costs of the Supreme Court proceedings in the sum of $162,000 was incorrect and that indeed, those costs had been paid.

20. He submitted that the costs had been incurred by the husband in his efforts to protect the pool of the parties’ assets in these proceedings.  He agreed that the injunctive orders in the Supreme Court proceedings do not take into account the 2018 crop income, but that all such income would have to be banked and accounted for, and that there would have to be ongoing disclosure.  In those circumstances, the husband is opposed to the injunction being continued. 

21. He submitted that the sale proceeds were comprised in part of income attributable to the husband who is now farming the property, the details of which would be made available through ongoing disclosure, and that the husband would be happy to account for any balance after expenses and the disposition of that balance as part of these proceedings.

22. He further submitted that the wife’s objection to the husband allowing another party to crop the land for a fixed sum of $20,000 was unreasonable in circumstances where the husband had disclosed the arrangement, was happy to account in the same way as in relation to crop income, and that he did not use business expenses.  The husband was of the view that if he was unable to arrange with a neighbour, Mr M, to have a pipe run across his property to the Property B property, he would be unable to irrigate the property, and such a course would not be in the interests of either party.

23. It was argued that both the cropping arrangement and the irrigation pipe arrangements could be described as licences granted by or entered into by the husband in relation to the Property B property, therefore potentially breaching orders contained in paragraphs 7.1 and 7.4 of the order of 23 February 2018. 

24. I am not satisfied that the wife has made out a cause for the injunctive orders in the terms she seeks.  There is no doubt the husband should have consulted with the wife in relation to the leasing of the Property A property when he was aware she was opposed to the same and wanted the property sold.  Nevertheless, neither party resided in the property at that time, or wanted to. 

25. This matter remains unresolved.  There is still a significant question mark over the extent of the asset pool.  There is no evidence of any prejudice or loss to either party from the husband’s actions.  There is no evidence before the Court at this time that the husband has profited in the exercise at the expense of the wife but rather, the asset has been preserved and is essentially paying for itself.  Likewise, it is the husband who has taken the Supreme Court action to attempt to secure the parties’ interests in the Property B property without any assistance from the wife.  He has paid all of the costs of those proceedings, and to date has been successful, subject, of course, to appeal by the second respondent to the High Court.  The property is of significant value.

26. There is no evidence before the Court that the husband has not been forthcoming with disclosure, save as to the renting of the Property B property.  He is not opposed to a continuation of paragraph 7.2 or 7.3 of the orders of 23 February 2018.  7.2 is in the following terms:

    That during the period of the adjournment, the husband do provide the wife by their solicitors within 14 days of the receipt of same, copies of all invoices and payment records received by the husband.

27. And 7.3:

    Subject to any order of any other Court, that any and all damages and compensation, if any payable to the husband by the second respondent, pursuant to an order of the Supreme Court of South Australia, be paid into a joint account of the husband and the wife, pending an order of this honourable Court, or the written agreement of the husband and the wife.

28. I am concerned that a continuation of the injunctive orders in their current terms, as contained in paragraphs 7.1 and 7.4 of the order of 23 February 2018, would unreasonably fetter the ability of the husband to operate the Property B property to the benefit of the parties as it appears he is currently doing. 

29. It would be unreasonable that he be deprived of earning income from those efforts, pending the final determination of these proceedings.  The business of farming and leasing of either one or both of the Property A property and any house on the Property B property is not one that might be characterised as a cash business.  I am satisfied the wife will easily be able to ascertain the income and expenditure of those exercises, particularly if paragraph 7.2 remains in place. 

30. I am concerned, however that requiring the information referred therein within 14 days is onerous and should be extended to 28 days.  I am satisfied that the husband should not be able to sell or transfer, draw down on any loan secured over the Property B property or borrow any further funds using Property B as security, without the consent of the wife first had and obtained.

31. Such orders would ensure that the husband does not have carte blanche to reduce the amount of the parties’ equity in the property.  I may say, however, that to date, all of the evidence is to the contrary. 

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 15 November 2018