Holder & Holder

In the matter of *Holder & Holder*, Justice Wilson of the Family Court of Australia considered a dispute between a husband and wife concerning the payment of rates on a rural property held within a self-managed superannuation fund (SMSF). The local shire council had levied rates on the property, which remained unpaid, and the council threatened to sell the land. Both the applicant husband and respondent wife contended that the land was transferred to them in their capacity as trustees of the private superannuation fund, although this transfer was not registered on the title. The SMSF possessed sufficient cash reserves to satisfy the outstanding rates.

The court was required to determine whether to grant a mandatory injunction compelling the husband to pay the outstanding rates from the SMSF's cash reserves. Additionally, the court considered the legal basis for permitting an amicus curiae to appear and the principles governing the grant of mandatory injunctions, particularly in circumstances where such an order might prevent an abuse of the court's process.

Justice Wilson reasoned that the balance of convenience overwhelmingly favoured the granting of a mandatory injunction to ensure the payment of the rates. The court reviewed relevant authorities on mandatory injunctions, emphasizing the need for clear evidence and a strong case to justify such an order. The judge also considered the principles surrounding the court's power to prevent abuse of process.

The court ordered that the husband forthwith pay the B Shire Council the sum of $22,101.99 from funds held within the Holder Superannuation Fund. The husband's application for orders sought in his response filed on 7 April 2020 was dismissed. The proceeding was added to the judge's judicial docket and listed for directions on 1 June 2020, with a compliance hearing previously scheduled before the Chief Justice vacated.