HUNSLEY & HUNSLEY HOLT - [2015] FamCA 699

FAMILY COURT OF AUSTRALIA

HUNSLEY & HUNSLEY HOLT

[2015] FamCA 699

FAMILY LAW – PROPERTY – Interim – Injunction – Where the husband seeks an injunction so as to restrain the sale of a property by auction – Where property settlement proceedings are on foot in New Zealand – Where there is a dispute about forum – Where the parties dispute whether the relevant New Zealand court has jurisdiction to make orders about the subject property – Where the husband has given an undertaking as to damages – Where the Court found it is appropriate to grant the injunction sought by the husband.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hunsley

RESPONDENT:

Ms Hunsley Holt

FILE NUMBER:

SYC

4739

2015

DATE DELIVERED:

3 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

3 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Curry

SOLICITOR FOR THE RESPONDENT:

Phillips Hosking Lawyers

Orders

Orders are made in the terms of the document titled “Minute of Orders” (Exhibit 1 dated 3 August 2015), as set out hereunder:

1. Upon the usual undertaking by the husband as to damages, pending the determination of the wife’s application to stay and set aside these proceedings and for security for costs (“The Forum Issues”):
1.1.The wife be and is hereby restrained by injunction from selling, mortgaging, assigning, leasing, alienating or encumbering the property situated at and known as B Street, C Town in the State of New South Wales, being the whole of the land contained in Folio Identifier …, of which the wife is the registered proprietor (“C Town”).
1.2.The wife forthwith do all acts and things, sign all documents and give all instructions necessary to remove C Town from the market for sale by auction or otherwise.

2. In respect of the wife’s Application to stay and set aside these proceedings and for security for costs:
2.1.Leave is granted to each party to approach the Judicial Services Team Leader to arrange mutually suitable dates for a 1 day hearing on dates after the filing of the report by the single expert with respect to relevant aspects of New Zealand law.
2.2.The lawyer for the husband must forward to the lawyer for the wife a list of the names, contact details and resume of qualifications and experience of proposed single experts to provide a report with respect to relevant aspects of New Zealand law, including but not limited to whether or not the Courts in New Zealand have jurisdiction to make Orders in respect of property situated outside New Zealand and in particular C Town, the property situated in Europe of which the husband and the wife are the registered proprietors, the unit situated at and known as Unit … and parking space at D Street, Suburb E in the State of New South Wales contained in Folio Identifiers … and …, and a draft letter of instruction to the expert by 24 August 2015.
2.3.Within 14 days of the date of receipt from the husband’s lawyer of the list of names of proposed experts, the lawyer for the wife must confirm to the lawyer for the husband the expert selected by the wife together with any amendments they propose be made to the draft letter of instruction to the expert.
2.4.The parties must ensure that the single expert appointed is an expert with specialised knowledge based on that person’s training, study or experience with respect to the relevant identified issues requiring expert evidence.
2.5.The parties have liberty to relist the matter if there is no agreement on the proposed single expert or the letter of instruction to the expert.
2.6.The lawyer for the husband must forward the letter of instruction to the expert within 7 days after agreement is reached on the identity of the expert and the letter of instruction to the expert.
2.7.The parties must file and serve a report by the expert with respect to relevant aspects of New Zealand law within 7 days after receipt of the report from the expert.
2.8.Each party must ask any questions of the single expert within 21 days of receipt of the expert report.
2.9.Each party must file and serve within 21 days of the date of receipt from the expert of answers to the questions asked by any party any further relevant affidavit on which they intend to rely.
2.10.The wife must file and serve all other affidavits on which she seeks to rely by 24 August 2015.
2.11.The husband must file and serve all other affidavits on which he seeks to rely by 14 September 2015.
2.12.Not less than 14 days before the first day of the hearing before the Judge the parties must exchange, and at least 2 clear business days before that first day lodge with the Judge’s Associate, a minute of the orders sought by that party, a list of the proposed witnesses, a short outline of the nature of evidence to be given by each witness and a brief chronology of relevant events.
2.13.Each party has permission to relist the case before the docket Registrar for further directions on 2 business days’ written notice to each other party and to the Court.

The proceedings are adjourned to 10.00 am on 23 October 2015.

Leave is granted to the wife’s counsel to attend by telephone should he so wish.

The costs of the parties of and incidental to the proceedings today are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunsley & Hunsley Holt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC4739 of 2015

Mr Hunsley

Applicant

And

Ms Hunsley Holt

Respondent

REASONS FOR JUDGMENT

These are proceedings for an injunction to interfere with the sale of a property at C Town.
As I understand it, the husband and wife have lived together in New Zealand and Australia. They have conducted family law proceedings in New Zealand, at least since 2014. The New Zealand proceedings have been moved from the arm of the New Zealand District Court which is referred to as the Family Court and transferred to the senior trial Court in New Zealand, the High Court. I understand that there is to be a settlement conference on 20 August 2015 in relation to aspects of the New Zealand proceedings.
The issue before this Court is the husband’s application to restrain the sale by auction of a property at C Town. He had been given notice of an auction to occur on the 15^th of this month. He explains the rather unusual step of bringing an application in another jurisdiction despite ongoing proceedings in New Zealand in the following way:
It is my understanding the Courts in New Zealand have no power to make orders in proceedings for a property settlement between people who are or were parties to a marriage in relation to property which is not situated in New Zealand without the agreement of the parties.
The husband goes on to say that he had lodged a caveat on the title of the property. He was served with a lapsing notice and the notice has lapsed or will lapse. I interpolate, it often happens in family law that a spouse does not have a caveatable interest in the property. The C Town is in the wife’s sole name. The husband says that he has sought to retain this property in the property settlement proceedings. Indeed, in the Initiating Application filed in this Court the husband seeks that order. I am told that the husband did not seek such an order in the New Zealand proceedings. That may be consistent with he stated understanding of the inability of a New Zealand court to exercise unfettered jurisdiction in relation to foreign real property without the parties’ express agreement.
Mr Curry is a barrister practicing in New Zealand and he appears for the wife, by telephone. He submitted that the position is slightly different. He asserts that if there is consent by the parties to a Court in New Zealand exercising power over their property settlement, then the Court can make an order that affects real estate outside the jurisdiction.
The common law position does not assist. There is a rule of private international law known as the Mozambique Rule (British South Africa Co v. Companhia de Moçambique [1893] AC 602) which is applied in many common law countries which has it that courts won’t make orders about immovables outside their own jurisdiction, save for orders in personam. In other words, a court will not enter into a controversy about the ownership of real estate where the title of the property needs to be directly affected. Obviously, courts will not be able to directly influence the bureaucracy responsible for land titles in another country. A court could make an order between husband and wife to cause them to do something. The enforcement of such an order would probably on the physical location of the parties and or of their other assets. As far as Australian state law is concerned, the Mozambique Rule does not apply in New South Wales (Jurisdiction of Courts (Foreign Land) Act 1989 (NSW)). The rule has been applied by this Court.
If the husband’s understanding of the position in New Zealand is correct then, without specific consent, parties who want to change the ownership of real property would be put to separate proceedings in each jurisdiction in which either or both of them own land. If I understood Mr Curry’s submission correctly, once there is consent to a New Zealand court exercising property jurisdiction, it can do so irrespective of the location of the real property. That would effectively do away with the Mozambique Rule.
I am not sure whether there is a bi or multi-lateral arrangement between New Zealand and Australia that would allow enforcement or registration of an order affecting real estate in one jurisdiction that could be applied in the other. Neither of the parties have referred me to such an agreement.
The husband’s proposal is that I restrain the wife in relation to the sale of the property and that we set about the business of resolving this dispute about forum, starting with obtaining the opinion of a single expert and then moving forward to an event where there is a hearing about the forum issue if that is necessary.
Mr Curry from New Zealand clearly practices in a gentler jurisdiction and he thinks that there might be a settlement between lawyers of good will, about this issue. Such an approach long faded out in New South Wales but to be serious about it, there is no harm done in making the directions the husband proposes. As Mr Curry submits, the issue should be capable of resolution by agreement. The state of the law in New Zealand about a particular issue should be easy to define and should not be controversial. If that resolution is not achieved, the directions proposed on behalf of the husband will provide a mechanism to resolve the controversy.
One is always nervous about there being an element of forensic advantage in a high value case, where there are significant assets, the parties are scrapping around in various jurisdictions and it is asserted that one party cannot make arrangements for their own support. Here I am told that the parties have assets of the order of $16 million. The evidence suggests that the parties have both operated at a very high level in business and/or legal fields. Perhaps this case too is more about forensic advantage than it is about any real issues.
However, I am obliged to take the parties at their word. I am not able to make a finding about the merits of the claim between the parties.
Mr Curry said on a couple of occasions the wife has acted in a way which has promoted the equal sharing of property. If the proceedings or part of them are going to be conducted in Australia, then that won’t be a relevant consideration. If the wife finds herself in significant financial trouble, she must have rights against her husband. It would seem bizarre that she has not been able to agitate those rights.
Under Australian law, at all times she was required to notify the husband before she took a step in relation to matrimonial property. Perhaps the New Zealand law is different to that, but I sincerely doubt it. Such notice would have resolved the present problem. Before the wife listed the C Town property for sale she would have had the permission of the husband to do that or there would have been an interlocutory dispute resolved in advance so no one else was embarrassed. Before she signed a document that created rights in a third person, she would have cleared that with the husband for the same reason.
As I say, it could be that the rules are different in New Zealand. I am not sure. But New Zealand has a sophisticated legal system. If as it is asserted, the wife is in parlous financial circumstances and the parties own $16 million, I would be disappointed if there was not a ready mechanism for resolving those problems.
The general approach in Australia in relation to interlocutory orders in property settlement proceedings is to avoid doing something that cannot be undone on a final hearing. At an interim stage the Court does not have a capacity to make findings of fact on disputed issues and therefore a Court would act conservatively and only dispose of assets or allow the disposition of assets that are not going to be the subject of controversy at a final hearing. It is trite to say if the husband wants to ultimately retain this property by way of property settlement, that would be frustrated by a sale to a third person. The application before me is a classic Mareva injunction - an injunction to preserve the subject matter of proceedings.
As to the merits of that claim and whether he will be ultimately successful, I have no way of knowing. In my view I should try and preserve the position until there can be a hearing on the merits. The husband wants to interfere with the wife’s rights, perhaps the rights of others. He has given an undertaking as to damages which means that he will bear the damages caused to anybody as a result of the injunction he seeks, which the Court subsequently finds have arisen because of those orders and that he should meet them. That provides some protection to the wife and to an affected third party. If there is a property pool of $16 million it is likely that the husband will have the wherewithal to meet such an award.
The document titled Minute of Orders is exhibit 1 and I make orders in terms of the document titled Minute of Orders.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 3 August 2015.

Associate:

Date: 24 August 2015