LYNDALL & LYNDALL

In the matter of *Lyndall & Lyndall*, McEvoy J of the Family Court of Australia considered an interim application concerning the sale of a property. The wife sought orders for the removal of a caveat lodged by the second respondent, Ms B Lyndall, over the property. The husband and Ms B Lyndall asserted that the wife lacked the legal right to sell the property and that Ms B Lyndall held a right to its ownership. This application followed interim orders made in 2018 that provided for the sale of the property, and the husband and Ms B Lyndall had been notified of the wife's application to remove the caveat for over seven months.

The primary legal issues before the court were whether the wife was entitled to seek orders facilitating the sale of the property, given the existing 2018 orders, and whether the second respondent had discharged the onus of demonstrating a serious question to be tried regarding her caveatable interest in the land, and that the balance of convenience favoured the retention of the caveat.

McEvoy J reasoned that in the absence of any appeal against the 2018 orders, the wife was within her rights to pursue orders that would enable the sale of the property. The court found that the second respondent had failed to meet the required threshold to establish a serious question to be tried, nor had she shown that it was fairly arguable she possessed a caveatable interest or that the balance of convenience supported maintaining the caveat. Consequently, the court ordered the removal of the caveat and directed that effect be given to the sale of the property.

The court made several orders, including appointing an officer of the Court to execute the contract of sale and any necessary documents to give effect to the sale of the E Street property. Ms B Lyndall was ordered to withdraw her caveat forthwith and was restrained from lodging any further caveats. In the event of her failure to withdraw the caveat, an officer of the Court was appointed to execute the necessary documents for its withdrawal. The husband, Ms B Lyndall, and their agents were restrained from attending within 250 metres of the property. The wife was authorised to deal with the selling agent and conveyancer, and the proceeds of the sale were to be applied in accordance with the 2018 orders and otherwise held on trust by the wife's solicitor. The wife's costs of the application were reserved, and the matter was listed for further interim hearing.