Magnus & Sandri
[2023] FedCFamC1F 895
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Magnus & Sandri [2023] FedCFamC1F 895
File number(s): SYC 3830 of 2019 Judgment of: HARPER J Date of judgment: 18 October 2023 Catchwords: FAMILY LAW – INTERIM PROPERTY – Where final hearing listed on 6 November 2023 – Where husband seeks to sell property registered in his sole name – Where auction is to take place in late 2023 with a reserve price of $18 million – Where wife seeks orders permitting the sale subject to a suite of orders regarding the process of sale and the disbursement of the sale proceeds – Where wife contends there has been inadequate disclosure in the proceedings and in particular with regard to the sale of the property – Alleged inadequate disclosure founds wife’s concern that the property will be sold undervalue – Where wife’s proposed orders are likely to cause further unnecessary disputation between parties – Where it is in the best interests of the parties for the property to be sold and at the highest achievable price – Where settlement is unlikely to occur prior to the commencement of the final hearing – Court not satisfied injunctive orders are appropriate – Orders made requiring husband to provide wife reasonable disclosure with respect of sale – Application otherwise dismissed. Legislation: Family Law Act 1975 (Cth) s 79 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 18 October 2023 Place: Sydney Solicitor for the Applicant: Mr West of Coleman Greig Lawyers Counsel for the Respondent: Mr Auld Solicitor for the Respondent: Delaney Lawyers ORDERS
SYC 3830 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MAGNUS
ApplicantAND: MR SANDRI
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
18 OCTOBER 2023
THE COURT ORDERS THAT:
1.By no later than 5.00 pm on 20 October 2023, the Respondent Husband (“husband”) comply with all reasonable requests for disclosure submitted by the Applicant Wife (“wife”) in relation to the sale of the property known as “B Street Residence”, B Street Sydney (“B Street Residence”).
2.The husband provide, by way of disclosure, a copy of any contract of sale of the B Street Residence and further comply with any reasonable requests for disclosure by the wife concerning the settlement of the sale of such property within three days of receiving such request.
3.The wife’s Application in a Proceeding filed on 13 October 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Magnus & Sandri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
The Applicant Wife (“wife”) filed an Application in a Proceeding on 13 October 2023 seeking a range of orders in relation to a sale of a property owned by the Respondent Husband (“husband”) being “B Street Residence,” B Street Sydney, being the whole of the land contained in folio identifier … (“B Street Residence”).
The application, in summary, seeks an order that the husband be at liberty to sell the B Street Residence and a number of other orders concerning how the proceeds of sale should be disbursed.
The application also seeks orders in relation to disclosure which would have the effect of providing information to the wife concerning details of the proposed sale of the B Street Residence. Such details include such things as information about the conveyancer, the method of sale and the listing price.
The matter was listed before me on 18 October 2023 when it was confirmed by the husband that an auction of the B Street Residence would take place in late 2023 and the reserve price would be set, in accordance with an expert valuation received a few days ago, at $18,000,000.
The proceedings are listed for final hearing to commence on 6 November 2023.
The application brought by the wife, in part, according to the submissions of her solicitor, was motivated by the fact that the husband has, according to her, failed to provide necessary disclosure about a range of matters during in the proceedings and, in particular, about the sale of the B Street Residence. She contended that there was a concern the property would be sold at an undervalue and in support of that concern she pointed again to an alleged history of the husband being inadequate in his disclosure. I am unable to form a view about the adequacy of disclosure by either party for the purposes of dealing with this application.
In any event, there was no dispute that the B Street Residence is an asset of the husband and that, subject to orders of the Court, he is entitled to deal with it as he sees fit.
In the absence of an unusual situation whereby the purchaser could provide a swift settlement for cash shortly after a date in late 2023, there was also no dispute that in the ordinary course it was likely that any settlement of the sale, after an auction, would take place after the commencement of the final hearing on 6 November 2023.
The proposed orders of the wife, in my view, were such as to be likely to lead to unnecessary disputation between the parties about the dispersal of proceeds of sale of the B Street Residence and indeed perhaps in relation to how any sale process is brought to finality in 2023. In the exercise of discretion, I am not persuaded that the orders sought by the wife should be made.
I observe that in the ordinary course it is in the interests of any party to achieve the maximum sale price of an item of real estate and that it is in the interests of both parties here that a fund of cash be created by the sale of expensive real estate, because such a fund, ultimately, is more amenable to division pursuant to s 79 of the Family Law Act 1975 (Cth). Indeed, it may be that on a final basis the Court would have been persuaded to compel a sale of the B Street Residence in any event.
The central concern of the wife, as articulated by her solicitor, was that after discharge of NAB loans secured against the B Street Residence the husband may deploy the balance of the proceeds of sale in reducing or discharging facilities secured against another property owned by him at Suburb D rather than in reduction of the loans of the husband which the wife has guaranteed and which are secured against a property at Suburb C owned by her which, as I understand her evidence, the parties have agreed she should retain on a final basis.
It seems to me that may well be an outcome that the Court ultimately determines should happen in the interests of the wife. But I do not consider that to be a sufficient basis to make orders of an injunctive nature as presently sought by the wife in her application.
However, I am persuaded that in taking account of the evidence of the wife in her affidavit filed on 13 October 2023 there should be a specific order for the husband to provide a response to all reasonable requests for disclosure in relation to the sale of the B Street Residence.
Otherwise, noting that the proceedings are listed for a compliance check on 25 October 2023, I propose to dismiss the application.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 18 October 2023. Associate:
Dated: 19 October 2023
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