May and Jonas and Anor

This case involved an application by Ms May (the applicant wife) against Mr Jonas (the first respondent husband) and Mr D and D Pty Ltd (the second and third respondents) in the Family Court of Australia. The dispute concerned the sale of a real property and the distribution of the proceeds. The wife sought orders that the second and third respondents discharge any security interests they held over the property to allow for its sale, with the net proceeds to be paid into an interest-bearing account pending the final determination of the proceedings. The second respondent, Mr D, opposed this, seeking to have his security interest paid from the sale proceeds immediately.

The primary legal issue before the court was whether to grant the wife's application for an injunction to restrain the payment of sale proceeds to Mr D and D Pty Ltd, and instead order those proceeds be held on trust. This required the court to consider the balance of convenience, particularly the potential difficulty in recovering funds from Mr D if the wife succeeded in her substantive claims against his security interests. The court also considered the wife's broader claims to set aside Mr D's mortgage and her assertion that any advances made by Mr D should be the husband's sole responsibility.

Justice Bennett found that the balance of convenience favoured the wife. The court noted that the wife's substantive case involved a specific attack on Mr D's security interests, including the mortgage over the property in question, pursuant to section 106B of the *Family Law Act 1975* (Cth). Given the potential for the wife to succeed in setting aside the mortgage, and the recognised difficulty in enforcing property division orders against third parties if funds were already disbursed, the court determined that it was appropriate to grant an injunction. The court also made directions regarding the transcription of the judgment and dispensed with limitations on the number of specific questions that could be requested under Rule 13.26(3)(b) of the *Family Law Rules 2004* (Cth) due to the factual complexity of the matter.

The court ordered that the second respondent, Mr D, and the third respondent, D Pty Ltd, do all things necessary to provide a discharge of any security interest held by them to permit the completion and settlement of the sale of the real property. Upon settlement, the proceeds were to be applied first to the costs and expenses of the mortgagee sale, second to discharge the first mortgage, and the balance was to be paid into an interest-bearing account held on trust for the parties pending the final determination of the proceedings.