Naisby & Naisby (No 2)
[2023] FedCFamC1F 1137
•19 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naisby & Naisby (No 2) [2023] FedCFamC1F 1137
File number(s): BRC 4847 of 2016 Judgment of: JARRETT J Date of judgment: 19 September 2023 Catchwords: FAMILY LAW – PROPERTY – Application in a proceeding to pay out line of credit – Applicant meeting interest repayments – Respondent opposed application on basis applicant would create further indebtedness – Respondent sought injunction on applicant borrowing more money – Application granted to pay out line of credit – Injunction granted on applicant borrowing money Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 19 September 2023 Place: Cairns Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 4847 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAISBY
Applicant
AND: MS NAISBY
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
19 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Within seven (7) days of the date of this order, both parties sign and execute any and all documents required by the Bank SS to cause the nett proceeds held in the Naisby Family Investment Trust to be distributed as follows:
(a)payment of the Bank SS Line of Credit account …08 in full;
(b)the balance to the respondent.
2.The applicant is restrained and an injunction hereby issues restraining him, by himself, his servants and or agents from personally borrowing monies from any financial lender, including but not limited to Bank SS or any other organisation or individual.
3.Each of the parties shall do all acts and sign all necessary deeds or instruments to give effect to the terms of this order and in the event that either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any deeds or instruments necessary to effect the terms of these orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deeds or instruments in the name of the person who has refused or neglected to sign the deed or instrument and to do all acts and things necessary to validate the operation of the deed or instrument.
4.Otherwise, the Application in a Proceeding filed by the applicant on 31 January, 2023 is 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JARRETT J:
This is an application in a proceeding that was filed on 15 January, 2023 in the context of some broader proceedings for property adjustment between the parties, Mr Naisby and Ms Naisby. The proceedings have a long, complex and unfortunate history. The matter was before me for an attempt to have a final hearing earlier this year but that attempt did not fully succeed. At that time, the applicant prosecuted this application, but I refused to make the orders he has sought in the application in a proceeding, rather, standing the application over. More recently, there have been some further hearing dates for this trial but the trial has still not yet completed. The applicant has now renewed this application in a proceeding.
The application concerns the payment of some indebtedness that the parties jointly have to Bank SS. The indebtedness is described in the material as a line of credit and presently, the outstanding amount to the bank is somewhere in the order of $400,000. It is probably a little bit more than that. There have been two previous trials and final orders made in this case and on each occasion, the orders have provided for the payment of that liability using funds that are presently held in a bank account. They are what remains of the net proceeds of sale of a business that had been operated indirectly, at least, by the parties. There is sufficient money in that account to pay out the line of credit and there will be a little left over. As I say, there have been two sets of final orders requiring or directing the payment of the line of credit from those funds.
As the applicant points out in his affidavit filed in support of this application, those orders were set aside on appeal on two occasions, notwithstanding that those particular orders were not the subject of grounds of appeal. In any event, the position is that the debt remains; the funds remain available to pay it; and in the meantime, the applicant is meeting the interest bill each month on the borrowings. That is some thousands of dollars a month. His application will have the practical effect of relieving him from paying the interest payments. On its face, given the position each of the parties contend for in this case when it is finally determined by me, the application seems to have much to commend it.
Notwithstanding that, the respondent opposes it. She is suspicious of the applicant’s motives. She has reason to be. There have been matters in the past which call into account the veracity of some things that the applicant has said. It is not necessary to recount them in these reasons, but I bear them in mind. The respondent’s case is that if this debt is paid, that may well place the applicant in a position where he can borrow further funds, perhaps unsecured, and thereby somehow deplete what is left of the parties’ asset pool. It is not immediately apparent to me how that would work.
If the applicant was to make further borrowings, then that indebtedness would be something that would probably not be taken into account at all in these proceedings, it having been an indebtedness incurred by him for his own reasons a long time after separation. But it is a concern of the respondent’s and, as I say, not one without some foundation. She has sent to my chambers this morning – and they have been admitted before me without objection – three documents, one of which is an email from the respondent to the applicant this morning or yesterday.
It suggests that the applicant provide an undertaking in certain terms. He is not prepared to provide it. I suggested I might see that request as an informal application for an injunction against the applicant in those terms, and his response to me was that whilst he did not agree with it and it might impede his ability to borrow funds in the future to pay debt, if the Court ordered it, the Court ordered it. The test for granting an injunction, of course, is whether there is a serious issue to be tried between the parties and whether the balance of convenience favours the grant of the injunction.
Here, there is a serious issue to be tried in the sense that there is evidence that demonstrates that, in the past, the applicant has acted in a way which calls into question his motives and bona fides. It might well be that that was a mistake on his part which he now truly regrets, but it is not something that is immediately apparent. The balance of convenience favours the grant of an injunction because, first, it would be short term. The final hearing of this matter is listed in the early part of next year, and as the applicant himself said, whether he needs to obtain further funding for the repayment of debt is really a matter of crystal ball gazing. I am satisfied that I should make the order sought by the applicant. I do not intend to order the discharge of the security over the Suburb K home. At this point, it seems unnecessary. I intend to grant the injunction sought by the wife, indirectly at least.
If it is the case, of course, that the applicant finds himself in a position where he needs to raise further funds, then he can bring an application to the Court for an order permitting him to do so. Finally, it will be necessary, I think, to make an order in the same terms as paragraph 3 of the application in a case which will authorise a registrar of the Federal Circuit and Family Court of Australia (Division 1) at Brisbane to execute any documents necessary to give effect to these orders. Otherwise, the application in a case – it is filed on 31 January, 2023 but it is dated 15 January, 2023 – will be dismissed.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: [29 January 2024]
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